G.R. No.

L-4963 January 29, 1953

MARIA USON, plaintiff-appellee,

vs.
MARIA DEL ROSARIO, CONCEPCION NEBREDA, CONRADO NEBREDA, DOMINADOR
NEBREDA, AND FAUSTINO NEBREDA, Jr., defendants-appellants.

Priscilo Evangelista for appellee.

Brigido G. Estrada for appellant.

BAUTISTA ANGELO, J.:

This is an action for recovery of the ownership and possession of five (5) parcels of land situated in
the Municipality of Labrador, Province of Pangasinan, filed by Maria Uson against Maria del Rosario
and her four children named Concepcion, Conrado, Dominador, and Faustino, surnamed Nebreda,
who are all of minor age, before the Court of First Instance of Pangasinan.

Maria Uson was the lawful wife of Faustino Nebreda who upon his death in 1945 left the lands
involved in this litigation. Faustino Nebreda left no other heir except his widow Maria Uson. However,
plaintiff claims that when Faustino Nebreda died in 1945, his common-law wife Maria del Rosario
took possession illegally of said lands thus depriving her of their possession and enjoyment.

Defendants in their answer set up as special defense that on February 21, 1931, Maria Uson and
her husband, the late Faustino Nebreda, executed a public document whereby they agreed to
separate as husband and wife and, in consideration of their separation, Maria Uson was given a
parcel of land by way of alimony and in return she renounced her right to inherit any other property
that may be left by her husband upon his death (Exhibit 1).

After trial, at which both parties presented their respective evidence, the court rendered decision
ordering the defendants to restore to the plaintiff the ownership and possession of the lands in
dispute without special pronouncement as to costs. Defendants interposed the present appeal.

There is no dispute that Maria Uson, plaintiff-appellee, is the lawful wife of Faustino Nebreda, former
owner of the five parcels of lands litigated in the present case. There is likewise no dispute that
Maria del Rosario, one of the defendants-appellants, was merely a common-law wife of the late
Faustino Nebreda with whom she had four illegitimate children, her now co-defendants. It likewise
appears that Faustino Nebreda died in 1945 much prior to the effectivity of the new Civil Code. With
this background, it is evident that when Faustino Nebreda died in 1945 the five parcels of land he
was seized of at the time passed from the moment of his death to his only heir, his widow Maria
Uson (Article 657, old Civil Code).As this Court aptly said, "The property belongs to the heirs at the
moment of the death of the ancestor as completely as if the ancestor had executed and delivered to
them a deed for the same before his death" (Ilustre vs. Alaras Frondosa, 17 Phil., 321). From that
moment, therefore, the rights of inheritance of Maria Uson over the lands in question became
vested.

The claim of the defendants that Maria Uson had relinquished her right over the lands in question
because she expressly renounced to inherit any future property that her husband may acquire and
leave upon his death in the deed of separation they had entered into on February 21, 1931, cannot
be entertained for the simple reason that future inheritance cannot be the subject of a contract nor
can it be renounced (1 Manresa, 123, sixth edition; Tolentino on Civil Code, p. 12; Osorio vs. Osorio
and Ynchausti Steamship Co., 41 Phil., 531).
But defendants contend that, while it is true that the four minor defendants are illegitimate children of
the late Faustino Nebreda and under the old Civil Code are not entitled to any successional rights,
however, under the new Civil Code which became in force in June, 1950, they are given the status
and rights of natural children and are entitled to the successional rights which the law accords to the
latter (article 2264 and article 287, new Civil Code), and because these successional rights were
declared for the first time in the new code, they shall be given retroactive effect even though the
event which gave rise to them may have occurred under the prior legislation (Article 2253, new Civil
Code).

There is no merit in this claim. Article 2253 above referred to provides indeed that rights which are
declared for the first time shall have retroactive effect even though the event which gave rise to them
may have occurred under the former legislation, but this is so only when the new rights do not
prejudice any vested or acquired right of the same origin. Thus, said article provides that "if a right
should be declared for the first time in this Code, it shall be effective at once, even though the act or
event which gives rise thereto may have been done or may have occurred under the prior legislation,
provided said new right does not prejudice or impair any vested or acquired right, of the same
origin." As already stated in the early part of this decision, the right of ownership of Maria Uson over
the lands in question became vested in 1945 upon the death of her late husband and this is so
because of the imperative provision of the law which commands that the rights to succession are
transmitted from the moment of death (Article 657, old Civil Code). The new right recognized by the
new Civil Code in favor of the illegitimate children of the deceased cannot, therefore, be asserted to
the impairment of the vested right of Maria Uson over the lands in dispute.

As regards the claim that Maria Uson, while her deceased husband was lying in state, in a gesture of
pity or compassion, agreed to assign the lands in question to the minor children for the reason that
they were acquired while the deceased was living with their mother and Maria Uson wanted to
assuage somewhat the wrong she has done to them, this much can be said; apart from the fact that
this claim is disputed, we are of the opinion that said assignment, if any, partakes of the nature of a
donation of real property, inasmuch as it involves no material consideration, and in order that it may
be valid it shall be made in a public document and must be accepted either in the same document or
in a separate one (Article 633, old Civil Code). Inasmuch as this essential formality has not been
followed, it results that the alleged assignment or donation has no valid effect.

WHEREFORE, the decision appealed from is affirmed, without costs.

Paras, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes, Jugo and Labrador, JJ., concur.
G.R. No. L-6622 July 31, 1957

Intestate Estate of the deceased MARCELO DE BORJA. CRISANTO DE BORJA, administrator-

appellant,
vs.
JUAN DE BORJA, ET AL., oppositors-appellees.

E. V. Filamor for appellant.

Juan de Borja for himself and co-appellees.

FELIX, J.:

The case. — Quintin, Francisco, Crisanta and Juliana, all surnamed de Borja, are legitimate children
of Marcelo de Borja who, upon his demise sometime in 1924 or 1925, left a considerable amount of
property. Intestate proceedings must have followed, and the pre-war records of the case either
burned, lost or destroyed during the last war, because the record shows that in 1930 Quintin de
Borja was already the administrator of the Intestate Estate of Marcelo de Borja.

In the early part of 1938, Quintin de Borja died and Crisanto de Borja, son of Francisco de Borja,
was appointed and took over as administrator of the Estate. Francisco de Borja, on the other hand,
assumed his duties as executor of the will of Quintin de Borja, but upon petition of the heirs of said
deceased on the ground that his interests were conflicting with that of his brother's estate he was
later required by the Court to resign as such executor and was succeeded by Rogelio Limaco, a son-
in-law of Quintin de Borja.

It also appears that on February 16, 1940, at the hearing set for the approval of the statement of
accounts of the late administrator of the Intestate Estate of Marcelo de Borja, then being opposed by
Francisco de Borja, the parties submitted an agreement, which was approved by the Court (Exh. A).
Said agreement, translated into English, reads as follows:

1. All the accounts submitted and those that are to be submitted corresponding to this year
will be considered approved;

2. No heir shall claim anything of the harvests from the lands in Cainta that came from
Exequiel Ampil, deceased, nor from the land in Tabuatin, Nueva Ecija;

3. That the amounts of money taken by each heir shall be considered as deposited in
conjunction with the other properties of the intestate and shall form part of the mass without
drawing any interest;

4. That it shall be understood as included in this mass the sum of twelve thousand pesos
(P12,000) that the sisters Crisanta and Juliana de Borja paid of their own money as part of
the price the lands and three thousand pesos (P3,000) the price of the machinery for
irrigation;

5. The right, interests or participation that the deceased Quintin de Borja has or may have in
Civil Case No. 6190 of the Court of First Instance of Nueva Ecija, shall be likewise included
in the total mass of the inheritance of the Intestate;
 6. Not only the lands in Tabuatin but also those in Cainta coming from the now deceased
Exequiel Ampil shall also from part of the total mass of the inheritance of the Intestate of the
late Marcelo de Borja;

7. Once the total of the inheritance of the intestate is made up as specified before in this
Agreement, partition thereof will be made as follows:

From the total mass shall be deducted in case or in kind, Twelve Thousand Pesos (P12,000)
that shall be delivered to Da. Juliana de Borja and Da. Crisanta de Borja in equal shares,
and the rest shall be divided among the four heirs, i. e., Don Francisco de Borja, the heirs of
Quintin de Borja, Da. Juliana de Borja, and Da. Crisanta de Borja, in equal parts.
(TRANSLATION)

The Intestate remained under the administration of Crisanto de Borja until the then outbreak of the
war. From then on and until the termination of the war, there was a lull and state of inaction in
Special proceeding No. 2414 of the Court of First Instance of Rizal, Pasig branch (In the Matter of
the Intestate Estate of Marcelo de Borja), until upon petition filed by Miguel B. Dayco, as
administrator of the estate of his deceased mother, Crisanta de Borja, who is one of heirs, for
reconstitution of the records of this case, the Court on December 11, 1945, ordered the
reconstitution of the same, requiring the administrator to submit his report and a copy of the project
of partition.

On January 3, 1946, the administrator, Dr. Crisanto de Borja, filed his accounts for the period
ranging from March 1 to December 22, 1945, which according to the heirs of Quintin de Borja were
so inadequate and general that on February 28, 1946, they filed a motion for specification. On April
30, 1946, they also filed their opposition to said statement of accounts alleging that the income
reported in said statement was very much less than the true and actual income of the estate and that
the expenses appearing therein were exaggerated and/or not actually incurred, and prayed that the
statement of accounts submitted by the administrator be disapproved.

The administrator later filed another report of his administration, dated August 9, 1949,
corresponding to the period lapsed from December 23, 1945, to July 31, 1949, showing a cash
balance of P71.96, but with pending obligation amounting to P35,415.

On August 22, 1949, Juan de Borja and sisters, heirs of the deceased Quintin de Borja, filed their
opposition to the statement of accounts filed by the administrator on the ground that same was not
detailed enough to enable the interested parties to verify the same; that they cannot understand why
the Intestate could suffer any loss considering that during the administration of the same by Quintin
de Borja, the Estate accumulated gains of more than P100,000 in the form of advances to the heirs
as well as cash balance; that they desired to examine the accounts of Dr. Crisanto de Borja to verify
the loss and therefore prayed that the administrator be ordered to deposit with the Clerk of Court all
books, receipts, accounts and other papers pertaining to the Estate of Marcelo de Borja. This motion
was answered by the administrator contending that the Report referred to was already clear and
enough, the income as well as the expenditures being specified therein; that he had to spend for the
repairs of the properties of the Estate damaged during the Japanese occupation; that the allegation
that during the administration of Quintin de Boria the Estate realized a profit of P100,000 was not
true, because instead of gain there was even a shortage in the funds although said administrator
had collected all his fees (honorarios) and commissions corresponding to the entire period of his
incumbency; that the obligations mentioned in said report will be liquidated before the termination of
the proceedings in the same manner as it is done in any other intestate case; that he was willing to
submit all the receipts of the accounts for the examination of the interested parties before the Clerk
or before the Court itself; that this Intestate could be terminated, the project of partition having been
allowed and confirmed by the Supreme Court and that the Administrator was also desirous of
terminating it definitely for the benefit of all the parties.

On September 14, 1949, the administrator filed another statement of accounts covering the period of
from March 1, 1945, to July 31, 1949, which showed a cash balance of P71.95, with pending
obligations in the sum of P35,810.

The heirs of Quintin de Borja, Juan de Borja and his sisters, registered their opposition said
statement of accounts and prayed the Court to disapprove the same and to appoint an account to go
over the books of the administrator and to submit a report thereon as soon as possible. The heir
Juliana de Borja also formally offered her objection to the approval of the accounts submitted by the
administrator and prayed further that said administrator be required to submit a complete accounting
of his administration of the Estate from 1937 to 1949. On the other hand, Francisco de Borja and
Miguel B. Dayco, as the only heir of the deceased Crisanta de Borja, submitted to the Court an
agreement to relieve the administrator from accounting for the period of the Japanese occupation;
that as to the accounting from 1937 to 1941, they affirmed their conformity with the agreement
entered into by all the heirs appearing in the Bill of Exceptions of Juliana de Borja; and they have no
objection to the approval of the statement of accounts submitted by the administrator covering of the
years 1945 to 1949.

On December 6, 1949, the administrator, answered the opposition of the heir Juliana de Borja,
alleging that the corresponding statement of accounts for the years 1937, 1938, 1939, 1940 and
1941 were presented and approved by the Court before and during the Japanese occupation, but
the records of the same were destroyed in the Office of the Clerk of that Court during the liberation
of the province of Rizal, and his personal records were also lost during the Japanese occupation,
when his house was burned; that Judge Peña who was presiding over the Court in 1945 impliedly
denied the petition of heirs to require him to render an accounting for the period from 1942 to the
early part of 1945, for the reason that whatever money obtained from the Estate during said period
could not be made the subject of any adjudication it having been declared fiat money and without
value, and ordered that the statement of accounts be presented only for the period starting from
March 1, 1945. The administrator further stated that he was anxious to terminate this administration
but some of the heirs had not yet complied with the conditions imposed in the project of partition
which was approved by the Supreme Court; that in accordance with said partition agreement,
Juliana de Borja must deliver to the administrator all the jewelry, objects of value, utensils and other
personal belongings of the deceased spouses Marcelo de Borja and Tircila Quiogue, which said heir
had kept and continued to retain in her possession; that the heirs of Quintin de Borja should deliver
to the administrator all the lands and a document transferring in favor of the Intestate the two parcels
of land with a total area of 71 hectares of cultivated land in Cabanatuan, Nueva Ecija which were in
the possession of said heirs, together with the house of Feliciana Mariano Vda. de Sarangaya, which
were the objects of Civil Case No. 6190 mentioned in Paragraph 11 of the project of partition; that as
consequence of the said dispossession the heirs of Quintin de Borja must deliver to the
administrator the products of the 71 hectares of land in Cabanatuan, Nueva Ecija, and the rentals of
the house of Feliciana Mariano or else render to the Court an accounting of the products of these
properties from the time they took possession of the same in 1937 to the present; that there was a
pending obligation amounting to P36,000 as of September 14, 1949, which the heirs should pay
before the properties adjudicated to them would be delivered. The Court, however, ordered the
administrator on December 10, 1949, to show and prove by evidence why he should not be
accounts the proceeds of his administration from 1937.

Meantime, Juliana de Borja filed a Constancia denying possession of any jewelry belonging to the
deceased spouses Marcelo de Borja and Tarcilla Quiogue or any other personal belonging of said
spouses, and signified her willingness to turn over to the administrator the silver wares mentioned in
Paragraph III of the project of partition, which were the only property in her care, on the date that she
would expect the delivery to her of her share in the inheritance from her deceased parents.

On July 6, 1950, Juan de Borja and his sisters Marcela, Saturnina, Eufracia, Jacoba and Olimpia, all
surnamed de Borja, as heirs of Quintin de Borja, filed a motion for the delivery to them of their
inheritance in the estate, tendering to the administrator a document ceding and transferring to the
latter all the rights, interests and participation of Quintin de Borja in Civil Case No. 7190 of the Court
of First Instance of Nueva Ecija, pursuant to the provisions of the project of Partition, and expressing
their willingness to put up a bond if required to do so by the Court, and on July 18, 1950, the Court
ordered the administrator to deliver to Marcela, Juan, Saturniana, Eufracia, Jacoba and Olimpia, all
surnamed de Borja, all the properties adjudicated to them in the Project of Partition dated February
8, 1944, upon the latter's filing a bond in the sum of P10,000 conditioned upon the payment of such
obligation as may be ordered by the Court after a hearing on the controverted accounts of the
administrator. The Court considered the fact that the heirs had complied with the requirement
imposed by the Project of Partition when they tendered the document ceding and transferring the
rights and interests of Quintin de Borja in the aforementioned lands and expressed the necessity of
terminating the proceedings as soon as practicable, observing that the Estate had been under
administration for over twenty-five years already. The Court, however, deferred action on the petition
filed by the special administratrix of the Intestate Estate of Juliana de Borja until after compliance
with the conditions imposed by the project of partition. But on July 20, 1950, apparently before the
properties were delivered to the heirs, Francisco de Borja and Miguel B. Dayco filed a motion
informing the Court that the two parcels of land located in Cabanatuan, Nueva Ecija, produced some
21,300 cavans of palay, amounting to P213,000 at P10 per cavan, which were enjoyed by some
heirs; that the administrator Crisanto de Borja had not taken possession of the same for
circumstances beyond his control; and that there also existed the sum of P70,204 which the former
administrator, Quintin de Borja, received from properties that were redeemed, but which amount did
not come into the hands of the present, administrator because according to reliable information,
same was delivered to the heir Juliana de Borja who deposited it in her name at the Philippine
National Bank. It was, therefore prayed that the administrator be required to exert the necessary
effort to ascertain the identity of the person or persons who were in possession of the same amount
and of the value of the products of the lands in Mayapyap, Cabanatuan, Nueva Ecija, and to recover
the same for the Intestate Estate.

On July 28, 1950, the special administratrix of the estate of Juliana de Borja, then deceased, filed an
answer to the motion of these two heirs, denying the allegation that said heir any product of the
lands mentioned from Quintin de Borja, and informed the Court that the Mayapyap property had
always been in the possession of Francisco de Borja himself and prayed the court that the
administrator be instructed to demand all the fruits and products of said property from Francisco de
Borja.

On July 28, 1950, the heirs of Quintin de Borja also filed their opposition to the said motion of
Francisco de Borja and Miguel B. Dayco on the ground that the petition was superfluous because
the present proceeding was only for the approval of the statement of accounts filed by the
administrator; that said motion was improper because it was asking the Court to order the
administrator to perform what he was duty bound to do; and that said heirs were already barred or
stopped from raising that question in view of their absolute ratification of and assent to the statement
of accounts submitted by the administrator.

On August 16, 1950, by order of the Court, the properties adjudicated to Juliana de Borja in the
project of Partition were finally delivered to the estate of said heir upon the filing of a bond for
P20,000. In that same order, the Court denied the administrator's motion to reconsider the order of
July 18, 1950, requiring him to deliver to the heirs of Quintin de Borja the properties corresponding to
them, on the ground that there existed no sufficient reason to disturb said order. It also ruled that as
the petition of Francisco de Borja and Miguel B. Dayco made mention of certain properties allegedly
belonging to the Intestate, said petition should properly be considered to gather with the final
accounts of the administrator.

The administrator raised the matter by certiorari to this Tribunal, which was, docketed as G.R. No. L-
4179, and on May 30, 1951, We rendered decision affirming the order complained of, finding that the
Juan de Borja and sisters have complied with the requirement imposed in the Project of Partition
upon the tender of the document of cession of rights and quit-claim executed by Marcela de Borja,
the administratrix of the Estate of Quintin de Borja, and holding that the reasons advanced by the
administrator in opposing the execution of the order of delivery were trivial.

On August 27, 1951, the administrator filed his amended statement of accounts covering the period
from March 1, 1945, to July 31, 1949, which showed a cash balance of P36,660. An additional
statement of accounts filed on August 31, 1961 for the period of from August 1, 1949, to August 31,
1951, showed a cash balance of P5,851.17 and pending obligations in the amount of P6,165.03.

The heirs of Quintin de Borja again opposed the approval of the statements of accounts charging the
administrator with having failed to include the fruits which the estate should have accrued from 1941
to 1951 amounting to P479,429.70, but as the other heirs seemed satisfied with the accounts
presented by said administrator and as their group was only one of the 4 heirs of Intestate Estate,
they prayed that the administrator be held liable for only P119,932.42 which was 1/4 of the amount
alleged to have been omitted. On October 4, 1951, the administrator filed a reply to said opposition
containing a counterclaim for moral damages against all the heirs of Quintin de Borja in the sum of
P30,000 which was admitted by the Court over the objection of the heirs of Quintin de Borja that the
said pleading was filed out of time.

The oppositors, the heirs of Quintin de Borja, then filed their answer to the counterclaim denying the
charges therein, but later served interrogatories on the administrator relative to the averments of
said counterclaim. Upon receipt of the answer to said interrogatories specifying the acts upon which
the claim for moral damages was based, the oppositors filed an amended answer contending that
inasmuch as the acts, manifestations and pleadings referred to therein were admittedly committed
and prepared by their lawyer, Atty. Amador E. Gomez, same cannot be made the basis of a
counterclaim, said lawyer not being a party to the action, and furthermore, as the acts upon which
the claim for moral damages were based had been committed prior to the effectivity of the new Civil
Code, the provisions of said Code on moral damages could not be invoked. On January 15, 1952,
the administrator filed an amended counterclaim including the counsel for the oppositors as
defendant.

There followed a momentary respite in the proceedings until another judge was assigned to preside
over said court to dispose of the old case pending therein. On August 15, 1952, Judge Encarnacion
issued an order denying admission to administrator's amended counterclaim directed against the
lawyer, Atty. Amador E. Gomez, holding that a lawyer, not being a party to the action, cannot be
made answerable for counterclaims. Another order was also issued on the same date dismissing the
administrator's counterclaim for moral damages against the heirs of Quintin de Borja and their
counsel for the alleged defamatory acts, manifestation and utterances, and stating that granting the
same to be meritorious, yet it was a strictly private controversy between said heirs and the
administrator which would not in any way affect the interest of the Intestate, and, therefore, not
proper in an intestate proceedings. The Court stressed that to allow the ventilation of such personal
controversies would further delay the proceedings in the case which had already lagged for almost
30 years, a situation which the Court would not countenance.
Having disposed of these pending incidents which arose out of the principal issue, that is, the
disputed statement of accounts submitted by the administrator, the Court rendered judgment on
September 5, 1952, ordering the administrator to distribute the funds in his possession to the heirs
as follows: P1,395.90 to the heirs of Quintin de Borja; P314.99 to Francisco de Borja; P314.99 to the
Estate of Juliana de Borja and P314.99 to Miguel B. Dayco, but as the latter still owed the intestate
the sum of P900, said heirs was ordered to pay instead the 3 others the sum of P146.05 each. After
considering the testimonies of the witnesses presented by both parties and the available records on
hand, the Court found the administrator guilty of maladministration and sentenced Crisanto de Borja
to pay to the oppositors, the heirs of Quintin de Borja, the sum of P83,337.31, which was 1/4 of the
amount which the state lost, with legal interest from the date of the judgment. On the same day, the
Court also issued an order requiring the administrator to deliver to the Clerk of that Court PNB
Certificate of Deposit No. 211649 for P978.50 which was issued in the name of Quintin de Borja.

The administrator, Dr. Crisanto de Borja, gave notice to appeal from the lower Court's orders of
August 15, 1952, the decision of September 5, 1952, and the order of even date, but when the
Record on Appeal was finally approved, the Court ordered the exclusion of the appeal from the order
of September 5, 1952, requiring the administrator to deposit the PNB Certificate of Deposit No.
2114649 with the Clerk of Court, after the oppositors had shown that during the hearing of that
incident, the parties agreed to abide by whatever resolution the Court would make on the ownership
of the funds covered by that deposit.

The issues. — Reducing the issues to bare essentials, the questions left for our determination are:
(1) whether the counsel for a party in a case may be included as a defendant in a counterclaim; (2)
whether a claim for moral damages may be entertained in a proceeding for the settlement of an
estate; (3) what may be considered as acts of maladministration and whether an administrator, as
the one in the case at bar, may be held accountable for any loss or damage that the estate under his
administration may incur by reason of his negligence, bad faith or acts of maladministration; and (4)
in the case at bar has the Intestate or any of the heirs suffered any loss or damage by reason of the
administrator's negligence, bad faith or maladministration? If so, what is the amount of such loss or
damage?

I. — Section 1, Rule 10, of the Rules of Court defines a counterclaim as:

SECTION 1. Counterclaim Defined. — A counterclaim is any claim, whether for money or

otherwise, which a party may have against the opposing party. A counterclaim need not
dismiss or defeat the recovery sought by the opposing party, but may claim relief exceeding
in amount or different in kind from that sought by the opposing party's claim.

It is an elementary rule of procedure that a counterclaim is a relief available to a party-defendant

against the adverse party which may or may not be independent from the main issue. There is no
controversy in the case at bar, that the acts, manifestations and actuations alleged to be defamatory
and upon which the counterclaim was based were done or prepared by counsel for oppositors; and
the administrator contends that as the very oppositors manifested that whatever civil liability arising
from acts, actuations, pleadings and manifestations attributable to their lawyer is enforceable against
said lawyer, the amended counterclaim was filed against the latter not in his individual or personal
capacity but as counsel for the oppositors. It is his stand, therefore, that the lower erred in denying
admission to said pleading. We differ from the view taken by the administrator. The appearance of a
lawyer as counsel for a party and his participation in a case as such counsel does not make him a
party to the action. The fact that he represents the interests of his client or that he acts in their behalf
will not hold him liable for or make him entitled to any award that the Court may adjudicate to the
parties, other than his professional fees. The principle that a counterclaim cannot be filed against
persons who are acting in representation of another — such as trustees — in their individual
capacities (Chambers vs. Cameron, 2 Fed. Rules Service, p. 155; 29 F. Supp. 742) could be applied
with more force and effect in the case of a counsel whose participation in the action is merely
confined to the preparation of the defense of his client. Appellant, however, asserted that he filed the
counterclaim against said lawyer not in his individual capacity but as counsel for the heirs of Quintin
de Borja. But as we have already stated that the existence of a lawyer-client relationship does not
make the former a party to the action, even this allegation of appellant will not alter the result We
have arrived at.

Granting that the lawyer really employed intemperate language in the course of the hearings or in
the preparation of the pleadings filed in connection with this case, the remedy against said counsel
would be to have him cited for contempt of court or take other administrative measures that may be
proper in the case, but certainly not a counterclaim for moral damages.

II. — Special Proceedings No. 6414 of the Court of First Instance of Rizal (Pasig branch) was
instituted for the purpose of settling the Intestate Estate of Marcelo de Borja. In taking cognizance of
the case, the Court was clothed with a limited jurisdiction which cannot expand to collateral matters
not arising out of or in any way related to the settlement and adjudication of the properties of the
deceased, for it is a settled rule that the jurisdiction of a probate court is limited and special
(Guzman vs. Anog, 37 Phil. 361). Although there is a tendency now to relax this rule and extend the
jurisdiction of the probate court in respect to matters incidental and collateral to the exercise of its
recognized powers (14 Am. Jur. 251-252), this should be understood to comprehend only cases
related to those powers specifically allowed by the statutes. For it was even said that:

Probate proceedings are purely statutory and their functions limited to the control of the
property upon the death of its owner, and cannot extend to the adjudication of collateral
questions (Woesmes, The American Law of Administration, Vol. I, p. 514, 662-663).

It was in the acknowledgment of its limited jurisdiction that the lower court dismissed the
administrator's counterclaim for moral damages against the oppositors, particularly against Marcela
de Borja who allegedly uttered derogatory remarks intended to cast dishonor to said administrator
sometime in 1950 or 1951, his Honor's ground being that the court exercising limited jurisdiction
cannot entertain claims of this kind which should properly belong to a court general jurisdiction. From
what ever angle it may be looked at, a counterclaim for moral damages demanded by an
administrator against the heirs for alleged utterances, pleadings and actuations made in the course
of the proceeding, is an extraneous matter in a testate or intestate proceedings. The injection into
the action of incidental questions entirely foreign in probate proceedings should not be encouraged
for to do otherwise would run counter to the clear intention of the law, for it was held that:

The speedy settlement of the estate of deceased persons for the benefit of the creditors and
those entitled to the residue by way of inheritance or legacy after the debts and expenses of
administration have been paid, is the ruling spirit of our probate law (Magabanua vs. Akel, 72
Phil., 567, 40 Off Gaz., 1871).

III. and IV. — This appeal arose from the opposition of the heirs of Quintin de Borja to the approval
of the statements of accounts rendered by the administrator of the Intestate Estate of Marcelo de
Borja, on the ground that certain fruits which should have been accrued to the estate were
unaccounted for, which charge the administrator denied. After a protracted and extensive hearing on
the matter, the Court, finding the administrator, Dr. Crisanto de Borja, guilty of certain acts of
maladministration, held him liable for the payment to the oppositors, the heirs of Quintin de Borja, of
1/4 of the unreported income which the estate should have received. The evidence presented in the
court below bear out the following facts:
(a) The estate owns a 6-door building, Nos. 1541, 1543, 1545, 1547, 1549 and 1551 in Azcarraga
Street, Manila, situated in front of the Arranque market. Of this property, the administrator reported
to have received for the estate the following rentals:

Annual
Total
Period of time monthly
rentals
rental
March to December, 1945 P3,085.00 P51.42
January to December, 1946 4,980.00 69.17
January to December, 1947 8,330.00 115.70
January to December, 1948 9,000.00 125.00
January to December, 1949 8,840.00 122.77
January to December, 1950 6,060.00 184.16
Total P40,295.00

The oppositors, in disputing this record income, presented at the witness stand Lauro Aguila, a
lawyer who occupied the basement of Door No. 1541 and the whole of Door No. 1543 from 1945 to
November 15, 1949, and who testified that he paid rentals on said apartments as follows:

1945
Door No. 1541 (basement)
February P20.00 Door No. 1543
March 20.00 For 7 months at
P300
April 60.00 a month P2,100.00
May-December 800.00
Total P900.00
1946
January-December P1,200.00 January-December P4,080.00
1947
January P100.00 January P380.00
February 100.00 February 380.00
March 180.00 March 1-15 190.00
April-December 1,140.00 March 16- 4,085.00
December
P1,820.00 P5,035.00
1948
January-December P1,920.00 January-December P5,150.00
1949
January-November P1,680.00 January-December P4,315.00
15

From the testimony of said witness, it appears that from 1945 to November 15,1949, he paid a total
of P28,200 for the lease of Door No. 1543 and the basement of Door No. 1541. These figures were
not controverted or disputed by the administrator but claim that said tenant subleased the
apartments occupied by Pedro Enriquez and Soledad Sodora and paid the said rentals, not to the
administrator, but to said Enriquez. The transcript of the testimony of this witness really bolster this
contention — that Lauro Aguila talked with said Pedro Enriquez when he leased the aforementioned
apartments and admitted paying the rentals to the latter and not to the administrator. It is interesting
to note that Pedro Enriquez is the same person who appeared to be the administrator's collector,
duly authorized to receive the rentals from this Azcarraga property and for which services, said
Enriquez received 5 per cent of the amount he might be able to collect as commission. If we are to
believe appellant's contention, aside from the commission that Pedro Enriquez received he also
sublet the apartments he was occupying at a very much higher rate than that he actually paid the
estate without the knowledge of the administrator or with his approval. As the administrator also
seemed to possess that peculiar habit of giving little importance to bookkeeping methods, for he
never kept a ledger or book of entry for amounts received for the estate, We find no record of the
rentals the lessees of the other doors were paying. It was, however, brought about at the hearing
that the 6 doors of this building are of the same sizes and construction and the lower Court based its
computation of the amount this property should have earned for the estate on the rental paid by Atty.
Aguila for the 1 1/2 doors that he occupied. We see no excuse why the administrator could not have
taken cognizance of these rates and received the same for the benefit of the estate he was
administering, considering the fact that he used to make trips to Manila usually once a month and for
which he charged to the estate P8 as transportation expenses for every trip.

Basing on the rentals paid by Atty. Aguila for 1 1/2 doors, the estate received P112,800 from
February 1, 1945, to November 15, 1949, for the 6 doors, but the lower Court held him accountable
not only for the sum of P34,235 reported for the period ranging from March 1, 1945, to December
31, 1949, but also for a deficit of P90,525 or a total of P124,760. The record shows, however that the
upper floor of Door No. 1549 was vacant in September, 1949, and as Atty. Aguila used to pay P390
a month for the use of an entire apartment from September to November, 1949, and he also paid
P160 for the use of the basement of an apartment (Door No. 1541), the use, therefore, of said upper
floor would cost P230 which should be deducted, even if the computation of the lower Court would
have to be followed.

There being no proper evidence to show that the administrator collected more rentals than those
reported by him, except in the instance already mentioned, We are reluctant to bold him accountable
in the amount for which he was held liable by the lower Court, and We think that under the
circumstances it would be more just to add to the sum reported by the administrator as received by
him as rents for 1945-1949 only, the difference between the sum reported as paid by Atty. Aguila
and the sum actually paid by the latter as rents of 1 1/2 of the apartments during the said period, or
P25,457.09 1/4 of which is P6,364.27 which shall be paid to the oppositors.

The record also shows that in July, 1950, the administrator delivered to the other heirs Doors Nos.
1545, 1547, 1549 and 1551 although Doors Nos. 1541 and 1543 adjudicated to the oppositors
remained under his administration. For the period from January to June, 1950, that the entire
property was still administered by him, the administrator reported to have received for the 2
oppositors' apartments for said period of six months at P168.33 a month, the sum of P1,010 which
belongs to the oppositors and should be taken from the amount reported by the administrator.

The lower Court computed at P40 a month the pre-war rental admittedly received for every
apartment, the income that said property would have earned from 1941 to 1944, or a total of
P11,520, but as We have to exclude the period covered by the Japanese occupation, the estate
should receive only P2,880 1/4 of which P720 the administrator should pay to the oppositors for the
year 1941.

(b) The Intestate estate also owned a parcel of land in Mayapyap, Nueva Ecija, with an area of 71
hectares, 95 ares and 4 centares, acquired by Quintin de Borja the spouses Cornelio Sarangaya and
Feliciana Mariano in Civil Case NO. 6190 of the Court of First Instance of said province, In virtue of
the agreement entered into by the heirs, this property was turned over by the estate of Quintin de
Borja to the intestate and formed part of the general mass of said estate. The report of the
administrator failed to disclose any return from this property alleging that he had not taken
possession of the same. He does not deny however that he knew of the existence of this land but
claimed that when he demanded the delivery of the Certificate of Title covering this property, Rogelio
Limaco, then administrator of the estate of Quintin de Borja, refused to surrender the same and he
did not take any further action to recover the same.

To counteract the insinuation that the Estate of Quintin de Borja was in possession of this property
from 1940 to 1950, the oppositors presented several witnesses, among them was an old man,
Narciso Punzal, who testified that he knew both Quintin and Francisco de Borja; that before the war
or sometime in 1937, the former administrator of the Intestate, Quintin de Borja, offered him the
position of overseer (encargado) of this land but he was notable to assume the same due to the
death of said administrator; that on July 7, 1951, herein appellant invited him to go to his house in
Pateros, Rizal, and while in said house, he was instructed by appellant to testify in court next day
that he was the overseer of the Mayapyap property for Quintin de Borja from 1937-1944, delivering
the yearly proceeds of 1,000 cavanes of Palay to Rogelio Limaco; that he did not need to be afraid
because both Quintin de Borja and Rogelio Limaco were already dead. But as he knew that the facts
on which he was to testify were false, he went instead to the house of one of the daughters of
Quintin de Borja, who, together with her brother, Atty. Juan de Borja, accompanied him to the house
of the counsel for said oppositors before whom his sworn declaration was taken (Exh. 3).

Other witnesses, i.e., Isidro Benuya, Federico Cojo, Emilio de la Cruz and Ernesto Mangulabnan,
testified that they were some of the tenants of the Mayapyap property; that they were paying their
shares to the overseers of Francisco de Borja and sometimes to his wife, which the administrator
was not able to contradict, and the lower Court found no reason why the administrator would fail to
take possession of this property considering that this was even the subject of the agreement of
February 16, 1940, executed by the heirs of the Intestate.

The lower Court, giving due credence to the testimonies of the witnesses for the oppositors,
computed the loss the estate suffered in the form of unreported income from the rice lands for 10
years at P67,000 (6,700 a year)and the amount of P4,000 from the remaining portion of the land not
devoted to rice cultivation which was being leased at P20 per hectare. Consequently, the Court held
the administrator liable to appellees in the sum of P17,750 which is 1/4 of the total amount which
should have accrued to the estate for this item.

But if We exclude the 3 years of occupation, the income for 7 years would be P46,900 for the
ricelands and P2,800 (at P400 a year) for the remaining portion not developed to rice cultivation or a
total of P48,700, 1/4 of which is P12,175 which We hold the administrator liable to the oppositors.

(c) The Hacienda Jalajala located in said town of Rizal, was divided into 3 parts: the Punta section
belonged to Marcelo de Borja, the Bagombong pertained to Bernardo de Borja and Francisco de
Borja got the Jalajala proper. For the purpose of this case, we will just deal with that part called
Junta. This property has an area of 1,345, hectares, 29 ares and 2 centares (Exh. 36) of which,
according to the surveyor who measured the same, 200 hectares were of cultivated rice fields and
100 hectares dedicated to the planting of upland rice. It has also timberland and forest which
produce considerable amount of trees and firewoods. From the said property which has an assessed
value of P115,000 and for which the estates pay real estate tax of P1,500 annually, the administrator
reported the following:

Year Income Expenditure

 (not including
administration's
fees
1945........... P625.00 P1,310.42
1946............. 1,800.00 3,471.00
1947............. 2,550.00 2,912.91
1948............. 1,828.00 3,311.88
1949............. 3,204.50 4,792.09
1950............. 2,082.00 2,940.91
P12,089.50 P18,739.21

This statement was assailed by the oppositors and to substantiate their charge that the administrator
did not file the true income of the property, they presented several witnesses who testified that there
were about 200 tenants working therein; that these tenants paid to Crisanto de Borja rentals at the
rate of 6 cavanes of palay per hectare; that in the years of 1943 and 1944, the Japanese were the
ones who collected their rentals, and that the estate could have received no less than 1,000 cavanes
of palay yearly. After the administrator had presented witnesses to refute the facts previously
testified to by the witnesses for the oppositors, the Court held that the report of the administrator did
not contain the real income of the property devoted to rice cultivation, which was fixed at 1,000
cavanes every year — for 1941, 1942, 1945, 1946, 1947, 1948, 1949 and 1950, or a total of 8,000
cavanes valued at P73,000. But as the administrator accounted for the sum of P11,155 collected
from rice harvests and if to this amount we add the sum of P8,739.20 for expenses, this will make a
total of P19,894.20, thus leaving a deficit of P53,105.80, ¼ of which will be P13,276.45 which the
administrator is held liable to pay the heirs of Quintin de Borja.

It was also proved during the hearing that the forest land of this property yields considerable amount
of marketable firewoods. Taking into consideration the testimonies of witnesses for both parties, the
Court arrived at the conclusion that the administrator sold to Gregorio Santos firewoods worth P600
in 1941, P3,500 in 1945 and P4,200 in 1946 or a total of P8,300. As the report included only the
amount of P625, there was a balance of P7,675 in favor of the estate. The oppositors were not able
to present any proof of sales made after these years, if there were any and the administrator was
held accountable to the oppositors for only P1,918.75.

(d) The estate also, owned ricefields in Cainta, Rizal, with a total area of 22 hectares, 76 ares and 66
centares. Of this particular item, the administrator reported an income of P12,104 from 1945 to 1951.
The oppositors protested against this report and presented witnesses to disprove the same.

Basilio Javier worked as a tenant in the land of Juliana de Borja which is near the land belonging to
the Intestate, the 2 properties being separated only by a river. As tenant of Juliana de Borja, he
knew the tenants working on the property and also knows that both lands are of the same class, and
that an area accommodating one cavan of seedlings yields at most 100 cavanes and 60 cavanes at
the least. The administrator failed to overcome this testimony. The lower Court considering the facts
testified to by this witness made a finding that the property belonging to this Intestate was actually
occupied by several persons accommodating 13 ½ cavanes of seedlings; that as for every cavan of
seedlings, the land produces 60 cavanes of palay, the whole area under cultivation would have
yielded 810 cavanes a year and under the 50-50 sharing system (which was testified by witness
Javier), the estate would have received no less than 405 cavanes every year. Now, for the period of
7 years — from 1941 to 1950, excluding the 3 years of war — the corresponding earning of the
estate should be 2,835 cavanes, out of which the 405 cavanes from the harvest of 1941 is valued at
P1,215 and the rest 2,430 cavanes at P10 is valued at P24,300, or all in all P25,515. If from this
amount the reported income of P12,104 is deducted, there will be a balance of P13,411.10 1/4 of
which or P3,352.75 the administrator is held liable to pay to the oppositors.

(e) The records show that the administrator paid surcharges and penalties with a total of P988.75 for
his failure to pay on time the taxes imposed on the properties under his administration. He advanced
the reason that he lagged in the payment of those tax obligations because of lack of cash balance
for the estate. The oppositors, however, presented evidence that on October 29, 1939, the
administrator received from Juliana de Borja the sum of P20,475.17 together with certain papers
pertaining to the intestate (Exh. 4),aside from the checks in the name of Quintin de Borja. Likewise,
for his failure to pay the taxes on the building at Azcarraga for 1947, 1948 and 1949, said property
was sold at public auction and the administrator had to redeem the same at P3,295.48, although the
amount that should have been paid was only P2,917.26. The estate therefore suffered a loss
of P378.22. Attributing these surcharges and penalties to the negligence of the administrator, the
lower Court adjudged him liable to pay the oppositors ¼ of P1,366.97, the total loss suffered by the
Intestate, or P341.74.

(f) Sometime in 1942, a big fire razed numerous houses in Pateros, Rizal, including that of Dr.
Crisanto de Borja. Thereafter, he claimed that among the properties burned therein was his safe
containing P15,000 belonging to the estate under his administration. The administrator contended
that this loss was already proved to the satisfaction of the Court who, approved the same by order of
January 8, 1943, purportedly issued by Judge Servillano Platon(Exh. B). The oppositors contested
the genuineness of this order and presented on April 21, 1950, an expert witness who conducted
several tests to determine the probable age of the questioned document, and arrived at the
conclusion that the questioned ink writing "(Fdo)" appearing at the bottom of Exhibit B cannot be
more than 4 years old (Exh. 39). However, another expert witness presented by the administrator
contradicted this finding and testified that this conclusion arrived at by expert witness Mr. Pedro
Manzañares was not supported by authorities and was merely the result of his own theory, as there
was no method yet discovered that would determine the age of a document, for every document has
its own reaction to different chemicals used in the tests. There is, however, another fact that called
the attention of the lower Court: the administrator testified that the money and other papers delivered
by Juliana de Borja to him on October 29, 1939, were saved from said fire. The administrator
justified the existence of these valuables by asserting that these properties were locked by Juliana
de Borja in her drawer in the "casa solariega" in Pateros and hence was not in his safe when his
house, together with the safe, was burned. This line of reasoning is really subject to doubt and the
lower Court opined, that it runs counter to the ordinary course of human behaviour for an
administrator to leave in the drawer of the "aparador" of Juliana de Borja the money and other
documents belonging to the estate under his administration, which delivery has receipted for, rather
than to keep it in his safe together with the alleged P15,000 also belonging to the Intestate. The
subsequent orders of Judge Platon also put the defense of appellant to bad light, for on February 6,
1943, the Court required Crisanto de Borja to appear before the Court of examination of the other
heirs in connection with the reported loss, and on March 1, 1943, authorized the lawyers for the
other parties to inspect the safe allegedly burned (Exh. 35). It is inconceivable that Judge Platon
would still order the inspection of the safe if there was really an order approving the loss of those
P15,000. We must not forget, in this connection, that the records of this case were burned and that
at the time of the hearing of this incident in 1951, Judge Platon was already dead. The lower Court
also found no reason why the administrator should keep in his such amount of money, for ordinary
prudence would dictate that as an administration funds that come into his possession in a fiduciary
capacity should not be mingled with his personal funds and should have been deposited in the Bank
in the name of the intestate. The administrator was held responsible for this loss and ordered to pay
¼ thereof, or the sum of P3,750.

(g) Unauthorized expenditures —

1. The report of the administrator contained certain sums amounting to P2,130 paid to and receipted
by Juanita V. Jarencio the administrator's wife, as his private secretary. In explaining this item, the
administrator alleged that he needed her services to keep receipts and records for him, and that he
did not secure first the authorization from the court before making these disbursements because it
was merely a pure administrative function.

The keeping of receipts and retaining in his custody records connected with the management of the
properties under administration is a duty that properly belongs to the administrator, necessary to
support the statement of accounts that he is obliged to submit to the court for approval. If ever his
wife took charge of the safekeeping of these receipts and for which she should be compensated, the
same should be taken from his fee. This disbursement was disallowed by the Court for being
unauthorized and the administrator required to pay the oppositors ¼, thereof or P532.50.

2. The salaries of Pedro Enriquez, as collector of the Azcarraga property; of Briccio Matienzo and
Leoncio Perez, as encargados, and of Vicente Panganiban and Herminigildo Macetas as forest-
guards were found justified, although un authorized, as they appear to be reasonable and necessary
for the care and preservation of the Intestate.

3. The lower Court disallowed as unjustified and unnecessary the expenses for salaries paid to
special policemen amounting to P1,509. Appellant contended that he sought for the services of
Macario Kamungol and others to act as special policemen during harvest time because most of the
workers tilting the Punta property were not natives of Jalajala but of the neighboring towns and they
were likely to run away with the harvest without giving the share of the estate if they were not
policed. This kind of reasoning did not appear to be convincing to the trial judge as the cause for
such fear seemed to exist only in the imagination. Granting that such kind of situation existed, the
proper thing for the administrator to do would have been to secure the previous authorization from
the Court if he failed to secure the help of the local police. He should be held liable for this
unauthorized expenditure and pay the heirs of Quintin de Borja ¼ thereof or P377.25.

4. From the year 1942 when his house was burned, the administrator and his family took shelter at
the house belonging to the Intestate known as "casa solariega" which, in the Project of Partition was
adjudicated to his father, Francisco de Borja. This property, however, remained under his
administration and for its repairs he spent from 1945-1950, P1465,14, duly receipted.

None of these repairs appear to be extraordinary for the receipts were for nipa, for carpenters and
thatchers. Although it is true that Rule 85, section 2 provides that:

SEC. 2. EXECUTOR OR ADMINISTRATOR TO KEEP BUILDINGS IN REPAIR. — An

executor or administrator shall maintain in tenant able repair the houses and other structures
and fences belonging to the estate, and deliver the same in such repair to the heirs or
devisees when directed so to do by the court.

yet considering that during his occupancy of the said "casa solariega" he was not paying any rental
at all, it is but reasonable that he should take care of the expenses for the ordinary repair of said
house. Appellant asserted that had he and his family not occupied the same, they would have to pay
someone to watch and take care of said house. But this will not excuse him from this responsibility
for the disbursements he made in connection with the aforementioned repairs because even if he
stayed in another house, he would have had to pay rentals or else take charge also of expenses for
the repairs of his residence. The administrator should be held liable to the oppositors in the amount
of P366.28.
5. Appellant reported to have incurred expenses amounting to P6,304.75 for alleged repairs on the
rice mill in Pateros, also belonging to the Intestate. Of the disbursements made therein, the items
corresponding, to Exhibits I, I-1, I-21, L-26, L-15, L-64 and L-65, in the total sum of P570.70 were
rejected by the lower court on the ground that they were all unsigned although some were dated.
The lower Court, however, made an oversight in including the sum of P150 covered by Exhibit L-26
which was duly signed by Claudio Reyes because this does not refer to the repair of the rice-mill but
for the roofing of the house and another building and shall be allowed. Consequently, the sum of
P570.70 shall be reduced to P420.70 which added to the sum of P3,059 representing expenditures
rejected as unauthorized to wit:

Exhibit L-59 ............. P500.00 Yek Wing

Exhibit L-60 ............. 616.00 Yek Wing
Exhibit L-61 ............. 600.00 Yek Wing
Exhibit L-62 ............. 840.00 Yek Wing
Exhibit L-63 ............. 180.00 Yek Wing
scale
Exhibit Q-2 ............. 323.00 "Howe"
Total
...................... P3,059.00

will give a total of P3,479 1/4 of which is P869.92 that belongs to the oppositors.

6. On the expenses for planting in the Cainta ricefields: — In his statement of accounts, appellant
reported to have incurred a total expense of P5,977 for the planting of the ricefields in Cainta, Rizal,
from the agricultural year 1945-46 to 1950-51. It was proved that the prevailing sharing system in
this part of the country was on 50-50 basis. Appellant admitted that expenses for planting were
advanced by the estate and liquidated after each harvest. But the report, except for the agricultural
year 1950 contained nothing of the payments that the tenants should have made. If the total
expenses for said planting amounted to P5,977, ½ thereof or P2,988.50 should have been paid by
the tenants as their share of such expenditures, and as P965 was reported by the administrator as
paid back in 1950, there still remains a balance of P2,023.50 unaccounted for. For this shortage, the
administrator is responsible and should pay the oppositors ¼ thereof or P505.87.

7. On the transportation expenses of the administrator: — It appears that from the year 1945 to
1951, the administrator charged the estate with a total of P5,170 for transportation expenses. The un
receipted disbursements were correspondingly itemized, a typical example of which is as follows:

1950
Gastos de viaje del administrador From
Pateros
To Pasig ................ 50 x P4.00 = P200.00
50 x
To Manila ............... P10.00 = P500.00
To Cainta ................ 8 x P8.00 = P64.00
To Jalajala ............... 5 x P35.00 = P175.00
= P399.00

(Exhibit W-54).
From the report of the administrator, We are being made to believe that the Intestate estate is a
losing proposition and assuming arguendo that this is true, that precarious financial condition which
he, as administrator, should know, did not deter Crisanto de Borja from charging to the depleted
funds of the estate comparatively big amounts for his transportation expenses. Appellant tried to
justify these charges by contending that he used his own car in making those trips to Manila, Pasig
and Cainta and a launch in visiting the properties in Jalajala, and they were for the gasoline
consumed. This rather unreasonable spending of the estate's fund prompted the Court to observe
that one will have to spend only P0.40 for transportation in making a trip from Pateros to Manila and
practically the same amount in going to Pasig. From his report for 1949 alone, appellant made a total
of 97 trips to these places or an average of one trip for every 3 1/2 days. Yet We must not forget that
it was during this period that the administrator failed or refused to take cognizance of the prevailing
rentals of commercial places in Manila that caused certain loss to the estate and for which he was
accordingly held responsible. For the reason that the alleged disbursements made for transportation
expenses cannot be said to be economical, the lower Court held that the administrator should be
held liable to the oppositors for ¼ thereof or the sum of P1,292.50, though We think that this sum
should still be reduced to P500.

8. Other expenses:

The administrator also ordered 40 booklets of printed contracts of lease in the name of the Hacienda
Jalajala which cost P150. As the said hacienda was divided into 3 parts one belonging to this
Intestate and the other two parts to Francisco de Boria and Bernardo de Borja, ordinarily the
Intestate should only shoulder ¹/3 of the said expense, but as the tenants who testified
during the hearing of the matter testified that those printed forms were not
being used, the Court adjudged the administrator personally responsible for
this amount. The records reveal, that this printed form was not utilized
because the tenants refused to sign any, and We can presume that when the
administrator ordered for the printing of the same, he did not foresee this
situation. As there is no showing that said printed contracts were used by
another and that they are still in the possession of the administrator which
could be utilized anytime, this disbursement may be allowed.
The report also contains a receipt of payment made to Mr. Severo Abellera in the sum of P375 for
his transportation expenses as one of the two commissioners who prepared the Project of Partition.
The oppositors were able to prove that on May 24, 1941, the Court authorized the administrator to
withdraw from the funds of the intestate the sum of P300 to defray the transportation expenses of
the commissioners. The administrator, however, alleged that he used this amount for the payment of
certain fees necessary in connection with the approval of the proposed plan of the Azcarraga
property which was then being processed in the City Engineer's Office. From that testimony, it would
seem that appellant could even go to the extent of disobeying the order of the Court specifying for
what purpose that amount should be appropriated and took upon himself the task of judging for what
it will serve best. Since he was not able to show or prove that the money intended and ordered by
the Court to be paid for the transportation expenses of the commissioners was spent for the benefit
of the estate as claimed, the administrator should be held responsible therefor and pay to the
oppositors ¼ of P375 or the sum of P93.75.

The records reveal that for the service of summons to the defendants in Civil Case No. 84 of the
Court of First Instance of Rizal, P104 was paid to the Provincial Sheriff of the same province (Exhibit
H-7). However, an item for P40 appeared to have been paid to the Chief of Police on Jalajala
allegedly for the service of the same summons. Appellant claimed that as the defendants in said civil
case lived in remote barrios, the services of the Chief of Police as delegate or agent of the Provincial
Sheriff were necessary. He forgot probably the fact that the local chiefs of police are deputy
sheriffs ex-officio. The administrator was therefore ordered by the lower Court to pay ¼ of said
amount or P10 to the oppositors.

The administrator included in his Report the sum of P550 paid to Atty. Filamor for his professional
services rendered for the defense of the administrator in G.R. No. L-4179, which was decided
against him, with costs. The lower Court disallowed this disbursement on the ground that this Court
provided that the costs of that litigation should not be borne by the estate but by the administrator
himself, personally.

Costs of a litigation in the Supreme Court taxed by the Clerk of Court, after a verified petition has
been filed by the prevailing party, shall be awarded to said party and will only include his fee and that
of his attorney for their appearance which shall not be more than P40; expenses for the printing and
the copies of the record on appeal; all lawful charges imposed by the Clerk of Court; fees for the
taking of depositions and other expenses connected with the appearance of witnesses or for lawful
fees of a commissioner (De la Cruz, Philippine Supreme Court Practice, p. 70-71). If the costs
provided for in that case, which this Court ordered to be chargeable personally against the
administrator are not recoverable by the latter, with more reason this item could not be charged
against the Intestate. Consequently, the administrator should pay the oppositors ¼ of the sum of
P550 or P137.50.

(e) The lower Court in its decision required appellant to pay the oppositors the sum of P1,395 out of
the funds still in the possession of the administrator.

In the statement of accounts submitted by the administrator, there appeared a cash balance of
P5,851.17 as of August 31, 1961. From this amount, the sum of P1,002.96 representing the
Certificate of Deposit No. 21619 and Check No. 57338, both of the Philippine National Bank and in
the name of Quintin de Borja, was deducted leaving a balance of P4,848. As Judge Zulueta ordered
the delivery to the oppositors of the amount of P1,890 in his order of October 8, 1951; the delivery of
the amount of P810 to the estate of Juliana de Borja in his order of October 23, 1951, and the sum
of P932.32 to the same estate of Juliana de Borja by order of the Court of February 29, 1952, or a
total of P3,632.32 after deducting the same from the cash in the possession of the administrator,
there will only be a remainder of P134.98.

The Intestate is also the creditor of Miguel B. Dayco, heir and administrator of the estate of Crisanta
de Borja, in the sum of P900 (Exhibits S and S-1). Adding this credit to the actual cash on hand,
there will be a total of P1,034.98, ¼, of which or P258.74 properly belongs to the oppositors.
However, as there is only a residue of P134.98 in the hands of the administrator and dividing it
among the 3 groups of heirs who are not indebted to the Intestate, each group will receive P44.99,
and Miguel B. Dayco is under obligation to reimburse P213.76 to each of them.

The lower Court ordered the administrator to deliver to the oppositors the amount of P1,395.90 and
P314.99 each to Francisco de Borja and the estate of Juliana de Borja, but as We have arrived at
the computation that the three heirs not idebted to the Intestate ought to receive P44.99 each out of
the amount of P134.98, the oppositors are entitled to the sum of P1,080.91 — the amount deducted
from them as taxes but which the Court ordered to be returned to them — plus P44.99 or a total of
P1,125.90. It appearing however, that ina Joint Motion dated November 27, 1952, duly approved by
the Court, the parties agreed to fix the amount at P1,125.58, as the amount due and said heirs have
already received this amount in satisfaction of this item, no other sum can be chargeable against the
administrator.
(f) The probate Court also ordered the administrator to render an accounting of his administration
during the Japanese occupation on the ground that although appellant maintained that whatever
money he received during that period is worthless, same having been declared without any value,
yet during the early years of the war, or during 1942-43, the Philippine peso was still in circulation,
and articles of prime necessity as rice and firewood commanded high prices and were paid with
jewels or other valuables.

But We must not forget that in his order of December 11, 1945, Judge Peña required the
administrator to render an accounting of his administration only from March 1, 1945, to December of
the same year without ordering said administrator to include therein the occupation period. Although
the Court below mentioned the condition then prevailing during the war-years, We cannot simply
presume, in the absence of proof to that effect, that the administrator received such valuables or
properties for the use or in exchange of any asset or produce of the Intestate, and in view of the
aforementioned order of Judge Peña, which We find no reason to disturb, We see no practical
reason for requiring appellant to account for those occupation years when everything was affected
by the abnormal conditions created by the war. The records of the Philippine National Bank show
that there was a current account jointly in the names of Crisanto de Borja and Juanita V. Jarencio,
his wife, with a balance of P36,750.35 in Japanese military notes and admittedly belonging to the
Intestate and We do not believe that the oppositors or any of the heirs would be interested in an
accounting for the purpose of dividing or distributing this deposit.

(g) On the sum of P13,294 for administrator's fees:

It is not disputed that the administrator set aside for himself and collected from the estate the sum of
P13,294 as his fees from 1945 to 1951 at the rate of P2,400 a year. There is no controversy as to
the fact that this appropriated amount was taken without the order or previous approval by the
probate Court. Neither is there any doubt that the administration of the Intestate estate by Crisanto
de Borja is far from satisfactory.

Yet it is a fact that Crisanto de Borja exercised the functions of an administrator and is entitled also
to a certain amount as compensation for the work and services he has rendered as such. Now,
considering the extent and size of the estate, the amount involved and the nature of the properties
under administration, the amount collected by the administrator for his compensation at P200 a
month is not unreasonable and should therefore be allowed.

It might be argued against this disbursement that the records are replete with instances of highly
irregular practices of the administrator, such as the pretended ignorance of the necessity of a book
or ledger or at least a list of chronological and dated entries of money or produce the Intestate
acquired and the amount of disbursements made for the same properties; that admittedly he did not
have even a list of the names of the lessees to the properties under his administration, nor even a
list of those who owed back rentals, and although We certainly agree with the probate Court in
finding appellant guilty of acts of maladministration, specifically in mixing the funds of the estate
under his administration with his personal funds instead of keeping a current account for the
Intestate in his capacity as administrator, We are of the opinion that despite these irregular practices
for which he was held already liable and made in some instances to reimburse the Intestate for
amounts that were not properly accounted for, his claim for compensation as administrator's fees
shall be as they are hereby allowed.

Recapitulation. — Taking all the matters threshed herein together, the administrator is held liable to
pay to the heirs of Quintin de Borja the following:

Under Paragraphs III and IV:

 (a) P7,084.27
...............................................................................
(b) 12,175.00
...............................................................................
(c) 16,113.95
...............................................................................
(d) 3,352.75
...............................................................................
(e) 341.74
...............................................................................
(f) 3,750.00
................................................................................
(g) 1 ..................................................................... 532.50
2 ..................................................................... 377.25
3 ..................................................................... 366.28
4 ..................................................................... 869.92
5 ..................................................................... 505.87
6 ..................................................................... 500.00
7-a
b .................................................................. 93.75
c .................................................................. 10.00
d ................................................................... 137.50
P46,210.00

In view of the foregoing, the decision appealed from is modified by reducing the amount that the
administrator was sentenced to pay the oppositors to the sum of P46,210.78 (instead of
P83,337.31), plus legal interests on this amount from the date of the decision appealed from, which
is hereby affirmed in all other respects. Without pronouncement as to costs. It is so ordered.

Paras, C.J., Bengzon, Montemayor, Reyes, A., Bautista Angelo, Labrador and Endencia,
JJ., concur.
G.R. No. L-41715 June 18, 1976

ROSALIO BONILLA (a minor) SALVACION BONILLA (a minor) and PONCIANO BONILLA (their
father) who represents the minors, petitioners,
vs.
LEON BARCENA, MAXIMA ARIAS BALLENA, ESPERANZA BARCENA, MANUEL BARCENA,
AGUSTINA NERI, widow of JULIAN TAMAYO and HON. LEOPOLDO GIRONELLA of the Court
of First Instance of Abra, respondents.

Federico Paredes for petitioners.

Demetrio V. Pre for private respondents.

MARTIN, J:

This is a petition for review 1 of the Order of the Court of First Instance of Abra in Civil Case No. 856,
entitled Fortunata Barcena vs. Leon Barcena, et al., denying the motions for reconsideration of its
order dismissing the complaint in the aforementioned case.

On March 31, 1975 Fortunata Barcena, mother of minors Rosalio Bonilla and Salvacion Bonilla and
wife of Ponciano Bonilla, instituted a civil action in the Court of First Instance of Abra, to quiet title
over certain parcels of land located in Abra.

On May 9, 1975, defendants filed a written motion to dismiss the complaint, but before the hearing of
the motion to dismiss, the counsel for the plaintiff moved to amend the complaint in order to include
certain allegations therein. The motion to amend the complaint was granted and on July 17, 1975,
plaintiffs filed their amended complaint.

On August 4, 1975, the defendants filed another motion to dismiss the complaint on the ground that
Fortunata Barcena is dead and, therefore, has no legal capacity to sue. Said motion to dismiss was
heard on August 14, 1975. In said hearing, counsel for the plaintiff confirmed the death of Fortunata
Barcena, and asked for substitution by her minor children and her husband, the petitioners herein;
but the court after the hearing immediately dismissed the case on the ground that a dead person
cannot be a real party in interest and has no legal personality to sue.

On August 19, 1975, counsel for the plaintiff received a copy of the order dismissing the complaint
and on August 23, 1975, he moved to set aside the order of the dismissal pursuant to Sections 16
and 17 of Rule 3 of the Rules of Court. 2

On August 28, 1975, the court denied the motion for reconsideration filed by counsel for the plaintiff
for lack of merit. On September 1, 1975, counsel for deceased plaintiff filed a written manifestation
praying that the minors Rosalio Bonilla and Salvacion Bonilla be allowed to substitute their deceased
mother, but the court denied the counsel's prayer for lack of merit. From the order, counsel for the
deceased plaintiff filed a second motion for reconsideration of the order dismissing the complaint
claiming that the same is in violation of Sections 16 and 17 of Rule 3 of the Rules of Court but the
same was denied.

Hence, this petition for review.

The Court reverses the respondent Court and sets aside its order dismissing the complaint in Civil
Case No. 856 and its orders denying the motion for reconsideration of said order of dismissal. While
it is true that a person who is dead cannot sue in court, yet he can be substituted by his heirs in
pursuing the case up to its completion. The records of this case show that the death of Fortunata
Barcena took place on July 9, 1975 while the complaint was filed on March 31, 1975. This means
that when the complaint was filed on March 31, 1975, Fortunata Barcena was still alive, and
therefore, the court had acquired jurisdiction over her person. If thereafter she died, the Rules of
Court prescribes the procedure whereby a party who died during the pendency of the proceeding
can be substituted. Under Section 16, Rule 3 of the Rules of Court "whenever a party to a pending
case dies ... it shall be the duty of his attorney to inform the court promptly of such death ... and to
give the name and residence of his executor, administrator, guardian or other legal representatives."
This duty was complied with by the counsel for the deceased plaintiff when he manifested before the
respondent Court that Fortunata Barcena died on July 9, 1975 and asked for the proper substitution
of parties in the case. The respondent Court, however, instead of allowing the substitution,
dismissed the complaint on the ground that a dead person has no legal personality to sue. This is a
grave error. Article 777 of the Civil Code provides "that the rights to the succession are transmitted
from the moment of the death of the decedent." From the moment of the death of the decedent, the
heirs become the absolute owners of his property, subject to the rights and obligations of the
decedent, and they cannot be deprived of their rights thereto except by the methods provided for by
law. 3 The moment of death is the determining factor when the heirs acquire a definite right to the
inheritance whether such right be pure or contingent. 4 The right of the heirs to the property of the
deceased vests in them even before judicial declaration of their being heirs in the testate or intestate
proceedings. 5 When Fortunata Barcena, therefore, died her claim or right to the parcels of land in
litigation in Civil Case No. 856, was not extinguished by her death but was transmitted to her heirs
upon her death. Her heirs have thus acquired interest in the properties in litigation and became
parties in interest in the case. There is, therefore, no reason for the respondent Court not to allow
their substitution as parties in interest for the deceased plaintiff.

Under Section 17, Rule 3 of the Rules of Court "after a party dies and the claim is not thereby
extinguished, the court shall order, upon proper notice, the legal representative of the deceased to
appear and be substituted for the deceased, within such time as may be granted ... ." The question
as to whether an action survives or not depends on the nature of the action and the damage sued
for. 6 In the causes of action which survive the wrong complained affects primarily and principally
property and property rights, the injuries to the person being merely incidental, while in the causes of
action which do not survive the injury complained of is to the person, the property and rights of
property affected being incidental. 7 Following the foregoing criterion the claim of the deceased
plaintiff which is an action to quiet title over the parcels of land in litigation affects primarily and
principally property and property rights and therefore is one that survives even after her death. It is,
therefore, the duty of the respondent Court to order the legal representative of the deceased plaintiff
to appear and to be substituted for her. But what the respondent Court did, upon being informed by
the counsel for the deceased plaintiff that the latter was dead, was to dismiss the complaint. This
should not have been done for under the same Section 17, Rule 3 of the Rules of Court, it is even
the duty of the court, if the legal representative fails to appear, to order the opposing party to procure
the appointment of a legal representative of the deceased. In the instant case the respondent Court
did not have to bother ordering the opposing party to procure the appointment of a legal
representative of the deceased because her counsel has not only asked that the minor children be
substituted for her but also suggested that their uncle be appointed as guardian ad litem for them
because their father is busy in Manila earning a living for the family. But the respondent Court
refused the request for substitution on the ground that the children were still minors and cannot sue
in court. This is another grave error because the respondent Court ought to have known that under
the same Section 17, Rule 3 of the Rules of Court, the court is directed to appoint a guardian ad
litem for the minor heirs. Precisely in the instant case, the counsel for the deceased plaintiff has
suggested to the respondent Court that the uncle of the minors be appointed to act as guardian ad
litem for them. Unquestionably, the respondent Court has gravely abused its discretion in not
complying with the clear provision of the Rules of Court in dismissing the complaint of the plaintiff in
Civil Case No. 856 and refusing the substitution of parties in the case.

IN VIEW OF THE FOREGOING, the order of the respondent Court dismissing the complaint in Civil
Case No. 856 of the Court of First Instance of Abra and the motions for reconsideration of the order
of dismissal of said complaint are set aside and the respondent Court is hereby directed to allow the
substitution of the minor children, who are the petitioners therein for the deceased plaintiff and to
appoint a qualified person as guardian ad litem for them. Without pronouncement as to costs.

SO ORDERED.

Teehankee (Chairman), Makasiar, Esguerra and Muñoz Palma, JJ., concur.

Footnotes

1 Which this Court treats as special civil action as per its Resolution dated February
11, 1976.

2 Section 16. Duty of Attorney upon which death, incapacity or incompetency of

party. - Whenever a party to a pending case dies, becomes incapacitated or
incompetent, it shall be the duty of his attorney to inform the court promptly of such
death, incapacity or incompetency, and to give the name and residence of his
executor, administrator, guardian or other legal representative.

Section 17. Death of party.—After a party dies and the claim is not thereby
extinguished, the court shall order, upon proper notice, the legal representative of the
deceased to appear and to be substituted for deceased, within a period of thirty (30)
days, or within such time as may be granted. If the legal representative fails to
appear within said time, the court may order the opposing party to procure the
appointment of a legal representative of the within a time to be specified by the court,
and the representative shall immediately appear for and on behalf of the interest of
the deceased. The court charges involved in procuring such appointment, if defrayed
by the opposing party, may be recovered as costs. The heirs of the deceased may
be allowed to be substituted for the deceased, without requiring the appointment of
an executor or administrator and the court may appoint guardian ad litemfor the
minor heirs.

3 Buan vs. Heirs of Buan, 53 Phil. 654.

4 Ibarle vs. Po, 92 Phil. 721.

5 Morales, et al. vs. Ybanez, 98 Phil. 677.

6 Iron Gate Bank vs. Brady, 184 U.S. 665, 22 SCT 529, 46 L. ed. 739.

7 Wenber vs. St. Paul City Co., 97 Feb. 140 R. 39 C.C.A. 79.
G.R. No. L-46364 April 6, 1990

SULPICIA JIMENEZ and TORIBIO MATIAS, petitioners,

vs.
VICENTE FERNANDEZ alias HOSPICIO FERNANDEZ and TEODORA GRADO, respondents.

Antonio E. Bengzon III for petitioners.

Agustin U. Cruz for private respondents.

PARAS, J.:

Before Us is a petition for review on certiorari of the following Decision 1 and Resolution 2 of the
Honorable Court of Appeals: (1) Decision, dated March 1, 1977 in C.A.-G.R. No. 49178-R entitled
"Sulpicia Jimenez, et al., v. Vicente Fernandez, et al." affirming in toto the judgment of the Court of
First Instance of Pangasinan, Third Judicial District in Civil Case No. 14802-I between the same
parties and (2) Resolution dated June 3, 1977 denying plaintiffs-appellants' motion for
reconsideration.

As gathered from the records, the factual background of this case is as follows:

The land in question is the Eastern portion with an area of Four Hundred Thirty Six (436) square
meters of that parcel of residential land situated in Barrio Dulig (now Magsaysay), Municipality of
Labrador, Pangasinan actually covered by Transfer Certificate of Title No. 82275 (Exhibit A) issued
in the name of Sulpicia Jimenez.

The entire parcel of land with an area of 2,932 square meters, formerly belonged to Fermin Jimenez.
Fermin Jimenez has two (2) sons named Fortunato and Carlos Jimenez. This Fortunato Jimenez
who predeceased his father has only one child, the petitioner Sulpicia Jimenez. After the death of
Fermin Jimenez, the entire parcel of land was registered under Act 496 in the name of Carlos
Jimenez and Sulpicia Jimenez (uncle and niece) in equal shares pro-indiviso. As a result of the
registration case Original Certificate of Title No. 50933 (Exhibit 8) was issued on February 28, 1933,
in the names of Carlos Jimenez and Sulpicia Jimenez, in equal shares pro-indiviso.

Carlos Jimenez died on July 9, 1936 and his illegitimate daughter, Melecia Cayabyab, also known as
Melecia Jimenez, took possession of the eastern portion of the property consisting of 436 square
meters.

On January 20, 1944, Melecia Jimenez sold said 436 square meter-portion of the property to
Edilberto Cagampan and defendant Teodora Grado executed a contract entitled "Exchange of Real
Properties" whereby the former transferred said 436 square meter-portion to the latter, who has
been in occupation since.

On August 29, 1969, plaintiff Sulpicia Jimenez executed an affidavit adjudicating unto herself the
other half of the property appertaining to Carlos Jimenez, upon manifestation that she is the only heir
of her deceased uncle. Consequently Transfer Certificate of Title No. 82275 was issued on October
1, 1969 in petitioner's name alone over the entire 2,932 square meter property.
On April 1, 1970, Sulpicia Jimenez, joined by her husband, instituted the present action for the
recovery of the eastern portion of the property consisting of 436 square meters occupied by
defendant Teodora Grado and her son.

After trial on the merits, the lower court rendered judgment, the dispositive portion of which reads:

WHEREFORE, decision is hereby rendered dismissing the complaint and holding the
defendant, Teodora Grado, the absolute owner of the land in question; ordering the plaintiffs
to pay to the defendant the amount of P500.00 as damages, as attorney's fees, and to pay
the costs of suit.

SO ORDERED. (Rollo, p. 20)

Petitioner appealed the above judgment to the respondent Court of Appeals and on March 1, 1977,
respondent Court of Appeals rendered a decision affirming the same in toto. Said decision was
rendered by a special division of five (5) justices, with the Hon. Lourdes San Diego, dissenting.

Petitioners within the reglementary period granted by the Honorable Court of Appeals, filed therewith
a motion for reconsideration. But said motion for reconsideration was denied by the Court of Appeals
in its resolution dated June 3, 1977.

In their appeal to the respondent Court of Appeals from the aforequoted decision of the trial court,
herein petitioner raised the following assignments of error to wit:

ASSIGNMENTS OF ERROR

THE LOWER COURT ERRED IN NOT DECLARING THAT MELECIA CAYABYAB, ALSO
KNOWN AS MELECIA JIMENEZ, IS NOT THE DAUGHTER OF CARLOS JIMENEZ.

II

THE LOWER COURT ERRED IN NOT DECLARING THAT MELECIA CAYABYAB, ALSO
KNOWN AS MELECIA JIMENEZ, HAS NO RIGHT TO SELL THE LAND IN QUESTION TO
EDILBERTO CAGAMPAN.

III

THE LOWER COURT ERRED IN NOT DECLARING THAT EDILBERTO CAGAMPAN DID
NOT BECOME THE OWNER OF THE LAND IN QUESTION BY VIRTUE OF THE DEED OF
SALE (EXH. "1") EXECUTED BY MELECIA CAYABYAB, ALIAS MELECIA JIMENEZ, IN
HIS FAVOR.

IV

THE LOWER COURT ERRED IN NOT DECLARING THAT TEODORA GRADO DID NOT
BECOME THE OWNER OF THE LAND IN QUESTION BY VIRTUE OF THE DEED OF
EXCHANGE (EXH. "7") EXECUTED BY HER AND EDILBERTO CAGAMPAN.

V
 THE LOWER COURT ERRED IN NOT DECLARING THAT THE TITLE OF APPELLANT
SULPICIA JIMENEZ OVER THE LAND IN QUESTION CAN NOT BE DEFEATED BY THE
ADVERSE OPEN AND NOTORIOUS POSSESSION OF APPELLEE TEODORA GRADO.

VI

THE LOWER COURT ERRED IN DECLARING THAT THE APPELLEE TEODORA GRADO
IS THE ABSOLUTE OWNER OF THE LAND IN QUESTION IN THE LIGHT OF THE
DECISION OF THE SUPREME COURT IN THE CASE OF LOURDES ARCUINO, ET AL.,
V. RUFINA APARIS AND CASIANO PURAY, G.R. NO. L-23424, PROMULGATED
JANUARY 31, 1968, WHICH CASE IS NOT APPLICABLE TO THE CASE AT BAR.

VII

THE LOWER COURT ERRED IN DISMISSING THE COMPLAINT AND ORDERING THE
APPELLANTS TO PAY THE APPELLEES THE SUM OF P500.00 AS ATTORNEYS FEES
PLUS THE COSTS.

From the foregoing, this petition for review was filed.

We find merit in the petition.

From the start the respondent court erred in not declaring that Melecia Jimenez Cayabyab also
known as Melecia Jimenez, is not the daughter of Carlos Jimenez and therefore, had no right over
the property in question. Respondents failed to present concrete evidence to prove that Melecia
Cayabyab was really the daughter of Carlos Jimenez. Nonetheless, assuming for the sake of
argument that Melecia Cayabyab was the illegitimate daughter of Carlos Jimenez there can be no
question that Melecia Cayabyab had no right to succeed to the estate of Carlos Jimenez and could
not have validly acquired, nor legally transferred to Edilberto Cagampan that portion of the property
subject of this petition.

It is well-settled in this jurisdiction that the rights to the succession are transmitted from the moment
of the death of the decedent (Art. 777, Civil Code). Moreover, Art. 2263 of the Civil Code provides as
follows:

Rights to the inheritance of a person who died with or without a will, before the effectivity of
this Code, shall be governed by the Civil Code of 1889, by other previous laws, and by the
Rules of Court . . . (Rollo, p. 17)

Thus, since Carlos Jimenez, owner of one-half pro-indiviso portion of that parcel of land then
covered by Original Certificate of title No. 50933, died on July 9, 1936 (Exhibit "F") way before the
effectivity of the Civil Code of the Philippines, the successional rights pertaining to his estate must be
determined in accordance with the Civil Code of 1889.

Citing the case of Cid v. Burnaman (24 SCRA 434) wherein this Court categorically held that:

To be an heir under the rules of Civil Code of 1889 (which was the law in force when Carlos
Jimenez died and which should be the governing law in so far as the right to inherit from his
estate was concerned), a child must be either a child legitimate, legitimated, or adopted, or
else an acknowledged natural child — for illegitimate not natural are disqualified to inherit.
(Civil Code of 1889, Art. 807, 935)
Even assuming that Melecia Cayabyab was born out of the common-law-relationship between her
mother (Maria Cayabyab) and Carlos Jimenez, she could not even be considered an acknowledged
natural child because Carlos Jimenez was then legally married to Susana Abalos and therefore not
qualified to marry Maria Cayabyab and consequently Melecia Cayabyab was an illegitimate spurious
child and not entitled to any successional rights in so far as the estate of Carlos Jimenez was
concerned.

Melecia Cayabyab in the absence of any voluntary conveyance to her by Carlos Jimenez or Sulpicia
Jimenez of the litigated portion of the land could not even legally transfer the parcel of land to
Edilberto Cagampan who accordingly, could not also legally transfer the same to herein private
respondents.

Analyzing the case before Us in this manner, We can immediately discern another error in the
decision of the respondent court, which is that the said court sustained and made applicable to the
case at bar the ruling in the case of Arcuino, et al., v. Aparis and Puray, No. L-23424, January 31,
1968, 22 SCRA 407, wherein We held that:

. . . it is true that the lands registered under the Torrens System may not be acquired by
prescription but plaintiffs herein are not the registered owners. They merely claim to have
acquired by succession, their alleged title or interest in lot No. 355. At any rate plaintiffs
herein are guilty of laches.

The respondent court relying on the Arcuino case, concluded that respondents had acquired the
property under litigation by prescription. We cannot agree with such conclusion, because there is
one very marked and important difference between the case at bar and that of the Arcuino case, and
that is, that since 1933 petitioner Sulpicia Jimenez was a title holder, the property then being
registered in her and her uncle Carlos Jimenez' name. In the Arcuino case, this Supreme Court held.
"(I)t is true that lands registered under the Torrens System may not be acquired by prescription but
plaintiffs herein are not the registered owners." (Rollo, p. 38) Even in the said cited case the principle
of imprescriptibility of Torrens Titles was respected.

Melecia Cayabyab's possession or of her predecessors-in-interest would be unavailing against the

petitioner Sulpicia Jimenez who was the holder pro-indiviso with Carlos Jimenez of the Torrens
Certificate of Title covering a tract of land which includes the portion now in question, from February
28, 1933, when the Original Certificate of Title No. 50933 (Exhibit 8) was issued.

No possession by any person of any portion of the land covered by said original certificate of titles,
could defeat the title of the registered owner of the land covered by the certificate of title. (Benin v.
Tuason, L-26127, June 28, 1974, 57 SCRA 531)

Sulpicia's title over her one-half undivided property remained good and continued to be good when
she segregated it into a new title (T.C.T No. 82275, Exhibit "A") in 1969. Sulpicia's ownership over
her one-half of the land and which is the land in dispute was always covered by a Torrens title, and
therefore, no amount of possession thereof by the respondents, could ever defeat her proprietary
rights thereon. It is apparent, that the right of plaintiff (now petitioner) to institute this action to
recover possession of the portion of the land in question based on the Torrens Title of Sulpicia
Jimenez, T.C.T. No. 82275 (Exhibit "A") is imprescriptible and not barred under the doctrine of
laches. (J.M. Tuason & Co. v. Macalindong, L-15398, December 29, 1962, Francisco v. Cruz, et al.,
43 O.G. 5105) Rollo, p. 39)

The respondent Court of Appeals declared the petitioner Sulpicia Jimenez guilty of laches and citing
the ruling in the case of Heirs of Lacamen v. Heirs of Laruan (65 SCRA 605), held that, since
petitioner Sulpicia Jimenez executed her Affidavit of Self-Adjudication only in 1969, she lost the right
to recover possession of the parcel of land subject of the litigation.

In this instance, again We rule for the petitioner. There is no absolute rule as to what constitutes
laches or staleness of demand; each case is to be determined according to its particular
circumstances. The question of laches is addressed to the sound discretion of the court and since
laches is an equitable doctrine, its application is controlled by equitable considerations. It cannot be
worked to defeat justice or to perpetrate fraud and injustice. It would be rank injustice and patently
inequitous to deprive the lawful heirs of their rightful inheritance.

Petitioner Sulpicia Jimenez is entitled to the relief prayed for, declaring her to be the sole and
absolute owner of the land in question with right to its possession and enjoyment. Since her uncle
Carlos Jimenez died in 1936, his pro-indiviso share in the properties then owned in co-ownership
with his niece Sulpicia descended by intestacy to Sulpicia Jimenez alone because Carlos died
without any issue or other heirs.

After all, the professed objective of Act No. 496, otherwise known as the Land Registration Act or the
law which established the Torrens System of Land Registration in the Philippines is that the stability
of the landholding system in the Philippines depends on the confidence of the people in the titles
covering the properties. And to this end, this Court has invariably upheld the indefeasibility of the
Torrens Title and in, among others, J.M. Tuason and Co., Inc. v. Macalindong (6 SCRA 938), held
that "the right of the appellee to file an action to recover possession based on its Torrens Title
is imprescriptible and not barred under the doctrine of laches.

WHEREFORE, the Petition for Review is hereby GRANTED. The Decision and Resolution dated
March 1, 1977 and June 3, 1977 in CA G.R. No. L-49178-R are SET ASIDE.

SO ORDERED.

Padilla, Sarmiento and Regalado, JJ., concur.

Melencio-Herrera, J., took no part.
G.R. No. L-24569 February 26, 1926

MANUEL TORRES, petitioner-appellant and

LUZ LOPEZ DE BUENO, appellant,
vs.
MARGARITA LOPEZ, opponent-appellee.

Araneta & Zaragoza for appellant.

Marcaida, Capili & Ocampo and Thomas Cary Welch for appellee.

MALCOLM, J.:

This case concerns the probate of the alleged will of the late Tomas Rodriguez y Lopez.

Tomas Rodriguez died in the City of Manila Philippine Islands. On February 25, 1924, leaving a
considerable estate. Shortly thereafter Manuel Torres, one of the executors named in the will asked
that the will of Rodriguez be allowed. Opposition was entered by Margarita Lopez, the first cousin of
the deceased on the grounds: (1) That the testator lacked mental capacity because at the time
of senile dementia and was under guardianship; (2) that undue influence had been exercised by the
persons benefited in the document in conjunction with others who acted in their behalf; and (3) that
the signature of Tomas Rodriguez to the document was obtained through fraud and deceit. After a
prolonged trial judgment was rendered denying the legalization of the will. In the decision of the trial
judge appeared, among others, these findings:

All this evidence taken together with the circumstances that before and at the time Tomas
Rodriguez was caused to sign the supposed will Exhibit A, and the copies thereof there
already existed a final judgment as to his mental condition wherein he was declared
physically and mentally incapacitated to take care of himself and manage his estate shows in
a clear and conclusive manner that at the time of signing the supposed will of Tomas
Rodriguez did not possess such mental capacity as was necessary to be able him to dispose
of his property by the supposed will.

But even supposing as contended by petitioner's counsel that Tomas Rodriguez was at the
time of execution of the will, competent to make a will, the court is of the opinion that the will
cannot be probated for it appears from the declaration of the attesting witness Elias Bonoan
that when the legatee Luz Lopez presented the supposed will, Exhibit A, to Tomas
Rodriguez, she told him to sign said Exhibit A because it was a document relative to the
complaint against one Castito, which Exhibit 4, then pending in the justice of the peace court,
and for the further reason that said Tomas Rodriguez was then under guardianship, due to
his being mentally and physically incapacitated and therefore unable to manage his property
and take care of himself. It must also be taken into account that Tomas Rodriguez was an
old man 76 years of age, and was sick in the hospital when his signature to the supposed will
was obtained. All of this shows that the signature of Tomas Rodriguez appearing in the will
was obtained through fraudulent and deceitful representations of those who were interested
in it. (Record on Appeal, p. 23)

From the decision and judgment above-mentioned the proponents have appealed. Two errors are
specified, viz: (1) The court below erred in holding that at the time of signing his will, Tomas
Rodriguez did not possess the mental capacity necessary to make the same, and (2) the court below
erred in holding that the signatures of Tomas Rodriguez to the will were obtained through fraudulent
and deceitful representations, made by persons interested in the executions of said will.
The record is voluminous — close to two thousand typewritten pages, with a varied assortment of
exhibits. One brief contains two hundred seventy-four pages, the other four hundred fifteen pages.
The usual oral argument has been had. The court must scale this mountains of evidence more or
less relevant and of argument intense and prolific to discover the fertile valleys of fact and principle.

The topics suggested by the assignments of error — Testamentary Capacity and Undue Influence —
will be taken up separately and in order. An attempt will be made under each subject first to make
findings of fact quite separate and apart from those of the judge and second to make findings of law
and the law by rendering judgment.

I. TESTAMENTARY CAPACITY

A. Facts. — For a long time prior to October, 1923, Tomas Rodriguez was in feeble health. His
breakdown was undoubtedly due to organic weakness, to advancing years and to an accident which
occurred in 1921 (Exhibit 6). Ultimately, on August 10 1923, on his initiative, Tomas Rodriguez
designated Vicente F. Lopez as the administrator of his property (Exhibit 7).

On October 22, 1923, Margarita Lopez petitioned the Court of First Instance of Manila to name a
guardian for Tomas Rodriguez because of his age and pathological state. This petition was opposed
by Attorney Gregorio Araneta acting on behalf of Tomas Rodriguez for the reason that while
Rodriguez was far from strong on account of his years, he was yet capable of looking after his
property with the assistance of his administrator, Vicente F. Lopez. The deposition of Tomas
Rodriguez was taken and a perusal of the same shows that he was able to answer nearly all of the
questions propounded intelligently (Exhibit 5-g). A trial had at which considerable oral testimony for
the petitioner was received. At the conclusion of the hearing, an order was issued by the presiding
judge, declaring Tomas Rodriguez incapacitated to take care of himself and to manage his property
and naming Vicente F. Lopez as his guardian. (Exhibit 37).

Inasmuch as counsel for the appellee make such of one incident which occurred in connection with
the guardianship proceedings, it may as well be mentioned here as later. This episode concerns the
effort of deputy sheriff Joaquin Garcia to make service on Tomas Rodriguez on October 31, 1923.
We will let the witness tell in his own words what happened on the occasions in question:

I found him lying down on his bed. . . . And when it (the cleaning of his head) was finished, I
again entered his room, and told him that I had an order of the court which I wanted to read
as I did read to him, but after reading the order he asked me what the order meant; 'I read it
to you so that you may appear before the court, understand,' then I read it again, but he
asked what the order said; in view of that fact I left the order and departed from the house.
(S. R., p. 642.)

To return to our narrative — possibly inspired by the latter portion of the order of Judge Diaz, Tomas
Rodriguez was taken to the Philippine General Hospital on November 27, 1923. There he was to
remain sick in bed until his death. The physician in charge during this period was Dr. Elias Domingo.
In the clinical case record of the hospital under the topic "Diagnosis (in full)," we find the following
"Senility; Hernia inguinal; Decubitus" (Exhibit 8).

On the door of the patient's room was placed a placard reading — "No visitors, except father,
mother, sisters, and brothers." (Testimony of head nurse physician, there were permitted to visit the
patient only the following named persons: Santiago Lopez, Manuel Ramirez, Romana Lopez, Luz
Lopez de Bueno, Remedio Lopez, Benita Lopez, Trinidad Vizcarra, Apolonia Lopez, Antonio Haman,
and Gregorio Araneta ((Exhibit 9). The list did not include the names of Margarita Lopez and her
husband Antonio Ventura. Indeed the last named persons experienced considerable difficulty in
penetrating in to the room of Rodriguez.

Santiago Lopez states that on one occasion when he was visiting Tomas Rodriguez in the hospital ,
Rodriguez expressed to him a desire to make a will and suggested that the matter be taken up with
Vicente F. Lopez (S. R., p. 550). This information Santiago Lopez communicated to Vicente F.
Lopez, who then interviewed Maximino Mina, a practicing attorney in the City of Manila, for the
purpose of securing him to prepare the will. In accordance with this request, Judge Mina conferred
with Tomas Rodriguez in the hospital in December 16th and December 29th. He ascertained the
wishes of Rodriguez and wrote up a testament in rough draft. The attorney expected to return to the
hospital on December 31st to have the will executed but was unable to do so on account of having
to make a trip to the provinces. Accordingly, the papers were left with Santiago Lopez.

In corroboration of the above statements, we transcribe a portion of Judge Mina's testimony which
has not been challenged in any way:

ARANETA: Q. Will you please tell your motive for holding an interview with Vicente Lopez?

MAXIMINO MINA: A. Then I arrived in the house of Vicente Lopez, after the usual greeting
and other unimportant things, he consulted me or presented the question as to whether or
not D. Tomas could make his will, having announced his desire to do so. I told him that it
seemed that we were not called upon to decide or give an opinion as to whether or not he
can make a will; it is a question to be submitted to the court, but as he had announced his
desire, it is our duty to comply with it. Then he requested me to do what was necessary to
comply with his wishes: I told him I was to see him; then we agreed that on the morning next
to the following evening that is on the 16th, I should go to the General Hospital and so I did.

Q. Did you go to the hospital in the evening of the 16th? — A. Yes, sir.

Q. Did you meet D. Tomas? — A. Yes, sir.

Q. Did D. Tomas tell you his desire to make a will?

OCAMPO: Leading.

ARANETA: I withdraw. What, if anything, did D. Tomas tell you on that occasion when you
saw him there? — A. He told me that.

Q. Please tell us what conversation you had with D. Tomas Rodriguez? — A. The
conversation I had with him that evening — according to my best recollection — I cannot tell
the exact words and perhaps the order. After the usual greetings, Good evening, D. Tomas, '
Good evening,' How are you,' ' How do you do? Very well, just came here in the name of D.
Vicente Lopez why does he not come. He cannot come because he has many things to do,
and besides it is hard for him and makes him tired, so he told me to come.' Mina, your
tenant, attorney.' Are you an attorney? Yes.' Where do you live? I live in Quiapo.' Oh, in
Quiapo, a good district, it is gay a commercial place you must have some business there
because that is a commercial place. Unfortunately, I have none, D. Tomas.' Well, you must
be have because the profession alone does not give enough. Where is your office? I work in
the office of Mr. Chicote. That Mr. Chicote must be rich, it seems to me that he is. The
profession gives almost nothing it is better to have properties. I am an attorney but do not
depend upon my profession. I interrupted D. Tomas saying, since you want to make a will,
when and to whom do you want to leave your fortune? Then he said, To whom else? To my
cousin Vicente Lopez and his daughter Luz Lopez. Which properties do you want to give to
your cousin and niece? All my properties, Won't you specify the property to be given to each
of them? What for? All my property. Don't you have any other relatives? Yes, sir I have.
Won't you give any to those relatives? What for? was his answer. Well, do you want to
specify said properties, to say what they are? and he again said, What for? they know them,
he is my attorney-in-fact as to all property. I also said, Well and as legacy won't you give
property to other persons? answers, I think, something, they will know it. After being asked,
Whom do you think, would you want to be your executor? After hesitating a little, This Torres,
Manuel or Santiago Lopez also. Then I asked him, What is your religion? He answered,
Roman Apostolic Catholic, and then he also asked me, and your? Also Roman Apostolic
Catholic, Where have you studied?' 'In the University of Santo Tomas.' 'It is convenient to
preserve the Catholic religion that our descendants have left us. And you, what did you have
anything more to say as to your testamentary dispositions? No, he answered. Then I remind
him, 'You know that Vicente Lopez has sent me to get these dispositions of yours, and he
said, Yes, do it.' I asked him, When do you want it done? Later on, I will send for you. After
this believing to have done my duty, I bade him good-bye.

Q. Did you have any other occasion to see him? — A. Yes.

Q. When? — A. On December 29, 1923, also in the evening.

Q. Why did you go to see him? — A. Because as I had not received any message either
from Vicente Lopez or Tomas Rodriguez, as I had received notices in connection with the
few cases I had in the provinces particularly in Tayabas, which compelled me to be absent
from Manila until January 1st at least, for I might be there for several days, so I went to the
General Hospital of my own accord — since I had not received any messages from them —
with a rough draft which I had prepared in accordance with what he had told me in our
conversation. After the greetings, I told him, Here I am D. Tomas; this is the rough draft of
your will in accordance with your former statements to me in order to submit it to you. Do you
want to read it?' 'Please do me the favor of reading it. I read it slowly to him in order that he
could understand it . After reading, Is it all right, that is the way,— few words — you see it
takes only a few minutes; now I can execute the will. We can do it takes only a few minutes.'
In view of that statement of his, I called his attention, ' But we don't have witnesses, D.
Tomas.' I looked out through the door to see if I could call some witnesses but it was late
then and it was thought better to do it on the 31st of December. Then we talked about other
things, and he again asked. Where were you born? I told him in Quiapo. Ah, good district,
and especially now that the fiesta of Quiapo is coming near,' and then I interrupted him, Yes,
the fiesta of the Holy Child and of Our Lady of Mount Carmel' because we also talked about
the fiesta of San Sebastian. I again reminded him that we could not do it because the
witnesses were not there and he explained, Good Christmas present, isn't it?' I did not tell
him anything and in view of that I did not deem it necessary to stay there any longer.

Q. With whom did you make the arrangement to make the will on the evening of the 31st of
December — you said that it was agreed that the will be executed on the evening of
December 31st? — A. With Santiago Lopez and Don Tomas.

Q. Was the will executed on the 31st of December? — A. What happened is this: In view of
that agreement, I fixed up the draft which I had, dating it the 31st of December, putting
everything in order; we agreed that Santiago would meet me on 31st day between five and
six in the evening or a little before, but it happened that before the arrival of that date
Santiago Lopez came and told me that I need not trouble about going to the General
Hospital; because it could not be carried out for the reason that certain requisites were
 lacking. In view of this and bearing always in mind that on the following day I had to go to the
provinces, I told Santiago Lopez that I would leave the papers with him because I might go to
the provinces.

Q. What may be the meaning of those words good Christmas present? — A. They are given
a Christmas present when Christmas comes or on the occasion of Christmas.

Q. I show you this document which is marked Exhibit A, tell me if that is the will or copy of
the will which you delivered to Santiago Lopez on December 21, 31, 1923? — A. With the
exception of the words '3 de enero de 1924' It seems to be literally identical. (S. R. pp. 244-
249.)

As the witness stated, the will which was prepared by him is identical with that signed by the testator
and the attesting witnesses with the single exception of the change of the date from December 31,
1923, to January 3, 1924. Two copies besides the original of the will were made. The will is brief and
simple in terminology.

For purposes of record, we copy the will as here translated into English:

ONLY PAGE

In the City of Manila, Philippines Islands, this January 3, 1924, I, Tomas Rodriguez, of age
and resident of the City of Manila, Philippine Islands, do freely and voluntarily make this my
will and testament in the Spanish language which I know, with the following clauses:

First I declare that I am a Roman Apostolic Catholic, and order that my body be buried in
accordance with my religion, standing and circumstances.

Second. I name my cousin Vicente F. Lopez and his daughter Luz Lopez de Bueno as my
only universal heirs of all my property.

Third. I appoint D. Manuel Torres and D. Santiago Lopez as my prosecutors.

In witness whereof I sign this typewritten will, consisting of one single page, in the presence
of the witness who sign below.

(Sgd.) TOMAS RODRIGUEZ

(Left marginal signatures:)

TOMAS RODRIGUEZ
ELIAS BONOAN
V. L. LEGARDA
A. DE ASIS

We hereby certify that on the date and in the place above indicated, Don Tomas Rodriguez
executed this will, consisting of one single typewritten page, having signed at the bottom of
the will in the presence of us who saw as witnesses the execution of this will, we signed at
the bottom thereof in the presence of the testator and of each other.

(Sgd.) V. L. LEGARDA
ELIAS BONOAN
 A. DE ASIS
(Exhibit A.)

On the afternoon of January 3, 1924 there gathered in the quarters of Tomas Rodriguez in the
Philippine General Hospital, Santiago Lopez and Dr. A. De Asis, attesting witness; and Dr. Elias
Fernando Calderon, Dr. Elias Domingo and Dr. Florentino Herrera, physicians, there for purposes of
observation. (Testimony of Elias Bonoan, S. R., p. 8 of Vl. Legarda, S. R. p. 34. ) Possibly also Mrs.
Luz Lopez de Bueno and Mrs. Nena Lopez were present; at least they were hovering in the
background.

As to what actually happened, we have in the record two absolutely contradictory accounts. One
emanates from the attesting witness, Doctor Bonoan. The other is the united testimony of all
remaining persons who were there.

Doctor Elias Bonoan was the first witness called at the trial. He testified on direct examination as to
formal matters, such as the identification of the signatures to the will .On cross-examination, he
rather started the proponents of the will by stating that Luz Lopez de Bueno told Tomas Rodriguez to
sign the document it concerned a complaint against Castito and that nobody read the will to the
testator. Doctor Bonoan's testimony along this line is as follows:

QUESTIONS.

MARCAIDA : Q. Why were you a witness to the will of Tomas Rodriguez?

Araneta: I object to the question as being immaterial.

Court: Objection overruled.

Dr. Bonoan: A. Because I was called up by Mrs. Luz by telephone telling me to be in the
hospital at 3 o'clock sharp in the afternoon of the 3d of January.

Q. Who is that Luz whom you have mentioned? — A. Luz Lopez, daughter of Vicente Lopez.

Q. What day, January 3, 1924? A. Yes, sir.

Q. When did Luz Lopez talk to you in connection with your going to the hospital? — A. On
the morning of the 3d she called me up by telephone.

Q. On the morning? — A. On the morning.

Q. Before January 3, 1924, when the will of Tomas Rodriguez was signed, did Luz Lopez
talk to you? A. Yes, sir.

Q. How many days approximately before was it? — A. I cannot tell the day, it was
approximately one week before, — on that occasion when I was called up by her about the
deceased Vicente Lopez.

Q. What did she tell you when you went to the house of Vicente Lopez one week
approximately before signing the will? - A. That Tomas Rodriguez would make a will.
Q. Don't you know where the will of Tomas Rodriguez was made? - A. In the General
Hospital.

Q. Was that document written in the hospital? — A. I have not seen it.

Q. When you went to the General Hospital on January 3, 1924, who were the persons you
met in the room where the patients was ? — A. I met one of the nieces of the deceased
Tomas Rodriguez, Mrs. Nena Lopez and Dna. Luz Lopez.

Q. Were those the only persons? — A. Yes, sir.

Q. What time approximately did you go to the General Hospital on January 3d? — A. A
quarter to 3.

Q. After you, who came? — A. Antonio de Asis, Doctor Herrera, later on Doctor Calderon
arrived with Doctor Elias Domingo and lastly Santiago Lopez came and then Mr. Legarda.

Q. When you entered the room of the patient, D. Tomas Rodriguez, in the General Hospital
in what position did you find him?— A. He was lying down.

Q. Did you greet D. Tomas Rodriguez? A. I did.

Q. Did D. Tomas Rodriguez answer you? — A. Dna. Nena immediately answered in advance
and introduced me to him saying that I was the brother of his godson.

Q. Did other persons whom you have mentioned, viz, Messrs. Calderon, Herrera, Domingo,
De Asis and Legarda greet Tomas Rodriguez?

ARANETA: I object to the question as being improper cross-examination. It has not been the
subject of the direct examination.

COURT: Objection overruled.

ARANETA: Exception.

A. No, sir, they joined us.

Q. What was D. Tomas told when he signed the will.? — A. To sign it.

Q. Who told D. Tomas to sign the will? — A. Luz Lopez.

Q. What did Luz Lopez tell Tomas Rodriguez in order that he should sign the will? — A. She
told him to sign the document; the deceased Tomas Rodriguez before signing the document
asked what that was which he was to sign.

Q. What did anybody answer to that question of D. Tomas? — A. Luz Lopez told him to sign
it because it concerned a complaint against Castito. D. Tomas said, 'What is this?" And Luz
Lopez answered, 'You sign this document, uncle Tomas, because this is about the complaint
against Castito.
 Q. Then Tomas Rodriguez signed the will? — A. Yes, sir.

Q. Who had the will? Who was holding it? — A. Mr. Vicente Legarda had it his own hands.

Q. Was the will signed by Tomas Rodriguez lying down, on his feet or seated? — A. Lying
down.

Q. Was the will read by Tomas Rodriguez or any person present at the time of signing the
will, did they read it to him? — A. Nobody read the will to him.

Q. Did not D. Tomas read the will? — A. I have not seen it.

Q. Were you present? — A. Yes, sir. ( S. R. p. 8)

As it would be quite impracticable to transcribe the testimony of all the others who attended the
making of the will, we will let Vicente L. Legarda, who appears to have assumed the leading role, tell
what transpired. He testified in part:

ARANETA : Q. Who exhibited to you those documents, Exhibits A, A-1, and A-2?

LEGARDA: A. Santiago Lopez.

Q. Did he show you the same document? — A. First that is to say the first document he
presented to me was a rough draft, a tentative will, and it was dated December 31st, and I
called his attention to the fact that the date was not December 31, 1923, and that it was
necessary to change the date to January 3, 1924, and it was done.

Q. And it was then, was it not when Exhibits A, A-1, and A-2 were written? — A. Yes, sir.

Q. Do you any know where it was written? — A. In the General Hospital.

Q. Did any time elapse from your making the suggestion that the document which you
delivered to Santiago Lopez be written until those three Exhibits A, A-1, and A-2 were
presented to you? — A. About nine or ten minutes approximately.

Q. The time to make it clean? — A. Yes, sir.

Q. Where were you during that time? — A. In the room of D. Tomas Rodriguez.

Q. Were you talking with him during that time. — A. Yes, sir.

Q. About what things were you talking with him? — A. He was asking me about my health,
that of my family how my family was my girl, whether we were living in Pasay, he asked me
about the steamer Ildefonso, he said that it was a pity that it had been lost because he knew
that my father-in-law was the owner of the steamer Ildefonso.

xxx xxx xxx

Q. When those documents, Exhibit A, A-1, and A-2, that is the original and two copies of the
will signed by D. Tomas Rodriguez were written clean, will you please tell what happened?
 — A. When Santiago Lopez gave them to me clean, I approached D. Tomas Rodriguez and
told him: Don Tomas, here is this will which is ready for your signature.

Q. What did D. Tomas do when you said that his will you were showing to him was ready? —
A. The first thing he asked was: the witnesses? Then I called the witnesses — Gentlemen,
please come forward, and they came forward, and I handed the documents to D. Tomas. D.
Tomas got up and then took his eyeglasses, put them on and as he saw that the electric
lamp at the center was not sufficiently clear, he said: 'There is no more light;' then somebody
came forward bringing an electric lamp.

Q. What did D. Tomas do when that electric lamp was put in place? — A. The eyeglasses
were adjusted again and then he began to read, and as he could not read much for a long
time, for he unexpectedly felt tired and took off the eyeglasses, and as I saw that the poor
man was tired, I suggested that it be read to him and he stopped reading and I read the will
to him.

Q. What happened after you had read it to him? — A. He said to me, 'Well, it is all right. It is
my wish and my will. Don't you have any pen?' I asked a pen of those who were there and
handed it to D. Tomas.

Q. Is it true that Tomas Rodriguez asked at that time 'What is that which I am going to sign?'
and Luz Lopez told him: 'It is in connection with the complaint against Castito?' — A. It is not
true, no, sir.

Q. During the signing of the will, did you hear Luz Lopez say anything to Tomas Rodriguez?
— A. No, Sir, she said nothing.

Q. According to you, Tomas Rodriguez signed of his own accord? — A. Yes, sir.

Q. Did nobody tell him to sign? — A. Nobody.

Q. What happened after the signing of the will by Tomas Rodriguez? — A. I called the
witnesses and we signed in the presence of each other and of Tomas Rodriguez.

Q. After the signing of the will, did you have any conversation with Tomas Rodriguez? — A.
Doctor Calderon asked D. Tomas Rodriguez some questions.

Q. Do you remember the questions and the conversation held between Doctor Calderon and
D. Tomas after the signing of the will? — A. I remember that afterwards Doctor Calderon
talked to him about business. He asked him how the business of making loans at 18 per
cent. It seems that Tomas Rodriguez answered: That loan at 18 per cent is illegal, it is usury.
(S. R., p. 38.)

In addition to the statements under oath made by Mr. Legarda, an architect and engineer in the
Bureau of Public Works and professor of engineering and architecture in the University of Santo
Tomas, suffice it to say that Luz Lopez de Bueno denied categorically the statements attributed to
her by Doctor Bonoan (S. R., p. 568). In this stand, she is corroborated by Doctor Calderon,
Domingo, and Herrera, the attending physicians. On this point, Doctor Calderon the Director of the
Philippine General Hospital and Dean of the College of Medicine in the University of the Philippines,
testified:
 Mr. ARANETA: Q. What have you seen or heard with regard to the execution of the will?

Dr. CALDERON: A. Mr. Legarda handled the will to D. Tomas Rodriguez. D. Tomas asked
for his eyeglass, wanted to read and it was extremely hard for him to do so. Mr. Legarda
offered to read the will, it was read to him and he heard that in that will Vicente Lopez and
Luz Lopez were appointed heirs; we also saw him sign that will, and he signed not only the
original but also the other copies of the will and we also saw how the witnesses signed the
will; we heard that D. Tomas asked for light at that moment; he heard that D. Tomas asked
for light at that moment; he was at that time in a perfect mental state. And we remained there
after the will was executed. I asked him, 'How do you feel, how are you? Well I am well, ' he
answered. ' How is the business? There is a crisis at there is one good business, namely,
that of making loans at the rate of 18 per cent, 'and he answered, 'That is usury.; When a
man answers in that way, ' That is usury it shows that he is all right.

Q. Were you present when Mr. Legarda handed the will to him? — A. Yes, sir.

Q. Did any person there tell Don Tomas that was a complaint to be filed against one Castito?
— A. No, sir, I have not heard anything of the kind.

Q. It was said here that when the will was handed to him, D. Tomas Rodriguez asked what
that was which he was to sign and that Luz Lopez answered, 'That is but a complaint in
connection with Castito.' Is that true? — A. I have not heard anything of the kind.

Q. Had anybody told that to the deceased, would you have heard it? A. Yes, sir.

Q. Was Luz Lopez there? — A. I don't remember having seen her; I am not sure; D.
Santiago Lopez and the three witnesses were there; I don't remember that Luz Lopez was
there.

Q. Had anybody told that to the deceased, would you have heard it? — A. Yes, sir.

Q. Do you remember whether he was given a pen or he himself asked for it? — A. I don't
know; it is a detail which I don't remember well; so that whether or not he was given a pen or
he himself asked for it, I do not remember.

Q. But did he sign without hesitation ? — A. With no hesitation.

Q. Did he sign without anybody having indicated to him where he was to sign? — A. Yes,
without anybody having indicated it to him.

Q. Do you know whether D. Tomas Rodriguez asked for more light before signing? — A. He
asked for more lights, as I have said before.

Q. Do you remember that detail? — A. Yes, sir. They first lighted the lamps, but as the light
was not sufficient, he asked for more light.

Q. Do you remember very well that he asked for light? — A. Yes, sir. (S. R. p.993).

A clear preponderance of the evidence exists in favor of the testimony of Vicente Legarda,
corroborated as it is by other witnesses of the highest standing in the community. The only
explanation we can offer relative to the testimony of Doctor Bonoan is that possibly he may have
arrived earlier than the others with the exception of Luz Lopez de Bueno, and that Luz Lopez de
Bueno may have made some sort of an effort to influence Tomas Rodriguez. There is however no
possible explanation of the statement of Doctor Bonoan to the effect that no one read the will to
Rodriguez when at least five other persons recollect that Vicente Legarda read it to him and recall
the details connected with the reading.

There is one curious occurrence which transpired shortly after the making of the will which should
here be mentioned. It is that on January 7, 1923 (1924), Luz Lopez de Bueno signed a document in
favor of Doctor Bonoan in the amount of one thousand pesos (P1,000). This paper reads as follow:

Be it know by these present:

That I, Luz Lopez de Bueno in consideration of the services which at my instance

were and will when necessary be rendered by Dr. Elias Bonoan in connection with
the execution of the will of my uncle, Don Tomas Rodriguez and the due probate
thereof, do hereby agree to pay said doctor, by way of remuneratory donation, the
sum of one thousand pesos (P1,000), Philippine currency, as soon as said services
shall have been fully rendered and I shall be in possession of the inheritance which
in said will is given to me.

In witness whereof, I sign this document which was freely and spontaneously
executed by me in Manila, this January 7, 1923.

(Sgd.) LUZ LOPEZ DE BUENO

(Exhibit 1)

There is a sharp conflict of testimony, as is natural between Doctor Bonoan and Luz Lopez de
Bueno relative to the execution of the above document. We shall not attempt to settle these
differences as in the final analysis it will not affect the decision one way or the other. The most
reasonable supposition is that Luz Lopez de Bueno imprudently endeavored to bring over Doctor
Bonoan to her side of the race by signing and giving to him Exhibit 1. But the event cannot easily be
explained away.

Tomas Rodriguez passed away in the Philippine General Hospital, as we said on February 25, 1924.
Not even prior to his demise the two actions in the Lopez family had prepared themselves for a fight
over the estate. The Luz Lopez faction had secured the services of Doctor Domingo, the physician in
charge of the Department of Insane of San Lazaro Hospital an Assistant Professor of Nervous and
Mental Diseases in the University of the Philippines, as attending physician; as associated with him
for purposes of investigation Dr. Fernando Calderon the Director of the Philippine General Hospital
and Dr. Florentino Herrera, a physician in active practice in the City of Manila; and had arranged to
have two members of the medical fraternity, Doctors De Asis and Bonoan as attesting witnesses.
The Margarita Lopez faction had taken equal precautions by calling a witnesses in the guardship
proceedings Dr. Sixto de los Angeles Professor and Chief of the Department of Legal Medicine in
the University of the Philippines, and Dr. Samuel Tietze, with long experience in mental diseases;
thereafter by continuing Doctors de Los Angeles and Tietze to examine Tomas Rodriguez and by
associating with them Dr. William Burke, a well-known physician of the City of Manila. Skilled
lawyers were available to aid and abet the medical experts. Out of such situations, do will contests
arise.

An examination of the certificates made by the two sets of physicians and of their testimony shows
that on most facts they concur. Their deductions from these facts disclose a substantial divergence
of opinion. It is a hopeless task to try to reconcile the views of these distinguished gentlemen who
honestly arrived at definite but contradictory conclusions. The best that we can do under the
circumstances is to set forth the findings of the Calderon committed on the hand and of the De Los
Angeles committee on the other.

Doctors Calderon, Domingo and Herrera examined Tomas Rodriguez individually and jointly before
the date when the will was executed. All of them, as we have noticed were, present at the signing of
the will to note the reactions of the testator. On the same day that the will was accomplished, the
three doctors signed the following certificate:

The undersigned, Drs. of Medicine, with offices in the City of Manila, and engaged in the
practice of their profession do hereby certify:

That they have jointly examined Mr. Tomas Rodriguez, confined in the General Hospital,
floor No. 3, room No. 361 on three different occasion and on different days and have found
that said patient is suffering from anemia, hernia inguinal, chronic dyspepsia and senility.

As to his mental state the result of the different tests to which this patient was submitted is
that his intellectual faculties are sound, except that his memory is weak, which is almost a
loss for recent facts, or events which have recently occurred, due to his physical condition
and old age.

They also certify that they were present at the time he signed his will on January 3, 1924, at
1:25 p.m. and have found his mental state in the same condition as was found by the
undersigned in their former examination and that in executing said will the testator and full
knowledge of the contents thereof.

In testimony whereof, we sign in Manila this January 3, 1924.

(Sgd.) FLORENTINO HERRERA

Tuberias 1264
Quiapo

(Sgd.) Dr. FERNANDO CALDERON

General Hospital
Manila

(Sgd.) Dr. ELIAS DOMINGO

613 Remedios
Malate

(Exhibit E in relation with Exhibits C and D.)

Doctor Calderon while on the witness-stand expressed a definite opinion as to the mentality
of Tomas Rodriguez What follows is possibly the most significant of the doctor's statements:

Dr. CALDERON testifying after interruption:

A. I was naturally interested in finding out the true mental state of Tomas Rodriguez and that
was the chief reason why I accepted and gave my cooperation to Messrs. Elias Domingo
and Florentino Herrera because had I found that Tomas Rodriguez and Florentino Herrera
because had I found that Tomas Rodriguez was really insane, I should have ordered his
transfer to the San Lazaro Hospital or to other places, and would not have left him in the
General Hospital. Pursuant to my desire, I saw Tomas Rodriguez in his room alone twice to
have interviews with his, he begging a person whom I knew since several years ago; at the
end of the interviews I became convinced that there was nothing wrong with him; I had not
seen anything indicating that he was insane and for this reason I accepted the request of my
companions and joined them; we have been on five different occasions examining Tomas
Rodriguez jointly from the physical standpoint but chiefly from the standpoint of his mental
state; I have been there with Messrs. Herrera and Elias Domingo, examining Tomas
Rodriguez and submitting to a mental test on the 28, 29, 10 and 31 of December and the
22nd of January, 1924 — five consecutive days in which he have been together besides my
particular visits.

Q. Will you place state the result of the observation you made alone before those made by
the three of you jointly? — A. I asked Tomas Rodriguez some questions when I went alone
there, I asked him were he was living formerly and he well remembered that in Intramuros,
Calle Real; I asked him whether he remembered one Calderon who was living in the upper
floor of the house and then he told me yes; than I asked him about his tenant by the name of
Antonio Jimenez and he told me yes, — now I remember that he had two daughters, Matilde
and Paz. Then I told him that I had been living in the house of the gentlemen, Antonio
Jimenez already dead — in the upper story of the house belonged to Tomas Rodriguez; I
told him that Antonio Jimenez was his tenant of the upper story, that is that he was living on
the ground floor and Antonio Jimenez upstairs and he remembered all of this I also began to
talk of my brother, Felipe Calderon, who he said of course that he knew; he remembered him
because he was his companion and was a successful attorney. This was when I had an
interview with him. Then in order to observe better and to be sure of my judgment or opinion
about the mental state of Tomas Rodriguez, I saw him again and we began to speak of
something which I don't remember now. In fine, we talked of things of interest and as I had
finally accepted the request of Drs. Elias Domino and Florentino Herrera to join then the first
and second time that Herrera, Domingo and myself went there, no stenographic notes were
taken of what happened there.

Q. So that before joining Doctors Herrera and Domingo you had already paid two visits to the
patient? — A. Yes, sir.

Q. From the result f the conversation you had with Tomas Rodriguez on those two visits what
is your opinion as to his mental capacity? — A. That he was sick; that he was weak, but I
have found absolutely no incoherence in his ideas; he answered my questions well and as I
was observing him there were times when he did not remember things of the present —
because this must be admitted — but on the other hand he had a wonderful memory of past
events; in talking with him, you would not notice in the conversation any alteration in his mind
nor that man had lost the reasoning power or logic.

Q. Did you notice any loss of memory, or that his memory was weakening about things of the
past? — A. About things of the past, I mean that you talk to him now about specific matters,
and after about five or ten minutes he no longer remembers what had been talked of.

xxx xxx xxx

Q. Do you remember the conversation you had with him for the first time when the three of
you paid a visit to the patient? — A. I don't remember the details, but I do remember the
questions I put to him. I asked D. Tomas Rodriguez: You are an old man aged, sick: Yes, I
am thinking to make a will. But why don't you decide? There is no hurry there is time to make
 a will, 'he said. Then in case you decide to make a will, to whom are you going to leave your
property? Don't you have any relatives? I have a relative, Vicente Lopez, my first cousin, and
Margarita Lopez my first cousin they are brothers.' In that case, to whom, do you want to
leave your property? Why, I don't have much, very little, but I am decided to leave it to my
cousin, Vicente Lopez and his daughter Luz Lopez. Why would you not give anything to
Margarita Lopez? No because her husband is very bad, 'to use his exact language is very
bad.'

Q. Did you talk with him on that occasion about his estate? — A. Yes, sir, he told me that he
had three estates, — one on Calle Magallanes, another on Calle Cabildo and the third on
Calle Juan Luna and besides he had money in the Monte de Piedad and Hogar Filipino.

xxx xxx xxx

Q. From the question made by you and the answers given by Mr. Tomas Rodriguez on that
occasion, what is your opinion as to his mental capacity? — A. The following: That the
memory of Tomas Rodriguez somewhat failed as to things of the present, but is all right with
regard to matters or facts of the past; that his ideas were incoherent; that the thought with
logic, argued even with power and generally in some of the interviews I have arrived at the
conclusion that Tomas Rodriguez had an initiative of his own, did not need that anybody
should make him any suggestion because he answered in such a way that if you permit me
now to show you my stenographic notes, they will prove to you conclusively that he had an
initiative of his own and had no need of anybody making him any question. (S. R. p. 72.)

Doctor Elias Domingo, who was the attending physician for Tomas Rodriguez throughout all the time
that Rodriguez in the hospital had examined him, was likewise certain that Rodriguez possessed
sufficient mentality to make a will. Among other things, Doctor Domingo testified:

ARANETA: Q. Have you known D. Tomas Rodriguez?

Dr. DOMINGO: A. Yes, sir.

Q. Did you attend D. Tomas Rodriguez as physician? — A. Yes, sir.

Q. When did you begin to attend him as physician? — A. On November 28, until his death.

Q. On November 28 or October 28, 1923, do you remember? — A. I had been attending him
as physician from November 28th although it true that I had opportunities to see and
examine him during the months of October and November.

Q. What was the object of your visits or attendance during the months of October and
November? — A. It was for the purpose of observing his mental state.

Q. Did you really examine his mental condition or capacity during the months of October and
November? — A. Yes, sir.

Q. How many times did you visit him? — A. I don't remember exactly but I visited him about
five or six times.

xxx xxx xxx

 Q. Please tell us the result of your examination during those months of October and
November? — A. I examined him physically and mentally; I am not going to tell here the
physically result but the result of the mental examination, and that is: General Conduct: In
most of the times that I have seen him I found him lying on his bed, smoking a cigarette and
asked for a bottle of lemonade from time to time; I also observed that he was very careful
when throwing the ash of the cigarette, seeing to it that it did not fall on the blankets; he also
was careful not to throw the stub of the cigarette in any place to avoid fire; I made more
observations as to his general conduct and I found that sometimes Don Tomas could move
within the place although with certain difficulty. On two occasions I found him seated, once
seated at the table, seated in the chair, and other on a rocking chair. I also examined his
manner of talking and to all questions that I put to him he answered with a coherence and in
a relevant manner, although sometimes he showed eagerness and certain delay. I based
these points of my declaration on the questions which are usually asked when making a
mental examination for instance I asked him, What is your name, 'and he correctly answered
Tomas Rodriguez; I asked him if he was married and he answered 'No;' I asked him his
profession and he answered that formerly he was an attorney but that at the time I was
making the examination he was not practising the profession; I asked him with what he
supported himself and he said that he lived upon his income, he said verbatim, 'I live on my
income.' I also asked him what the amount of him income was and he answered that it was
about P900; I asked him what the source of this income was and he said that it came from
his property.

Q. Did you ask him about his property? — A. No, at that time.

Q. Proceed. — A. I also observed his emotional status and effectivity. I found it rather
superficial, and he oftentimes got angry due to his physical disease; I asked him if he had
any relatives and he answered correctly saying that he had. He mentioned Vicente Lopez,
Margarita Lopez, and Luz Lopez. As to his memory. His memory of the past. He very easily
remembered past events and when he described them he did it with such pleasure the he
used to smile afterwards — if it was a fact upon which one must smile, His memory of recent
facts was very much lessened. I say this because on various occasions and not having
known me when he had a better memory, after I had seen him thrice he remembered my
name and he recognized me. Insight and judgment. I arrived at the conclusion that he had
fair knowledge of himself because he knew that he was sick and could not be moving with
ease, but he believed that he could perform with sufficient ease mental acts; his judgment
was also all right because I asked him this question: 'Supposing that you could find a bill of
P5 in the vestibule of a hotel, what would you do with it ?' He told me that he would take the
bill and give it to the manager in order that the latter may look for the owner if possible. His
reasoning. I found that he showed a moderated retardation in the flow of his thought,
especially with regard to recent events, but was quite all right as to past events, His capacity,
He believed that he was capable of thinking properly although what did not permit him to do
so was his physical decrepit condition. The conclusion is that his memory is lost for recent
events tho not totally and diminution of his intellectual vigor. This is in few words the result of
my examination.

Tomas Rodriguez was likewise examined thoroughly by Doctors De los Angeles, Tietze, and Burke.
Doctor De los Angeles had been a witness in the gurardianship proceedings and had seen the
patient of November 6 and 7, 1923. Doctor Tietze had also been a witness in the guardianship case
and had visited the patient on November 9 and 12, 1923, and on January 15, 1924. Doctors Tietze
and Burke together examined Rodriguez on January 17, 20, and 24, 1924. The three physicians
conducted a joint examination result, on March 15, 1924, they prepared and signed the following:

MEDICAL CERTIFICATE
In the Matter of Tomas Rodriguez y Lopez, male, 76 years of age, single and residing or
being confined in the Philippine General Hospital.

We, the undersigned Doctors, Sixto de los Angeles, W. B. Burke, and Samuel Tietze, do
hereby certify as follows:

1. That we are physicians, duly registered under the Medical Act, and are in the actual
practice of the medical profession in the Philippines.

2. That on January 27th and 28th, and February 10th, 1924, at the Philippine General
Hospital, we three have with care the diligence jointly and personally examined the person of
said Tomas Rodriguez y Lopez; and previous to these dated, we have separately and partly
jointly observed and examined said patient on various occasions; Dr. Sixto de los Angeles, at
the patient's home, 246 Magallanes St., Manila, on November 6th and 7th , 1923; Dr.
Samuel Tietze, at the patient's home on November 9th and 12th, 1923, and at the Philippine
General Hospital no January 17th, 20th, and 24, 1924; and as a result of the medical
examinations and the history of the case we found and hereby certify to the following
conclusions:

(a) That he was of unsound mind suffering from senile dementia, or of mental impairment
exceeding to a pathological extent the unusual conditions and changes found to occur in the
involutional period of life.

(b) That he was under the influence of the above condition continuously, at least from
November, 1923, till the date of our joint reexamination, January 27th and 28th, and
February 10th, 1924; and that he would naturally have continued without improvement, as
these cases of insanity are due to organic pathological changes of the brain. This form of
mental disease is progressive in its pathological tendency, going on to progressive atropy
and degeneration of the brain, the mental symptoms, of course, running parallel with such
pathological basis.

(c) That on account of such disease and conditions his mind and memory were so greatly
impaired as to make him unable to know or to appreciate sufficiently the nature, effect, and
consequences of the business he was engaged in; to understand and comprehend the
extent and condition of his properties; to collect and to hold in his mind the particulars and
details of his business transactions and his relations to the persons who were or might have
been the objects of his bounty; and to free himself from the influences of importunities,
threats and ingenuities, so that with a relatively less resistance, he might had been induced
to do what others would not have done.

3. We have diagnosed this case as senile demential of the simple type, approaching the
deteriorated stage upon the following detailed mental examination:

(a) Disorder of memory. — There was almost an absolute loss of memory of recent events,
to the extent that things and occurrences seen or observed only a few minutes previously
were completely forgotten. Faces and names of person introduced to him were not
remembered after a short moment even without leaving his bedside . He showed no
comprehension of the elemental routine required in the management of his properties, i.e.:
who were the lessees of his houses, what rents they were paying, who was the administrator
of his properties, in what banks he deposited his money or the amount of money deposited in
such banks. Regarding his personal relation, he forgot that Mr. Antonio Ventura is the
husband of his nearest woman cousin; the Mrs. Margarita Lopez was married, saying that
the latter was single or spinster, in spite of the fact that formerly, during the past twenty-five
years, he was aware of their marriage life, He did not know the names of the sons and
daughters of Mr. Vicente Lopez, one of his nearest relatives, even failing to name Mrs. Luz
Lopez de Bueno, a daughter of said Vicente Lopez, and who now appears to be the only
living beneficiary of his will. He also stated that Mr. Vicente Lopez frequently visited him in
the hospital, though the latter died on January 7th, 1924. He did not recognized and
remember the name and face of Doctor Domingo, his own physician. However, the memory
for remote events was generally good, which is a characteristic symptom of senile dementia.

(b) Disorientation of time, place and persons. — He could not name the date when asked
(day or month); could not name the hospital wherein he was confined; and failed to
recognize the fact that Doctor Domingo was his physician.

(c) Disorders of perception. — He was almost completely indifferent to what was going on
about him. He also failed to recognize the true value of objects shown him, that is he failed to
recognized the 'Saturday Evening Post' nor would he deny that it was a will when presented
as such. He also failed to show normal intellectual perception. Making no effort to correlate
facts or to understand matters discussed in their proper light.

(d) Emotional deterioration. — The patient was not known during his time of physical
incapacity to express in any way or lament the fact that he was unable to enjoy the
happiness that was due him with his wealth. As a matter of fact, he showed complete
indifference. He showed loss of emotional control by furious outbreaks over trifling matter
and actually behaved like a child; for example, if his food did not arrive immediately of when
his cigar was not lit soon, he would becomes abusive in his language and show marked
emotional outburst. If the servants did not immediately answer his call, he would break down
and cry as a child.

(e) Symptoms of decreased intellectual capacity. — There was a laxity of the internal
connection of ideas. The patient has shown no insight regarding his own condition. He did
not appreciate the attitude of the parties concerned in his case; he would on several
occasion become suspicious and fail to comprehend the purpose of our examination. He was
inconsistent in his ideas and failed to grasp the meaning of his own statements. When
questioned whether he would make a will, he stated to Doctor Tietze that he intended to
bequeath his money to San Juan de Dios Hospital and Hospicio de San Jose. When He was
informed, however, that he had made a will on January 31, 1924, he denied the latter
statement, and failed to explain the former. Although for a long time confined to bed and
seriously ill for a long period, he expressed himself as sound physically and mentally, and in
the false belief that he was fully able to administer his business personally.

His impairment of the intellectual field was further shown by his inability, despite his
knowledge of world affairs, to appreciate the relative value of the statement made by Doctor
Tietze as follows: 'We have here a cheque of P2,000 from the King of Africa payable to you
so that you may deposit it in the bank. Do you want to accept the cheque?' His answer was
as follows: 'Now I cannot give my answer. It may be a surprise.' Such answer given by a man
after long experience in business life, who had handled real estate property, well versed in
the transaction of cheques, certainly shows a breaking down of the above field. No proper
question were asked why the cheque was given by the King, who the King was, why he was
selected by the King of Africa, or if there is a King of Africa at present. He further shows
doubt in his mental capability by the following questions and answers:
 "MARCAIDA: P. ¿Tiene usted actualmente algún asunto en los tribunales de justicia
de Manila? -- R. No recuerdo en este momento.

"P. De tener usted algún asunto propio en los tribunales de justicia de Manila, ¿a
qué abogado confiaría usted la defensa del mismo?--R. Al Sr. Marcaida, como
conocido antiguo.

"P. ¿Ha hablado usted y conferenciado alguna vez o varias veces en estos días, o
sea desde el 25 de octubre de 1923 hasta hoy, con algún abogado para que le
defendiera algún asunto ante el Juzgado de Primera Instancia de Manila?--R. Con
ninguno, porque en caso de nombrar, nombraría al Sr. Marcaida. (P. 5, deposition,
Nov. 19, 1923.)

"ARANETA: P. ¿No recuerda usted que usted me ha encomendado como abogado

para que me oponga a que le declaren a usted loco o incapacitado?--R. Sí, señor,
quien ha solicitado? (P. 9, deposition, Nov. 19, 1923.)

"Dr. DOMINGO: P. ¿Don Tomás, me conoce usted? ¿Se acuerda usted que soy el
Doctor Domingo?--R. Sí. (P. 7, sten. N., Jan. 28, 1924.)

"P. ¿Quién soy, Don Tomás, usted me conoce?--R. No sé. (P. 6, sten. N., Feb. 10,
1924.)

"Dr. ÁNGELES: P. ¿Me conoce usted, D. Tomás?--R. Le conozco de vista. (P. 6,

sten. N., Jan. 28, 1924.)

"P. Nos vamos a despedir ya, Don Tomás, de usted. Yo soy el Doctor Ángeles, ¿me
conoce usted?--R. De nombre.

"P. Este es el Doctor Burke, ¿le conoce usted?--R. De nombre.

"P. Este es el Doctor Domingo, ¿le conoce usted?--R. De vista.

"P. Este es el Doctor Burke, ¿recuerda usted su nombre?--R. No. (P. 10, sten. N.,
Jan. 28, 1924.)

"P.¿Usted conoce a este Doctor? (Señalando al Doctor Burke).--R. De vista; su

nombre ya lo he olvidado, ya no me acuerdo.

"P.¿Usted nos ve a los tres? (Doctores Ángeles, Burke y Tietze).--R. Ya lo creo.

"Dr. BURKE: P. ¿Qué profesión tenemos? (Señalando a los Sres. Ángeles, Burke y
Tietze).--R. YO creo que son doctores.

"P. ¿Y lso dos? (Señalando a los Doctores Ángeles y Tietze).--R. No. sé.

"P. ¿Y este señor? (Señalando al Doctor Ángeles).--R. No me acuerdo en este

momento. (P. 4. And 5, sten. N., Feb. 10, 1924.)

(f) Other facts bearing upon the history of the case obtained by investigation of Doctor
Angeles:
 I. Family History. — His parents were noted to be of nervous temper and irritable.

II. Personal history. — He was a lawyer, but did not pursue his practice, devoting the greater
part of his life to collecting antiquities, He was generally regarded by his neighbors as miserly
and erratic in the ordinary habits of life. He lead a very unhygienic life, making no attempt to
clean the filth of dirt that was around him. He was neglectful in personal habits. On April,
1921, he suffered an injury to his forehead, from which he became temporarily unconscious,
and was confined in the Philippine General Hospital for treatment. He frequently complained
of attacks of dizziness and headache, following this injury; suffered form a large hernia; and
about two years ago, he was fined for failure in filing his income tax, from which incident, we
have reason to believe, the onset of his mental condition took place. This incident itself can
most probably be considered as a failure of memory. His condition became progressively
worse up to his death.

4. The undersigned have stated all the above facts contained in this certificate to the best of
our knowledge and belief.

Manila, P.I., March 15, 1924.

(Sgd.) SIXTO DE LOS ANGELES

W.B. BURKE, M.D.
SAMUEL TIETZE

(Exhibit 33 in relation with Exhibits 28 and 29.)

Another angle to the condition of the patient on or about January 3, 1924, is disclosed by the
treatment record kept daily by the nurses, in which appear the nurse's remarks. (Exhibits 8-A, 8-B,
and 8-C.) In this connection, the testimony of the nurses is that Rodriguez was in the habit for no
reason at all of calling "Maria, where are my 50 centavos, where is my key." In explanation of the
observation made by the nurses, the nurse Apolonio Floreza testified.

Direct questions of Attorney OCAMPO:

Q. Among your observations on the 1st of January, 1924, you say 'with pains all over the
body, and uttered some incoherent words of the same topics whenever is awakened.' How
could you observe that he had pains all over the body?

APOLONIO FLOREZA, nurse: A. I observed that by the fact that whenever I touched the
body of the patient he complained of some pain.

Q. On what part of the body did you touch him? — A. On all the parts of his body.

xxx xxx xxx

Q. How did you touch him, strongly or not? — A. Slightly.

Q. When you touched him slightly, what did he do? — A. He said that it was aching.

Q. What words did he say when, according to your note, he uttered incoherent words
whenever he awakes? — A. As for instance, 'Maria,' repeating it 'Where are my 50 centavos,
where is my key?'
 Q. Did you hear him talk of Maria? — A. Only the word Maria.

Q. How long approximately was he talking uttering the name of 'Maria, Where are my 50
centavos,' and where is my key? — A. For two or three minutes.

Q. Can you tell the court whether on those occasions when he said the name of Maria he
said other words and was talking with somebody? — A. He was talking to himself.

Q. This remark on Exhibit 8-B when was it written by you? A. January 2, 1924.

Q. In the observation correspondingly to January 2, 1924 you say, 'With pains over the body,'
and later on talked too much whenever patient is awakened.' How did you happen to know
the pain which you have noted here? A. The pains all over the body, I have observed them
when giving him baths.

Q. Besides saying that it ached when you touched the body, do you know whether he did
any extraordinary thing? A. You mean to say acts?

Q. Acts or words? A. Yes, sir, like those words which I have already said which he used to
say — Maria, the key, 50 centavos.

Q. You say that he called Maria. What did he say about Maria on that date January 2, 1924?
— A. He used to say Maria where is Maria?

Q. On that date January 2, 1924, did you answer him when he said Maria? — A. No sir.

Q. In this observation of yours appearing on page 8-C you say among other things with pain
all over the body and shouted whenever he is given injection.' Did you really observe this in
the patient? — A. Yes, sir.

Q. How did he shout?

ARANETA: Objection as being immaterial.

COURT: Overruled.

ARANETA: Exception.

A. In a loud voice.

Q. Besides shouting do you remember whether he said anything? — A . He repeated the

same words I have said before — Maria the 50 centavos the key.

Q. When did this observation occur which appear on page 8-C? — A. On January 3, 1924.
(S. R. p. 5595.)

On certain facts pertaining to the condition of Tomas Rodriguez there is no dispute. On January 3,
1924, Rodriguez had reached the advanced age of 76 years. He was suffering from anemia, hernia
inguinal, chronic dypsia, and senility. Physically he was a wreck.
As to the mental state of Tomas Rodriguez on January 3, 1924, Doctors Calderon, Domingo and
Herrera admit that he was senile. They, together with Doctors De los Angeles, Tietze, and Burke,
further declare that his memory however for remote events was generally good. He was given to
irrational exclamations symptomatic of a deceased mind.

While, however, Doctors Calderon Domingo, and Herrera certify that the intellectual faculties of the
patient are "sound, except that his memory is weak," and that in executing the will the testator had
full understanding of the act he was performing and full knowledge of the contents thereof, Doctors
De Los Angeles, Tietze and Burke certify that Tomas Rodriguez was of unsound mind and that they
diagnosed his case as senile dementia of the simple type approaching the deteriorated stage.
Without attempting at this stage to pass in judgment on the antagonistic conclusions of the medical
witnesses, or on other disputed point, insofar as the facts are concerned, a resolution of the case
comes down to this: Did Tomas Rodriguez on January 3, 1924, possess sufficient mentality to make
a will, or had he passed so far along in senile dementia as to require the court to find him of
unsound? We leave the facts in this situation to pass on to a discussion of the legal phases of the
case.

B. Law. — The Code of Civil Procedure prescribes as a requisite to the allowance of a will that the
testator be of "sound mind" (Code of Civil Procedure, sec. 614). A "sound mind" is a "disposing
mind." One of the grounds for disallowing a will is "If the testator was insane or otherwise mentally
incapable of the execution." (Code of Civil Procedure, sec. 634 [2].) Predicated on these statutory
provisions, this court has adopted the following definition of testamentary capacity: "'Testamentary
capacity is the capacity to comprehend the nature of the transaction in which the testator is engaged
at the time, to recollect the property to be disposed of and the persons who would naturally be
supposed to have claims upon the testator, and to comprehend the manner in which the instrument
will distribute his property among the objects of his bounty.'" (Bugnao vs. Ubag [1909], 14 Phil., 163,
followed in Bagtas vs. Paguio [1912], 46 Phil., 701.) The mental capacity of the testator is
determined as of the date of the execution of his will (Civil Code, art. 666).

Various tests of testamentary capacity have been announced by the courts only later to be rejected
as incomplete. Of the specific tests of capacity, neither old age, physical infirmities, feebleness of
mind, weakness of the memory, the appointment of a guardian, nor eccentricities are sufficient singly
or jointly to show testamentary incapacity. Each case rests on its own facts and must be decided by
its own facts.

There is one particular test relative to the capacity to make a will which is of some practical utility.
This rule concerns the nature and rationality of the will. Is the will simple or complicated? Is it natural
or unnatural? The mere exclusion of heirs will not, however, in itself indicate that the will was the
offspring of an unsound mind.

On the issue of testamentary capacity, the evidence should be permitted to take a wide range in
order that all facts may be brought out which will assist in determining the question. The testimony of
subscribing witnesses to a will concerning the testator's mental condition is entitled to great weight
where they are truthful and intelligent. The evidence of those present at the execution of the will and
of the attending physician is also to be relied upon. (Alexander on Willis, vol. I, pp. 433, 484;
Wharton & Stille's Medical Jurisprudence, vol. I pp. 100 et seq.)

The presumption is that every adult is sane. It is only when those seeking to overthrow the will have
clearly established the charge of mental incapacity that the courts will intervene to set aside a
testamentary document. (Hernaez vs. Hernaez [1903], 1 Phil., 689; Bagtas vs. Paguio, supra.)
Counsel for the appellee make capital of the testator being under guardianship at the time he made
his will. Citing section 306 of the Code of Civil Procedure and certain authorities, they insist that the
effect of the judgment is conclusive with respect to the condition of the person. To this statement we
cannot write down our conformity. The provisions of the cited section were taken from California, and
there the Supreme court has never held what is now urged upon us by the appellee. The rule
announced that in some states, by force of statute, the finding of insanity is conclusive as to the
existence of insanity during the continuance of adjudication, is found to rest on local statutes, of
which no counterpart is found in the Philippines. (32 C.J., 647; Gridley vs. Boggs [1882], 62 Cal.,
190; In the matter of the Estate of Johnson [1881], 57 Cal., 529.) Even where the question of
insanity is out in issue in the guardianship proceedings, the most that can be said for the finding is
that it raises a presumption of incapacity to make a will but does not invaluable the testament if
competency can be shown. The burden of providing sanity in such case is cast upon the proponents.

It is here claimed that the unsoundness of mind of the testator was the result of senile dementia.
This is the form of mental decay of the aged upon which will are most often contested. A Newton,
Paschal, a Cooley suffering under the variable weather of the mind, the flying vapors of incipient
lunacy," would have proved historic subjects for expert dispute. Had Shakespeare's King Lear made
a will, without any question it would have invited litigation and doubt.

Senile dementia usually called childishness has various forms and stages. To constitute
complete senile dementiathere must be such failure of the mind as to deprive the testator of
intelligent action,. In the first stages of the diseases, a person may possess reason and have will
power. (27 L. R. A., N. S. [1910], p. 89; Wharton & Stille's Medical Jurisprudence, vol. I. pp. 791 et
seq.; Schouler on Wills, vol. I, pp. 145 et seq.)

It is a rather remarkable coincidence that of all the leading cases which have gone forth from this
court, relating to the testator having a sound and disposing mind, and which have been brought to
our notice by counsel, every one of them has allowed the will, even when it was necessary to
reverse the judgment of the trial court. A study of these cases discloses a consistent tendency to
protect the wishes of the deceased whenever it be legally possible. These decisions also show great
tenderness on the part of the court towards the last will and testament of the aged. (See Hernaez vs.
Hernaez [1903], 1 Phil., 689, per Arellano, C. J., In the matter of the will o f Butalid [1908] 10 Phil.,
27 per Arellano, C. J.; Bugnao vs. Ubag [1909] 14. Phil., 163, per Carson, J.; Macapinlac vs.
Alimurong [1910], 16 Phil., 41, per Arellano, C.J.; Bagtas vs. Paguio [1912], 22 Phil., 227, per Trent,
J.; Galvez vs. Galvez [1913], 26 Phil., 243, per Torres, J.; Samson vs. Corrales Tan Quintin [1923],
44 Phil., 573, per Ostrand, J.; and Jocson vs. Jocson [1922], 46 Phil., 701, per Villamor, J.) Because
of their peculiar applicability, we propose to make particular mention of four of the earlier cases of
this court.

In the case of Hernaez vs. Hernaez supra the subject of the action was the will executed by Dona
Juana Espinosa. The annulment of the will was sought first upon the ground of the incapacity of the
testatrix. She was over 80 years of age, so ill that three days extreme unction, and two days
afterwards she died. Prior thereto she walked in a stooping attitude and gave contradictory orders,"
as a result of her senile debility." The chief Justice reached the conclusion that neither from the facts
elicited by the interrogatories nor the documents presented "can the conclusion be reached that the
testatrix was deprived of her mental faculties." The will was held valid and efficacious.

In the case of In the matter of the will of Butalid, supra, the will was contested for the reason that
Dominga Butalid at the date of the execution of the document was not in the date of the execution of
the document was not in the free use of her intellectual powers, she being over 90 years of age,
lying in bed seriously ill, senseless and unable to utter a single word so that she did not know what
she was doing when she executed the will while the document was claimed to have been executed
under the influence and by the direction of one of the heirs designated in the will. Yet after an
examination of the evidence in the will. Yet after an examination of the evidence in the will. The
Chief Justice rendered judgment reversing the judgment appealed from and declaring the will
presented for legalization to be valid and sufficient.

In the case of Bugnao vs. Ubag, supra the court gave credence to the testimony of the subscribing
witnesses who swore positively that at the time of the execution of the will the testator was of sound
mind and memory. Based on these and other facts, Mr. Justice Carson, speaking for court, laid
down the following legal principles:

Between the highest degree of soundness of mind and memory which unquestionably
carries with it full testamentary known as insanity or idiocy there are numberless degrees of
mental capacity or incapacity and while on one hand it had been held that mere weakness of
mind or partial imbecility from disease of body, or from age, will to render a person incapable
of making a will a weak or feeble minded person may make a valid will provided he has
understanding and memory sufficient to enable him to know what he is about and how or to
whom he is disposing of his property' (Lodge vs. Lodge, 2 Houst. [Del.] 418); that, "To
constitute a sound be unbroken or unimpaired, unshattered by disease or otherwise (Sloan
vs. Maxwell, # N. J. Eq., 563); that it has not been understood that a testator must possess
these qualities (of sound and disposing mind and memory) in the highest degree. . . .Few
indeed would be the wills confirmed it this is correct. Pain, sickness, debility of body from age
or infirmity, would according to its violence or duration in a greater or less degree, break in
upon, weaken, or derange the mind, but the derangement must be such as deprives him of
the rational faculties common to man' (Den. vs. Vancleve, 5 N. J. L., 680); and that Sound
mind does not mean a perfectly balanced mind. The question of soundness is one of degree'
(Boughton vs. Knight. L. R., 3 P. & D., 64; 42 L. P. P., 25); on the other hand, it has been
held that testamentary incapacity does not necessarily require that a person shall actually be
insane or of an unsound mind. Weakness of intellect, whether it arises from extreme old age,
from disease, or great bodily infirmities of suffering, or from all these combined, may render
the testator in capable of making a valid will, providing such weakness really disqualifies for
from knowing or appreciating the nature, effects, or consequences of the act she is engaged
in (Manatt vs. Scott, 106 Iowa, 203; 68 Am. St. Rep., 293, 302).

In the case of Nagtas vs. Paquio, supra, the record shows that the testator for some fourteen or
fifteen years prior to the time of his death suffered from a paralysis of the left side of his body, that a
few years prior to his death his hearing became impaired and that he had lost the power of speech.
However, he retained the use of his hand and could write fairly well. Through the medium of signs,
he was able to indicate his wishes to his family. The will was attacked n the ground that the testator
lacked mental capacity at the time of its execution. The will was nevertheless admitted to probate,
Mr. Justice Trent, speaking for the court, announcement the following pertinent legal doctrines:

* * * There are many cases and authorities which we might cite to show that the courts have
repeatedly held that mere weakness of mind and body, induced by age and disease do not
render a person incapable of making a will. The law does not require that a person shall
continue in the full enjoyment and use of his pristine physical and mental powers in order to
execute a valid will. If such were the legal standard few indeed would be the number of wills
that could meet such exacting requirements. The authorities, both medical and legal are
universal in the statement that the question of mental capacity is one of degree and that
there are many graduations from the highest degree of mental soundness to the lowest
conditions of diseased mentality which are denominated as insanity and idiocy.
The right to dispose of property by testamentary disposition is as sacred as any other right
which a person may exercise and this right should be nullified unless mental incapacity is
established in a positive and conclusive manner. In discussing the question of testamentary
capacity, it is stated in volume 28, page 70, of the American and English Encyclopedia of
Law that —

'Contrary to the very prevalent lay impression perfect soundness of mind is not essential to
testamentary capacity. A testator may be afflicted with a variety of mental weakness,
disorders or peculiarities and still be capable in law of executing a valid will.' (See the
numerous cases there cited in support of this statement.)

The rule relating to testamentary capacity is stated in Buswel on Insanity, section 365 and
quoted with approval in Campbell vs. Campbell (130 Ill. 466) as follows:

To constitute a sound and disposing mind, it is not necessary that the mind shall be wholly
unbroken unimpaired or unshattered by disease or otherwise or that the testator should be in
the full possession of his reasoning faculties.

In note, 1 Jarnan on Wills, 38, the rule is thus stated:

The question is not so much, what was the degree of memory possessed by the testator as
had, he a disposing memory? Was he able to remember the property he was about to
bequeth the manner of distributing it and the object of his bounty? In a word, were his mind
and memory sufficiently sound to enable him to know and understand the business in which
he was engaged at the time when he executed his will.' (See authorities there cited)

In Wilson vs. Mitchell (101 Penn., 495), the following facts appeared upon the trial of the
case: The testator died at the age of nearly 102 years. In his early years he was an intelligent
and well informed man. About seven years prior to his death he suffered a paralytic stroke
and from that time his mind and memory were much enfeebled. He became very dull of
hearing and in consequence of the shrinking of his brain he was affected with senile cataract
causing total blindness. He became filthy and obscene in his habits, although formerly he
was observant of the proprieties of life. The court, in commenting upon the case, said:

Neither age, nor sickness, nor extreme distress, nor debility of body will affect the capacity to
make a will, if sufficient intelligence remains. The failure of memory is not sufficient to create
the incapacity, unless it be total or extend to his immediate family to property. . . .

xxx xxx xxx

Dougal (the testator) had lived over one hundred years before he made the will and his
physical and mental weakness and defective memory were in striking contrast with their
strength in the meridian of his life. He was blind; not deaf, but hearing impaired; his mind
acted slowly, he was forgetful of recent events, especially of names and repeated questions
in conversation; and sometimes, when aroused from sleep or slumber, would seem
bewildered. It is not singular that some of those who had known him when he was
remarkable for vigor and intelligence are of the opinion that his reason was so far gone that
he was incapable of making a will, although they never heard him utter an irrational
expression.

In the above case the will was sustained. In the case at bar we might draw the same contract
as was pictured by the court in the case just quoted. . . .
The particular difference between all of the Philippine case which are cited and the case at bar are
that in none of the Philippine cases was there any declaration of incomplicated and in none of them
were the facts quite as complicated as they are here. A case in point where the will was contested,
because the testator was not of sound and disposing mind and memory and because at the time of
the making of the will he was acting under the undue influence of his brothers and where he had a
guardian when he executed his will, is Ames' Will ([1902] 40 Ore., 495). Mr. Justice Moore,
delivering the opinion of the court, in part said:

It is contended by contestant's counsel that on the day said pretended will purports to have
been executed, Lowell was declared incompetent by a court which had jurisdiction of the
person and subject-matter and that the decree therein appointing a guardian of his person
and estate raises the distable presumption that he did not possess sufficient testamentary
capacity at the time to overcome which required evidence so strong as to leave no
reasonable doubt as to his capacity to make a valid will, and the testimony introduced by the
proponent being insufficient for that purpose the court erred in admitting it to probate.

The appointment of a guardian of a person alleged to be non compos mentis, by a court

having jurisdiction must necessarily create a presumption of the mental infirmity of the ward;
but such decree does not conclusively show that the testamentary capacity of the person
under guardianship is entirely destroyed and the presumption thus created may be overcome
by evidence proving that such person at the time he executed a will was in fact of sound and
disposing mind and memory: Stone vs. Damon, 12 Mass., 487; Breed vs. Pratt, 18 Pick, 115:
In re Slinger's Will, 72 Wis., 22 (37 N. W. 236).

The testimony shows that the testator retained a vivid recollection of the contents of the
books he had read and studied when he was young but that he could not readily recall to his
mind the ordinary incidents of his later life. The depth and intensity of mental impression
always depend upon and are measured by the degree of attention given to the perception of
truth, which demands reflection; and hence the inability of a person to recollect events and
hence the inability is evidence of mental decay, because it manifest a want of power on
concentration of the mind. The aged live in the past and the impression retained in their
minds are those that were made in their younger days, because at that period of their lives
they were able to exercise will power by giving attention. While the inability of a person of
advanced years to remember recent events distinctly undoubtedly indicates a decay of the
human faculties, it does not conclusively establish senile dementia, which is something more
than a mere loss of mental power, resulting from old age and is not only a feeble condition of
the mind but a derangement thereof. . . . The rule is settled in this state that if a testator at
the time he executes his will understand the business in which he is engaged and has a
knowledge of his property and how he wishes to dispose of it among those entitled to his
bounty, he possess sufficient testamentary capacity, notwithstanding his old age, sickness
debility of body, or extreme distress.

xxx xxx xxx

It is contented by contestant's counsel that if Lowell at the time he executed the pretended
will, was not wholly lacking in testamentary capacity, he was, in consequence of age ill
health, debility of body and infirmity of will power, Andrew and Joseph having knowledge
thereof took advantage of his physical and mental condition and unduly influenced him to
device and bequeth his property in the manner indicated, attempting thereby to deprive the
contestant of all interest therein except such as was given her by statute. . . . Assuming that
he was easily persuaded and that his brothers and the persons employed by them to care for
him took advantage of his enfeebled condition and prejudiced his mind against the
 contestant did such undue influence render the will therefore executed void? . . . When a will
has been properly executed, it is the duty of the courts to uphold it, if the testator possessed
a sound and disposing mind and memory and was free from restraint and not acting under
undue influence notwithstanding sympathy for persons legally entitled to the testator's bounty
and a sense of innate justice might suggest a different testamentary disposition.

Believing, as we do, that the findings of the circuit court are supported by the weight of the
testimony its decree is affirmed.

Insofar as the law on testamentary capacity to make a will is concerned and carrying alone one step
further the question suggested at the end of the presentation of the facts on the same subject a
resolution of the case comes down to this: Did Tomas Rodriguez on January 3, 1924, possess
sufficient mentality to make a will which would meet the legal test regarding testamentary capacity
and have the proponents of the will carried successfully the burden of proof and shown him to be of
sound mind on that date?

II. UNDUE INFLUENCE

A. Facts. — The will was attacked on the further ground of undue influence exercised by the persons
benefited in the will in collaboration with others. The trial judge found this allegation to have been
established and made it one of the bases of his decision. it is now for us to say if the facts justify this
finding.

Tomas Rodriguez voluntary named Vicente F. Lopez as his administrator. The latter subsequently
became his guardian. There is every indication that of all his relatives Tomas Rodriguez reposed the
most confidence in Vicente F. Lopez and his daughter Luz Lopez de Bueno. Again, it was Vicente F.
Lopez, who, on the suggestion of Rodriguez secured Maximino Mina to prepare the will, and it was
Luz Lopez de Bueno who appears to have gathered the witnesses and physicians for the execution
of the will. This faction of the Lopez family was also a favor through the orders of Doctor Domingo as
to who could be admitted to see the patient.

The trial judge entertained the opinion that there existed "a preconceived plan on the part of the
persons who surrounded Tomas Rodriguez" to secure his signature to the testament. The trial judge
may be correct in this supposition. It is hard to believe, however, that men of the standing of Judge
Mina, Doctors Calderon, Domingo, Herrera, and De Asis and Mr. Legarda would so demean
themselves and so fully their characters and reputation as to participate in a scheme having for its
purpose to delude and to betray an old man in his age, rather named was acting according to the
best of his ability to assist in a legitimate act in a legitimate manner. Moreover, considering the
attitude of Tomas Rodriguez toward Margarita Lopez and her husband and his apparent enmity
toward them, it seems fairly evident that even if the will had been made in previous years when
Rodriguez was more nearly in his prime, he would have prepared somewhat a similar document.

B. LAW. — One of the grounds for disallowing a will is that it was procured by undue and improper
pressure and influence on the art of the beneficiary or some other person for his benefit (Code of
Civil Procedure, sec., 634[4]). Undue influence, as here mentioned in connection with the law of wills
and as further mentioned in the Civil Code (art. 1265), may be defined as that which compelled the
testator to do that which is against the will from fear the desire of peace or from other feeling which
is unable to resist.

The theory of undue influence is totally rejected as not proved.

III. JUDGMENT
To restate the combined issued of fact and law in this case pertaining to testamentary capacity: Did
Tomas Rodriguez on January 3, 1924, possess sufficient mentality to make a will which would meet
the legal test regarding testamentary capacity and have the proponents of the will carried
successfully the burden of proof and shown him to be of sound mind on that date?

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

The will was short. It could easily be understood by a person in physical distress. It was reasonable,
that is, it was reasonable if we take into account the evident prejustice of the testator against the
husband of Margarita Lopez.

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

On January 3, 1924, Tomas Rodriguez may have been of advanced years, may have been
physically decrepit, may have been weak in intellect, may have suffered a loss of memory, may have
had a guardian and may have a been extremely eccentric, but he still possessed the spark of reason
and of life, that strength of mind to form a fixed intention and to summon his enfeebled thoughts to
enforce that intention, which the law terms "testamentary capacity." That in effect is the definite
opinion which we reach after an exhaustive and exhausting study of a tedious record, after weighing
the evidence for the oppositors, and after giving to the case the serious consideration which it
deserves.

The judgment of the trial court will be set aside and the will of Tomas Rodriguez will be admitted to
probate without special pronouncement as to costs in this instance.

Avanceña, C. J., Johnson, Villamor, Johns, Romualdez, and Villa-Real, JJ., concur.

Separate Opinions

STREET AND OSTRAND, JJ., dissenting:

We are of the opinion that the judgment which is the subject of appeal in this case is in all respects
correct and should be affirmed. The testator was clearly suffering from senile dementia and lacked
the "disposing mind and memory" the possession of which is a condition precedent to the exercise of
testamentary power.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
A.M. No. 2026 December 19, 1981
NENITA DE VERA SUROZA, complainant,
vs.
JUDGE REYNALDO P. HONRADO of the Court of First Instance of Rizal, Pasig Branch 25
and EVANGELISTA S. YUIPCO, Deputy Clerk of Court, respondents.

DECISION
AQUINO, J.:
Should disciplinary action be taken against respondent judge for having admitted to probate
a will, which on its face is void because it is written in English, a language not known to the
illiterate testatrix, and which is probably a forged will because she and the attesting
witnesses did not appear before the notary as admitted by the notary himself?
That question arises under the pleadings filed in the testate case and in the certiorari case
in the Court of Appeals which reveal the following tangled strands of human relationship.
Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (Philippine Scouts), Fort
McKinley, married Marcelina Salvador in 1923 (p. 150, Spec. Proc. No. 7816). They were
childless. They reared a boy named Agapito who used the surname Suroza and who
considered them as his parents as shown in his 1945 marriage contract with Nenita de Vera
(p. 15, Rollo of CA-G.R. No. 08654, p. 148, Rollo of Testate Case showing that Agapito was
5 years old when Mauro married Marcelina in 1923).
Mauro died in 1942. Marcelina, as a veteran’s widow, became a pensioner of the Federal
Government. That explains why on her death she had accumulated some cash in two
banks.
Agapito and Nenita begot a child named Lilia who became a medical technologist and went
abroad. Agapito also became a soldier. He was disabled and his wife Nenita was appointed
as his guardian in 1953 when he was declared an incompetent in Special Proceedings No.
1807 of the Court of First Instance of Rizal, Pasig Branch I (p. 16, Rollo of CA-G.R. No.
08654-R)
In that connection, it should be noted that a woman named Arsenia de la Cruz wanted also
to be his guardian in another proceeding. Arsenia tried to prove that Nenita was living
separately from Agapito and that she (Nenita) admitted to Marcelina that she was unfaithful
to Agapito (pp. 61-63, Record of testate case)
Judge Bienvenido A. Tan dismissed the second guardianship proceeding and confirmed
Nenita’s appointment as guardian of Agapito (p. 16, Rollo of CA case). Agapito has been
staying in a veteran’s hospital in San Francisco or Palo Alto, California (p. 87, Record)
On a date not indicated in the record, the spouses Antonio Sy and Hermogena Talan begot
a child named Marilyn Sy, who, when a few days old, was entrusted to Arsenia de la Cruz
(apparently a girl friend of Agapito) and who was later delivered to Marcelina Salvador
Suroza who brought her up as a supposed daughter of Agapito and as her granddaughter
(pp. 23-26, Rollo of CA-G.R. No. SP-08654-R). Marilyn used the surname Suroza. She
stayed with Marcelina but was not legally adopted by Agapito. She married Oscar Medrano
and is residing at 7666 J.B. Roxas Street, Makati, apparently a neighbor of Marina Paje, a
resident of 7668 J.B. Roxas Street.
Marcelina supposedly executed a notarial will in Manila on July 23, 1973, when she was 73
years old. That will, which is in English, was thumb marked by her. She was illiterate. Her
letters in English to the Veterans Administration were also thumb marked by her (pp. 38-39,
CA Rollo). In that will, Marcelina bequeathed all her estate to her supposed granddaughter
Marilyn.
Marcelina died on November 15, 1974 at the Veterans Hospital in Quezon City. At the time
of her death, she was a resident of 7374 San Maximo Street, Olimpia, Makati, Rizal. She
owned a 150-square meter lot and house in that place. She acquired the lot in 1966 (p. 134,
Record of testate case)
On January 13, 1975, Marina Paje, alleged to be a laundry woman of Marcelina (p. 97, CA
Rollo) and the executrix in her will (the alternate executrix was Juanita Macaraeg, mother of
Oscar, Marilyn’s husband), filed with the Court of First Instance of Rizal, Pasig Branch 25, a
petition for the probate of Marcelina’s alleged will. The case was assigned to Judge
Reynaldo P. Honrado.
As there was no opposition, Judge Honrado commissioned his deputy clerk of court,
Evangeline S. Yuipco, to hear the evidence. The transcripts of the stenographic notes taken
at the hearing before the deputy clerk of court are not in the record.
In an order dated March 31, 1975, Judge Honrado appointed Marina as administratrix. On
the following day, April 1, Judge Honrado issued two orders directing the Merchants
Banking Corporation and the Bank of America to allow Marina to withdraw the sum of
P10,000 from the savings accounts of Marcelina S. Suroza and Marilyn Suroza and
requiring Corazon Castro, the custodian of the passbooks, to deliver them to Marina.
Upon motion of Marina, Judge Honrado issued another order dated April 11, 1975,
instructing a deputy sheriff to eject the occupants of the testratrix’s house, among whom
was Nenita V. Suroza, and to place Marina in possession thereof.
That order alerted Nenita to the existence of the testamentary proceeding for the settlement
of Marcelina’s estate. She and the other occupants of the decedent’s house filed on April 18
in the said proceedings a motion to set aside the order of April 11 ejecting them. They
alleged that the decedent’s son Agapito was the sole heir of the deceased, that he has a
daughter named Lilia, that Nenita was Agapito’s guardian and that Marilyn was not
Agapito’s daughter nor the decedent’s granddaughter (pp. 52-68, Record of testate case).
Later, they questioned the probate court’s jurisdiction to issue the ejectment order.
In spite of the fact that Judge Honrado was already apprised that persons, other than
Marilyn, were claiming Marcelina’s estate, he issued on April 23 an order probating her
supposed will wherein Marilyn was the instituted heiress (pp. 74-77, Record).
On April 24, Nenita filed in the testate case an omnibus petition “to set aside proceedings,
admit opposition with counter-petition of administration and preliminary injunction.” Nenita in
that motion reiterated her allegation that Marilyn was a stranger to Marcelina, that the will
was not duly executed and attested, that it was procured by means of undue influence
employed by Marina and Marilyn and that the thumb marks of the testatrix were procured by
fraud or trick.
Nenita further alleged that the institution of Marilyn as heir was void because of the
perpetration of Agapito and that Marina was not qualified to act as executrix (pp. 83-91,
Record)
To that motion was attached an affidavit of Zenaida A. Peñaojas, the housemaid of
Marcelina, who swore that the alleged will was falsified (p. 109, Record)
Not content with her motion to set aside the ejectment order (filed on April 18) and her
omnibus motion to set aside the proceedings (filed on April 24), Nenita filed the next day,
April 25, an opposition to the probate of the will and a counter-petition for letters of
administration. In that opposition, Nenita assailed the due execution of the will and stated
the names and addresses of Marcelina’s intestate heirs, her nieces and nephews (pp. 113-
121, Record). Nenita was not aware of the decree of probate dated April 23, 1975.
To that opposition was attached an affidavit of Dominga Salvador Teodocio, Marcelina’s
niece, who swore that Marcelina never executed a will (pp. 124-125, Record)
Marina in her answer to Nenita’s motion to set aside the proceedings admitted that Marilyn
was not Marcelina’s granddaughter but was the daughter of Agapito and Arsenia de la Cruz
and that Agapito was not Marcelina’s son but merely an anak-anakan who was not legally
adopted (p. 143, Record)
Judge Honrado in his order of July 17, 1975 dismissed Nenita’s counter-petition for the
issuance of letters of administration because of the nonappearance of her counsel at the
hearing. She moved for the reconsideration of that order.
In a motion dated December 5, 1975, for the consolidation of all pending incidents, Nenita
V. Suroza reiterated her contention that the alleged will is void because Marcelina did not
appear before the notary and because it is written in English which is not known to her (pp.
208, 209, Record).
Judge Honrado in his order of June 8, 1976 “denied” the various incidents “raised” by
Nenita (p. 284, Record)
Instead of appealing from that order and the order probating the will, Nenita “filed a case to
annul” the probate proceedings (p. 332, Record). That case, Civil Case No. 24276, Suroza
vs. Paje and Honrado (p. 398, Record), was also assigned to Judge Honrado. He dismissed
it in his order of February 16, 1977 (pp. 398-402, Record)
Judge Honrado in his order dated December 22, 1977, after noting that the executrix had
delivered the estate to Marilyn, and that the estate tax had been paid, closed the
testamentary proceeding.
About ten months later, in a verified complaint dated October 12,1978, filed in this Court,
Nenita charged Judge Honrado with having probated the fraudulent will of Marcelina. The
complainant reiterated her contention that the testatrix was illiterate as shown by the fact
that she affixed her thumb mark to the will and that she did not know English, the language
in which the will was written. (In the decree of probate Judge Honrado did not make any
finding that the will was written in a language known to the testatrix)
Nenita further alleged that Judge Honrado, in spite of his knowledge that the testatrix had a
son named Agapito (the testatrix’s supposed sole compulsory and legal heir), who was
preterited in the will, did not take into account the consequences of such a preterition.
Nenita disclosed that she talked several times with Judge Honrado and informed him that
the testatrix did not know the executrix Marina Paje, that the beneficiary’s real name is
Marilyn Sy and that she was not the next of kin of the testatrix.
Nenita denounced Judge Honrado for having acted corruptly in allowing Marina and her
cohorts to withdraw from various banks the deposits of Marcelina.
She also denounced Evangeline S. Yuipco, the deputy clerk of court, for not giving her
access to the record of the probate case by alleging that it was useless for Nenita to oppose
the probate since Judge Honrado would not change his decision. Nenita also said that
Evangeline insinuated that if she (Nenita) had ten thousand pesos, the case might be
decided in her favor. Evangeline allegedly advised Nenita to desist from claiming the
properties of the testatrix because she (Nenita) had no rights thereto and, should she
persist, she might lose her pension from the Federal Government.
Judge Honrado in his brief comment did not deal specifically with the allegations of the
complaint. He merely pointed to the fact that Nenita did not appeal from the decree of
probate and that in a motion dated July 6, 1976 she asked for a thirty-day period within
which to vacate the house of the testatrix.
Evangeline S. Yuipco in her affidavit said that she never talked with Nenita and that the
latter did not mention Evangeline in her letter dated September 11, 1978 to President
Marcos.
Evangeline branded as a lie Nenita’s imputation that she (Evangeline) prevented Nenita
from having access to the record of the testamentary proceeding. Evangeline was not the
custodian of the record. Evangeline “strongly, vehemently and flatly denied” Nenita’s charge
that she (Evangeline) said that the sum of ten thousand pesos was needed in order that
Nenita could get a favorable decision. Evangeline also denied that she has any knowledge
of Nenita’s pension from the Federal Government.
The 1978 complaint against Judge Honrado was brought to the attention of this Court in the
Court Administrator’s memorandum of September 25, 1980. The case was referred to
Justice Juan A. Sison of the Court of Appeals for investigation, report and recommendation.
He submitted a report dated October 7, 1981.
On December 14, 1978, Nenita filed in the Court of Appeals against Judge Honrado a
petition for certiorari and prohibition wherein she prayed that the will, the decree of probate
and all the proceedings in the probate case be declared void.
Attached to the petition was the affidavit of Domingo P. Aquino, who notarized the will. He
swore that the testatrix and the three attesting witnesses did not appear before him and that
he notarized the will “just to accommodate a brother-lawyer on the condition,” that said
lawyer would bring to the notary the testatrix and the witnesses but the lawyer never
complied with his commitment.
The Court of Appeals dismissed the petition because Nenita’s remedy was an appeal and
her failure to do so did not entitle her to resort to the special civil action of certiorari (Suroza
vs. Honrado, CA-G.R. No. SP-08654, May 29. 1981)
Relying on that decision, Judge Honrado filed on November 17, 1981 a motion to dismiss
the administrative case for having allegedly become moot and academic.
We hold that disciplinary action should be taken against respondent judge for his improper
disposition of the testate case which might have resulted in a miscarriage of justice because
the decedent’s legal heirs and not the instituted heiress in the void will should have inherited
the decedent’s estate.
A judge may be criminally liable for knowingly rendering an unjust judgment or interlocutory
order or rendering a manifestly unjust judgment or interlocutory order by reason of
inexcusable negligence or ignorance (Arts. 204 to 206, Revised Penal Code)
Administrative action may be taken against a judge of the court of first instance for serious
misconduct or inefficiency (Sec. 67, Judiciary Law). Misconduct implies malice or a wrongful
intent, not a mere error of judgment. “For serious misconduct to exist, there must be reliable
evidence showing that the judicial acts complained of were corrupt or inspired by an
intention to violate the law, or were in persistent disregard of well-known legal rules” (In re
Impeachment of Horrilleno, 43 Phil. 212, 214-215).
Inefficiency implies negligence, incompetence, ignorance and carelessness. A judge would
be inexcusably negligent if he failed to observe in the performance of his duties that
diligence, prudence and circumspection which the law requires in the rendition of any public
service (In re Climaco, Adm. Case No. 134-J, Jan. 21, 1974, 55 SCRA 107, 119).
In this case, respondent judge, on perusing the will and noting that it was written in English
and was thumb marked by an obviously illiterate testatrix, could have readily perceived that
the will is void.
In the opening paragraph of the will, it was stated that English was a language “understood
and known” to the testatrix. But in its concluding paragraph, it was stated that the will was
read to the testatrix “and translated into Filipino language.” (p. 16, Record of testate case)
That could only mean that the will was written in a language not known to the illiterate
testatrix and, therefore, it is void because of the mandatory provision of Article 804 of the
Civil Code that every will must be executed in a language or dialect known to the testator.
Thus, a will written in English, which was not known to the Igorot testator, is void and was
disallowed (Acop vs. Piraso, 52 Phil. 660)
The hasty preparation of the will is shown in the attestation clause and notarial
acknowledgment where Marcelina Salvador Suroza is repeatedly referred to as the
“testator” instead of “testatrix.”
Had respondent judge been careful and observant, he could have noted not only the
anomaly as to the language of the will but also that there was something wrong in instituting
the supposed granddaughter as sole heiress and giving nothing at all to her supposed
father who was still alive.
Furthermore, after the hearing conducted by respondent deputy clerk of court, respondent
judge could have noticed that the notary was not presented as a witness.
In spite of the absence of an opposition, respondent judge should have personally
conducted the hearing on the probate of the will so that he could have ascertained whether
the will was validly executed.
Under the circumstances, we find his negligence and dereliction of duty to be inexcusable.
WHEREFORE, for inefficiency in handling the testate case of Marcelina S. Suroza, a fine
equivalent to his salary for one month is imposed on respondent judge (his compulsory
retirement falls on December 25, 1981).
The case against respondent Yuipco has become moot and academic because she is no
longer employed in the judiciary. Since September 1, 1980 she has been assistant city
fiscal of Surigao City. She is beyond this Court’s disciplinary jurisdiction (Peralta vs. Firme,
Adm. Matter No. 2044-CFI, November 21, 1980, 101 SCRA 225)
SO ORDERED.
Matias v. Salud
L-10751, 23 June 1958

FACTS:

The CFI denied probate of the will of Gabina Raquel. It must be noted that Gabina
Raquel was suffering from herpes zoster that afflicted the right arm and shoulder of the
testatrix, which made writing difficult and a painful act. Thus, upon the insistence of
the attorney, Gabina attempted to sign, but since it was so painful she just managed to
thumbmarked the foot of the document and the left margin at each page. The parties
opposing the probate of the will contended that the will was void due to the
irregularities in the execution thereof.

One of the points raised by the oppositors was that the finger mark can not be regarded
as the decedent’s valid signature as it does not show distinct identifying ridgelines. And
since the finger mark was an invalid signature, there must appear in the attestation
clause that another person wrote the testator’s name at his request.

ISSUE:

W/N the will was valid.

HELD:

YES. As to the clarity of the ridge impressions, it is so dependent on

aleatory requirements as to require dexterity that can be expected of very few persons;
testators should not be required to possess the skill of trained officers.

And as to the validity of the thumbprints as signature, the SC held that it has been held
in a long line of cases that a thumbprint is always a valid and sufficient signature for the
purpose of complying with the requirement of the article.

Furthermore, the validity of thumbprints should not be limited in cases of illness or

infirmity. A thumbprint is considered as a valid and sufficient signature in complying
with the requirements of the article.
G.R. No. L-4067 November 29, 1951

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.

Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.

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

PARAS, C.J.:

This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado
dated January 3, 1943. The will is written in the Ilocano dialect and contains the following attestation
clause:

We, the undersigned, by these presents to declare that the foregoing testament of Antero
Mercado was signed by himself and also by us below his name and of this attestation clause
and that of the left margin of the three pages thereof. Page three the continuation of this
attestation clause; this will is written in Ilocano dialect which is spoken and understood by the
testator, and it bears the corresponding number in letter which compose of three pages and
all them were signed in the presence of the testator and witnesses, and the witnesses in the
presence of the testator and all and each and every one of us witnesses.

In testimony, whereof, we sign this statement, this the third day of January, one thousand
nine hundred forty three, (1943) A.D.

(Sgd.) NUMERIANO EVANGELISTA (Sgd.) "ROSENDA CORTES

(Sgd.) BIBIANA ILLEGIBLE

The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero
Mercado, followed below by "A reugo del testator" and the name of Florentino Javier. Antero
Mercado is alleged to have written a cross immediately after his name. The Court of Appeals,
reversing the judgement of the Court of First Instance of Ilocos Norte, ruled that the attestation
clause failed (1) to certify that the will was signed on all the left margins of the three pages and at the
end of the will by Atty. Florentino Javier at the express request of the testator in the presence of the
testator and each and every one of the witnesses; (2) to certify that after the signing of the name of
the testator by Atty. Javier at the former's request said testator has written a cross at the end of his
name and on the left margin of the three pages of which the will consists and at the end thereof; (3)
to certify that the three witnesses signed the will in all the pages thereon in the presence of the
testator and of each other.

In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado
caused Atty. Florentino Javier to write the testator's name under his express direction, as required by
section 618 of the Code of Civil Procedure. The herein petitioner (who is appealing by way of
certiorari from the decision of the Court of Appeals) argues, however, that there is no need for such
recital because the cross written by the testator after his name is a sufficient signature and the
signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is that the cross is as much a
signature as a thumbmark, the latter having been held sufficient by this Court in the cases of De
Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62
Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.
It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado
or even one of the ways by which he signed his name. After mature reflection, we are not prepared
to liken the mere sign of the cross to a thumbmark, and the reason is obvious. The cross cannot and
does not have the trustworthiness of a thumbmark.

What has been said makes it unnecessary for us to determine there is a sufficient recital in the
attestation clause as to the signing of the will by the testator in the presence of the witnesses, and by
the latter in the presence of the testator and of each other.

Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So ordered.

Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista Angelo, JJ., concur.
G.R. No. L-6285 February 15, 1912

PEDRO BARUT, petitioner-appellant,

vs.
FAUSTINO CABACUNGAN, ET AL., opponents-appellees.

A. M. Jimenez for appellant.

Ramon Querubin for appellees.

MORELAND, J.:

This case is closely connected with the case of Faustino Cabacungan vs. Pedro Barut and another,
No. 6284,1 just decided by this court, wherein there was an application for the probate of an alleged
last will and testament of the same person the probate of whose will is involved in this suit.

This appeal arises out of an application on the part of Pedro Barut to probate the last will and
testament of Maria Salomon, deceased. It is alleged in the petition of the probate that Maria
Salomon died on the 7th day of November, 1908, in the pueblo of Sinait, Ilocos Sur, leaving a last
will and testament bearing date March 2, 1907. Severo Agayan, Timotea Inoselda, Catalino Ragasa,
and A. M. Jimenez are alleged to have been witnesses to the execution thereof. By the terms of said
will Pedro Barut received the larger part of decedent's property.

The original will appears on page 3 of the record and is in the Ilocano dialect. Its translation into
Spanish appears at page 11. After disposing of her property the testatrix revoked all former wills by
her made. She also stated in said will that being unable to read or write, the same had been read to
her by Ciriaco Concepcion and Timotea Inoselda and that she had instructed Severo Agayan to sign
her name to it as testatrix.

The probate of the will was contested and opposed by a number of the relatives of the deceased on
various grounds, among them that a later will had been executed by the deceased. The will referred
to as being a later will is the one involved in case No. 6284 already referred to. Proceeding for the
probate of this later will were pending at the time. The evidence of the proponents and of the
opponents was taken by the court in both cases for the purpose of considering them together.

In the case before us the learned probate court found that the will was not entitled to probate upon
the sole ground that the handwriting of the person who it is alleged signed the name of the testatrix
to the will for and on her behalf looked more like the handwriting of one of the other witnesses to the
will than that of the person whose handwriting it was alleged to be. We do not believe that the mere
dissimilarity in writing thus mentioned by the court is sufficient to overcome the uncontradicted
testimony of all the witnesses to the will that the signature of the testatrix was written by Severo
Agayan at her request and in her presence and in the presence of all the witnesses to the will. It is
immaterial who writes the name of the testatrix provided it is written at her request and in her
presence and in the presence of all the witnesses to the execution of the will.

The court seems , by inference at least, to have had in mind that under the law relating to the
execution of a will it is necessary that the person who signs the name of the testatrix must
afterwards sign his own name; and that, in view of the fact that, in the case at bar, the name signed
below that of the testatrix as the person who signed her name, being, from its appearance, not the
same handwriting as that constituting the name of the testatrix, the will is accordingly invalid, such
fact indicating that the person who signed the name of the testatrix failed to sign his own. We do not
believe that this contention can be sustained. Section 618 of the Code of Civil Procedure reads as
follows:
 No will, except as provided in the preceding section, shall be valid to pass any estate, real or
personal, nor charge or effect the same, unless it be in writing and signed by the testator, or
by the testator's name written by some other person in his presence, and by his expenses
direction, and attested and subscribed by three or more credible witnesses in the presence
of the testator and of each. . . .

This is the important part of the section under the terms of which the court holds that the person who
signs the name of the testator for him must also sign his own name The remainder of the section
reads:

The attestation shall state the fact that the testator signed the will, or caused it to be signed
by some other person, at his express direction, in the presence of three witnesses, and that
they attested and subscribed it in his presence and in the presence of each other. But the
absence of such form of attestation shall not render the will invalid if it is proven that the will
was in fact signed and attested as in this section provided.

From these provisions it is entirely clear that, with respect to the validity of the will, it is unimportant
whether the person who writes the name of the testatrix signs his own or not. The important thing is
that it clearly appears that the name of the testatrix was signed at her express direction in the
presence of three witnesses and that they attested and subscribed it in her presence and in the
presence of each other. That is all the statute requires. It may be wise as a practical matter that the
one who signs the testator's name signs also his own; but that it is not essential to the validity of the
will. Whether one parson or another signed the name of the testatrix in this case is absolutely
unimportant so far as the validity of her will is concerned. The plain wording of the statute shows that
the requirement laid down by the trial court, if it did lay down, is absolutely unnecessary under the
law; and the reasons underlying the provisions of the statute relating to the execution of wills do not
in any sense require such a provision. From the standpoint of language it is an impossibility to draw
from the words of the law the inference that the persons who signs the name of the testator must
sign his own name also. The law requires only three witnesses to a will, not four.

Nor is such requirement found in any other branch of the law. The name of a person who is unable
to write may be signed by another by express direction to any instrument known to the law. There is
no necessity whatever, so far as the validity of the instrument is concerned, for the person who
writes the name of the principal in the document to sign his own name also. As a matter of policy it
may be wise that he do so inasmuch as it would give such intimation as would enable a person
proving the document to demonstrate more readily the execution by the principal. But as a matter of
essential validity of the document, it is unnecessary. The main thing to be established in the
execution of the will is the signature of the testator. If that signature is proved, whether it be written
by himself or by another at his request, it is none the less valid, and the fact of such signature can be
proved as perfectly and as completely when the person signing for the principal omits to sign his
own name as it can when he actually signs. To hold a will invalid for the lack of the signature of the
person signing the name of the principal is, in the particular case, a complete abrogation of the law
of wills, as it rejects and destroys a will which the statute expressly declares is valid.

There have been cited three cases which it is alleged are in opposition to the doctrine which we
have herein laid down. They are Ex parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas (4 Phil.
Rep., 700), and Guison vs.Concepcion (5 Phil. Rep., 551). Not one of these cases is in point. The
headnote in the case last above stated gives an indication of what all of cases are and the question
involved in each one of them. It says:

The testatrix was not able to sign it for her. Instead of writing her name he wrote his own
upon the will. Held, That the will was not duly executed.
All of the above cases are precisely of this character. Every one of them was a case in which the
person who signed the will for the testator wrote his own name to the will instead of writing that of
the testator, so that the testator's name nowhere appeared attached to the will as the one who
executed it. The case of Ex parte Arcenas contains the following paragraph:

Where a testator does not know, or is unable for any reason, to sign the will himself, it shall
be signed in the following manner: "John Doe, by the testator, Richard Roe;" or in this form:
"By the testator. John Doe, Richard Roe." All this must be written by the witness signing at
the request of the testator.

The only question for decision in that case, as we have before stated, was presented by the fact that
the person who was authorized to sign the name of the testator to the will actually failed to sign such
name but instead signed his own thereto. The decision in that case related only to that question.

Aside from the presentation of an alleged subsequent will the contestants in this case have set forth
no reason whatever why the will involved in the present litigation should not be probated. The due
and legal execution of the will by the testatrix is clearly established by the proofs in this case. Upon
the facts, therefore, the will must be probated. As to the defense of a subsequent will, that is
resolved in case No. 6284 of which we have already spoken. We there held that said later will not
the will of the deceased.

The judgment of the probate court must be and is hereby reversed and that court is directed to enter
an order in the usual form probating the will involved in this litigation and to proceed with such
probate in accordance with law.

Arellano, C.J., Mapa and Carson, JJ., concur.

Separate Opinions

TORRES, J., concurring:

The undersigned agrees and admits that section 618 of the Code of Civil Procedure does not
expressly require that, when the testator or testatrix is unable or does not know how to sign, the
person who, in the presence and under the express direction of either of them, writes in the name of
the said testator or testatrix must also sign his own name thereto, it being sufficient for the validity of
the will that the said person so requested to sign the testator or testatrix write the name of either in
his own handwriting.

Since this court began to decide cases with regard to the form, conditions and validity of wills
executed in accordance with the provisions of the Code of Civil Procedure, never has the specific
point just above mentioned been brought into question. Now for the first time is affirmed in the
majority opinion, written by the learned and distinguished Hon. Justice Moreland, that, not being
required by the said code, the signature of the name of the person who, at the request of the testator
or testatrix, writes the name of either of the latter to the will executed, is not necessary.

Various and considerable in number have been the decisions rendered by this court in which, as will
be seen further on, upon applying the said section 618 of Code of Civil Procedure and requiring its
observance in cases where the testator or testatrix is unable or does not know how to sign his or her
name, expressly prescribed the practical method of complying with the provisions of the law on the
subject. Among these decisions several were written by various justices of this court, some of whom
are no longer on this bench, as they have ceased to hold such position.

Paragraph 2 of the syllabus of case No. 2002, Ex parte Delfin Santiago,1 concerning the probate of a
will, reads as follows:

Wills, authentication of . — Where a will is not signed by a testator but by some other person
in his presence and by his direction, such other person should affix the name of the testator
thereto, and it is not sufficient that he sign his own name for and instead of the name of the
testator.

Paragraph 1 of the syllabus of case No. 1708, Ex parte Arcenas,2 in the matter of the probate of a
will, states:

1. Wills, requisites of; Civil Code, article repealed. — Article 695 of the Civil Procedure;
consequently where a testator is unable to sign his name, the person signing at his request
must write at the bottom of the will the full name of the testator in the latter's presence, and
by his express direction, and then sign his own name in full.

In the syllabus of decision No. 2586, Tomas Guison vs. Maria Concepcion,3 the following statements
appear:

Wills; inability to sign; signature by another. — The testatrix was not able to sign her name to
the will, and she requested another person to sign it for her. Held, That the will was not duly
executed. (Following Ex parte Arcenas et al., No. 1708, August 24, 1905; Ex parte Arcenas
et al., No. 1708, August 24, 1905; Ex parte Santiago, No. 2002, August 18, 1905.)

The following syllabus precedes decision No. 3907:4

Execution of wills. — Where it appears in a will that the testator has stated that by reason of
his inability to sign his name he requested one of the three witnesses present to do so, and
that as a matter of fact, the said witness wrote the name and surname of the testator who,
stating that the instrument executed by him contained his last will, put the sign of the cross
between his said name and surname, all of which details are set forth in a note which the
witnesses forthwith subscribed in the presence of the testator and of each other, said will
may be probated.

When the essential requisites of section 618 of the Code of Civil Procedure for the execution
and validity of a will have been complied with, the fact that the witness who was requested to
sign the name of the testator, omitted to state the words 'by request of .......... the testator,'
when writing with his own hand the name and surname of the said testator, and the fact that
said witness subscribed his name together with the other witnesses and not below the name
of the testator, does not constitute a defect nor invalidate the said will.

The following statement appears in the syllabus of case No. 4132, in the matter of the will of Maria
Siason:5

The recital of the name of the testator as written below the will at his request serves as a
signature by a third person.
Moreover among the grounds given as a basis for this same decision, the following appears:

In sustaining this form of signature, this court does not intend to qualify the decisions in Ex
parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas, above quoted, or in Abaya vs.
Zalamero. In the Arcenas case the court pointed out the correct formula for a signature which
ought to be followed, but did not mean to exclude any other for substantially equivalent.

In the syllabus of decision No. 4454,6 Ex parte Ondevilla et al., the following appears:

The testatrix was unable to sign her will with her own hand and requested another person to
sign for her in her presence. This the latter did, first writing the name of the testatrix and
signing his own name below: Held, That the signature of the testatrix so affixed is sufficient
and a will thus executed is admissible to probate. (Ex parte Arcenas, 4 Phil. Rep., 700.)

The syllabus of decision No. 51497 sets forth that:

The legality of a will is not affected by the insertion, supposed to have been made subsequently, of
another name before that of the testator when such name may be treated as nonexistent without
affecting its validity.

Among the conclusions contained in this last decision the following is found:

Although the said words "For Simplicia de los Santos" be considered as inserted
subsequently, which we neither affirm nor deny, because a specific determination either way
is unnecessary, in our opinion the signature for the testatrix placed outside of the body of the
will contains the name of the testatrix as if she signed the will, and also the signature of the
witness who, at her request, wrote the name of the testatrix and signed for her, affirming the
truth of this fact, attested by the other witnesses then present. And this fully complies with
the provisions of section 618 of the Act.

It is true that in none of the decisions above quoted was the rule established that the person who, at
the request of the testator or testatrix, signed the latter's or the former's name and surname to the
will must affix his own signature; but it no less true that, in prescribing the method in which the
provisions of the said section 618 to be complied with, it was stated that, in order that a will so
executed might be admitted to probate, it was an indispensable requisite that the person requested
to sign in place of the testator or testatrix, should write the latter's or the former's name and surname
at the foot of the will in the presence and under the direction of either, as the case might be, and
should afterwards sign the instrument with his own name and surname.

The statement that the person who writes the name and surname of the testator or testatrix at the
foot of the will should likewise affix his own signature thereto, name and surname, though it be
considered to be neither a rule nor a requisite necessary to follow for the admission of the will to
probate, yet it is unquestionable that, in inserting this last above-mentioned detail in the aforesaid
decisions, it was deemed to be a complement and integral part of the required conditions for the
fulfillment of the provisions of the law.

It is undisputable that the latter does not require the said subscription and signature of the person
requested to affix to the will the name of the testator or testatrix who is not able to sign; but by
stating in the decisions hereinabove quoted that the name and surname of the said person should
be affixed by him, no act prohibited by law was recommended or suggested, nor may such a detail
be understood to be contrary or opposed to the plain provisions thereof.
In the preceding decision itself, it is recognized to be convenient and even prudent to require that the
person requested to write the name of the testator or testatrix in the will also sign the instrument with
his own name and surname. This statement induces us to believe that, in behalf of the inhabitants of
this country and for sake of an upright administration of justice, it should be maintained that such a
signature must appear in the will, since no harm could accrue to anyone thereby and, on the
contrary, it would serve as a guarantee of the certainty of the act performed and also might eliminate
some possible cause of controversy between the interested parties.

The undersigned feels it his duty to admit that, though convinced of the complete repeal of article
695 of the Civil Code and, while he conceded that, in the examination and qualification of a will for
the purpose of its probate, one has but to abide by the provisions of said section 618 of the Code of
Civil Procedure, the sole law applicable in the matter, yet, perhaps imbued with the strongly impelled
by a traditional conception of the laws which he has known since youth, relative to the form of
execution of testaments, he believed it to be a vary natural and common sense requisite that the
signature, with his own name and surname, of the person requested to write in the will the name and
surname of the testator or testatrix should form a part of the provisions of the aforementioned
section 618.

He undoubtedly thought, perhaps mistakenly, that such a requisite of the signature of the person
before referred to — a requisite deemed to be convenient and prudent in the majority opinion —
formed a part of the provisions of the law, since the latter contains nothing that prohibits it. The
aforementioned different decisions were drawn up in the form in which they appear, and signed
without dissent by all the justices of the court on various dates. None of them hesitated to sign the
decisions, notwithstanding that it was expressly held therein that the person above mentioned
should, besides writing in the will the name and surname of the testator or testatrix, also sign the
said instrument with his own name and surname.

Without being understood to criticize the provision contained in the said section 618 of the Code of
Civil Procedure it will not be superfluous to mention that the system adopted in this section is the
same as was in vogue under the former laws that governed in these Islands, with respect to
witnesses who were not able or did not know how to sign their testimony given in criminal or civil
cases, in which event any person at all might write the name and surname of the witness who was
unable or did not know how to sign, at the foot of his deposition, where a cross was then drawn, and,
this done, it was considered that the instrument had been signed by the witness, though it is true that
all these formalities were performed before the judge and the clerk or secretary of the court, which
thereupon certified that such procedure was had in accordance with the law.

The difference is that in the will, pursuant to section 618 of the Code of Civil Procedure, the person
who writes the name and surname of the testator or testatrix does so by the order and express
direction of the one or of the other, and this fact must be recorded in the will; but in the matter of the
signature of a deposition, the witness, who could not or did not know how to sign, did not need to
designate anyone to write the deponent's name and surname, and in practice the witness merely
made a cross beside his name and surname, written by whomever it be.

With regard to the execution of wills in accordance with the provisions of previous statutes, among
them those of the Civil Code, the person or witness requested by the testator or testatrix who was
not able or did not know how to sign, authenticated the will by signing it with his own name and
surname, preceded by the words "at the request of the testator or testatrix." Paragraph 2 of article
695 of the Civil Code contains the following provisions bearing on the subject:
 Should the testator declare that he does not know how, or is not able to sign, one of the
attesting witnesses or another person shall do so for him at his request, the notary certifying
thereto. This shall be done if any one of the witnesses can not sign.

So that, prior to the enforcement in this country in 1901 of the Code of Civil procedure prescribed by
the old laws with respect to the signing of a will by a testator or testatrix who did not know how or
who could not sign, consisted in that the person appointed and requested by the testator or testatrix
to sign in his or her stead, such fact being recorded in the will, merely affixed at the bottom of the will
and after the words "at the request of the testator," his own name, surname and paragraph.

It is not at all strange that the attorneys of this country, imbued with and inspired by these legal
provisions, which it may said, are traditional to them in the ideas they have formed of the existing
laws in the matter of procedure in compliance therewith as regards the execution and signing of a
will, should have believed that, after the name and surname of the testator or testatrix had been
written at the foot of the will, the person who signed the instrument in the manner mentioned should
likewise sign the same with his own name and surname.

If in various decisions it has been indicated that the person who, under the express direction of the
testator or testatrix, wrote the latter's or the former's name and surname, should also sign the will
with his own name and surname, and since this suggestion is not opposed or contrary to the law, the
undersigned is of opinion that it ought not to be modified or amended, but that, on the contrary, it
should be maintained as a requisite established by the jurisprudence of this court, inasmuch as such
a requisite is not contrary to law, to public order, or to good custom, is in consonance with a tradition
of this country, does not prejudice the testator nor those interested in an inheritance, and, on the
contrary, constitutes another guarantee of the truth and authenticity of the letters with which the
name and surname of the testator of testatrix are written, in accordance with his or her desire as
expressed in the will.

Even though the requisites referred to were not recognized in jurisprudence and were unsupported
by any legal doctrine whatever, yet, since it is in harmony with the juridical usages and customs
observed in this country, it ought, in the humble opinion of the writer, to be maintained for the benefit
of the inhabitants of the Islands and for the sake of a good administration of justice, because it is not
a question of a dangerous innovation or of one prejudicial to the public good, but a matter of the
observance of a convenient, if not a necessary detail, introduced by the jurisprudence of the courts
and which in the present case has filed a vacancy left by the positive written law.

The foregoing considerations, which perhaps have not the support of better premises, but in the
opinion of the undersigned, are conducive to the realization of the purposes of justice, have impelled
him to believe that the proposition should be enforced that the witness requested or invited by the
testator or testatrix to write his or her name to the will, should also subscribed the instrument by
signing thereto his own name and surname; and therefore, with the proper finding in this sense, and
reversal of the judgment appealed from, that the court below should be ordered to proceed with the
probate of the will of the decedent, Maria Salomon, in accordance with the law.
G.R. No. L-15153 August 31, 1960

In the Matter of the summary settlement of the Estate of the deceased

ANACLETA ABELLANA. LUCIO BALONAN, petitioner-appellee,
vs.
EUSEBIA ABELLANA, et al., oppositors-appellants.

T. de los Santos for appellee.

Climaco and Climaco for appellants.

LABARADOR, J.:

Appeal from a decision of the Court of First Instance of Zamboanga City admitting to probate the will
of one Anacleta Abellana. The case was originally appealed to the Court of Appeals where the
following assignment of error is made:

The appellants respectfully submit that the Trial Court erred in holding that the supposed
testament, Exh. "A", was signed in accordance with law; and in admitting the will to probate.

In view of the fact that the appeal involves a question of law the said court has certified the case to
us.

The facts as found by the trial court are as follows:

It appears on record that the last Will and Testament (Exhibit "A"), which is sought to be
probated, is written in the Spanish language and consists of two (2) typewritten pages
(pages 4 and 5 of the record) double space. The first page is signed by Juan Bello and under
his name appears typewritten "Por la testadora Anacleta Abellana, residence Certificate A-
1167629, Enero 20, 1951, Ciudad de Zamboanga', and on the second page appears the
signature of three (3) instrumental witnesses Blas Sebastian, Faustino Macaso and Rafael
Ignacio, at the bottom of which appears the signature of T. de los Santos and below his
signature is his official designation as the notary public who notarized the said testament. On
the first page on the left margin of the said instrument also appear the signatures of the
instrumental witnesses. On the second page, which is the last page of said last Will and
Testament, also appears the signature of the three (3) instrumental witnesses and on that
second page on the left margin appears the signature of Juan Bello under whose name
appears handwritten the following phrase, "Por la Testadora Anacleta Abellana'. The will is
duly acknowledged before Notary Public Attorney Timoteo de los Santos. (Emphasis
supplied)

The appeal squarely presents the following issue: Does the signature of Dr. Juan A. Abello above
the typewritten statement "Por la Testadora Anacleta Abellana . . ., Ciudad de Zamboanga," comply
with the requirements of law prescribing the manner in which a will shall be executed?

The present law, Article 805 of the Civil Code, in part provides as follows:

Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testator's name written by some other person in his presence, and
by his express direction, and attested and subscribed by three or more credible witness in
the presence of the testator and of one another. (Emphasis supplied.)
The clause "must be subscribed at the end thereof by the testator himself or by the testator's name
written by some other person in his presence and by his express direction," is practically the same
as the provisions of Section 618 of the Code of Civil Procedure (Act No. 190) which reads as follows:

No will, except as provided in the preceding section shall be valid to pass any estate, real or
personal, nor charge or affect the same, unless it be in writing and signed by the testator, or
by the testator's name written by some other person in his presence, and by his express
direction, and attested and subscribed by three or more credible witnesses in the presence
of the testator and of each other. . . . (Emphasis supplied).

Note that the old law as well as the new require that the testator himself sign the will, or if he cannot
do so, the testator's name must be written by some other person in his presence and by his express
direction. Applying this provision this Court said in the case of Ex Parte Pedro Arcenas, et al., Phil.,
700:

It will be noticed from the above-quoted section 618 of the Code of Civil Procedure that
where the testator does not know how, or is unable, to sign, it will not be sufficient that one of
the attesting witnesses signs the will at the testator's request, the notary certifying thereto as
provided in Article 695 of the Civil Code, which, in this respect, was modified by section 618
above referred to, but it is necessary that the testator's name be written by the person
signing in his stead in the place where he could have signed if he knew how or was able to
do so, and this in the testator's presence and by his express direction; so that a will signed in
a manner different than that prescribed by law shall not be valid and will not be allowed to be
probated.

Where a testator does not know how, or is unable for any reason, to sign the will himself, it
shall be signed in the following manner:

John Doe by the testator, Richard Doe; or in this form: "By the testator, John Doe, Richard
Doe." All this must be written by the witness signing at the request of the testator.

Therefore, under the law now in force, the witness Naval A. Vidal should have written at the
bottom of the will the full name of the testator and his own name in one forms given above.
He did not do so, however, and this is failure to comply with the law is a substantial defect
which affects the validity of the will and precludes its allowance, notwithstanding the fact that
no one appeared to oppose it.

The same ruling was laid down in the case of Cuison vs. Concepcion, 5 Phil., 552. In the case
of Barut vs. Cabacungan, 21 Phil., 461, we held that the important thing is that it clearly appears that
the name of the testatrix was signed at her express direction; it is unimportant whether the person
who writes the name of the testatrix signs his own or not. Cases of the same import areas follows:
(Ex Parte Juan Ondevilla, 13 Phil., 479, Caluya vs.Domingo, 27 Phil., 330; Garcia vs. Lacuesta, 90
Phil., 489).

In the case at bar the name of the testatrix, Anacleta Abellana, does not appear written under the will
by said Abellana herself, or by Dr. Juan Abello. There is, therefore, a failure to comply with the
express requirement in the law that the testator must himself sign the will, or that his name be affixed
thereto by some other person in his presence and by his express direction.

It appearing that the above provision of the law has not been complied with, we are constrained to
declare that the said will of the deceased Anacleta Abellana may not be admitted to probate.
WHEREFORE, the decision appealed from is hereby set aside and the petition for the probate of the
will denied. With costs against petitioner.

Paras, C.J., Bengzon, Padilla, Concepcion, Reyes, J.B.L., Barrera, Gutierrez David and Dizon,
JJ., concur.
G.R. No. L-5971 February 27, 1911

BEATRIZ NERA, ET AL., plaintiffs-appellees,

vs.
NARCISA RIMANDO, defendant-appellant.

Valerio Fontanilla and Andres Asprer for appellant.

Anacleto Diaz for appellees.

CARSON, J.:

The only question raised by the evidence in this case as to the due execution of the instrument
propounded as a will in the court below, is whether one of the subscribing witnesses was present in
the small room where it was executed at the time when the testator and the other subscribing
witnesses attached their signatures; or whether at that time he was outside, some eight or ten feet
away, in a large room connecting with the smaller room by a doorway, across which was hung a
curtain which made it impossible for one in the outside room to see the testator and the other
subscribing witnesses in the act of attaching their signatures to the instrument.

A majority of the members of the court is of opinion that this subscribing witness was in the small
room with the testator and the other subscribing witnesses at the time when they attached their
signatures to the instrument, and this finding, of course, disposes of the appeal and necessitates the
affirmance of the decree admitting the document to probate as the last will and testament of the
deceased.

The trial judge does not appear to have considered the determination of this question of fact of vital
importance in the determination of this case, as he was of opinion that under the doctrine laid down
in the case of Jaboneta vs. Gustilo (5 Phil. Rep., 541) the alleged fact that one of the subscribing
witnesses was in the outer room when the testator and the other describing witnesses signed the
instrument in the inner room, had it been proven, would not be sufficient in itself to invalidate the
execution of the will. But we are unanimously of opinion that had this subscribing witness been
proven to have been in the outer room at the time when the testator and the other subscribing
witnesses attached their signatures to the instrument in the inner room, it would have been invalid as
a will, the attaching of those signatures under circumstances not being done "in the presence" of the
witness in the outer room. This because the line of vision from this witness to the testator and the
other subscribing witnesses would necessarily have been impeded by the curtain separating the
inner from the outer one "at the moment of inscription of each signature."

In the case just cited, on which the trial court relied, we held that:

The true test of presence of the testator and the witnesses in the execution of a will is not
whether they actually saw each other sign, but whether they might have been seen each
other sign, had they chosen to do so, considering their mental and physical condition and
position with relation to each other at the moment of inscription of each signature.

But it is especially to be noted that the position of the parties with relation to each other at the
moment of the subscription of each signature, must be such that they may see each other sign if
they choose to do so. This, of course, does not mean that the testator and the subscribing witnesses
may be held to have executed the instrument in the presence of each other if it appears that they
would not have been able to see each other sign at that moment, without changing their relative
positions or existing conditions. The evidence in the case relied upon by the trial judge discloses that
"at the moment when the witness Javellana signed the document he was actually and physically
present and in such position with relation to Jaboneta that he could see everything that took place by
merely casting his eyes in the proper direction and without any physical obstruction to prevent his
doing so." And the decision merely laid down the doctrine that the question whether the testator and
the subscribing witnesses to an alleged will sign the instrument in the presence of each other does
not depend upon proof of the fact that their eyes were actually cast upon the paper at the moment of
its subscription by each of them, but that at that moment existing conditions and their position with
relation to each other were such that by merely casting the eyes in the proper direction they could
have seen each other sign. To extend the doctrine further would open the door to the possibility of all
manner of fraud, substitution, and the like, and would defeat the purpose for which this particular
condition is prescribed in the code as one of the requisites in the execution of a will.

The decree entered by the court below admitting the instrument propounded therein to probate as
the last will and testament of Pedro Rimando, deceased, is affirmed with costs of this instance
against the appellant.

Arellano, C. J., Mapa, Moreland and Trent, JJ., concur.

G.R. No. L-36033 November 5, 1982
IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA PEREZ,
(deceased): APOLONIO TABOADA, petitioner,
vs.
HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern Leyte, (Branch III,
Maasin), respondent.

Erasmo M. Diola counsel for petition.

Hon. Avelino S. Rosal in his own behalf.

GUTIERREZ, JR. J.:

This is a petition for review of the orders issued by the Court of First Instance of Southern Leyte,
Branch III, in Special Proceedings No. R-1713, entitled "In the Matter of the Petition for Probate of
the Will of Dorotea Perez, Deceased; Apolonio Taboada, Petitioner", which denied the probate of the
will, the motion for reconsideration and the motion for appointment of a special administrator.

In the petition for probate filed with the respondent court, the petitioner attached the alleged last will
and testament of the late Dorotea Perez. Written in the Cebuano-Visayan dialect, the will consists of
two pages. The first page contains the entire testamentary dispositions and is signed at the end or
bottom of the page by the testatrix alone and at the left hand margin by the three (3) instrumental
witnesses. The second page which contains the attestation clause and the acknowledgment is
signed at the end of the attestation clause by the three (3) attesting witnesses and at the left hand
margin by the testatrix.

Since no opposition was filed after the petitioner's compliance with the requirement of publication,
the trial court commissioned the branch clerk of court to receive the petitioner's evidence.
Accordingly, the petitioner submitted his evidence and presented Vicente Timkang, one of the
subscribing witnesses to the will, who testified on its genuineness and due execution.

The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned order denying
the probate of the will of Dorotea Perez for want of a formality in its execution. In the same order, the
petitioner was also required to submit the names of the intestate heirs with their corresponding
addresses so that they could be properly notified and could intervene in the summary settlement of
the estate.

Instead of complying with the order of the trial court, the petitioner filed a manifestation and/or
motion, ex partepraying for a thirty-day period within which to deliberate on any step to be taken as a
result of the disallowance of the will. He also asked that the ten-day period required by the court to
submit the names of intestate heirs with their addresses be held in abeyance.

The petitioner filed a motion for reconsideration of the order denying the probate of the will.
However, the motion together with the previous manifestation and/or motion could not be acted upon
by the Honorable Ramon C. Pamatian due to his transfer to his new station at Pasig, Rizal. The said
motions or incidents were still pending resolution when respondent Judge Avelino S. Rosal assumed
the position of presiding judge of the respondent court.
Meanwhile, the petitioner filed a motion for the appointment of special administrator.

Subsequently, the new Judge denied the motion for reconsideration as well as the manifestation
and/or motion filed ex parte. In the same order of denial, the motion for the appointment of special
administrator was likewise denied because of the petitioner's failure to comply with the order
requiring him to submit the names of' the intestate heirs and their addresses.

The petitioner decided to file the present petition.

For the validity of a formal notarial will, does Article 805 of the Civil Code require that the testatrix
and all the three instrumental and attesting witnesses sign at the end of the will and in the presence
of the testatrix and of one another?

Article 805 of the Civil Code provides:

Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testator's name written by some other person in his
presence, and by his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof,
except the last, on the left margin, and all the pages shall be numbered correlatively
in letters placed on the upper part of each page.

The attestation shall state the number of pages used upon which the will is written,
and the fact that the testator signed the will and every page thereof, or caused some
other person to write his name, under his express direction, in the presence of the
instrumental witnesses, and that the lacier witnesses and signed the will and the
pages thereof in the presence of the testator and of one another.

If the attestation clause is in a language not known to the witnesses, it shall be

interpreted to the witnesses, it shall be interpreted to them.

The respondent Judge interprets the above-quoted provision of law to require that, for a notarial will
to be valid, it is not enough that only the testatrix signs at the "end" but an the three subscribing
witnesses must also sign at the same place or at the end, in the presence of the testatrix and of one
another because the attesting witnesses to a will attest not merely the will itself but also the
signature of the testator. It is not sufficient compliance to sign the page, where the end of the will is
found, at the left hand margin of that page.

On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it a
condition precedent or a matter of absolute necessity for the extrinsic validity of the wig that the
signatures of the subscribing witnesses should be specifically located at the end of the wig after the
signature of the testatrix. He contends that it would be absurd that the legislature intended to place
so heavy an import on the space or particular location where the signatures are to be found as long
as this space or particular location wherein the signatures are found is consistent with good faith and
the honest frailties of human nature.

We find the petition meritorious.

Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end by
the testator himself or by the testator's name written by another person in his presence, and by his
express direction, and attested and subscribed by three or more credible witnesses in the presence
of the testator and of one another.

It must be noted that the law uses the terms attested and subscribed Attestation consists in
witnessing the testator's execution of the will in order to see and take note mentally that those things
are, done which the statute requires for the execution of a will and that the signature of the testator
exists as a fact. On the other hand, subscription is the signing of the witnesses' names upon the
same paper for the purpose of Identification of such paper as the will which was executed by the
testator. (Ragsdale v. Hill, 269 SW 2d 911).

Insofar as the requirement of subscription is concerned, it is our considered view that the will in this
case was subscribed in a manner which fully satisfies the purpose of Identification.

The signatures of the instrumental witnesses on the left margin of the first page of the will attested
not only to the genuineness of the signature of the testatrix but also the due execution of the will as
embodied in the attestation clause.

While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual
forms should be ignored, especially where the authenticity of the will is not assailed. (Gonzales v.
Gonzales, 90 Phil. 444, 449).

The law is to be liberally construed, "the underlying and fundamental objective permeating the
provisions on the law on wills in this project consists in the liberalization of the manner of their
execution with the end in view of giving the testator more freedom in expressing his last wishes but
with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of
undue and improper pressure and influence upon the testator. This objective is in accord with the
modern tendency in respect to the formalities in the execution of a will" (Report of the Code
commission, p. 103).

Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were not for the
defect in the place of signatures of the witnesses, he would have found the testimony sufficient to
establish the validity of the will.

The objects of attestation and of subscription were fully met and satisfied in the present case when
the instrumental witnesses signed at the left margin of the sole page which contains all the
testamentary dispositions, especially so when the will was properly Identified by subscribing witness
Vicente Timkang to be the same will executed by the testatrix. There was no question of fraud or
substitution behind the questioned order.

We have examined the will in question and noticed that the attestation clause failed to state the
number of pages used in writing the will. This would have been a fatal defect were it not for the fact
that, in this case, it is discernible from the entire wig that it is really and actually composed of only
two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first
page which contains the entirety of the testamentary dispositions is signed by the testatrix at the end
or at the bottom while the instrumental witnesses signed at the left margin. The other page which is
marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "This Last Will and Testament consists of two pages including this
page".
In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the following observations with
respect to the purpose of the requirement that the attestation clause must state the number of pages
used:

The law referred to is article 618 of the Code of Civil Procedure, as amended by Act
No. 2645, which requires that the attestation clause shall state the number of pages
or sheets upon which the win is written, which requirement has been held to be
mandatory as an effective safeguard against the possibility of interpolation or
omission of some of the pages of the will to the prejudice of the heirs to whom the
property is intended to be bequeathed (In re will of Andrada, 42 Phil., 180; Uy
Coque vs. Navas L. Sioca, 43 Phil. 405; Gumban vs. Gorecho, 50 Phil. 30; Quinto
vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio
decidendi of these cases seems to be that the attestation clause must contain a
statement of the number of sheets or pages composing the will and that if this is
missing or is omitted, it will have the effect of invalidating the will if the deficiency
cannot be supplied, not by evidence aliunde, but by a consideration or examination
of the will itself. But here the situation is different. While the attestation clause does
not state the number of sheets or pages upon which the will is written, however, the
last part of the body of the will contains a statement that it is composed of eight
pages, which circumstance in our opinion takes this case out of the rigid rule of
construction and places it within the realm of similar cases where a broad and more
liberal view has been adopted to prevent the will of the testator from being defeated
by purely technical considerations.

Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a similar liberal
approach:

... Impossibility of substitution of this page is assured not only (sic) the fact that the
testatrix and two other witnesses did sign the defective page, but also by its bearing
the coincident imprint of the seal of the notary public before whom the testament was
ratified by testatrix and all three witnesses. The law should not be so strictly and
literally interpreted as to penalize the testatrix on account of the inadvertence of a
single witness over whose conduct she had no control where the purpose of the law
to guarantee the Identity of the testament and its component pages is sufficiently
attained, no intentional or deliberate deviation existed, and the evidence on record
attests to the fun observance of the statutory requisites. Otherwise, as stated in Vda.
de Gil. Vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration)
'witnesses may sabotage the will by muddling or bungling it or the attestation clause.

WHEREFORE, the present petition is hereby granted. The orders of the respondent court which
denied the probate of tile will, the motion for reconsideration of the denial of probate, and the motion
for appointment of a special administrator are set aside. The respondent court is ordered to allow the
probate of the wig and to conduct further proceedings in accordance with this decision. No
pronouncement on costs.

SO ORDERED.
G.R. No. L-18979 June 30, 1964

IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTE.

CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.

Jose W. Diokno for petitioner-appellee.

Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.

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

Appeal from an order of the Court of First Instance of Manila admitting to probate the document and
its duplicate, marked as Exhibits "A" and "A-1", as the true last will and testament of Josefa
Villacorte, deceased, and appointing as executor Celso Icasiano, the person named therein as such.

This special proceeding was begun on October 2, 1958 by a petition for the allowance and
admission to probate of the original, Exhibit "A" as the alleged will of Josefa Villacorte, deceased,
and for the appointment of petitioner Celso Icasiano as executor thereof.

The court set the proving of the alleged will for November 8, 1958, and caused notice thereof to be
published for three (3) successive weeks, previous to the time appointed, in the newspaper "Manila
chronicle", and also caused personal service of copies thereof upon the known heirs.

On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her opposition; and on
November 10, 1958, she petitioned to have herself appointed as a special administrator, to which
proponent objected. Hence, on November 18, 1958, the court issued an order appointing the
Philippine Trust Company as special administrator. 1äw phï1.ñët

On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a manifestation adopting as
his own Natividad's opposition to the probate of the alleged will.

On March 19, 1959, the petitioner proponent commenced the introduction of his evidence; but on
June 1, 1959, he filed a motion for the admission of an amended and supplemental petition, alleging
that the decedent left a will executed in duplicate with all the legal requirements, and that he was, on
that date, submitting the signed duplicate (Exhibit "A-1"), which he allegedly found only on or about
May 26, 1959. On June 17, 1959, oppositors Natividad Icasiano de Gomez and Enrique Icasiano
filed their joint opposition to the admission of the amended and supplemental petition, but by order of
July 20, 1959, the court admitted said petition, and on July 30, 1959, oppositor Natividad Icasiano
filed her amended opposition. Thereafter, the parties presented their respective evidence, and after
several hearings the court issued the order admitting the will and its duplicate to probate. From this
order, the oppositors appealed directly to this Court, the amount involved being over P200,000.00,
on the ground that the same is contrary to law and the evidence.

The evidence presented for the petitioner is to the effect that Josefa Villacorte died in the City of
Manila on September 12, 1958; that on June 2, 1956, the late Josefa Villacorte executed a last will
and testament in duplicate at the house of her daughter Mrs. Felisa Icasiano at Pedro Guevara
Street, Manila, published before and attested by three instrumental witnesses, namely: attorneys
Justo P. Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that the will was acknowledged by
the testatrix and by the said three instrumental witnesses on the same date before attorney Jose
Oyengco Ong, Notary Public in and for the City of Manila; and that the will was actually prepared by
attorney Fermin Samson, who was also present during the execution and signing of the decedent's
last will and testament, together with former Governor Emilio Rustia of Bulacan, Judge Ramon
Icasiano and a little girl. Of the said three instrumental witnesses to the execution of the decedent's
last will and testament, attorneys Torres and Natividad were in the Philippines at the time of the
hearing, and both testified as to the due execution and authenticity of the said will. So did the Notary
Public before whom the will was acknowledged by the testatrix and attesting witnesses, and also
attorneys Fermin Samson, who actually prepared the document. The latter also testified upon cross
examination that he prepared one original and two copies of Josefa Villacorte last will and testament
at his house in Baliuag, Bulacan, but he brought only one original and one signed copy to Manila,
retaining one unsigned copy in Bulacan.

The records show that the original of the will, which was surrendered simultaneously with the filing of
the petition and marked as Exhibit "A" consists of five pages, and while signed at the end and in
every page, it does not contain the signature of one of the attesting witnesses, Atty. Jose V.
Natividad, on page three (3) thereof; but the duplicate copy attached to the amended and
supplemental petition and marked as Exhibit "A-1" is signed by the testatrix and her three attesting
witnesses in each and every page.

The testimony presented by the proponents of the will tends to show that the original of the will and
its duplicate were subscribed at the end and on the left margin of each and every page thereof by
the testatrix herself and attested and subscribed by the three mentioned witnesses in the testatrix's
presence and in that of one another as witnesses (except for the missing signature of attorney
Natividad on page three (3) of the original); that pages of the original and duplicate of said will were
duly numbered; that the attestation clause thereof contains all the facts required by law to be recited
therein and is signed by the aforesaid attesting witnesses; that the will is written in the language
known to and spoken by the testatrix that the attestation clause is in a language also known to and
spoken by the witnesses; that the will was executed on one single occasion in duplicate copies; and
that both the original and the duplicate copies were duly acknowledged before Notary Public Jose
Oyengco of Manila on the same date June 2, 1956.

Witness Natividad who testified on his failure to sign page three (3) of the original, admits that he
may have lifted two pages instead of one when he signed the same, but affirmed that page three (3)
was signed in his presence.

Oppositors-appellants in turn introduced expert testimony to the effect that the signatures of the
testatrix in the duplicate (Exhibit "A-1") are not genuine nor were they written or affixed on the same
occasion as the original, and further aver that granting that the documents were genuine, they were
executed through mistake and with undue influence and pressure because the testatrix was
deceived into adopting as her last will and testament the wishes of those who will stand to benefit
from the provisions of the will, as may be inferred from the facts and circumstances surrounding the
execution of the will and the provisions and dispositions thereof, whereby proponents-appellees
stand to profit from properties held by them as attorneys-in-fact of the deceased and not enumerated
or mentioned therein, while oppositors-appellants are enjoined not to look for other properties not
mentioned in the will, and not to oppose the probate of it, on penalty of forfeiting their share in the
portion of free disposal.

We have examined the record and are satisfied, as the trial court was, that the testatrix signed both
original and duplicate copies (Exhibits "A" and "A-1", respectively) of the will spontaneously, on the
same in the presence of the three attesting witnesses, the notary public who acknowledged the will;
and Atty. Samson, who actually prepared the documents; that the will and its duplicate were
executed in Tagalog, a language known to and spoken by both the testator and the witnesses, and
read to and by the testatrix and Atty. Fermin Samson, together before they were actually signed; that
the attestation clause is also in a language known to and spoken by the testatrix and the witnesses.
The opinion of expert for oppositors, Mr. Felipe Logan, that the signatures of the testatrix appearing
in the duplicate original were not written by the same had which wrote the signatures in the original
will leaves us unconvinced, not merely because it is directly contradicted by expert Martin Ramos for
the proponents, but principally because of the paucity of the standards used by him to support the
conclusion that the differences between the standard and questioned signatures are beyond the
writer's range of normal scriptural variation. The expert has, in fact, used as standards only three
other signatures of the testatrix besides those affixed to the original of the testament (Exh. A); and
we feel that with so few standards the expert's opinion and the signatures in the duplicate could not
be those of the testatrix becomes extremely hazardous. This is particularly so since the comparison
charts Nos. 3 and 4 fail to show convincingly that the are radical differences that would justify the
charge of forgery, taking into account the advanced age of the testatrix, the evident variability of her
signatures, and the effect of writing fatigue, the duplicate being signed right the original. These,
factors were not discussed by the expert.

Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned signatures
does not appear reliable, considering the standard and challenged writings were affixed to different
kinds of paper, with different surfaces and reflecting power. On the whole, therefore, we do not find
the testimony of the oppositor's expert sufficient to overcome that of the notary and the two
instrumental witnesses, Torres and Natividad (Dr. Diy being in the United States during the trial, did
not testify).

Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs are more
favored than others is proof of neither (see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163;
Pecson vs. Coronal, 45 Phil. 216). Diversity of apportionment is the usual reason for making a
testament; otherwise, the decedent might as well die intestate. The testamentary dispositions that
the heirs should not inquire into other property and that they should respect the distribution made in
the will, under penalty of forfeiture of their shares in the free part do not suffice to prove fraud or
undue influence. They appear motivated by the desire to prevent prolonged litigation which, as
shown by ordinary experience, often results in a sizeable portion of the estate being diverted into the
hands of non-heirs and speculators. Whether these clauses are valid or not is a matter to be litigated
on another occassion. It is also well to note that, as remarked by the Court of Appeals in Sideco vs.
Sideco, 45 Off. Gaz. 168, fraud and undue influence are mutually repugnant and exclude each other;
their joining as grounds for opposing probate shows absence of definite evidence against the validity
of the will.

On the question of law, we hold that the inadvertent failure of one witness to affix his signature to
one page of a testament, due to the simultaneous lifting of two pages in the course of signing, is not
per se sufficient to justify denial of probate. Impossibility of substitution of this page is assured not
only the fact that the testatrix and two other witnesses did sign the defective page, but also by its
bearing the coincident imprint of the seal of the notary public before whom the testament was ratified
by testatrix and all three witnesses. The law should not be so strictly and literally interpreted as to
penalize the testatrix on account of the inadvertence of a single witness over whose conduct she
had no control, where the purpose of the law to guarantee the identity of the testament and its
component pages is sufficiently attained, no intentional or deliberate deviation existed, and the
evidence on record attests to the full observance of the statutory requisites. Otherwise, as stated
in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration) "witnesses
may sabotage the will by muddling or bungling it or the attestation clause".

That the failure of witness Natividad to sign page three (3) was entirely through pure oversight is
shown by his own testimony as well as by the duplicate copy of the will, which bears a complete set
of signatures in every page. The text of the attestation clause and the acknowledgment before the
Notary Public likewise evidence that no one was aware of the defect at the time.
This would not be the first time that this Court departs from a strict and literal application of the
statutory requirements, where the purposes of the law are otherwise satisfied. Thus, despite the
literal tenor of the law, this Court has held that a testament, with the only page signed at its foot by
testator and witnesses, but not in the left margin, could nevertheless be probated (Abangan vs.
Abangan, 41 Phil. 476); and that despite the requirement for the correlative lettering of the pages of
a will, the failure to make the first page either by letters or numbers is not a fatal defect (Lopez vs.
Liboro, 81 Phil. 429). These precedents exemplify the Court's policy to require satisfaction of the
legal requirements in order to guard against fraud and bid faith but without undue or unnecessary
curtailment of the testamentary privilege.

The appellants also argue that since the original of the will is in existence and available, the
duplicate (Exh. A-1) is not entitled to probate. Since they opposed probate of original because it
lacked one signature in its third page, it is easily discerned that oppositors-appellants run here into a
dilemma; if the original is defective and invalid, then in law there is no other will but the duly signed
carbon duplicate (Exh. A-1), and the same is probatable. If the original is valid and can be probated,
then the objection to the signed duplicate need not be considered, being superfluous and irrelevant.
At any rate, said duplicate, Exhibit A-1, serves to prove that the omission of one signature in the third
page of the original testament was inadvertent and not intentional.

That the carbon duplicate, Exhibit A-1, was produced and admitted without a new publication does
not affect the jurisdiction of the probate court, already conferred by the original publication of the
petition for probate. The amended petition did not substantially alter the one first filed, but merely
supplemented it by disclosing the existence of the duplicate, and no showing is made that new
interests were involved (the contents of Exhibit A and A-1 are admittedly identical); and appellants
were duly notified of the proposed amendment. It is nowhere proved or claimed that the amendment
deprived the appellants of any substantial right, and we see no error in admitting the amended
petition.

IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with costs against
appellants.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Paredes, Regala and Makalintal,
JJ., concur.
Barrera and Dizon, JJ., took no part.
G.R. No. L-5826 April 29, 1953

Testate estate of the late VICENTE CAGRO. JESUSA CAGRO, petitioner-appellee,

vs.
PELAGIO CAGRO, ET AL., oppositors-appellants.

Clouduallo Lucero and Vicente C. Santos for appellants.

Marciano Chitongco and Zosimo B. Echanova for appellee.

PARAS, C.J.:

This is an appeal interposed by the oppositors from a decision of the Court of First Instance of
Samar, admitting to probate the will allegedly executed by Vicente Cagro who died in Laoangan,
Pambujan, Samar, on February 14, 1949.

The main objection insisted upon by the appellant in that the will is fatally defective, because its
attestation clause is not signed by the attesting witnesses. There is no question that the signatures
of the three witnesses to the will do not appear at the bottom of the attestation clause, although the
page containing the same is signed by the witnesses on the left-hand margin.

We are of the opinion that the position taken by the appellant is correct. The attestation clause is 'a
memorandum of the facts attending the execution of the will' required by law to be made by the
attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation clause
cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom
thereof negatives their participation.

The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin
conform substantially to the law and may be deemed as their signatures to the attestation clause.
This is untenable, because said signatures are in compliance with the legal mandate that the will be
signed on the left-hand margin of all its pages. If an attestation clause not signed by the three
witnesses at the bottom thereof, be admitted as sufficient, it would be easy to add such clause to a
will on a subsequent occasion and in the absence of the testator and any or all of the witnesses.

Wherefore, the appealed decision is reversed and the probate of the will in question denied. So
ordered with costs against the petitioner and appellee.

Pablo, Bengzon, Montemayor, Jugo and Labrador, JJ., concur.

Separate Opinions

BAUTISTA ANGELO, J., dissenting:

I dissent. In my opinion the will in question has substantially complied with the formalities of the law
and, therefore, should be admitted to probate . It appears that the will was signed by the testator and
was attested by three instrumental witnesses, not only at the bottom, but also on the left-hand
margin. The witnesses testified not only that the will was signed by the testator in their presence and
in the presence of each other but also that when they did so, the attestation clause was already
written thereon. Their testimony has not been contradicted. The only objection set up by the
oppositors to the validity of the will is the fact that the signatures of the instrumental witnesses do not
appear immediately after the attestation clause.

This objection is too technical to be entertained. In the case of Abangan vs. Abangan, (40 Phil.,
476), this court said that when the testamentary dispositions "are wholly written on only one sheet
signed at the bottom by the testator and three witnesses (as the instant case),their signatures on the
left margin of said sheet would be completely purposeless." In such a case, the court said, the
requirement of the signatures on the left hand margin was not necessary because the purpose of the
law — which is to avoid the substitution of any of the sheets of the will, thereby changing the
testator's dispositions — has already been accomplished. We may say the same thing in connection
with the will under consideration because while the three instrumental witnesses did not sign
immediately by the majority that it may have been only added on a subsequent occasion and not at
the uncontradicted testimony of said witnesses to the effect that such attestation clause was already
written in the will when the same was signed.

The following observation made by this court in the Abangan case is very fitting:

The object of the solemnities surrounding the execution of wills is to close the door against
bad faith and fraud to avoid substitution of wills and testaments and to guaranty their truth
and authenticity. Therefore the laws on this subject should be interpreted in such a way as to
attain these primordial ends. But, on the other hand, also one must not lose sight of the fact
that it i not the object of the law to restrain and curtail the exercise of the right to make a will.
So when an interpretation already given assures such ends, any other interpretation already
given assures such ends, any other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary useless and frustrative of the testator's last
will, must be disregarded. (supra)

We should not also overlook the liberal trend of the New Civil Code in the matter of interpretation of
wills, the purpose of which, in case of doubt, is to give such interpretation that would have the effect
of preventing intestacy (article 788 and 791, New Civil Code)

I am therefore of the opinion that the will in question should be admitted to probate.

Feria, J., concurs.

TUASON, J., dissenting:

I cuncur in Mr. Justice Bautista's dissenting opinion and may add that the majority decision
erroneously sets down as a fact that the attestation clause was no signed when the witnesses
signatures appear on the left margin and the real and only question is whether such signatures are
legally sufficient.

The only answers, in our humble opinion, is yes. The law on wills does not provide that the attesting
witness should sign the clause at the bottom. In the absence of such provision, there is no reason
why signatures on the margin are not good. A letter is not any the less the writter's simply because it
was signed, not at the conventional place but on the side or on top.

Feria, J., concurs.

G.R. No. L-13431 November 12, 1919

In re will of Ana Abangan.

GERTRUDIS ABANGAN, executrix-appellee,
vs.
ANASTACIA ABANGAN, ET AL., opponents-appellants.

Filemon Sotto for appellants.

M. Jesus Cuenco for appellee.

AVANCEÑA, J.:

On September 19, 1917, the Court of First Instance of Cebu admitted to probate Ana Abangan's will
executed July, 1916. From this decision the opponent's appealed.

Said document, duly probated as Ana Abangan's will, consists of two sheets, the first of which
contains all of the disposition of the testatrix, duly signed at the bottom by Martin Montalban (in the
name and under the direction of the testatrix) and by three witnesses. The following sheet contains
only the attestation clause duly signed at the bottom by the three instrumental witnesses. Neither of
these sheets is signed on the left margin by the testatrix and the three witnesses, nor numbered by
letters; and these omissions, according to appellants' contention, are defects whereby the probate of
the will should have been denied. We are of the opinion that the will was duly admitted to probate.

In requiring that each and every sheet of the will should also be signed on the left margin by the
testator and three witnesses in the presence of each other, Act No. 2645 (which is the one
applicable in the case) evidently has for its object (referring to the body of the will itself) to avoid the
substitution of any of said sheets, thereby changing the testator's dispositions. But when these
dispositions are wholly written on only one sheet signed at the bottom by the testator and three
witnesses (as the instant case), their signatures on the left margin of said sheet would be completely
purposeless. In requiring this signature on the margin, the statute took into consideration,
undoubtedly, the case of a will written on several sheets and must have referred to the sheets which
the testator and the witnesses do not have to sign at the bottom. A different interpretation would
assume that the statute requires that this sheet, already signed at the bottom, be signed twice. We
cannot attribute to the statute such an intention. As these signatures must be written by the testator
and the witnesses in the presence of each other, it appears that, if the signatures at the bottom of
the sheet guaranties its authenticity, another signature on its left margin would be unneccessary;
and if they do not guaranty, same signatures, affixed on another part of same sheet, would add
nothing. We cannot assume that the statute regards of such importance the place where the testator
and the witnesses must sign on the sheet that it would consider that their signatures written on the
bottom do not guaranty the authenticity of the sheet but, if repeated on the margin, give sufficient
security.

In requiring that each and every page of a will must be numbered correlatively in letters placed on
the upper part of the sheet, it is likewise clear that the object of Act No. 2645 is to know whether any
sheet of the will has been removed. But, when all the dispositive parts of a will are written on one
sheet only, the object of the statute disappears because the removal of this single sheet, although
unnumbered, cannot be hidden.
What has been said is also applicable to the attestation clause. Wherefore, without considering
whether or not this clause is an essential part of the will, we hold that in the one accompanying the
will in question, the signatures of the testatrix and of the three witnesses on the margin and the
numbering of the pages of the sheet are formalities not required by the statute. Moreover, referring
specially to the signature of the testatrix, we can add that same is not necessary in the attestation
clause because this, as its name implies, appertains only to the witnesses and not to the testator
since the latter does not attest, but executes, the will.

Synthesizing our opinion, we hold that in a will consisting of two sheets the first of which contains all
the testamentary dispositions and is signed at the bottom by the testator and three witnesses and
the second contains only the attestation clause and is signed also at the bottom by the three
witnesses, it is not necessary that both sheets be further signed on their margins by the testator and
the witnesses, or be paged.

The object of the solemnities surrounding the execution of wills is to close the door against bad faith
and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity.
Therefore the laws on this subject should be interpreted in such a way as to attain these primordal
ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the
law to restrain and curtail the exercise of the right to make a will. So when an interpretation already
given assures such ends, any other interpretation whatsoever, that adds nothing but demands more
requisites entirely unnecessary, useless and frustative of the testator's last will, must be
disregarded. lawphil.net

As another ground for this appeal, it is alleged the records do not show that the testarix knew the
dialect in which the will is written. But the circumstance appearing in the will itself that same was
executed in the city of Cebu and in the dialect of this locality where the testatrix was a neighbor is
enough, in the absence of any proof to the contrary, to presume that she knew this dialect in which
this will is written.

For the foregoing considerations, the judgment appealed from is hereby affirmed with costs against
the appellants. So ordered.

Arellano, C.J., Torres, Johnson, Araullo, Street and Malcolm, JJ., concur.
G.R. No. L-14322 February 25, 1960

In the matter of the TESTATE ESTATE OF PETRONILA TAMPOY, deceased,

vs.
DIOSDADA ALBERASTINE, petitioner-appellant.

Agustin Y. Kintanar for appellant.

BAUTISTA ANGELO, J.:

This concerns the probate of a document which purports to be the last will and testament of one
Petronila Tampoy. After the petition was published in accordance with law and petitioner had
presented oral and documentaryevidence, the trial court denied the petition on the ground that the
left hand margin of the first of the will does not bear the thumbmark of the testatrix. Petitioner
appealed from this ruling but the Court of Appeals certified the case to us because it involves purely
a question of law.

The facts of this case as found by the trial court as follows:

De las pruebas resulta que Petronila Tampoy, ya viuda y sin hijos, rogo a Bonigfacio Miñoza
que la leyera el testamento Exhibito A y la expicara su contenido en su casa en al calle San
Miguel, del municipio de Argao, provincia de Cebu, en 19 de noviember de 1939, y lasi lo
hizo Bonifacio Miñoza en presencia de los tres testigos instrumentales, Rosario K. Chan,
Mauricio de la Peña y Simeon Omboy, y despues de conformarse con el contendido del
testamento, ella rogo a Bonifacio Miñoza, que escribiera su nombre al pie del testamento, en
la pagina segunda, y asi lo hizo Bonifacio Miñoza, y despues ella estampo su marca digital
entra su nombre y apelido en presencia de todos y cada uno de los tres testigos
instrumentales, Rosario K. Chan, Mauricio de la Peña y Simeon Omboy y de Bonifacio
Miñoza, y despues, Bonifacio Miñoza firmo tambien al pie del todos y cada uno de lo tres
testigos arriba nombrados. La testadora asi como Bonifacio Miñoza parte de la primera
pagina del testamento qeu se halla compuesto de dos paginas. Todos y cada uno de los tres
testigos instrumentales, Rosario K. Chan, Mauricio de la Peña y Simeon Omboy, firmaron al
pie de la clausula de atestiguamiento que esta escrita en la pagina segunda del testamento
y en la margen izquierda de la misma pagina 2 y de la pagina primera en presencia de la
testadora, de Bonifacio Miñoza, del abogado Kintanar y de todos y cada uno de ellos. El
testamento fue otorgado por la testadora libre y expontaneament, sin haber sido
amenazada, forzada o intimidada, y sin haberse ejercido sobre ella influencia indebida,
estando la misma en pleno uso de sus facultades mentales y disfrutando de buena salud. La
testadore fallecio en su case en Argao en 22 de febrero de 1957 (Vease certificado de
defuncion Exhibito B). La heredera instituida en el testamento, Carmen Alberastine, murio
dos semanas despues que la testadora, o sea en 7 de Marzo de 1957, dejando a su madre,
la solicitante Diosdada Alberastine.

The above facts are not controverted, there being no opposition to the probate of the will. However,
the trial court denied the petition on the ground that the first page of the will does not bear the
thumbmark of the testatrix. Petitioner now prays that this ruling be set aside for the reason that,
although the first page of the will does not bear the thumbmark of the testatrix, the same however
expresses her true intention to givethe property to her whose claims remains undisputed. She
wishes to emphasize that no one has filed any to the opposition to the probate of the will and that
while the first page does not bear the thumbmark of the testatrix, the second however bears her
thumbmark and both pages were signed by the three testimonial witnesses. Moreover, despite the
fact that the petition for probate is unoppossed, the three testimonial witnesses testified and
manifested to the court that the document expresses the true and voluntary will of the deceased.

This contention cannot be sustained as it runs counter to the express provision of the law. Thus,
Section 618 of Act 190, as amended, requires that the testator sign the will and each and every page
thereof in the presence of the witnesses, and that the latter sign the will and each and every page
thereof in the presence of the testator and of each other, which requirement should be expressed in
the attestation clause. This requirement is mandatory, for failure to comply with it is fatal to the
validity of the will (Rodriguez vs. Alcala, 55 Phil., 150). Thus, it has been held that "Statutes
prescribing the formalities to be observed in the execution of wills are very strictly construed. As
stated in 40 Cyc., at page 1097, 'A will must be executed in accordance with the statutory
requirements; otherwise it is entirely void.' All these requirements stand as of equal importance and
must be observed, and courts cannot supply the defective execution of a will. No power or discretion
is vested in them, either to superadd other conditions or dispence with those enumerated in the
statutes" (Uy Coque vs. Navas L. Sioca, 43 Phil., 405, 407; See also Saño vs. Quintana, 48 Phil.,
506; Gumban vs. Gorecho, 50 Phil., 30; Quinto vs. Morata, 54 Phil., 481).

Since the will in question suffers from the fatal defect that it does not bear the thumbmark of the
testatrix on its first page even if it bears the signature of the three instrumental witnesses, we cannot
escape the conclusion that the same fails to comply with the law and therefore, cannot be admitted
to probate.

Wherefore, the order appealed from is affirmed, without pronouncement as to costs.

Paras, C.J., Bengzon, Padilla, Montemayor, Labrador, Concepcion, Reyes, J.B.L., Endencia,
Barrera and Gutierrez, David, JJ., concur.
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.

Makalintal, C.J., Castro, Teehankee, Makasiar and Muñoz Palma, JJ., concur.
G.R. No. L-51546 January 28, 1980

JOSE ANTONIO GABUCAN, petitioner-appellant,

vs.
HON. JUDGE LUIS D. MANTA JOSEFA G. VDA. DE YSALINA and NELDA G.
ENCLONAR, respondents-appellees.

Ignacio A. Calingin for appellant.

AQUINO, J.:

This case is about the dismissal of a petition for the probate of a notarial will on the ground that it
does not bear a thirty-centavo documentary stamp.

The Court of First Instance of Camiguin in its "decision" of December 28, 1977 in Special Proceeding
No. 41 for the probate of the will of the late Rogaciano Gabucan, dismissed the proceeding
(erroneously characterizes as an "action")

The proceeding was dismissed because the requisite documentary stamp was not affixed to the
notarial acknowledgment in the will and, hence, according to respondent Judge, it was not
admissible in evidence, citing section 238 of the Tax Code, now section 250 of the 1977 Tax Code,
which reads:

SEC. 238. Effect of failure to stamp taxable document. — An instrument, document,

or paper which is required by law to be stamped and which has been signed, issued,
accepted, or transferred without being duly stamped, shall not be recorded, nor shall
it or any copy thereof or any record of transfer of the same be admitted or used in
evidence in any court until the requisite stamp or stamps shall have been affixed
thereto and cancelled.

No notary public or other officer authorized to administer oaths shall add his jurat or
acknowledgment to any document subject to documentary stamp tax unless the
proper documentary stamps are affixed thereto and cancelled.

The probate court assumed that the notarial acknowledgment of the said will is subject to the thirty-
centavo documentary stamp tax fixed in section 225 of the Tax Code, now section 237 of the 1977
Tax Code.

Respondent Judge refused to reconsider the dismissal in spite of petitioner's manifestation that he
had already attached the documentary stamp to the original of the will. (See Mahilum vs. Court of
Appeals, 64 O. G. 4017, 17 SCRA 482, 486.)

The case was brought to this Court by means of a petition for mandamus to compel the lower court
to allow petitioner's appeal from its decision. In this Court's resolution of January 21, 1980 the
petition for mandamus was treated in the interest of substantial and speedy justice as an appeal
under Republic Act No. 5440 as well as a special civil action of certiorari under Rule 65 of the Rules
of Court.
We hold that the lower court manifestly erred in declaring that, because no documentary stamp was
affixed to the will, there was "no will and testament to probate" and, consequently, the alleged
"action must of necessity be dismissed".

What the probate court should have done was to require the petitioner or proponent to affix the
requisite thirty-centavo documentary stamp to the notarial acknowledgment of the will which is the
taxable portion of that document.

That procedure may be implied from the provision of section 238 that the non-admissibility of the
document, which does not bear the requisite documentary stamp, subsists only "until the requisite
stamp or stamps shall have been affixed thereto and cancelled."

Thus, it was held that the documentary stamp may be affixed at the time the taxable document is
presented in evidence (Del Castillo vs. Madrilena 49 Phil. 749). If the promissory note does not bear
a documentary stamp, the court should have allowed plaintiff's tender of a stamp to supply the
deficiency. (Rodriguez vs. Martinez, 5 Phil. 67, 71. Note the holding in Azarraga vs. Rodriguez, 9
Phil. 637, that the lack of the documentary stamp on a document does not invalidate such document.
See Cia. General de Tabacos vs. Jeanjaquet 12 Phil. 195, 201-2 and Delgado and Figueroa vs.
Amenabar 16 Phil. 403, 405-6.)

WHEREFORE, the lower court's dismissal of the petition for probate is reversed and set aside. It is
directed to decide the case on the merits in the light of the parties' evidence. No costs.

SO ORDERED.

Barredo, Antonio, Concepcion, Jr., and Abad Santos, JJ. concur.

G.R. No. L-7179 June 30, 1955

Testate Estate of the Late Apolinaria Ledesma. FELICIDAD JAVELLANA, petitioner-appellee,

vs.
DOÑA MATEA LEDESMA, oppositor-appellant.

Fulgencio Vega and Felix D. Bacabac for appellant.

Benjamin H. Tirot for appellee.

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

By order of July 23, 1953, the Court of First Instance of Iloilo admitted to probate the documents in
the Visayan dialect, marked Exhibits D and E, as the testament and codicil duly executed by the
deceased Da. Apolinaria Ledesma Vda. de Javellana, on March 30, 1950, and May 29, 1952,
respectively, with Ramon Tabiana, Gloria Montinola de Tabiana and Vicente Yap as witnesses. The
contestant, Da. Matea Ledesma, sister and nearest surviving relative of said deceased, appealed
from the decision, insisting that the said exhibits were not executed in conformity with law. The
appeal was made directly to this Court because the value of the properties involved exceeded two
hundred thousand pesos.

Originally the opposition to the probate also charged that the testatrix lacked testamentary capacity
and that the dispositions were procured through undue influence. These grounds were abandoned at
the hearing in the court below, where the issue was concentrated into three specific questions: (1)
whether the testament of 1950 was executed by the testatrix in the presence of the instrumental
witnesses; (2) whether the acknowledgment clause was signed and the notarial seal affixed by the
notary without the presence of the testatrix and the witnesses; and (3) if so, whether the codicil was
thereby rendered invalid and ineffective. These questions are the same ones presented to us for
resolution.

The contestant argues that the Court below erred in refusing credence to her witnesses Maria
Paderogao and Vidal Allado, cook and driver, respectively, of the deceased Apolinaria Ledesma.
Both testified that on March 30, 1950, they saw and heard Vicente Yap (one of the witnesses to the
will) inform the deceased that he had brought the "testamento" and urge her to go to attorney
Tabiana's office to sign it; that Da. Apolinaria manifested that she could not go, because she was not
feeling well; and that upon Yap's insistence that the will had to be signed in the attorney's office and
not elsewhere, the deceased took the paper and signed it in the presence of Yap alone, and
returned it with the statement that no one would question it because the property involved was
exclusively hers.

Our examination of the testimony on record discloses no grounds for reversing the trial Court's
rejection of the improbable story of the witnesses. It is squarely contradicted by the concordant
testimony of the instrumental witnesses, Vicente Yap, Atty. Ramon Tabiana, and his wife Gloria
Montinola, who asserted under oath that the testament was executed by testatrix and witnesses in
the presence of each other, at the house of the decedent on General Hughes St., Iloilo City, on
March 30, 1950. And it is highly unlikely, and contrary to usage, that either Tabiana or Yap should
have insisted that Da. Apolinaria, an infirm lady then over 80 years old, should leave her own house
in order to execute her will, when all three witnesses could have easily repaired thither for the
purpose. Moreover, the cross-examination has revealed fatal flaws in the testimony of Contestant's
witnesses. Both claim to have heard the word "testamento" for the first time when Yap used it; and
they claimed ability to recall that word four years later, despite the fact that the term meant nothing to
either. It is well known that what is to be remembered must first be rationally conceived and
assimilated (II Moore on Facts, p. 884). Likewise, Maria Paderogao was positive that Yap brought
the will, and that the deceased alone signed it, precisely on March 30, 1950; but she could
remember no other date, nor give satisfactory explanation why that particular day stuck in her mind.
Worse still, Allado claimed to have heard what allegedly transpired between Yap and Da. Apolinaria
from the kitchen of the house, that was later proved to have been separated from the deceased's
quarters, and standing at a much lower level, so that conversations in the main building could not be
distinctly heard from the kitchen. Later, on redirect examination, Allado sought to cure his testimony
by claiming that he was upstairs in a room where the servants used to eat when he heard Yap
converse with his mistress; but this correction is unavailing, since it was plainly induced by two
highly leading questions from contestant's counsel that had been previously ruled out by the trial
Court. Besides, the contradiction is hardly consonant with this witness' 18 years of service to the
deceased.

Upon the other hand, the discrepancies in the testimony of the instrumental witnesses urged upon
us by the contestant-appellant, concerning the presence or absence of Aurelio Montinola at the
signing of the testament or of the codicil, and the identity of the person who inserted the date therein,
are not material and are largely imaginary, since the witness Mrs. Tabiana confessed inability to
remember all the details of the transaction. Neither are we impressed by the argument that the use
of some Spanish terms in the codicil and testament (like legado, partes iguales, plena propiedad) is
proof that its contents were not understood by the testatrix, it appearing in evidence that those terms
are of common use even in the vernacular, and that the deceased was a woman of wide business
interests.

The most important variation noted by the contestants concerns that signing of the certificate of
acknowledgment (in Spanish) appended to the Codicil in Visayan, Exhibit E. Unlike the testament,
this codicil was executed after the enactment of the new Civil Code, and, therefore, had to be
acknowledged before a notary public (Art. 806). Now, the instrumental witnesses (who happen to be
the same ones who attested the will of 1950) asserted that after the codicil had been signed by the
testatrix and the witnesses at the San Pablo Hospital, the same was signed and sealed by notary
public Gimotea on the same occasion. On the other hand, Gimotea affirmed that he did not do so,
but brought the codicil to his office, and signed and sealed it there. The variance does not
necessarily imply conscious perversion of truth on the part of the witnesses, but appears rather due
to a well-established phenomenon, the tendency of the mind, in recalling past events, to substitute
the usual and habitual for what differs slightly from it (II Moore on Facts, p. 878; The Ellen
McGovern, 27 Fed. 868, 870).

At any rate, as observed by the Court below, whether or not the notary signed the certification of
acknowledgment in the presence of the testatrix and the witnesses, does not affect the validity of the
codicil. Unlike the Code of 1889 (Art. 699), the new Civil Code does not require that the signing of
the testator, witnesses and notary should be accomplished in one single act. A comparison of
Articles 805 and 806 of the new Civil Code reveals that while testator and witnesses sign in the
presence of each other, all that is thereafter required is that "every will must be acknowledged before
a notary public by the testator and the witnesses" (Art. 806); i.e., that the latter should avow to the
certifying officer the authenticity of their signatures and the voluntariness of their actions in executing
the testamentary disposition. This was done in the case before us. The subsequent signing and
sealing by the notary of his certification that the testament was duly acknowledged by the
participants therein is no part of the acknowledgment itself nor of the testamentary act. Hence their
separate execution out of the presence of the testatrix and her witnesses can not be said to violate
the rule that testaments should be completed without interruption (Andalis vs. Pulgueras, 59 Phil.
643), or, as the Roman maxim puts it, "uno codem die ac tempore in eadem loco", and no reversible
error was committed by the Court in so holding. It is noteworthy that Article 806 of the new Civil
Code does not contain words requiring that the testator and the witnesses should acknowledge the
testament on the same day or occasion that it was executed.
The decision admitting the will to probate is affirmed, with costs against appellant.

Bengzon, Acting C.J., Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo, Labrador, and
Concepcion, JJ.,concur.
G.R. No. L-38338 January 28, 1985

IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND BIBIANA

ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS DE JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent.

Raul S. Sison Law Office for petitioners.

Rafael Dinglasan, Jr. for heir M. Roxas.

Ledesma, Guytingco Velasco and Associates for Ledesa and A. R. de Jesus.

GUTIERREZ, JR., J.:

This is a petition for certiorari to set aside the order of respondent Hon. Jose C. Colayco, Presiding
Judge Court of First Instance of Manila, Branch XXI disallowing the probate of the holographic Will of
the deceased Bibiana Roxas de Jesus.

The antecedent facts which led to the filing of this petition are undisputed.

After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus, Special Proceeding
No. 81503 entitled "In the Matter of the Intestate Estate of Andres G. de Jesus and Bibiana Roxas
de Jesus" was filed by petitioner Simeon R. Roxas, the brother of the deceased Bibiana Roxas de
Jesus.

On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator. After Letters of
Administration had been granted to the petitioner, he delivered to the lower court a document
purporting to be the holographic Will of the deceased Bibiana Roxas de Jesus. On May 26, 1973,
respondent Judge Jose Colayco set the hearing of the probate of the holographic Win on July 21,
1973.

Petitioner Simeon R. Roxas testified that after his appointment as administrator, he found a
notebook belonging to the deceased Bibiana R. de Jesus and that on pages 21, 22, 23 and 24
thereof, a letter-win addressed to her children and entirely written and signed in the handwriting of
the deceased Bibiana R. de Jesus was found. The will is dated "FEB./61 " and states: "This is my
win which I want to be respected although it is not written by a lawyer. ...

The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro Roxas de Jesus
and Manuel Roxas de Jesus who likewise testified that the letter dated "FEB./61 " is the holographic
Will of their deceased mother, Bibiana R. de Jesus. Both recognized the handwriting of their mother
and positively Identified her signature. They further testified that their deceased mother understood
English, the language in which the holographic Will is written, and that the date "FEB./61 " was the
date when said Will was executed by their mother.

Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate" assailing the
purported holographic Will of Bibiana R. de Jesus because a it was not executed in accordance with
law, (b) it was executed through force, intimidation and/or under duress, undue influence and
improper pressure, and (c) the alleged testatrix acted by mistake and/or did not intend, nor could
have intended the said Will to be her last Will and testament at the time of its execution.

On August 24, 1973, respondent Judge Jose C. Colayco issued an order allowing the probate of the
holographic Will which he found to have been duly executed in accordance with law.

Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging inter alia that the alleged
holographic Will of the deceased Bibiana R. de Jesus was not dated as required by Article 810 of the
Civil Code. She contends that the law requires that the Will should contain the day, month and year
of its execution and that this should be strictly complied with.

On December 10, 1973, respondent Judge Colayco reconsidered his earlier order and disallowed
the probate of the holographic Will on the ground that the word "dated" has generally been held to
include the month, day, and year. The dispositive portion of the order reads:

WHEREFORE, the document purporting to be the holographic Will of Bibiana Roxas

de Jesus, is hereby disallowed for not having been executed as required by the law.
The order of August 24, 1973 is hereby set aside.

The only issue is whether or not the date "FEB./61 " appearing on the holographic Will of the
deceased Bibiana Roxas de Jesus is a valid compliance with the Article 810 of the Civil Code which
reads:

ART. 810. A person may execute a holographic will which must be entirely written,
dated, and signed by the hand of the testator himself. It is subject to no other form,
and may be made in or out of the Philippines, and need not be witnessed.

The petitioners contend that while Article 685 of the Spanish Civil Code and Article 688 of the Old
Civil Code require the testator to state in his holographic Win the "year, month, and day of its
execution," the present Civil Code omitted the phrase Año mes y dia and simply requires that the
holographic Will should be dated. The petitioners submit that the liberal construction of the
holographic Will should prevail.

Respondent Luz Henson on the other hand submits that the purported holographic Will is void for
non-compliance with Article 810 of the New Civil Code in that the date must contain the year, month,
and day of its execution. The respondent contends that Article 810 of the Civil Code was patterned
after Section 1277 of the California Code and Section 1588 of the Louisiana Code whose Supreme
Courts had consistently ruled that the required date includes the year, month, and day, and that if
any of these is wanting, the holographic Will is invalid. The respondent further contends that the
petitioner cannot plead liberal construction of Article 810 of the Civil Code because statutes
prescribing the formalities to be observed in the execution of holographic Wills are strictly construed.

We agree with the petitioner.

This will not be the first time that this Court departs from a strict and literal application of the statutory
requirements regarding the due execution of Wills. We should not overlook the liberal trend of the
Civil Code in the manner of execution of Wills, the purpose of which, in case of doubt is to prevent
intestacy —

The underlying and fundamental objectives permeating the provisions of the law on
wigs in this Project consists in the liberalization of the manner of their execution with
 the end in view of giving the testator more freedom in expressing his last wishes, but
with sufficien safeguards and restrictions to prevent the commission of fraud and the
exercise of undue and improper pressure and influence upon the testator.

This objective is in accord with the modem tendency with respect to the formalities in
the execution of wills. (Report of the Code Commission, p. 103)

In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v. Bustos (27 SCRA 327) he
emphasized that:

xxx xxx xxx

... The law has a tender regard for the will of the testator expressed in his last will
and testament on the ground that any disposition made by the testator is better than
that which the law can make. For this reason, intestate succession is nothing more
than a disposition based upon the presumed will of the decedent.

Thus, the prevailing policy is to require satisfaction of the legal requirements in order to guard
against fraud and bad faith but without undue or unnecessary curtailment of testamentary
privilege Icasiano v. Icasiano, 11 SCRA 422). If a Will has been executed in substantial compliance
with the formalities of the law, and the possibility of bad faith and fraud in the exercise thereof is
obviated, said Win should be admitted to probate (Rey v. Cartagena 56 Phil. 282). Thus,

xxx xxx xxx

... More than anything else, the facts and circumstances of record are to be
considered in the application of any given rule. If the surrounding circumstances
point to a regular execution of the wilt and the instrument appears to have been
executed substantially in accordance with the requirements of the law, the inclination
should, in the absence of any suggestion of bad faith, forgery or fraud, lean towards
its admission to probate, although the document may suffer from some imperfection
of language, or other non-essential defect. ... (Leynez v. Leynez 68 Phil. 745).

If the testator, in executing his Will, attempts to comply with all the requisites, although compliance is
not literal, it is sufficient if the objective or purpose sought to be accomplished by such requisite is
actually attained by the form followed by the testator.

The purpose of the solemnities surrounding the execution of Wills has been expounded by this Court
in Abangan v. Abanga 40 Phil. 476, where we ruled that:

The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to
guaranty their truth and authenticity. ...

In particular, a complete date is required to provide against such contingencies as that of two
competing Wills executed on the same day, or of a testator becoming insane on the day on which a
Will was executed (Velasco v. Lopez, 1 Phil. 720). There is no such contingency in this case.

We have carefully reviewed the records of this case and found no evidence of bad faith and fraud in
its execution nor was there any substitution of Wins and Testaments. There is no question that the
holographic Will of the deceased Bibiana Roxas de Jesus was entirely written, dated, and signed by
the testatrix herself and in a language known to her. There is also no question as to its genuineness
and due execution. All the children of the testatrix agree on the genuineness of the holographic Will
of their mother and that she had the testamentary capacity at the time of the execution of said Will.
The objection interposed by the oppositor-respondent Luz Henson is that the holographic Will is
fatally defective because the date "FEB./61 " appearing on the holographic Will is not sufficient
compliance with Article 810 of the Civil Code. This objection is too technical to be entertained.

As a general rule, the "date" in a holographic Will should include the day, month, and year of its
execution. However, when as in the case at bar, there is no appearance of fraud, bad faith, undue
influence and pressure and the authenticity of the Will is established and the only issue is whether or
not the date "FEB./61" appearing on the holographic Will is a valid compliance with Article 810 of the
Civil Code, probate of the holographic Will should be allowed under the principle of substantial
compliance.

WHEREFORE, the instant petition is GRANTED. The order appealed from is REVERSED and SET
ASIDE and the order allowing the probate of the holographic Will of the deceased Bibiana Roxas de
Jesus is reinstated.

SO ORDERED.

Teehankee (Chairman), Melencio-Herrera, Plana, Relova and De la Fuente, JJ., concur.

G.R. Nos. 83843-44 April 5, 1990

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF MELECIO LABRADOR.

SAGRADO LABRADOR (Deceased), substituted by ROSITA LABRADOR, ENRICA
LABRADOR, and CRISTOBAL LABRADOR, petitioners-appellants,
vs.
COURT OF APPEALS, 1 GAUDENCIO LABRADOR, and JESUS LABRADOR, respondents-
appellees.

Benjamin C. Santos Law Offices for petitioners.

Rodrigo V. Fontelera for private respondents.

PARAS, J.:

The sole issue in this case is whether or not the alleged holographic will of one Melecio Labrador
is dated, as provided for in Article 8102 of the New Civil Code.

The antecedent and relevant facts are as follows: On June 10, 1972, Melecio Labrador died in the
Municipality of Iba, province of Zambales, where he was residing, leaving behind a parcel of land
designated as Lot No. 1916 under Original Certificate of Title No. P-1652, and the following heirs,
namely: Sagrado, Enrica, Cristobal, Jesus, Gaudencio, Josefina, Juliana, Hilaria and Jovita, all
surnamed Labrador, and a holographic will.

On July 28, 1975, Sagrado Labrador (now deceased but substituted by his heirs), Enrica Labrador
and Cristobal Labrador, filed in the court a quo a petition for the probate docketed as Special
Proceeding No. 922-I of the alleged holographic will of the late Melecio Labrador.

Subsequently, on September 30, 1975, Jesus Labrador (now deceased but substituted by his heirs),
and Gaudencio Labrador filed an opposition to the petition on the ground that the will has been
extinguished or revoked by implication of law, alleging therein that on September 30, 1971, that is,
before Melecio's death, for the consideration of Six Thousand (P6,000) Pesos, testator Melecio
executed a Deed of Absolute Sale, selling, transferring and conveying in favor of oppositors Jesus
and Gaudencio Lot No. 1916 and that as a matter of fact, O.C.T. No. P-1652 had been cancelled by
T.C.T. No. T-21178. Earlier however, in 1973, Jesus Labrador sold said parcel of land to Navat for
only Five Thousand (P5,000) Pesos. (Rollo, p. 37)

Sagrado thereupon filed, on November 28, 1975, against his brothers, Gaudencio and Jesus, for the
annulment of said purported Deed of Absolute Sale over a parcel of land which Sagrado allegedly
had already acquired by devise from their father Melecio Labrador under a holographic will executed
on March 17, 1968, the complaint for annulment docketed as Civil Case No. 934-I, being premised
on the fact that the aforesaid Deed of Absolute Sale is fictitious.

After both parties had rested and submitted their respective evidence, the trial court rendered a joint
decision dated February 28, 1985, allowing the probate of the holographic will and declaring null and
void the Deed of Absolute sale. The court a quo had also directed the respondents (the defendants
in Civil Case No. 934-I) to reimburse to the petitioners the sum of P5,000.00 representing the
redemption price for the property paid by the plaintiff-petitioner Sagrado with legal interest thereon
from December 20, 1976, when it was paid to vendee a retro.
Respondents appealed the joint decision to the Court of Appeals, which on March 10, 1988 modified
said joint decision of the court a quo by denying the allowance of the probate of the will for being
undated and reversing the order of reimbursement. Petitioners' Motion for Reconsideration of the
aforesaid decision was denied by the Court of Appeals, in the resolution of June 13, 1988. Hence,
this petition.

Petitioners now assign the following errors committed by respondent court, to wit:

THE COURT OF APPEALS ERRED IN NOT ALLOWING AND APPROVING THE

PROBATE OF THE HOLOGRAPHIC WILL OF THE TESTATOR MELECIO LABRADOR;
and

II

THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER OF THE LOWER
COURT DIRECTING THE REIMBURSEMENT OF THE FIVE THOUSAND PESOS
REPRESENTING THE REDEMPTION PRICE WAS ERRONEOUS.

The alleged undated holographic will written in Ilocano translated into English, is quoted as follows:

ENGLISH INTERPRETATION OF THE WILL OF THE

LATE MELECIO LABRADOR WRITTEN IN ILOCANO
BY ATTY. FIDENCIO L. FERNANDEZ

I — First Page

This is also where it appears in writing of the place which is assigned and shared or the
partition in favor of SAGRADO LABRADOR which is the fishpond located and known place
as Tagale.

And this place that is given as the share to him, there is a measurement of more or less one
hectare, and the boundary at the South is the property and assignment share of ENRICA
LABRADOR, also their sister, and the boundary in the West is the sea, known as the SEA as
it is, and the boundary on the NORTH is assignment belonging to CRISTOBAL LABRADOR,
who likewise is also their brother. That because it is now the time for me being now ninety
three (93) years, then I feel it is the right time for me to partition the fishponds which were
and had been bought or acquired by us, meaning with their two mothers, hence there shall
be no differences among themselves, those among brothers and sisters, for it is I myself
their father who am making the apportionment and delivering to each and everyone of them
the said portion and assignment so that there shall not be any cause of troubles or
differences among the brothers and sisters.

II — Second Page

And this is the day in which we agreed that we are making the partitioning and assigning the
respective assignment of the said fishpond, and this being in the month of March, 17th day,
in the year 1968, and this decision and or instruction of mine is the matter to be followed.
And the one who made this writing is no other than MELECIO LABRADOR, their father.
 Now, this is the final disposition that I am making in writing and it is this that should be
followed and complied with in order that any differences or troubles may be forestalled and
nothing will happen along these troubles among my children, and that they will be in good
relations among themselves, brothers and sisters;

And those improvements and fruits of the land; mangoes, bamboos and all coconut trees
and all others like the other kind of bamboo by name of Bayog, it is their right to get if they so
need, in order that there shall be nothing that anyone of them shall complain against the
other, and against anyone of the brothers and sisters.

III — THIRD PAGE

And that referring to the other places of property, where the said property is located, the
same being the fruits of our earnings of the two mothers of my children, there shall be equal
portion of each share among themselves, and or to be benefitted with all those property,
which property we have been able to acquire.

That in order that there shall be basis of the truth of this writing (WILL) which I am here
hereof manifesting of the truth and of the fruits of our labor which their two mothers, I am
signing my signature below hereof, and that this is what should be complied with, by all the
brothers and sisters, the children of their two mothers — JULIANA QUINTERO PILARISA
and CASIANA AQUINO VILLANUEVA Your father who made this writing (WILL), and he is,
MELECIO LABRADOR y RALUTIN (p. 46, Rollo)

The petition, which principally alleges that the holographic will is really dated, although the date is
not in its usual place, is impressed with merit.

The will has been dated in the hand of the testator himself in perfect compliance with Article 810. It1âw phi 1

is worthy of note to quote the first paragraph of the second page of the holographic will, viz:

And this is the day in which we agreed that we are making the partitioning and assigning the
respective assignment of the said fishpond, and this being in the month of March, 17th day,
in the year 1968, and this decision and or instruction of mine is the matter to be followed.
And the one who made this writing is no other than MELECIO LABRADOR, their father.
(emphasis supplied) (p. 46, Rollo)

The law does not specify a particular location where the date should be placed in the will. The only
requirements are that the date be in the will itself and executed in the hand of the testator. These
requirements are present in the subject will.

Respondents claim that the date 17 March 1968 in the will was when the testator and his
beneficiaries entered into an agreement among themselves about "the partitioning and assigning the
respective assignments of the said fishpond," and was not the date of execution of the holographic
will; hence, the will is more of an "agreement" between the testator and the beneficiaries thereof to
the prejudice of other compulsory heirs like the respondents. This was thus a failure to comply with
Article 783 which defines a will as "an act whereby a person is permitted, with the formalities
prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his
death."

Respondents are in error. The intention to show 17 March 1968 as the date of the execution of the
will is plain from the tenor of the succeeding words of the paragraph. As aptly put by petitioner, the
will was not an agreement but a unilateral act of Melecio Labrador who plainly knew that what he
was executing was a will. The act of partitioning and the declaration that such partitioning as the
testator's instruction or decision to be followed reveal that Melecio Labrador was fully aware of the
nature of the estate property to be disposed of and of the character of the testamentary act as a
means to control the disposition of his estate.

Anent the second issue of finding the reimbursement of the P5,000 representing the redemption
price as erroneous, respondent court's conclusion is incorrect. When private respondents sold the
property (fishpond) with right to repurchase to Navat for P5,000, they were actually selling property
belonging to another and which they had no authority to sell, rendering such sale null and void.
Petitioners, thus "redeemed" the property from Navat for P5,000, to immediately regain possession
of the property for its disposition in accordance with the will. Petitioners therefore deserve to be
reimbursed the P5,000.

PREMISES CONSIDERED, the decision of the Court of Appeals dated March 10, 1988 is hereby
REVERSED. The holographic will of Melecio Labrador is APPROVED and ALLOWED probate. The
private respondents are directed to REIMBURSE the petitioners the sum of Five Thousand Pesos
(P5,000.00).

SO ORDERED.

Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ., concur.

Footnotes

1
Penned by Justice Jorge S. Imperial and concurred in by Justices Jose A.R. Melo and
Manuel C. Herrera

2
Article 810 provides: A person may execute a holographic will which must be entirely
written, dated and signed by the hand of the testator himself. It is subject to no other form,
and may be made in or out of the Philippines, and need not be witnessed.
G.R. No. L-40207 September 28, 1984

ROSA K. KALAW, petitioner,

vs.
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of Batangas, Branch VI, Lipa
City, and GREGORIO K. KALAW, respondents.

Leandro H. Fernandez for petitioner.

Antonio Quintos and Jose M. Yacat for respondents.

MELENCIO-HERRERA, J.:

On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be the sole heir of
his deceased sister, Natividad K. Kalaw, filed a petition before the Court of First Instance of
Batangas, Branch VI, Lipa City, for the probate of her holographic Will executed on December 24,
1968.

The holographic Will reads in full as follows:

My Last will and Testament

In the name of God, Amen.

I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa City, being of sound and
disposing mind and memory, do hereby declare thus to be my last will and testament.

1. It is my will that I'll be burried in the cemetery of the catholic church of Lipa City. In accordance
with the rights of said Church, and that my executrix hereinafter named provide and erect at the
expose of my state a suitable monument to perpetuate my memory.

xxx xxx xxx

The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as her sole heir.
Hence, on November 10, 1971, petitioner ROSA K. Kalaw opposed probate alleging, in substance,
that the holographic Will contained alterations, corrections, and insertions without the proper
authentication by the full signature of the testatrix as required by Article 814 of the Civil Code
reading:

Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic

will the testator must authenticate the same by his full signature.

ROSA's position was that the holographic Will, as first written, should be given effect and probated
so that she could be the sole heir thereunder.

After trial, respondent Judge denied probate in an Order, dated September 3, 197 3, reading in part:
 The document Exhibit "C" was submitted to the National Bureau of Investigation for
examination. The NBI reported that the handwriting, the signature, the insertions
and/or additions and the initial were made by one and the same person.
Consequently, Exhibit "C" was the handwriting of the decedent, Natividad K. Kalaw.
The only question is whether the win, Exhibit 'C', should be admitted to probate
although the alterations and/or insertions or additions above-mentioned were not
authenticated by the full signature of the testatrix pursuant to Art. 814 of the Civil
Code. The petitioner contends that the oppositors are estopped to assert the
provision of Art. 814 on the ground that they themselves agreed thru their counsel to
submit the Document to the NBI FOR EXAMINATIONS. This is untenable. The
parties did not agree, nor was it impliedly understood, that the oppositors would be in
estoppel.

The Court finds, therefore, that the provision of Article 814 of the Civil Code is
applicable to Exhibit "C". Finding the insertions, alterations and/or additions in Exhibit
"C" not to be authenticated by the full signature of the testatrix Natividad K. Kalaw,
the Court will deny the admission to probate of Exhibit "C".

WHEREFORE, the petition to probate Exhibit "C" as the holographic will of Natividad
K. Kalaw is hereby denied.

SO ORDERED.

From that Order, GREGORIO moved for reconsideration arguing that since the alterations and/or
insertions were the testatrix, the denial to probate of her holographic Will would be contrary to her
right of testamentary disposition. Reconsideration was denied in an Order, dated November 2, 1973,
on the ground that "Article 814 of the Civil Code being , clear and explicit, (it) requires no necessity
for interpretation."

From that Order, dated September 3, 1973, denying probate, and the Order dated November 2,
1973 denying reconsideration, ROSA filed this Petition for Review on certiorari on the sole legal
question of whether or not the original unaltered text after subsequent alterations and insertions
were voided by the Trial Court for lack of authentication by the full signature of the testatrix, should
be probated or not, with her as sole heir.

Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a
holographic Will litem not been noted under his signature, ... the Will is not thereby invalidated as a
whole, but at most only as respects the particular words erased, corrected or interlined.1 Manresa gave
an Identical commentary when he said "la omision de la salvedad no anula el testamento, segun la regla de jurisprudencia establecida en la
sentencia de 4 de Abril de 1895." 2

However, when as in this case, the holographic Will in dispute had only one substantial provision,
which was altered by substituting the original heir with another, but which alteration did not carry the
requisite of full authentication by the full signature of the testator, the effect must be that the entire
Will is voided or revoked for the simple reason that nothing remains in the Will after that which could
remain valid. To state that the Will as first written should be given efficacy is to disregard the
seeming change of mind of the testatrix. But that change of mind can neither be given effect
because she failed to authenticate it in the manner required by law by affixing her full signature,

The ruling in Velasco, supra, must be held confined to such insertions, cancellations, erasures or
alterations in a holographic Will, which affect only the efficacy of the altered words themselves but
not the essence and validity of the Will itself. As it is, with the erasures, cancellations and alterations
made by the testatrix herein, her real intention cannot be determined with certitude. As Manresa had
stated in his commentary on Article 688 of the Spanish Civil Code, whence Article 814 of the new
Civil Code was derived:

... No infringe lo dispuesto en este articulo del Codigo (el 688) la sentencia que no
declara la nulidad de un testamento olografo que contenga palabras tachadas,
enmendadas o entre renglones no salvadas por el testador bajo su firnia segun
previene el parrafo tercero del mismo, porque, en realidad, tal omision solo puede
afectar a la validez o eficacia de tales palabras, y nunca al testamento mismo, ya por
estar esa disposicion en parrafo aparte de aquel que determine las condiciones
necesarias para la validez del testamento olografo, ya porque, de admitir lo
contrario, se Ilegaria al absurdo de que pequefias enmiendas no salvadas, que en
nada afectasen a la parte esencial y respectiva del testamento, vinieran a anular
este, y ya porque el precepto contenido en dicho parrafo ha de entenderse en
perfecta armonia y congruencia con el art. 26 de la ley del Notariado que declara
nulas las adiciones apostillas entrerrenglonados, raspaduras y tachados en las
escrituras matrices, siempre que no se salven en la forma prevenida, paro no el
documento que las contenga, y con mayor motivo cuando las palabras enmendadas,
tachadas, o entrerrenglonadas no tengan importancia ni susciten duda alguna
acerca del pensamiento del testador, o constituyan meros accidentes de ortografia o
de purez escrituraria, sin trascendencia alguna(l).

Mas para que sea aplicable la doctrina de excepcion contenida en este ultimo
fallo, es preciso que las tachaduras, enmiendas o entrerrenglonados sin salvar saan
de pala bras que no afecter4 alteren ni uarien de modo substancial la express
voluntad del testador manifiesta en el documento. Asi lo advierte la sentencia de 29
de Noviembre de 1916, que declara nulo un testamento olografo por no estar
salvada por el testador la enmienda del guarismo ultimo del año en que fue
extendido3(Emphasis ours).

WHEREFORE, this Petition is hereby dismissed and the Decision of respondent Judge, dated
September 3, 1973, is hereby affirmed in toto. No costs.

SO ORDERED.

Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.

Relova, J., took no part.

Separate Opinions

TEEHANKEE, J., concurring:

I concur. Rosa, having appealed to this Court on a sole question of law, is bound by the trial court's
factual finding that the peculiar alterations in the holographic will crossing out Rosa's name and
instead inserting her brother Gregorio's name as sole heir and "sole executrix" were made by the
testatrix in her own handwriting. (I find it peculiar that the testatrix who was obviously an educated
person would unthinkingly make such crude alterations instead of consulting her lawyer and writing
an entirely new holographic wig in order to avoid any doubts as to her change of heir. It should be
noted that the first alteration crossing out "sister Rosa K. Kalaw" and inserting "brother Gregorio
Kalaw" as sole heir is not even initialed by the testatrix. Only the second alteration crossing out
"sister Rosa K. Kalaw" and inserting "brother Gregorio Kalaw" as "sole executrix" is initialed.)
Probate of the radically altered will replacing Gregorio for Rosa as sole heir is properly denied, since
the same was not duly authenticated by the full signature of the executrix as mandatorily required by
Article 814 of the Civil Code. The original unaltered will naming Rosa as sole heir cannot, however,
be given effect in view of the trial court's factual finding that the testatrix had by her own handwriting
substituted Gregorio for Rosa, so that there is no longer any will naming Rosa as sole heir. The net
result is that the testatrix left no valid will and both Rosa and Gregorio as her next of kill succeed to
her intestate estate.

Separate Opinions

TEEHANKEE, J., concurring:

I concur. Rosa, having appealed to this Court on a sole question of law, is bound by the trial court's
factual finding that the peculiar alterations in the holographic will crossing out Rosa's name and
instead inserting her brother Gregorio's name as sole heir and "sole executrix" were made by the
testatrix in her own handwriting. (I find it peculiar that the testatrix who was obviously an educated
person would unthinkingly make such crude alterations instead of consulting her lawyer and writing
an entirely new holographic wig in order to avoid any doubts as to her change of heir. It should be
noted that the first alteration crossing out "sister Rosa K. Kalaw" and inserting "brother Gregorio
Kalaw" as sole heir is not even initialed by the testatrix. Only the second alteration crossing out
"sister Rosa K. Kalaw" and inserting "brother Gregorio Kalaw" as "sole executrix" is initialed.)
Probate of the radically altered will replacing Gregorio for Rosa as sole heir is properly denied, since
the same was not duly authenticated by the full signature of the executrix as mandatorily required by
Article 814 of the Civil Code. The original unaltered will naming Rosa as sole heir cannot, however,
be given effect in view of the trial court's factual finding that the testatrix had by her own handwriting
substituted Gregorio for Rosa, so that there is no longer any will naming Rosa as sole heir. The net
result is that the testatrix left no valid will and both Rosa and Gregorio as her next of kill succeed to
her intestate estate.

Footnotes
G.R. No. L-12190 August 30, 1958

TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E.

GAN, petitioner-appellant,
vs.
ILDEFONSO YAP, oppositor-appellee.

Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for appellant.

Arturo M. Tolentino for appellee.

BENGZON, J.:

On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of Santo
Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila.

On March 17, 1952, Fausto E. Gan initiated them proceedings in the Manila court of first instance
with a petition for the probate of a holographic will allegedly executed by the deceased, substantially
in these words:

Nobyembre 5, 1951.

Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay nagsasalaysay na ang

aking kayamanan sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking mga kamag-
anakang sumusunod:

Vicente Esguerra, Sr. 5 Bahagi

.............................................
Fausto E. Gan 2 Bahagi
.........................................................
Rosario E. Gan 2 Bahagi
.........................................................
Filomena Alto 1 Bahagi
..........................................................
Beatriz Alto 1 Bahagi
..............................................................

At ang aking lahat ng ibang kayamanan sa Maynila at iba panglugar ay aking ipinamamana
sa aking asawang si Idelfonso D. Yap sa kondisyong siya'y magpapagawa ng isang Health
Center na nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa bayan ng Pulilan,
Bulacan, na nakaukit ang aking pangalang Felicidad Esguerra-Alto. At kung ito ay may
kakulangan man ay bahala na ang aking asawa ang magpuno upang matupad ang aking
kagustuhan.

(Lagda) Felicidad E. Alto-Yap.

Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not left
any will, nor executed any testament during her lifetime.
After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose,
Judge,1 refused to probate the alleged will. A seventy-page motion for reconsideration failed. Hence
this appeal.

The will itself was not presented. Petitioner tried to establish its contents and due execution by the
statements in open court of Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan
Jimenez, whose testimonies may be summarized as follows:

Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first cousin,
Vicente Esguerra, her desire to make a will. She confided however that it would be useless if her
husband discovered or knew about it. Vicente consulted with Fausto E. Gan, nephew of Felicidad,
who was then preparing for the bar examinations. The latter replied it could be done without any
witness, provided the document was entirely in her handwriting, signed and dated by her. Vicente
Esguerra lost no time in transmitting the information, and on the strength of it, in the morning of
November 5, 1951, in her residence at Juan Luna Street, Manila, Felicidad wrote, signed and dated
a holographic will substantially of the tenor above transcribed, in the presence of her niece, Felina
Esguerra (daughter of Vicente), who was invited to read it. In the afternoon of that day, Felicidad
was visited by a distant relative, Primitivo Reyes, and she allowed him to read the will in the
presence of Felina Esguerra, who again read it.

Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan Jimenez, a niece.
To these she showed the will, again in the presence of Felina Esguerra, who read it for the third
time.

When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last illness, she
entrusted the said will, which was contained in a purse, to Felina Esguerra. But a few hours later,
Ildefonso Yap, her husband, asked Felina for the purse: and being afraid of him by reason of his
well-known violent temper, she delivered it to him. Thereafter, in the same day, Ildefonso Yap
returned the purse to Felina, only to demand it the next day shortly before the death of Felicidad.
Again, Felina handed it to him but not before she had taken the purse to the toilet, opened it and
read the will for the last time.2

From the oppositor's proof it appears that Felicidad Esguerra had been suffering from heart disease
for several years before her death; that she had been treated by prominent physicians, Dr. Agerico
Sison, Dr. Agustin Liboro and others; that in May 1950 husband and wife journeyed to the United
States wherein for several weeks she was treated for the disease; that thereafter she felt well and
after visiting interesting places, the couple returned to this country in August 1950. However, her
ailment recurred, she suffered several attacks, the most serious of which happened in the early
morning of the first Monday of November 1951 (Nov. 5). The whole household was surprised and
alarmed, even the teachers of the Harvardian Colleges occupying the lower floors and of by the Yap
spouses. Physician's help was hurriedly called, and Dr. Tanjuaquio arrived at about 8:00 a.m., found
the patient hardly breathing, lying in bed, her head held high by her husband. Injections and oxygen
were administered. Following the doctor's advice the patient stayed in bed, and did nothing the
whole day, her husband and her personal attendant, Mrs. Bantique, constantly at her side. These
two persons swore that Mrs. Felicidad Esguerra Yap made no will, and could have made no will on
that day.

The trial judge refused to credit the petitioner's evidence for several reasons, the most important of
which were these: (a) if according to his evidence, the decedent wanted to keep her will a secret, so
that her husband would not know it, it is strange she executed it in the presence of Felina Esguerra,
knowing as she did that witnesses were unnecessary; (b) in the absence of a showing that Felina
was a confidant of the decedent it is hard to believe that the latter would have allowed the former to
see and read the will several times; (c) it is improbable that the decedent would have permitted
Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte to read her will, when she precisely
wanted its contents to remain a secret during her lifetime; (d) it is also improbable that her purpose
being to conceal the will from her husband she would carry it around, even to the hospital, in her
purse which could for one reason or another be opened by her husband; (e) if it is true that the
husband demanded the purse from Felina in the U.S.T. Hospital and that the will was there, it is hard
to believe that he returned it without destroying the will, the theory of the petitioner being precisely
that the will was executed behind his back for fear he will destroy it.

In the face of these improbabilities, the trial judge had to accept the oppositor's evidence that
Felicidad did not and could not have executed such holographic will.

In this appeal, the major portion of appellant's brief discussed the testimony of the oppositor and of
his witnesses in a vigorous effort to discredit them. It appears that the same arguments, or most of
them, were presented in the motion to reconsider; but they failed to induce the court a quo to change
its mind. The oppositor's brief, on the other hand, aptly answers the criticisms. We deem it
unnecessary to go over the same matters, because in our opinion the case should be decided not on
the weakness of the opposition but on the strength of the evidence of the petitioner, who has the
burden of proof.

The Spanish Civil Code permitted the execution of holographic wills along with other forms. The
Code of Civil Procedure (Act 190) approved August 7, 1901, adopted only one form, thereby
repealing the other forms, including holographic wills.

The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "A person may
execute a holographic will which must be entirely written, dated, and signed by the hand of the
testator himself. It is subject to no other form and may be made in or out of the Philippines, and need
not be witnessed."

This is indeed a radical departure from the form and solemnities provided for wills under Act 190,
which for fifty years (from 1901 to 1950) required wills to be subscribed by the testator and three
credible witnesses in each and every page; such witnesses to attest to the number of sheets used
and to the fact that the testator signed in their presence and that they signed in the presence of the
testator and of each other.

The object of such requirements it has been said, is to close the door against bad faith and fraud, to
prevent substitution of wills, to guarantee their truth and authencity (Abangan vs. Abangan, 40 Phil.,
476) and to avoid those who have no right to succeed the testator would succeed him and be
benefited with the probate of same. (Mendoza vs. Pilapil, 40 Off. Gaz., 1855). However, formal
imperfections may be brushed aside when authenticity of the instrument is duly proved. (Rodriguez
vs Yap, 40 Off. Gaz. 1st Supp. No. 3 p. 194.)

Authenticity and due execution is the dominant requirements to be fulfilled when such will is
submitted to the courts for allowance. For that purpose the testimony of one of the subscribing
witnesses would be sufficient if there is no opposition (Sec. 5, Rule 77). If there is, the three must
testify, if available. (Cabang vs. Delfinado, 34 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742).
From the testimony of such witnesses (and of other additional witnesses) the court may form its
opinion as to the genuineness and authenticity of the testament, and the circumstances its due
execution.

Now, in the matter of holographic wills, no such guaranties of truth and veracity are demanded, since
as stated, they need no witnesses; provided however, that they are "entirely written, dated, and
signed by the hand of the testator himself." The law, it is reasonable to suppose, regards the
document itself as material proof of authenticity, and as its own safeguard, since it could at any time,
be demonstrated to be — or not to be — in the hands of the testator himself. "In the probate of a
holographic will" says the New Civil Code, "it shall be necessary that at least one witness who knows
the handwriting and signature of the testator explicitly declare that the will and the signature are in
the handwriting of the testator. If the will is contested, at least three such witnesses shall be
required. In the absence of any such witnesses, (familiar with decedent's handwriting) and if the
court deem it necessary, expert testimony may be resorted to."

The witnesses so presented do not need to have seen the execution of the holographic will. They
may be mistaken in their opinion of the handwriting, or they may deliberately lie in affirming it is in
the testator's hand. However, the oppositor may present other witnesses who also know the
testator's handwriting, or some expert witnesses, who after comparing the will with other writings or
letters of the deceased, have come to the conclusion that such will has not been written by the hand
of the deceased. (Sec. 50, Rule 123). And the court, in view of such contradictory testimony may use
its own visual sense, and decide in the face of the document, whether the will submitted to it has
indeed been written by the testator.

Obviously, when the will itself is not submitted, these means of opposition, and of assessing the
evidence are not available. And then the only guaranty of authenticity3 — the testator's handwriting
— has disappeared.

Therefore, the question presents itself, may a holographic will be probated upon the testimony of
witnesses who have allegedly seen it and who declare that it was in the handwriting of the testator?
How can the oppositor prove that such document was not in the testator's handwriting? His
witnesses who know testator's handwriting have not examined it. His experts can not testify,
because there is no way to compare the alleged testament with other documents admittedly, or
proven to be, in the testator's hand. The oppositor will, therefore, be caught between the upper
millstone of his lack of knowledge of the will or the form thereof, and the nether millstone of his
inability to prove its falsity. Again the proponent's witnesses may be honest and truthful; but they
may have been shown a faked document, and having no interest to check the authenticity thereof
have taken no pains to examine and compare. Or they may be perjurers boldly testifying, in the
knowledge that none could convict them of perjury, because no one could prove that they have not
"been shown" a document which they believed was in the handwriting of the deceased. Of course,
the competency of such perjured witnesses to testify as to the handwriting could be tested by
exhibiting to them other writings sufficiently similar to those written by the deceased; but what
witness or lawyer would not foresee such a move and prepare for it? His knowledge of the
handwriting established, the witness (or witnesses) could simply stick to his statement: he has seen
and read a document which he believed was in the deceased's handwriting. And the court and the
oppositor would practically be at the mercy of such witness (or witnesses) not only as to the
execution, but also as to the contents of the will. Does the law permit such a situation?

The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of a lost or destroyed will
by secondary — evidence the testimony of witnesses, in lieu of the original document. Yet such
Rules could not have contemplated holographic wills which could not then be validly made here.
(See also Sec. 46, Rule 123; Art. 830-New Civil Code.)

Could Rule 77 be extended, by analogy, to holographic wills?

Spanish commentators agree that one of the greatest objections to the holographic will is that it may
be lost or stolen4 — an implied admission that such loss or theft renders it useless..
This must be so, because the Civil Code requires it to be protocoled and presented to the judge,
(Art. 689) who shall subscribe it and require its identity to be established by the three witnesses who
depose that they have no reasonable doubt that the will was written by the testator (Art. 691). And if
the judge considers that the identity of the will has been proven he shall order that it be filed (Art.
693). All these, imply presentation of the will itself. Art. 692 bears the same implication, to a greater
degree. It requires that the surviving spouse and the legitimate ascendants and descendants be
summoned so that they may make "any statement they may desire to submit with respect to the
authenticity of the will." As it is universally admitted that the holographic will is usually done by the
testator and by himself alone, to prevent others from knowing either its execution or its contents, the
above article 692 could not have the idea of simply permitting such relatives to state whether they
know of the will, but whether in the face of the document itself they think the testator wrote it.
Obviously, this they can't do unless the will itself is presented to the Court and to them.

Undoubtedly, the intention of the law is to give the near relatives the choice of either complying with
the will if they think it authentic, or to oppose it, if they think it spurious.5 Such purpose is frustrated
when the document is not presented for their examination. If it be argued that such choice is not
essential, because anyway the relatives may oppose, the answer is that their opposition will be at a
distinct disadvantage, and they have the right and privilege to comply with the will, if genuine, a right
which they should not be denied by withholding inspection thereof from them.

We find confirmation of these ideas--about exhibition of the document itself--in the decision of the
Supreme Court of Spain of June 5, 1925, which denied protocolization or probate to a document
containing testamentary dispositions in the handwriting of the deceased, but apparently
mutilated, the signature and some words having been torn from it. Even in the face of allegations
and testimonial evidence (which was controverted), ascribing the mutilation to the opponents of the
will. The aforesaid tribunal declared that, in accordance with the provision of the Civil Code
(Spanish) the will itself, whole and unmutilated, must be presented; otherwise, it shall produce no
effect.

Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del articulo

688 del Codigo civil, que para que sea valido el testamento olografo debera estar escrito
todo el y firmado por testador, con expression del año, mes y dia en que se otorque, resulta
evidente que para la validez y eficacia de esos testamentos, no basta la demostracion mas o
menos cumplida de que cuando se otorgaron se Ilenaron todos esos requisitos, sino que de
la expresada redaccion el precepto legal, y por el tiempo en que el verbo se emplea,
se desprende la necesidad de que el documento se encuentre en dichas condiciones en el
momento de ser presentado a la Autoridad competente, para au adveracion y
protocolizacion; y como consecuencia ineludible de ello, forzoso es affirmar que el de autos
carece de validez y aficacia, por no estarfirmado por el testador, cualquiera que sea la causa
de la falta de firma, y sin perjuicio de las acciones que puedan ejercitar los perjudicados,
bien para pedir indemnizacion por el perjuicio a la persona culpable, si la hubiere, o su
castigo en via criminal si procediere, por constituir dicha omision un defecto insubsanable . .
..

This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the basis of the
Spanish Civil Code provisions on the matter.6

PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V, ley 15--E depues que los
herederos e sus fijos ovieren esta manda, fasta ... annos muestrenla al obispo de la tierra, o
al juez fasta VI meses y el obispo o el juez tomen otros tales tres escritos, que fuesen
fechos por su mano daquel que fizo la manda; e por aquellos escriptos, si semjara la letra de
la manda, sea confirmada la manda. E depues que todo esto fuere connoscido, el obispo o
 el juez, o otras testimonios confirmen el escripto de la manda otra vez, y en esta manera
vala la manda. (Art. 689, Scaevola--Codigo Civil.)

(According to the Fuero above, the will itself must be compared with specimens of the testators
handwriting.)

All of which can only mean: the courts will not distribute the property of the deceased in accordance
with his holographic will, unless they are shown his handwriting and signature.7

Parenthetically, it may be added that even the French Civil Law considers the loss of the holographic
will to be fatal. (Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz Cruz, 1946, Tomo V,
page 555).

Taking all the above circumstances together, we reach the conclusion that the execution and the
contents of a lost or destroyed holographic will may not be proved by the bare testimony of
witnesses who have seen and/or read such will.8

Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this opinion as a
Rule of Court for the allowance of such holographic wills. We hesitate, however, to make this Rule
decisive of this controversy, simultaneously with its promulgation. Anyway, decision of the appeal
may rest on the sufficiency, rather the insufficiency, of the evidence presented by petitioner Fausto
E. Gan.

At this point, before proceeding further, it might be convenient to explain why, unlike holographic
wills, ordinary wills may be proved by testimonial evidence when lost or destroyed. The difference
lies in the nature of the wills. In the first, the only guarantee of authenticity is the handwriting itself; in
the second, the testimony of the subscribing or instrumental witnesses (and of the notary, now). The
loss of the holographic will entails the loss of the only medium of proof; if the ordinary will is lost, the
subscribing witnesses are available to authenticate.

In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary)
deliberately to lie. And then their lies could be checked and exposed, their whereabouts and acts on
the particular day, the likelihood that they would be called by the testator, their intimacy with the
testator, etc. And if they were intimates or trusted friends of the testator they are not likely to end
themselves to any fraudulent scheme to distort his wishes. Last but not least, they can not receive
anything on account of the will.

Whereas in the case of holographic wills, if oral testimony were admissible9 only one man could
engineer the fraud this way: after making a clever or passable imitation of the handwriting and
signature of the deceased, he may contrive to let three honest and credible witnesses see and read
the forgery; and the latter, having no interest, could easily fall for it, and in court they would in all
good faith affirm its genuineness and authenticity. The will having been lost — the forger may have
purposely destroyed it in an "accident" — the oppositors have no way to expose the trick and the
error, because the document itself is not at hand. And considering that the holographic will may
consist of two or three pages, and only one of them need be signed, the substitution of the unsigned
pages, which may be the most important ones, may go undetected.

If testimonial evidence of holographic wills be permitted, one more objectionable feature — feasibility
of forgery — would be added to the several objections to this kind of wills listed by Castan, Sanchez
Roman and Valverde and other well-known Spanish Commentators and teachers of Civil Law.10
One more fundamental difference: in the case of a lost will, the three subscribing witnesses would be
testifying to a fact which they saw, namely the act of the testator of subscribing the will; whereas in
the case of a lost holographic will, the witnesses would testify as to their opinion of the handwriting
which they allegedly saw, an opinion which can not be tested in court, nor directly contradicted by
the oppositors, because the handwriting itself is not at hand.

Turning now to the evidence presented by the petitioner, we find ourselves sharing the trial judge's
disbelief. In addition to the dubious circumstances described in the appealed decision, we find it hard
to believe that the deceased should show her will precisely to relatives who had received nothing
from it: Socorro Olarte and Primitivo Reyes. These could pester her into amending her will to give
them a share, or threaten to reveal its execution to her husband Ildefonso Yap. And this leads to
another point: if she wanted so much to conceal the will from her husband, why did she not entrust it
to her beneficiaries? Opportunity to do so was not lacking: for instance, her husband's trip to Davao,
a few days after the alleged execution of the will.

In fine, even if oral testimony were admissible to establish and probate a lost holographic will, we
think the evidence submitted by herein petitioner is so tainted with improbabilities and
inconsistencies that it fails to measure up to that "clear and distinct" proof required by Rule 77, sec.
6.11

Wherefore, the rejection of the alleged will must be sustained.

Judgment affirmed, with costs against petitioner.

Paras, C. J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes, J. B. L.,
Endencia and Felix, JJ.,concur.

Footnotes

1 Now a member of the Court of Appeals.

2 The contents of the alleged will are for the purposes of this decision, immaterial.

3"Una forma de testamento" (holographic will) "en la que toda la garantia consiste en la letra
del testador." (Scaevola, Codigo Civil, Tomo 12, p. 348.)

4V. Sanchez Roam, Derecho Civil (2nd Ed.) (1910) Vol. 6 pp. 343, 350; Castan, Derecho
Civil Español (1944) Tomo 4 p. 337; Valverde, Derecho Civil (1939) Vol. 5, p. 77.

5 V. Sanchez Roman Op. Cit. Vol. 6, p. 357.

6 Manresa, Codigo Civil, 1932, Vol. 5, p. 481.

7We have no doubt that this concept and these doctrines concerning the Spanish Civil Code
apply to our New Civil Code, since the Commission in its Report (p. 52) merely "revived"
holographic wills, i.e., those known to the Spanish Civil Law, before Act 190.
8 Perhaps it may be proved by a photographic or photostatic copy. Evena mimeographed or
carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of
the deceased may be exhibited and tested before the probate court.

9 We are aware of some American cases that admitted lost holographic wills, upon verbal
testimony. (Sec. 41, American Law Reports, 2d. pp. 413, 414.) But the point here raised was
not discussed. Anyway it is safer to follow, in this matter, the theories of the Spanish law.

10 Justice Jose B. L. Reyes, professor of Civil Law, makes this Comment:

"Holographic wills are peculiarly dangerous kin case of persons who have written very title.
The validity of these wills depends, exclusively on the authenticity of handwriting, and if
writing standards are not procurable, or not contemporaneous, the courts are left to the
mercy of the mendacity of witnesses. It is questionable whether the recreation of the
holographic testament will prove wise." (Lawyer's Journal, Nov. 30, 1950, pp. 556-557.)

11
Intestate of Suntay, 50 Off. Gaz., 5321.
G.R. No. L-58509 December 7, 1982

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA

deceased, MARCELA RODELAS, petitioner-appellant,
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor.

Luciano A. Joson for petitioner-appellant.

Cesar Paralejo for oppositor-appellee.

RELOVA, J.:

This case was certified to this Tribunal by the Court of Appeals for final determination pursuant to
Section 3, Rule 50 of the Rules of Court.

As found by the Court of Appeals:

... On January 11, 1977, appellant filed a petition with the Court of First Instance of
Rizal for the probate of the holographic will of Ricardo B. Bonilla and the issuance of
letters testamentary in her favor. The petition, docketed as Sp. Proc. No. 8432, was
opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes Expedita
Bonilla Frias and Ephraim Bonilla on the following grounds:

(1) Appellant was estopped from claiming that the deceased left a will by failing to
produce the will within twenty days of the death of the testator as required by Rule
75, section 2 of the Rules of Court;

(2) The alleged copy of the alleged holographic will did not contain a disposition of
property after death and was not intended to take effect after death, and therefore it
was not a will

(3) The alleged hollographic will itself,and not an alleged copy thereof, must be
produced, otherwise it would produce no effect, as held in Gam v. Yap, 104 Phil.
509; and

(4 ) The deceased did not leave any will, holographic or otherwise, executed and
attested as required by law.

The appellees likewise moved for the consolidation of the case with another case Sp.
Proc. No, 8275). Their motion was granted by the court in an order dated April 4,
1977.

On November 13, 1978, following the consolidation of the cases, the appellees
moved again to dismiss the petition for the probate of the will. They argued that:

(1) The alleged holographic was not a last will but merely an instruction as to the
management and improvement of the schools and colleges founded by decedent
Ricardo B. Bonilla; and
 (2) Lost or destroyed holographic wills cannot be proved by secondary evidence
unlike ordinary wills.

Upon opposition of the appellant, the motion to dismiss was denied by the court in its
order of February 23, 1979.

The appellees then filed a motion for reconsideration on the ground that the order
was contrary to law and settled pronouncements and rulings of the Supreme Court,
to which the appellant in turn filed an opposition. On July 23, 1979, the court set
aside its order of February 23, 1979 and dismissed the petition for the probate of the
will of Ricardo B. Bonilla. The court said:

... It is our considered opinion that once the original copy of the holographic will is
lost, a copy thereof cannot stand in lieu of the original.

In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in the
matter of holographic wills the law, it is reasonable to suppose, regards the
document itself as the material proof of authenticity of said wills.

MOREOVER, this Court notes that the alleged holographic will was executed on
January 25, 1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the lapse
of more than 14 years from the time of the execution of the will to the death of the
decedent, the fact that the original of the will could not be located shows to our mind
that the decedent had discarded before his death his allegedly missing Holographic
Will.

Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in
which it is contended that the dismissal of appellant's petition is contrary to law and well-settled
jurisprudence.

On July 7, 1980, appellees moved to forward the case to this Court on the ground that the appeal
does not involve question of fact and alleged that the trial court committed the following assigned
errors:

I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL

MAY NOT BE PROVED BY A COPY THEREOF;

II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS
DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL;

III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.

The only question here is whether a holographic will which was lost or cannot be found can be
proved by means of a photostatic copy. Pursuant to Article 811 of the Civil Code, probate of
holographic wills is the allowance of the will by the court after its due execution has been proved.
The probate may be uncontested or not. If uncontested, at least one Identifying witness is required
and, if no witness is available, experts may be resorted to. If contested, at least three Identifying
witnesses are required. However, if the holographic will has been lost or destroyed and no other
copy is available, the will can not be probated because the best and only evidence is the handwriting
of the testator in said will. It is necessary that there be a comparison between sample handwritten
statements of the testator and the handwritten will. But, a photostatic copy or xerox copy of the
holographic will may be allowed because comparison can be made with the standard writings of the
testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that "the execution and the
contents of a lost or destroyed holographic will may not be proved by the bare testimony of
witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall
produce no effect. The law regards the document itself as material proof of authenticity." But, in
Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or photostatic
copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the
authenticity of the handwriting of the deceased may be exhibited and tested before the probate
court," Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be
admitted because then the authenticity of the handwriting of the deceased can be determined by the
probate court.

WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's motion for
reconsideration dated August 9, 1979, of the Order dated July 23, 1979, dismissing her petition to
approve the will of the late Ricardo B. Bonilla, is hereby SET ASIDE.

SO ORDERED.

Teehankee, Actg. C.J., Melencio-Herrera, Plana, Vasquez and Gutierrez, Jr., JJ., concur.
G.R. No. L-37453 May 25, 1979

RIZALINA GABRIEL GONZALES, petitioner,

vs.
HONORABLE COURT OF APPEALS and LUTGARDA SANTIAGO, respondents.

Francisco D. Rilloraza, Jr. for petitioners.

Angel A. Sison for private respondent.

GUERRERO, J.:

This is a petition for review of the decision of the Court of Appeals, First Division,1 promulgated on
May 4, 1973 in CA G.R. No. 36523-R which reversed the decision of the Court of First Instance of
Rizal dated December 15, 1964 and allowed the probate of the last will and testament of the
deceased Isabel Gabriel. *

It appears that on June 24, 1961, herein private respondent Lutgarda Santiago filed a petition with
the Court of First Instance of Rizal docketed as Special Proceedings No. 3617, for the probate of a
will alleged to have been executed by the deceased Isabel Gabriel and designating therein petitioner
as the principal beneficiary and executrix.

There is no dispute in the records that the late Isabel Andres Gabriel died as a widow and without
issue in the municipality of Navotas, province of Rizal her place of residence, on June 7, 1961 at the
age of eighty-five (85), having been born in 1876. It is likewise not controverted that herein private
respondent Lutgarda Santiago and petitioner Rizalina Gabriel Gonzales are nieces of the deceased,
and that private respondent, with her husband and children, lived with the deceased at the latters
residence prior an- d up to the time of her death.

The will submitted for probate, Exhibit "F", which is typewritten and in Tagalog, appears to have
been executed in Manila on the 15th day of April, 1961, or barely two (2) months prior to the death of
Isabel Gabriel. It consists of five (5) pages, including the pages whereon the attestation clause and
the acknowledgment of the notary public were written. The signatures of the deceased Isabel
Gabriel appear at the end of the will on page four and at the left margin of all the pages. The
attestation clause, which is found on page four, reads as follows:

PATUNAY NG MGA SAKSI

Kaming mga nakalagdang mga saksi o testigo na ang aming mga tinitirahan ay
nakasulat sa gawing kanan at kahilira ng aming mga pangalan sa ibaba nito, ay
pagpapatutuo na ipinakilala ipinaalam at ipinahayag sa amin ni Isabel Gabriel na ang
kasulatang ito na binubuo ng Limang Dahon (Five Pages) pati na ang dahong ito, na
siya niyang TESTAMENTO AT HULING HABILIN, ngayong ika 15 ng Abril, 1961, ay
nilagdaan ng nasabing testadora na si Isabel Gabriel ang nasabing testamento sa
ibaba o ilalim ng kasulatan na nasa ika apat na dahon (page four) at nasa itaas ng
patunay naming ito, at sa kaliwang panig ng lahat at bawat dahon (and on the left
hand margin of each and every page), sa harap ng lahat at bawat isa sa amin, at
kami namang mga saksi ay lumagda sa harap ng nasabing testadora, at sa harap ng
 lahat at bawat isa sa amin, sa ilalim ng patunay ng mga saksi at sa kaliwang panig
ng lahat at bawa't dahon ng testamentong ito.

At the bottom thereof, under the heading "Pangalan", are written the signatures of Matilde D. Orobia,
Celso D. Gimpaya and Maria R. Gimpaya, and opposite the same, under the heading "Tirahan", are
their respective places of residence, 961 Highway 54, Philamlife, for Miss Orobia, and 12 Dagala St.,
Navotas, Rizal, for the two Gimpayas. Their signatures also appear on the left margin of all the other
pages. The WW is paged by typewritten words as follows: "Unang Dahon" and underneath "(Page
One)", "Ikalawang Dahon" and underneath "(Page Two)", etc., appearing at the top of each page.

The will itself provides that the testatrix desired to be buried in the Catholic Cemetery of Navotas,
Rizal in accordance with the rites of the Roman Catholic Church, all expenses to be paid from her
estate; that all her obligations, if any, be paid; that legacies in specified amounts be given to her
sister, Praxides Gabriel Vda. de Santiago, her brother Santiago Gabriel, and her nephews and
nieces, Benjamin, Salud, Rizalina (herein petitioner), Victoria, Ester, Andres, all surnamed Gabriel,
and Evangeline, Rudyardo Rosa, Andrea, Marcial, Numancia, Verena an surnamed Santiago. To
herein private respondent Lutgarda Santiago, who was described in the will by the testatrix as "aking
mahal na pamangkin na aking pinalaki, inalagaan at minahal na katulad ng isang tunay na anak"
and named as universal heir and executor, were bequeathed all properties and estate, real or
personal already acquired, or to be acquired, in her testatrix name, after satisfying the expenses,
debts and legacies as aforementioned.

The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner, assailing the document
purporting to be the will of the deceased on the following grounds:

1. that the same is not genuine; and in the alternative

2. that the same was not executed and attested as required by law;

3. that, at the time of the alleged execution of the purported wilt the decedent lacked
testamentary capacity due to old age and sickness; and in the second alternative

4. That the purported WW was procured through undue and improper pressure and
influence on the part of the principal beneficiary, and/or of some other person for her
benefit.

Lutgarda Santiago filed her Answer to the Opposition on February 1, 1962. After trial, the court a
quo rendered judgment, the summary and dispositive portions of which read:

Passing in summary upon the grounds advanced by the oppositor, this Court finds:

1. That there is no iota of evidence to support the contentio that the purported will of
the deceased was procured through undue and improper pressure and influence on
the part of the petitioner, or of some other person for her benefit;

2. That there is insufficient evidence to sustain the contention that at the time of the
alleged execution of the purported will, the deceased lacked testamentary capacity
due to old age and sickness;

3. That sufficient and abundant evidence warrants conclusively the fact that the
purported will of the deceased was not executed and attested as required by law;
 4. That the evidence is likewise conclusive that the document presented for probate,
Exhibit 'F' is not the purported win allegedly dictated by the deceased, executed and
signed by her, and attested by her three attesting witnesses on April 15, 1961.

WHEREFORE, Exhibit "F", the document presented for probate as the last wig and
testament of the deceased Isabel Gabriel is here by DISALLOWED.

From this judgment of disallowance, Lutgarda Santiago appealed to respondent Court, hence, the
only issue decided on appeal was whether or not the will in question was executed and attested as
required by law. The Court of Appeals, upon consideration of the evidence adduced by both parties,
rendered the decision now under review, holding that the will in question was signed and executed
by the deceased Isabel Gabriel on April 15, 1961 in the presence of the three attesting witnesses,
Matilde Orobia, Celso Gimpaya and Maria Gimpaya, signing and witnessing the document in the
presence of the deceased and of each other as required by law, hence allow ed probate.

Oppositor Rizalina Gabriel Gonzales moved for reconsideration 3 of the aforesaid decision and such
motion was opposed 4 by petitioner-appellant Lutgarda Santiago. Thereafter. parties submitted their
respective Memoranda, 5and on August 28, 1973, respondent Court, Former Special First Division,
by Resolution 6 denied the motion for reconsideration stating that:

The oppositor-appellee contends that the preponderance of evidence shows that the
supposed last wig and testament of Isabel Gabriel was not executed in accordance
with law because the same was signed on several occasions, that the testatrix did
not sign the will in the presence of all the instrumental witnesses did not sign the will
in the presence of each other.

The resolution of the factual issue raised in the motion for reconsideration hinges on
the appreciation of the evidence. We have carefully re-examined the oral and
documentary evidence of record, There is no reason to alter the findings of fact in the
decision of this Court sought to be set aside. 7

In her petition before this Court, oppositor Rizalina Gabriel Gonzales contends that respondent Court
abused its discretion and/or acted without or in excess of its jurisdiction in reverssing the findings of
fact and conclusions of the trial court. The Court, after deliberating on the petition but without giving
due course resolved, in the Resolution dated Oct. 11, 1973 to require the respondents to comment
thereon, which comment was filed on Nov. 14, 1973. Upon consideration of the allegations, the
issues raised and the arguments adduced in the petition, as well as the Comment 8 of private
respondent thereon, We denied the petition by Resolution on November 26, 1973, 9 the question
raised being factual and for insufficient showing that the findings of fact by respondent Court were
unsupported by substantial evidence.

Subsequently, or on December 17, 1973, petitioner Rim Gabriel Goes fried a Motion for
Reconsideration 10 which private respondent answered by way of her Comment or Opposition 11 filed
on January 15, 1974. A Reply and Rejoinder to Reply followed. Finally, on March 27, 1974, We
resolved to give due course to the petition.

The petitioner in her brief makes the following assignment of errors:

I. The respondent Court of Appeals erred in holding that the document, Exhibit "F" was executed and
attested as required by law when there was absolutely no proof that the three instrumental witnesses
were credible witness
II. The Court of Appeals erred in reversing the finding of the lower court that the preparation and
execution of the win Exhibit "F", was unexpected and coincidental.

III. The Court of Appeals erred in finding that Atty, Paraiso was not previously furnished with the
names and residence certificates of the witnesses as to enable him to type such data into the
document Exhibit "F".

IV. The Court of Appeals erred in holding that the fact that the three typewritten lines under the
typewritten words "Pangalan" and "Tinitirahan" were left blank shows beyond cavil that the three
attesting witnesses were all present in the same occasion.

V. The Court of Appeals erred in reversing the trial court's finding that it was incredible that Isabel
Gabriel could have dictated the wilt Exhibit "F , without any note or document, to Atty. Paraiso.

VI. The Court of Appeals erred in reversing the finding of the trial court that Matilde Orobia was not
physically present when the Will Exhibit "F" was allegedly signed on April 15, 1961 by the deceased
Isabel Gabriel and the other witnesses Celso Gimpaya and Maria Gimpaya.

VII. The Court of Appeals erred in holding that the trial court gave undue importance to the picture
takings as proof that the win was improperly executed.

VIII. The Court of Appeals erred in holding that the grave contradictions, evasions, and
misrepresentations of witnesses (subscribing and notary) presented by the petitioner had been
explained away, and that the trial court erred in rejecting said testimonies.

IX. The Court of Appeals acted in excess of its appellate jurisdiction or has so far departed from the
accepted and usual course of judicial proceedings, as to call for an exercise of the power of
supervision.

X. The Court of Appeals erred in reversing the decision of the trial court and admitting to probate
Exhibit "F", the alleged last will and testament of the deceased Isabel Gabriel.

It will be noted from the above assignments of errors that the same are substantially factual in
character and content. Hence, at the very outset, We must again state the oft-repeated and well-
established rule that in this jurisdiction, the factual findings of the Court of Appeals are not
reviewable, the same being binding and conclusive on this Court. This rule has been stated and
reiterated in a long line of cases enumerated in Chan vs. CA (L-27488, June 30, 1970, 33 SCRA
737, 743) 12 and Tapas vs. CA (L-22202, February 27; 1976, 69 SCRA 393), 13 and in the more recent
cases of Baptisia vs. Carillo and CA (L32192, July 30, 1976, 72 SCRA 214, 217) and Vda. de
Catindig vs. Heirs of Catalina Roque (L-25777, November 26, 1976, 74 SCRA 83, 88). In the case
of Chan vs. CA, this Court said:

... from Guico v. Mayuga, a 1936 decision, the opinion being penned by the then Justice Recto, it
has been well-settled that the jurisdiction of tills Court in cases brought to us from the Court of
Appeals is limited to reviewing and revising the errors of law imputed to it, its findings of fact being
conclusive. More specifically, in a decision exactly a month later, this Court, speaking through the
then Justice Laurel, it was held that the same principle is applicable, even if the Court of Appeals
was in disagreement with the lower court as to the weight of the evidence with a consequent
reversal of its findings of fact ...
Stated otherwise, findings of facts by the Court of Appeals, when supported by substantive evidence
are not reviewable on appeal by certiorari. Said findings of the appellate court are final and cannot
be disturbed by Us particularly because its premises are borne out by the record or based upon
substantial evidence and what is more, when such findings are correct. Assignments of errors
involving factual issues cannot be ventilated in a review of the decision of the Court of Appeals
because only legal questions may be raised. The Supreme Court is not at liberty to alter or modify
the facts as set forth in the decision of the Court of Appeals sought to be reversed. Where the
findings of the Court of Appeals are contrary to those of the trial court, a minute scrutiny by the
Supreme Court is in order, and resort to duly-proven evidence becomes necessary. The general rule
We have thus stated above is not without some recognized exceptions.

Having laid down the above legal precepts as Our foundation, We now proceed to consider
petitioner's assignments of errors.

Petitioner, in her first assignment, contends that the respondent Court of Appeals erred in holding
that the document, Exhibit "F", was executed and attested as required by law when there was
absolutely no proof that the three instrumental witnesses were credible witnesses. She argues that
the require. ment in Article 806, Civil Code, that the witnesses must be credible is an absolute
requirement which must be complied with before an alleged last will and testament may be admitted
to probate and that to be a credible witness, there must be evidence on record that the witness has a
good standing in his community, or that he is honest and upright, or reputed to be trustworthy and
reliable. According to petitioner, unless the qualifications of the witness are first established, his
testimony may not be favorably considered. Petitioner contends that the term "credible" is not
synonymous with "competent" for a witness may be competent under Article 820 and 821 of the Civil
Code and still not be credible as required by Article 805 of the same Code. It is further urged that the
term "credible" as used in the Civil Code should receive the same settled and well- known meaning it
has under the Naturalization Law, the latter being a kindred legislation with the Civil Code provisions
on wigs with respect to the qualifications of witnesses.

We find no merit to petitioner's first assignment of error. Article 820 of the Civil Code provides the
qualifications of a witness to the execution of wills while Article 821 sets forth the disqualification
from being a witness to a win. These Articles state:

Art. 820. Any person of sound mind and of the age of eighteen years or more, and
not blind, deaf or dumb, and able to read and write, may be a witness to the
execution of a will mentioned in article 806 of this Code. "Art. 821. The following are
disqualified from being witnesses to a will:

(1) Any person not domiciled in the Philippines,

(2) Those who have been convicted of falsification of a document, perjury or false
testimony.

Under the law, there is no mandatory requirement that the witness testify initially or at any time
during the trial as to his good standing in the community, his reputation for trustworthythiness and
reliableness, his honesty and uprightness in order that his testimony may be believed and accepted
by the trial court. It is enough that the qualifications enumerated in Article 820 of the Civil Code are
complied with, such that the soundness of his mind can be shown by or deduced from his answers
to the questions propounded to him, that his age (18 years or more) is shown from his appearance,
testimony , or competently proved otherwise, as well as the fact that he is not blind, deaf or dumb
and that he is able to read and write to the satisfaction of the Court, and that he has none of the
disqualifications under Article 821 of the Civil Code. We reject petitioner's contention that it must first
be established in the record the good standing of the witness in the community, his reputation for
trustworthiness and reliableness, his honesty and uprightness, because such attributes are
presumed of the witness unless the contrary is proved otherwise by the opposing party.

We also reject as without merit petitioner's contention that the term "credible" as used in the Civil
Code should be given the same meaning it has under the Naturalization Law where the law is
mandatory that the petition for naturalization must be supported by two character witnesses who
must prove their good standing in the community, reputation for trustworthiness and reliableness,
their honesty and uprightness. The two witnesses in a petition for naturalization are character
witnesses in that being citizens of the Philippines, they personally know the petitioner to be a
resident of the Philippines for the period of time required by the Act and a person of good repute and
morally irreproachable and that said petitioner has in their opinion all the qualifications necessary to
become a citizen of the Philippines and is not in any way disqualified under the provisions of the
Naturalization Law (Section 7, Commonwealth Act No. 473 as amended).

In probate proceedings, the instrumental witnesses are not character witnesses for they merely
attest the execution of a will or testament and affirm the formalities attendant to said execution. And
We agree with the respondent that the rulings laid down in the cases cited by petitioner concerning
character witnesses in naturalization proceedings are not applicable to instrumental witnesses to
wills executed under the Civil Code of the Philippines.

In the case at bar, the finding that each and everyone of the three instrumental witnesses, namely,
Matilde Orobia, Celso Gimpaya and Maria Gimpaya, are competent and credible is satisfactorily
supported by the evidence as found by the respondent Court of Appeals, which findings of fact this
Tribunal is bound to accept and rely upon. Moreover, petitioner has not pointed to any
disqualification of any of the said witnesses, much less has it been shown that anyone of them is
below 18 years of age, of unsound mind, deaf or dumb, or cannot read or write.

It is true that under Article 805 of the New Civil Code, every will, other than a holographic will, must
be subscribed at the end thereof by the testator himself or by the testator's name written by some
other person in his presence, and by his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of one another, While the petitioner
submits that Article 820 and 821 of the New Civil Code speak of the competency of a witness due to
his qualifications under the first Article and none of the disqualifications under the second Article,
whereas Article 805 requires the attestation of three or more credible witnesses, petitioner concludes
that the term credible requires something more than just being competent and, therefore, a witness
in addition to being competent under Articles 820 and 821 must also be a credible witness under
Article 805.

Petitioner cites American authorities that competency and credibility of a witness are not
synonymous terms and one may be a competent witness and yet not a credible one. She
exacerbates that there is no evidence on record to show that the instrumental witnesses are credible
in themselves, that is, that they are of good standing in the community since one was a family driver
by profession and the second the wife of the driver, a housekeeper. It is true that Celso Gimpaya
was the driver of the testatrix and his wife Maria Gimpaya, merely a housekeeper, and that Matilde
Orobia was a piano teacher to a grandchild of the testatrix But the relation of employer and
employee much less the humble or financial position of a person do not disqualify him to be a
competent testamentary witness. (Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344;
Testate Estate of Raymundo, Off. Gaz., March 18,1941, p. 788).

Private respondent maintains that the qualifications of the three or more credible witnesses
mentioned in Article 805 of the Civil Code are those mentioned in Article 820 of the same Code, this
being obvious from that portion of Article 820 which says "may be Q witness to the execution of a will
mentioned in Article 805 of this Code," and cites authorities that the word "credible" insofar as
witnesses to a will are concerned simply means " competent." Thus, in the case of Suntay vs.
Suntay, 95 Phil. 500, the Supreme Court held that "Granting that a will was duly executed and that it
was in existence at the time of, and not revoked before, the death of the testator, still the provisions
of the lost wig must be clearly and distinctly proved by at least two credible witnesses. 'Credible
witnesses' mean competent witnesses and not those who testify to facts from or upon hearsay.
" emphasis supplied).

In Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344, the Supreme Court held that
"Section 620 of the same Code of Civil Procedure provides that any person of sound mind, and of
the age of eighteen years or more, and not blind, deaf, or dumb and able to read and write, may be a
witness to the execution of a will. This same provision is reproduced in our New Civil Code of 1950,
under Art. 820. The relation of employer and employee, or being a relative to the beneficiary in a
win, does not disqualify one to be a witness to a will. The main qualification of a witness in the
attestation of wills, if other qualifications as to age, mental capacity and literacy are present, is that
said witness must be credible, that is to say, his testimony may be entitled to credence. There is a
long line of authorities on this point, a few of which we may cite:

A 'credible witness is one who is not is not to testify by mental incapacity, crime, or
other cause. Historical Soc of Dauphin County vs. Kelker 74 A. 619, 226 Pix 16, 134
Am. St. Rep. 1010. (Words and Phrases, Vol. 10, p. 340).

As construed by the common law, a 'credible witness' to a will means a 'competent

witness.' Appeal of Clark, 95 A. 517, 114 Me. 105, Ann. Cas. 1917A, 837. (lbid, p.
341).

Expression 'credible witness' in relation to attestation of wins means 'competent

witness that is, one competent under the law to testify to fact of execution of will.
Vernon's Ann. Civ St. art. 8283. Moos vs. First State Bank of Uvalde, Tex . Civ. App.
60 S.W. 2nd 888, 889. (Ibid, p. 342)

The term 'credible', used in the statute of wills requiring that a will shall be attested by
two credible witnesses means competent; witnesses who, at the time of attesting the
will, are legally competent to testify, in a court of justice, to the facts attested by
subscribing the will, the competency being determined as of the date of the execution
of the will and not of the timr it is offered for probate, Smith vs. Goodell 101 N.E. 255,
256, 258 111. 145. (Ibid.)

Credible witnesses as used in the statute relating to wills, means competent

witnesses — that is, such persons as are not legally disqualified from testifying in
courts of justice, by reason of mental incapacity, interest, or the commission of
crimes, or other cause excluding them from testifying generally, or rendering them
incompetent in respect of the particular subject matter or in the particular suit. Hill vs.
Chicago Title & Trust co 152 N.E. 545, 546, 322 111. 42. (Ibid. p, 343)

In the strict sense, the competency of a person to be an instrumental witness to a will is determined
by the statute, that is Art. 820 and 821, Civil Code, whereas his credibility depends On the
appreciation of his testimony and arises from the belief and conclusion of the Court that said witness
is telling the truth. Thus, in the case of Vda. de Aroyo v. El Beaterio del Santissimo Rosario de
Molo, No. L-22005, May 3, 1968, the Supreme Court held and ruled that: "Competency as a witness
is one thing, and it is another to be a credible witness, so credible that the Court must accept what
he says. Trial courts may allow a person to testify as a witness upon a given matter because he is
competent, but may thereafter decide whether to believe or not to believe his testimony." In fine, We
state the rule that the instrumental witnesses in Order to be competent must be shown to have the
qualifications under Article 820 of the Civil Code and none of the disqualifications under Article 821
and for their testimony to be credible, that is worthy of belief and entitled to credence, it is not
mandatory that evidence be first established on record that the witnesses have a good standing in
the community or that they are honest and upright or reputed to be trustworthy and reliable, for a
person is presumed to be such unless the contrary is established otherwise. In other words, the
instrumental witnesses must be competent and their testimonies must be credible before the court
allows the probate of the will they have attested. We, therefore, reject petitioner's position that it was
fatal for respondent not to have introduced prior and independent proof of the fact that the witnesses
were "credible witnesses that is, that they have a good standing in the community and reputed to be
trustworthy and reliable.

Under the second, third, fourth, fifth, sixth, seventh and eighth assignments of errors, petitioner
disputes the findings of fact of the respondent court in finding that the preparation and execution of
the will was expected and not coincidental, in finding that Atty. Paraiso was not previously furnished
with the names and residence certificates of the witnesses as to enable him to type such data into
the document Exhibit "F", in holding that the fact that the three typewritten lines under the typewritten
words "pangalan" and "tinitirahan" were left blank shows beyond cavil that the three attesting
witnesses were all present in the same occasion, in holding credible that Isabel Gabriel could have
dictated the will without note or document to Atty. Paraiso, in holding that Matilde Orobia was
physically present when the will was signed on April 15, 1961 by the deceased Isabel Gabriel and
the other witnesses Celso Gimpaya and Maria Gimpaya, in holding that the trial court gave undue
importance to the picture takings as proof that the will was improperly executed, and in holding that
the grave contradictions, evasions and misrepresentations of the witnesses (subscribing and notary)
presented by the petitioner had been explained away.

Since the above errors are factual We must repeat what We have previously laid down that the
findings of fact of the appellate court are binding and controlling which We cannot review, subject to
certain exceptions which We win consider and discuss hereinafter. We are convinced that the
appellate court's findings are sufficiently justified and supported by the evidence on record. Thus, the
alleged unnaturalness characterizing the trip of the testatrix to the office of Atty. Paraiso and bringing
all the witnesses without previous appointment for the preparation and execution of the win and that
it was coincidental that Atty. Paraiso was available at the moment impugns the finding of the Court of
Appeals that although Atty. Paraiso admitted the visit of Isabel Gabriel and of her companions to his
office on April 15, 1961 was unexpected as there was no prior appointment with him, but he
explained that he was available for any business transaction on that day and that Isabel Gabriel had
earlier requested him to help her prepare her will. The finding of the appellate court is amply based
on the testimony of Celso Gimpaya that he was not only informed on the morning of the day that he
witnessed the will but that it was the third time when Isabel Gabriel told him that he was going to
witness the making of her will, as well as the testimony of Maria Gimpaya that she was called by her
husband Celso Gimpaya to proceed to Isabel Gabriel's house which was nearby and from said
house, they left in a car to the lawyer's office, which testimonies are recited in the respondent Court's
decision.

The respondent Court further found the following facts: that Celso Gimpaya and his wife Maria
Gimpaya obtained residence certificates a few days before Exhibit "F" was executed. Celso
Gimpaya's residence certificate No. A-5114942 was issued at Navotas, Rizal on April 13, 1961 while
Maria Gimpaya's residence certificate No. A-5114974 was issued also at Navotas, Rizal on April 14,
1961. The respondent Court correctly observed that there was nothing surprising in these facts and
that the securing of these residence certificates two days and one day, respectively, before the
execution of the will on April 15, 1961, far from showing an amazing coincidence, reveals that the
spouses were earlier notified that they would be witnesses to the execution of Isabel Gabriel's will.

We also agree with the respondent Court's conclusion that the excursion to the office of Atty. Paraiso
was planned by the deceased, which conclusion was correctly drawn from the testimony of the
Gimpaya spouses that they started from the Navotas residence of the deceased with a photographer
and Isabel Gabriel herself, then they proceeded by car to Matilde Orobia's house in Philamlife,
Quezon City to fetch her and from there, all the three witnesses (the Gimpayas and Orobia) passed
by a place where Isabel Gabriel stayed for about ten to fifteen minutes at the clinic of Dr. Chikiamco
before they proceeded to Atty. Cipriano Paraiso's office.

It is also evident from the records, as testified to by Atty. Paraiso, that previous to the day that. the
will was executed on April 15, 1961, Isabel Gabriel had requested him to help her in the execution of
her will and that he told her that if she really wanted to execute her will, she should bring with her at
least the Mayor of Navotas, Rizal and a Councilor to be her witnesses and that he (Atty. Paraiso)
wanted a medical certificate from a physician notwithstanding the fact that he believed her to be of
sound and disposition mind. From this evidence, the appellate court rightly concluded, thus: "It is,
therefore, clear that the presence of Isabel Gabriel and her witnesses Matilde Orobia, Celso
Gimpaya and Maria Gimpaya including the photographer in the law office of Atty. Paraiso was not
coincidental as their gathering was pre-arranged by Isabel Gabriel herself."

As to the appellate court's finding that Atty. Paraiso was not previously furnished with the names and
residence certificates of the witnesses as to enable him to type such data into the document Exhibit '
L which the petitioner assails as contradictory and irreconcilable with the statement of the Court that
Atty. Paraiso was handed a list (containing the names of the witnesses and their respective
residence certificates) immediately upon their arrival in the law office by Isabel Gabriel and this was
corroborated by Atty. Paraiso himself who testified that it was only on said occasion that he received
such list from Isabel Gabriel, We cannot agree with petitioner's contention. We find no contradiction
for the, respondent Court held that on the occasion of the will making on April 15, 1961, the list was
given immediately to Atty. Paraiso and that no such list was given the lawyer in any previous
occasion or date prior to April 15, 1961.

But whether Atty. Paraiso was previously furnished with the names and residence certificates of the
witnesses on a prior occasion or on the very occasion and date in April 15, 1961 when the will was
executed, is of no moment for such data appear in the notarial acknowledgment of Notary Public
Cipriano Paraiso, subscribed and sworn to by the witnesses on April 15, 1961 following the
attestation clause duly executed and signed on the same occasion, April 15, 1961. And since Exhibit
"F" is a notarial will duly acknowledged by the testatrix and the witnesses before a notary public, the
same is a public document executed and attested through the intervention of the notary public and
as such public document is evidence of the facts in clear, unequivocal manner therein expressed. It
has in its favor the presumption of regularity. To contradict all these, there must be evidence that is
clear, convincing and more than merely preponderant. (Yturalde vs. Azurin, 28 SCRA 407). We find
no such evidence pointed by petitioner in the case at bar.

Likewise, the conclusion of the Court of Appeals in holding that the fact that the three typewritten
lines under the typewritten words "pangalan ' and "tinitirahan" were left blank shows beyond cavil
that the three attesting witnesses were all present in the same occasion merits Our approval
because tills conclusion is supported and borne out by the evidence found by the appellate court,
thus: "On page 5 of Exhibit "F", beneath the typewritten words "names", "Res. Tax Cert. date issued"
and place issued the only name of Isabel Gabriel with Residence Tax certificate No. A-5113274
issued on February 24, 1961 at Navotas Rizal appears to be in typewritten form while the names,
residence tax certificate numbers, dates and places of issuance of said certificates pertaining to the
three (3) witnesses were personally handwritten by Atty. Paraiso. Again, this coincides with Atty.
Paraiso's even the sale must be made to close relatives; and the seventh was the appointment of
the appellant Santiago as executrix of the will without bond. The technical description of the
properties in paragraph 5 of Exhibit F was not given and the numbers of the certificates of title were
only supplied by Atty. Paraiso. "

It is true that in one disposition, the numbers of the Torrens titles of the properties disposed and the
docket number of a special proceeding are indicated which Atty. Paraiso candidly admitted were
supplied by him, whereupon petitioner contends that it was incredible that Isabel Gabriel could have
dictated the will Exhibit "F" without any note or document to Atty. Paraiso, considering that Isabel
Gabriel was an old and sickly woman more than eighty-one years old and had been suffering from a
brain injury caused by two severe blows at her head and died of terminal cancer a few weeks after
the execution of Exhibit "F". While we can rule that this is a finding of fact which is within the
competency of the respondent appellate court in determining the testamentary capacity of the
testatrix and is, therefore, beyond Our power to revise and review, We nevertheless hold that the
conclusion reached by the Court of Appeals that the testatrix dictated her will without any note or
memorandum appears to be fully supported by the following facts or evidence appearing on record.
Thus, Isabel Gabriel, despite her age, was particularly active in her business affairs as she actively
managed the affairs of the movie business ISABELITA Theater, paying the aparatistas herself until
June 4, 1961, 3 days before her death. She was the widow of the late Eligio Naval, former Governor
of Rizal Province and acted as coadministratrix in the Intestate Estate of her deceased husband
Eligio Naval. The text of the win was in Tagalog, a dialect known and understood by her and in the
light of all the circumstances, We agree with the respondent Court that the testatrix dictated her will
without any note or memorandum, a fact unanimously testified to by the three attesting witnesses
and the notary public himself.

Petitioner's sixth assignment of error is also bereft of merit. The evidence, both testimonial and
documentary is, according to the respondent court, overwhelming that Matilde Orobia was physically
present when the will was signed on April 15, 1961 by the testatrix and the other two witnesses,
Celso Gimpaya and Maria Gimpaya. Such factual finding of the appellate court is very clear, thus:
"On the contrary, the record is replete with proof that Matilde Orobia was physically present when
the will was signed by Isabel Gabriel on April '15, 1961 along with her co-witnesses Celso Gimpaya
and Maria Gimpaya. The trial court's conclusion that Orobia's admission that she gave piano lessons
to the child of the appellant on Wednesdays and Saturdays and that April 15, 1961 happened to be a
Saturday for which reason Orobia could not have been present to witness the will on that — day is
purely conjectural. Witness Orobia did not admit having given piano lessons to the appellant's child
every Wednesday and Saturday without fail. It is highly probable that even if April 15, 1961 were a
Saturday, she gave no piano lessons on that day for which reason she could have witnessed the
execution of the will. Orobia spoke of occasions when she missed giving piano lessons and had to
make up for the same. Anyway, her presence at the law office of Atty. Paraiso was in the morning of
April 15, 1961 and there was nothing to preclude her from giving piano lessons on the afternoon of
the same day in Navotas, Rizal."

In addition to the testimony of Matilde Orobia, Celso Gimpaya and Maria Gimpaya that Matilde was
present on April 15, 1961 and that she signed the attestation clause to the will and on the left-hand
margin of each of the pages of the will, the documentary evidence which is the will itself, the
attestation clause and the notarial acknowledgment overwhelmingly and convincingly prove such
fact that Matilde Orobia was present on that day of April 15, 1961 and that she witnessed the will by
signing her name thereon and acknowledged the same before the notary public, Atty. Cipriano P.
Paraiso. The attestation clause which Matilde Orobia signed is the best evidence as to the date of
signing because it preserves in permanent form a recital of all the material facts attending the
execution of the will. This is the very purpose of the attestation clause which is made for the purpose
of preserving in permanent form a record of the facts attending the execution of the will, so that in
case of failure in the memory of the subscribing witnesses, or other casualty they may still be
proved. (Thompson on Wills, 2nd ed., Sec. 132; Leynez vs. Leynez, 68 Phil. 745).

As to the seventh error assigned by petitioner faulting the Court of Appeals in holding that the trial
court gave undue importance to the picture-takings as proof that the win was improperly executed,
We agree with the reasoning of the respondent court that: "Matilde Orobia's Identification of the
photographer as "Cesar Mendoza", contrary to what the other two witnesses (Celso and Maria
Gimpaya) and Atty. Paraiso said that the photographer was Benjamin Cifra, Jr., is at worst a minor
mistake attributable to lapse of time. The law does not require a photographer for the execution and
attestation of the will. The fact that Miss Orobia mistakenly Identified the photographer as Cesar
Mendoza scarcely detracts from her testimony that she was present when the will was signed
because what matters here is not the photographer but the photograph taken which clearly portrays
Matilde Orobia herself, her co-witnesses Celso Gimpaya. " Further, the respondent Court correctly
held: "The trial court gave undue importance to the picture takings, jumping therefrom to the
conclusion that the will was improperly executed. The evidence however, heavily points to only one
occasion of the execution of the will on April 15, 1961 which was witnessed by Matilde Orobia, Celso
Gimpaya and Maria Gimpaya. These witnesses were quite emphatic and positive when they spoke
of this occasion. Hence, their Identification of some photographs wherein they all appeared along
with Isabel Gabriel and Atty. Paraiso was superfluous."

Continuing, the respondent Court declared: "It is true that the second picture-taking was disclosed at
the cross examination of Celso Gimpaya. But this was explained by Atty. Paraiso as a reenactment
of the first incident upon the insistence of Isabel Gabriel. Such reenactment where Matilde Orobia
was admittedly no longer present was wholly unnecessary if not pointless. What was important was
that the will was duly executed and witnessed on the first occasion on April 15, 1961 , " and We
agree with the Court's rationalization in conformity with logic, law and jurisprudence which do not
require picture-taking as one of the legal requisites for the execution or probate of a will.

Petitioner points to alleged grave contradictions, evasions and misrepresentations of witnesses in

their respective testimonies before the trial court. On the other hand, the respondent Court of
Appeals held that said contradictions, evasions and misrepresentations had been explained away.
Such discrepancies as in the description of the typewriter used by Atty. Paraiso which he described
as "elite" which to him meant big letters which are of the type in which the will was typewritten but
which was Identified by witness Jolly Bugarin of the N.B.I. as pica the mistake in mentioning the
name of the photographer by Matilde Orobia to be Cesar Mendoza when actually it was Benjamin
Cifra, Jr.— these are indeed unimportant details which could have been affected by the lapse of time
and the treachery of human memory such that by themselves would not alter the probative value of
their testimonies on the true execution of the will, (Pascual vs. dela Cruz, 28 SCRA 421, 424) for it
cannot be expected that the testimony of every person win be Identical and coinciding with each
other with regard to details of an incident and that witnesses are not expected to remember all
details. Human experience teach us "that contradictions of witnesses generally occur in the details of
certain incidents, after a long series of questionings, and far from being an evidence of falsehood
constitute a demonstration of good faith. In as much as not all those who witness an incident are
impressed in like manner, it is but natural that in relating their impressions, they should not agree in
the minor details; hence the contradictions in their testimony." (Lopez vs. Liboro, 81 Phil. 429).

It is urged of Us by the petitioner that the findings of the trial court should not have been disturbed by
the respondent appellate court because the trial court was in a better position to weigh and evaluate
the evidence presented in the course of the trial. As a general rule, petitioner is correct but it is
subject to well-established exceptions. The right of the Court of Appeals to review, alter and reverse
the findings of the trial court where the appellate court, in reviewing the evidence has found that
facts and circumstances of weight and influence have been ignored and overlooked and the
significance of which have been misinterpreted by the trial court, cannot be disputed. Findings of
facts made by trial courts particularly when they are based on conflicting evidence whose evaluation
hinges on questions of credibility of contending witnesses hes peculiarly within the province of trial
courts and generally, the appellate court should not interfere with the same. In the instant case,
however, the Court of Appeals found that the trial court had overlooked and misinterpreted the facts
and circumstances established in the record. Whereas the appellate court said that "Nothing in the
record supports the trial court's unbelief that Isabel Gabriel dictated her will without any note or
document to Atty. Paraiso;" that the trial court's conclusion that Matilde Orobia could not have
witnessed anybody signing the alleged will or that she could not have witnessed Celso Gimpaya and
Maria Gimpaya sign the same or that she witnessed only the deceased signing it, is a conclusion
based not on facts but on inferences; that the trial court gave undue importance to the picture-
takings, jumping therefrom to the conclusion that the will was improperly executed and that there is
nothing in the entire record to support the conclusion of the court a quo that the will signing occasion
was a mere coincidence and that Isabel Gabriel made an appointment only with Matilde Orobia to
witness the signing of her will, then it becomes the duty of the appellate court to reverse findings of
fact of the trial court in the exercise of its appellate jurisdiction over the lower courts.

Still the petitioner insists that the case at bar is an exception to the rule that the judgment of the
Court of Appeals is conclusive as to the facts and cannot be reviewed by the Supreme Court. Again
We agree with the petitioner that among the exceptions are: (1) when the conclusion is a finding
grounded entirely on speculations, surmises or conjectures; (2) when the inference is manifestly
mistaken, absurd or impossible; (3) when there is a grave abuse of discretion; (4) when the
presence of each other as required by law. " Specifically, We affirm that on April 15, 1961 the
testatrix Isabel Gabriel, together with Matilde Orobia, Celso Gimpaya and his wife Maria Gimpaya,
and a photographer proceeded in a car to the office of Atty. Cipriano Paraiso at the Bank of P.I.
Building, Manila in the morning of that day; that on the way, Isabel Gabriel obtained a medical
certificate from one Dr. Chikiamko which she gave to Atty. Paraiso upon arriving at the latter's office
and told the lawyer that she wanted her will to be made; that Atty. Paraiso asked Isabel Gabriel to
dictate what she wanted to be written in the will and the attorney wrote down the dictation of Isabel
Gabriel in Tagalog, a language known to and spoken by her; that Atty. Paraiso read back to her what
he wrote as dictated and she affirmed their correctness; the lawyer then typed the will and after
finishing the document, he read it to her and she told him that it was alright; that thereafter, Isabel
Gabriel signed her name at the end of the will in the presence of the three witnesses Matilde Orobia,
Celso Gimpaya and Maria Gimpaya and also at the left-hand margin of each and every page of the
document in the presence also of the said three witnesses; that thereafter Matilde Orobia attested
the will by signing her name at the end of the attestation clause and at the left-hand margin of pages
1, 2, 3 and 5 of the document in the presence of Isabel Gabriel and the other two witnesses, Celso
Gimpaya and Maria Gimpaya; then, Celso Gimpaya signed also the will at the bottom of the
attestation clause and at the left-hand margin of the other pages of the document in the presence of
Isabel Gabriel, Matilde Orobia and Maria Gimpaya; that Maria Gimpaya followed suit, signing her
name at the foot of the attestation clause and at the left-hand margin of every page in the presence
of Isabel Gabriel, Matilde Orobia and Celso Gimpaya; that thereafter, Atty. Paraiso notarized the will
as Page No. 94, Book No. IV, Series of 1961, in his Notarial Register. On the occasion of the
execution and attestation of the will, a photographer took pictures, one Exhibit "G", depicting Matilde
Orobia, the testatrix Isabel Gabriel, Celso Gimpaya, Maria Gimpaya and Atty. Paraiso, taken on said
occasion of the signing of the will, and another, Exhibit "H", showing Matilde Orobia signing
testimony that he had earlier advised Isabel Gabriel to bring with her at least the Mayor and a
Councilor of Navotas, Rizal to be her witnesses for he did not know beforehand the Identities of the
three attesting witnesses until the latter showed up at his law office with Isabel Gabriel on April 15,
1961. Atty. Paraiso's claim which was not controverted that he wrote down in his own hand the date
appearing on page 5 of Exhibit "F" dissipates any lingering doubt that he prepared and ratified the
will on the date in question."
It is also a factual finding of the Court of Appeals in holding that it was credible that Isabel Gabriel
could have dictated the will, Exhibit "F", without any note or document to Atty. Paraiso as against the
contention of petitioner that it was incredible. This ruling of the respondent court is fully supported by
the evidence on record as stated in the decision under review, thus: "Nothing in the record supports
the trial court's unbelief that Isabel Gabriel dictated her will without any note or document to Atty.
Paraiso. On the contrary, all the three attesting witnesses uniformly testified that Isabel Gabriel
dictated her will to Atty. Paraiso and that other than the piece of paper that she handed to said
lawyer she had no note or document. This fact jibes with the evidence — which the trial court itself
believed was unshaken — that Isabel Gabriel was of sound disposing memory when she executed
her will.

Exhibit "F" reveals only seven (7) dispositions which are not complicated but quite simple. The first
was Isabel Gabriel's wish to be interred according to Catholic rites the second was a general
directive to pay her debts if any; the third provided for P1,000.00 for her sister Praxides Gabriel Vda.
de Santiago and P2,000.00 for her brother Santiago Gabriel; the fourth was a listing of her 13
nephews and nieces including oppositor-appellee Rizalina Gabriel and the amount for each legatee
the fifth was the institution of the petitioner-appellant, Lutgarda Santiago as the principal heir
mentioning in general terms seven (7) types of properties; the sixth disposed of the remainder of her
estate which she willed in favor of appellant Lutgarda Santiago but prohibiting the sale of such
properties to anyone except in extreme situations in which judgment is based on a misapprehension
of facts; (5) when the findings of fact are conflicting, (6) when the Court of Appeals, in making its
findings, went beyond the issues of the case and the same is contrary to the admissions of both
appellant and appellee. (Roque vs. Buan, et al., G.R. No. L-22459, Oct. 31, 1967; Ramos vs. Pepsi
Cola Bottling Co., G.R. No. L-22533, Feb. 9, 1967; Hilarion Jr. vs. City of Manila, G.R. No. L-19570;
Sept. 14, 1967).

Petitioner's insistence is without merit. We hold that the case at bar does not fall within any of the
exceptions enumerated above. We likewise hold that the findings of fact of the respondent appellate
court are fully supported by the evidence on record. The conclusions are fully sustained by
substantial evidence. We find no abuse of discretion and We discern no misapprehension of facts.
The respondent Court's findings of fact are not conflicting. Hence, the well-established rule that the
decision of the Court of Appeals and its findings of fact are binding and conclusive and should not be
disturbed by this Tribunal and it must be applied in the case at bar in its full force and effect, without
qualification or reservation. The above holding simply synthesize the resolutions we have heretofore
made in respect ' to petitioner's previous assignments of error and to which We have disagreed and,
therefore, rejected.

The last assignments of error of petitioner must necessarily be rejected by Us as We find the
respondent Court acted properly and correctly and has not departed from the accepted and usual
course of judicial proceedings as to call for the exercise of the power of supervision by the Supreme
Court, and as We find that the Court of Appeals did not err in reversing the decision of the trial court
and admitting to probate Exhibit "F", the last will and testament of the deceased Isabel Gabriel.

We rule that the respondent Court's factual findings upon its summation and evaluation of the
evidence on record is unassailable that: "From the welter of evidence presented, we are convinced
that the will in question was executed on April 15, 1961 in the presence of Matilde Orobia, Celso
Gimpaya and Maria Gimpaya signing and witnessing the same in the the will on a table with Isabel
Gabriel, Celso Gimpaya and Maria Gimpaya sitting around the table. Atty. Paraiso, after finishing the
notarial act, then delivered the original to Isabel Gabriel and retained the other copies for his file and
notarial register. A few days following the signing of the will, Isabel Gabriel, Celso Gimpaya and
another photographer arrived at the office of Atty. Paraiso and told the lawyer that she wanted
another picture taken because the first picture did not turn out good. The lawyer told her that this
cannot be done because the will was already signed but Isabel Gabriel insisted that a picture be
taken, so a simulated signing was performed during which incident Matilde Orobia was not present.

Petitioner's exacerbation centers on the supposed incredibility of the testimonies of the witnesses for
the proponent of the will, their alleged evasions, inconsistencies and contradictions. But in the case
at bar, the three instrumental witnesses who constitute the best evidence of the will making have
testified in favor of the probate of the will. So has the lawyer who prepared it, one learned in the law
and long in the practice thereof, who thereafter notarized it. All of them are disinterested witnesses
who stand to receive no benefit from the testament. The signatures of the witnesses and the testatrix
have been identified on the will and there is no claim whatsoever and by anyone, much less the
petitioner, that they were not genuine. In the last and final analysis, the herein conflict is factual and
we go back to the rule that the Supreme Court cannot review and revise the findings of facts of the
respondent Court of Appeals.

WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is hereby AFFIRMED,
with costs against the petitioner.

SO ORDERED.

Teehankee, Makasiar, De Castro and Herrera, JJ., concur.

G.R. No. 76464 February 29, 1988

TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO CASIANO,

CONSTANCIO MALOTO, PURIFICACION MIRAFLOR, ROMAN CATHOLIC CHURCH OF MOLO,
AND ASILO DE MOLO, petitioners,
vs.
COURT OF APPEALS, PANFILO MALOTO AND FELINO MALOTO, respondents.

SARMIENTO, J.:

This is not the first time that the parties to this case come to us. In fact, two other cases directly related to the present one and involving the
same parties had already been decided by us in the past. In G.R. No. L-30479, 1 which was a petition for certiorari and mandamus instituted
by the petitioners herein, we dismissed the petition ruling that the more appropriate remedy of the petitioners is a separate proceeding for the
probate of the will in question. Pursuant to the said ruling, the petitioners commenced in the then Court of First Instance of Iloilo, Special
Proceeding No. 2176, for the probate of the disputed will, which was opposed by the private respondents presently, Panfilo and Felino both
surnamed Maloto. The trial court dismissed the petition on April 30, 1970. Complaining against the dismissal, again, the petitioners came to
this Court on a petition for review by certiorari. 2 Acting on the said petition, we set aside the trial court's order and directed it to proceed to
hear the case on the merits. The trial court, after hearing, found the will to have already been revoked by the testatrix. Adriana Maloto, and
thus, denied the petition. The petitioners appealed the trial court's decision to the Intermediate Appellate Court which, on June 7, 1985,
affirmed the order. The petitioners' motion for reconsideration of the adverse decision proved to be of no avail, hence, this petition.

For a better understanding of the controversy, a factual account would be a great help.

On October 20, 1963, Adriana Maloto died leaving as heirs her niece and nephews, the petitioners
Aldina Maloto-Casiano and Constancio, Maloto, and the private respondents Panfilo Maloto and
Felino Maloto. Believing that the deceased did not leave behind a last will and testament, these four
heirs commenced on November 4, 1963 an intestate proceeding for the settlement of their aunt's
estate. The case was instituted in the then Court of First Instance of Iloilo and was docketed as
Special Proceeding No. 1736. However, while the case was still in progress, or to be exact on
February 1, 1964, the parties — Aldina, Constancio, Panfilo, and Felino — executed an agreement
of extrajudicial settlement of Adriana's estate. The agreement provided for the division of the estate
into four equal parts among the parties. The Malotos then presented the extrajudicial settlement
agreement to the trial court for approval which the court did on March 21, 1964. That should have
signalled the end of the controversy, but, unfortunately, it had not.

Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former associate of Adriana's
counsel, the late Atty. Eliseo Hervas, discovered a document entitled "KATAPUSAN NGA
PAGBUBULAT-AN (Testamento)," dated January 3,1940, and purporting to be the last will and
testament of Adriana. Atty. Palma claimed to have found the testament, the original copy, while he
was going through some materials inside the cabinet drawer formerly used by Atty. Hervas. The
document was submitted to the office of the clerk of the Court of First Instance of Iloilo on April 1,
1967. Incidentally, while Panfilo and Felino are still named as heirs in the said will, Aldina and
Constancio are bequeathed much bigger and more valuable shares in the estate of Adriana than
what they received by virtue of the agreement of extrajudicial settlement they had earlier signed. The
will likewise gives devises and legacies to other parties, among them being the petitioners Asilo de
Molo, the Roman Catholic Church of Molo, and Purificacion Miraflor.

Thus, on May 24, 1967, Aldina and Constancio, joined by the other devisees and legatees named in
the will, filed in Special Proceeding No. 1736 a motion for reconsideration and annulment of the
proceedings therein and for the allowance of the will When the trial court denied their motion, the
petitioner came to us by way of a petition for certiorari and mandamus assailing the orders of the trial
court . 3 As we stated earlier, we dismissed that petition and advised that a separate proceeding for
the probate of the alleged will would be the appropriate vehicle to thresh out the matters raised by
the petitioners.

Significantly, the appellate court while finding as inconclusive the matter on whether or not the
document or papers allegedly burned by the househelp of Adriana, Guadalupe Maloto Vda. de
Coral, upon instructions of the testatrix, was indeed the will, contradicted itself and found that the will
had been revoked. The respondent court stated that the presence of animus revocandi in the
destruction of the will had, nevertheless, been sufficiently proven. The appellate court based its
finding on the facts that the document was not in the two safes in Adriana's residence, by the
testatrix going to the residence of Atty. Hervas to retrieve a copy of the will left in the latter's
possession, and, her seeking the services of Atty. Palma in order to have a new will drawn up. For
reasons shortly to be explained, we do not view such facts, even considered collectively, as
sufficient bases for the conclusion that Adriana Maloto's will had been effectively revoked.

There is no doubt as to the testamentary capacity of the testatrix and the due execution of the will.
The heart of the case lies on the issue as to whether or not the will was revoked by Adriana.

The provisions of the new Civil Code pertinent to the issue can be found in Article 830.

Art. 830. No will shall be revoked except in the following cases:

(1) By implication of law; or

(2) By some will, codicil, or other writing executed as provided in case of wills: or

(3) By burning, tearing, cancelling, or obliterating the will with the intention of
revoking it, by the testator himself, or by some other person in his presence, and by
his express direction. If burned, torn cancelled, or obliterated by some other person,
without the express direction of the testator, the will may still be established, and the
estate distributed in accordance therewith, if its contents, and due execution, and the
fact of its unauthorized destruction, cancellation, or obliteration are established
according to the Rules of Court. (Emphasis Supplied.)

It is clear that the physical act of destruction of a will, like burning in this case, does not per se
constitute an effective revocation, unless the destruction is coupled with animus revocandi on the
part of the testator. It is not imperative that the physical destruction be done by the testator himself. It
may be performed by another person but under theexpress direction and in the presence of the
testator. Of course, it goes without saying that the document destroyed must be the will itself.

In this case, while animus revocandi or the intention to revoke, may be conceded, for that is a state
of mind, yet that requisite alone would not suffice. "Animus revocandi is only one of the necessary
elements for the effective revocation of a last will and testament. The intention to revoke must be
accompanied by the overt physical act of burning, tearing, obliterating, or cancelling the will carried
out by the testator or by another person in his presence and under his express direction. There is
paucity of evidence to show compliance with these requirements. For one, the document or papers
burned by Adriana's maid, Guadalupe, was not satisfactorily established to be a will at all, much less
the will of Adriana Maloto. For another, the burning was not proven to have been done under the
express direction of Adriana. And then, the burning was not in her presence. Both witnesses,
Guadalupe and Eladio, were one in stating that they were the only ones present at the place where
the stove (presumably in the kitchen) was located in which the papers proffered as a will were
burned.
The respondent appellate court in assessing the evidence presented by the private respondents as
oppositors in the trial court, concluded that the testimony of the two witnesses who testified in favor
of the will's revocation appear "inconclusive." We share the same view. Nowhere in the records
before us does it appear that the two witnesses, Guadalupe Vda. de Corral and Eladio Itchon, both
illiterates, were unequivocably positive that the document burned was indeed Adriana's will.
Guadalupe, we think, believed that the papers she destroyed was the will only because, according to
her, Adriana told her so. Eladio, on the other hand, obtained his information that the burned
document was the will because Guadalupe told him so, thus, his testimony on this point is double
hearsay.

At this juncture, we reiterate that "(it) is an important matter of public interest that a purported win is
not denied legalization on dubious grounds. Otherwise, the very institution of testamentary
succession will be shaken to its very foundations ...."4

The private respondents in their bid for the dismissal of the present action for probate instituted by
the petitioners argue that the same is already barred by res adjudicata. They claim that this bar was
brought about by the petitioners' failure to appeal timely from the order dated November 16, 1968 of
the trial court in the intestate proceeding (Special Proceeding No. 1736) denying their (petitioners')
motion to reopen the case, and their prayer to annul the previous proceedings therein and to allow
the last will and testament of the late Adriana Maloto. This is untenable.

The doctrine of res adjudicata finds no application in the present controversy. For a judgment to be a
bar to a subsequent case, the following requisites must concur: (1) the presence of a final former
judgment; (2) the former judgment was rendered by a court having jurisdiction over the subject
matter and the parties; (3) the former judgment is a judgment on the merits; and (4) there is,
between the first and the second action, Identity of parties, of subject matter, and of cause of
action. 5 We do not find here the presence of all the enumerated requisites.

For one, there is yet, strictly speaking, no final judgment rendered insofar as the probate of Adriana
Maloto's will is concerned. The decision of the trial court in Special Proceeding No. 1736, although
final, involved only the intestate settlement of the estate of Adriana. As such, that judgment could not
in any manner be construed to be final with respect to the probate of the subsequently discovered
will of the decedent. Neither is it a judgment on the merits of the action for probate. This is
understandably so because the trial court, in the intestate proceeding, was without jurisdiction to rule
on the probate of the contested will . 6 After all, an action for probate, as it implies, is founded on the
presence of a will and with the objective of proving its due execution and validity, something which
can not be properly done in an intestate settlement of estate proceeding which is predicated on the
assumption that the decedent left no will. Thus, there is likewise no Identity between the cause of
action in intestate proceeding and that in an action for probate. Be that as it may, it would be
remembered that it was precisely because of our ruling in G.R. No. L-30479 that the petitioners
instituted this separate action for the probate of the late Adriana Maloto's will. Hence, on these
grounds alone, the position of the private respondents on this score can not be sustained.

One last note. The private respondents point out that revocation could be inferred from the fact that
"(a) major and substantial bulk of the properties mentioned in the will had been disposed of: while an
insignificant portion of the properties remained at the time of death (of the testatrix); and,
furthermore, more valuable properties have been acquired after the execution of the will on January
3,1940." 7 Suffice it to state here that as these additional matters raised by the private respondents
are extraneous to this special proceeding, they could only be appropriately taken up after the will has
been duly probated and a certificate of its allowance issued.
WHEREFORE, judgment is hereby rendered REVERSING and SETTING ASIDE the Decision dated
June 7, 1985 and the Resolution dated October 22, 1986, of the respondent Court of Appeals, and a
new one ENTERED for the allowance of Adriana Maloto's last will and testament. Costs against the
private respondents.

This Decision is IMMEDIATELY EXECUTORY.

SO ORDERED.

Yap (Chairman), Melencio-Herrera, and Paras JJ., concur.

Padilla, J., took no part.

G.R. No. L-26317 January 29, 1927

Estate of Miguel Mamuyac, deceased.

FRANCISCO GAGO, petitioner-appellant,
vs.
CORNELIO MAMUYAC, AMBROSIO LARIOSA,
FELICIANA BAUZON, and CATALINA MAMUYAC, opponents-appellees.

Nicanor Tavora for appellant.

Jose Rivera for appellees.

JOHNSON, J.:

The purpose of this action was to obtain the probation of a last will and testament of Miguel
Mamuyac, who died on the 2d day of January, 1922, in the municipality of Agoo of the Province of
La Union. It appears from the record that on or about the 27th day of July, 1918, the said Miguel
Mamuyac executed a last will and testament (Exhibit A). In the month of January, 1922, the said
Francisco Gago presented a petition in the Court of First Instance of the Province of La Union for the
probation of that will. The probation of the same was opposed by Cornelio Mamuyac, Ambrosio
Lariosa, Feliciana Bauzon, and Catalina Mamuyac (civil cause No. 1144, Province of La Union).
After hearing all of the parties the petition for the probation of said will was denied by the Honorable
C. M. Villareal on the 2d day of November, 1923, upon the ground that the deceased had on the
16th day of April, 1919, executed a new will and testament.

On the 21st day of February, 1925, the present action was commenced. Its purpose was to secure
the probation of the said will of the 16th day of April, 1919 (Exhibit 1). To said petition Cornelio
Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac presented their oppositions,
alleging (a) that the said will is a copy of the second will and testament executed by the said Miguel
Mamuyac; (b) that the same had been cancelled and revoked during the lifetime of Miguel Mamuyac
and (c) that the said will was not the last will and testament of the deceased Miguel Mamuyac.

Upon the issue thus presented, the Honorable Anastacio R. Teodoro, judge, after hearing the
respective parties, denied the probation of said will of April 16, 1919, upon the ground that the same
had been cancelled and revoked in the year 1920. Judge Teodoro, after examining the evidence
adduced, found that the following facts had been satisfactorily proved:

That Exhibit A is a mere carbon of its original which remained in the possession of the
deceased testator Miguel Mamuyac, who revoked it before his death as per testimony of
witness Jose Fenoy, who typed the will of the testator on April 16, 1919, and Carlos Bejar,
who saw on December 30, 1920, the original Exhibit A (will of 1919) actually cancelled by the
testator Miguel Mamuyac, who assured Carlos Bejar that inasmuch as he had sold him a
house and the land where the house was built, he had to cancel it (the will of 1919),
executing thereby a new testament. Narcisa Gago in a way corroborates the testimony of
Jose Fenoy, admitting that the will executed by the deceased (Miguel Mamuyac) in 1919 was
found in the possession of father Miguel Mamuyac. The opponents have successfully
established the fact that father Miguel Mamuyac had executed in 1920 another will. The
same Narcisa Gago, the sister of the deceased, who was living in the house with him, when
cross-examined by attorney for the opponents, testified that the original Exhibit A could not
be found. For the foregoing consideration and for the reason that the original of Exhibit A has
been cancelled by the deceased father Miguel Mamuyac, the court disallows the probate of
Exhibit A for the applicant." From that order the petitioner appealed.
The appellant contends that the lower court committed an error in not finding from the evidence that
the will in question had been executed with all the formalities required by the law; that the same had
been revoked and cancelled in 1920 before his death; that the said will was a mere carbon copy and
that the oppositors were not estopped from alleging that fact.

With reference to the said cancellation, it may be stated that there is positive proof, not denied,
which was accepted by the lower court, that will in question had been cancelled in 1920. The law
does not require any evidence of the revocation or cancellation of a will to be preserved. It therefore
becomes difficult at times to prove the revocation or cancellation of wills. The fact that such
cancellation or revocation has taken place must either remain unproved of be inferred from evidence
showing that after due search the original will cannot be found. Where a will which cannot be found
is shown to have been in the possession of the testator, when last seen, the presumption is, in the
absence of other competent evidence, that the same was cancelled or destroyed. The same
presumption arises where it is shown that the testator had ready access to the will and it cannot be
found after his death. It will not be presumed that such will has been destroyed by any other person
without the knowledge or authority of the testator. The force of the presumption of cancellation or
revocation by the testator, while varying greatly, being weak or strong according to the
circumstances, is never conclusive, but may be overcome by proof that the will was not destroyed by
the testator with intent to revoke it.

In view of the fat that the original will of 1919 could not be found after the death of the testator Miguel
Mamuyac and in view of the positive proof that the same had been cancelled, we are forced to the
conclusion that the conclusions of the lower court are in accordance with the weight of the evidence.
In a proceeding to probate a will the burden of proofs is upon the proponent clearly to establish not
only its execution but its existence. Having proved its execution by the proponents, the burden is on
the contestant to show that it has been revoked. In a great majority of instances in which wills are
destroyed for the purpose of revoking them there is no witness to the act of cancellation or
destruction and all evidence of its cancellation perishes with the testator. Copies of wills should be
admitted by the courts with great caution. When it is proven, however, by proper testimony that a will
was executed in duplicate and each copy was executed with all the formalities and requirements of
the law, then the duplicate may be admitted in evidence when it is made to appear that the original
has been lost and was not cancelled or destroyed by the testator. (Borromeo vs. Casquijo, G.R. No.
L-26063.)1

After a careful examination of the entire record, we are fully persuaded that the will presented for
probate had been cancelled by the testator in 1920. Therefore the judgment appealed from is hereby
affirmed. And without any finding as to costs, it is so ordered.

Street, Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.

G.R. No. 17714 May 31, 1922

In the mater of the estate of Jesus de Leon.

IGNACIA DIAZ, petitioner-appellant,
vs.
ANA DE LEON, opponent-appellee.

Montinola, Montinola & Hontiveros and Jose Lopez Vito for appellant.
Francisco A. Delgado, Powell & Hill and Padilla & Treñas for appellee.

ROMUALDEZ, J.:

The only question raised in this case is whether or to the will executed by Jesus de Leon, now, was
revoked by him.

The petitioner denies such revocation, while the contestant affirms the same by alleging that the
testator revoked his will by destroying it, and by executing another will expressly revoking the former.

We find that the second will Exhibit 1 executed by the deceased is not cloth with all the necessary
requisites to constitute a sufficient revocation.

But according to the statute governing the subject in this jurisdiction, the destruction of a will animo
revocandi constitutes, in itself, a sufficient revocation. (Sec. 623, Code of Civil Procedure.)lävvphì1·né+

From the evidence submitted in this case, it appears that the testator, shortly after the execution of
the first will in question, asked that the same be returned to him. The instrument was returned to the
testator who ordered his servant to tear the document. This was done in his presence and before a
nurse who testified to this effect. After some time, the testator, being asked by Dr. Cornelio Mapa
about the will, said that it had been destroyed.

The intention of revoking the will is manifest from the established fact that the testator was anxious
to withdraw or change the provisions he had made in his first will. This fact is disclosed by the
testator's own statements to the witnesses Canto and the Mother Superior of the Hospital where he
was confined.

The original will herein presented for probate having been destroyed with animo revocandi, cannot
now be probated as the will and last testament of Jesus de Leon.

Judgement is affirmed with costs against the petitioner. So ordered.

Araullo, C.J., Malcolm, Avanceña, Ostrand and Johns, JJ., concur.

Villamor, J., took no part.
G.R. No. L-2538 September 21, 1951

Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA. DE
MOLO, petitioner-appellee,
vs.
LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants.

Claro M. Recto and Serafin C. Dizon for appellants.

Delgado & Flores for appellee.

BAUTISTA ANGELO, J.:

This is an appeal from an order of the Court of First Instance of Rizal admitting to probate the last
will and testament of the deceased Mariano Molo y Legaspi executed on August 17, 1918. The
oppositors-appellants brought the case on appeal to this Court for the reason that the value of the
properties involved exceeds P50,000.

Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay, province of Rizal,
without leaving any forced heir either in the descending or ascending line. He was survived,
however, by his wife, the herein petitioner Juana Juan Vda. de Molo, and by his nieces and nephew,
the oppositors-appellants, Luz Gliceria and Cornelio, all surnamed Molo, who were the legitimate
children of Candido Molo y Legaspi, deceased brother of the testator. Mariano Molo y Legaspi left
two wills, one executed on August 17, 1918, (Exhibit A) and another executed on June 20, 1939.
(Exhibit I). The later will executed in 1918.

On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court of First Instance of Rizal a
petition, which was docketed as special proceeding No. 8022 seeking the probate of the will
executed by the deceased on June 20, 1939. There being no opposition, the will was probated.
However, upon petition filed by the herein oppositors, the order of the court admitting the will to
probate was set aside and the case was reopened. After hearing, at which both parties presented
their evidence, the court rendered decision denying the probate of said will on the ground that the
petitioner failed to prove that the same was executed in accordance with law.

In view of the disallowance of the will executed on June 20, 1939, the widow on February 24, 1944,
filed another petition for the probate of the will executed by the deceased on August 17, 1918, which
was docketed as special proceeding No. 56, in the same court. Again, the same oppositors filed an
opposition to the petition based on three grounds: (1) that petitioner is now estopped from seeking
the probate of the will of 1918; (2) that said will has not been executed in the manner required by law
and (3) that the will has been subsequently revoked. But before the second petition could be heard,
the battle for liberation came and the records of the case were destroyed. Consequently, a petition
for reconstitution was filed, but the same was found to be impossible because neither petitioner nor
oppositors could produce the copies required for its reconstitution. As a result, petitioner filed a new
petition on September 14, 1946, similar to the one destroyed, to which the oppositors filed an
opposition based on the same grounds as those contained in their former opposition. Then, the case
was set for trial, and on May 28, 1948, the court issued an order admitting the will to probate already
stated in the early part of this decision. From this order the oppositors appealed assigning six errors,
to wit.

I. The probate court erred in not holding that the present petitioner voluntarily and
deliberately frustrated the probate of the will dated June 20, 1939, in special proceeding No.
8022, in order to enable her to obtain the probate of another alleged will of Molo dated 191.
 II. The court a quo erred in not holding that the petitioner is now estopped from seeking the
probate of Molo's alleged will of 1918.

III. The lower court erred in not holding that petitioner herein has come to court with "unclean
hands" and as such is not entitled to relief.

IV. The probate court erred in not holding that Molo's alleged will of August 17, 1918 was not
executed in the manner required by law.

V. The probate court erred in not holding that the alleged will of 1918 was deliberately
revoked by Molo himself.

VI. The lower court erred in not holding that Molo's will of 1918 was subsequently revoked by
the decedent's will of 1939.

In their first assignment of error, counsel for oppositors contend that the probate court erred in not
holding that the petitioner voluntarily and deliberately frustrated the probate of the will dated June 20,
1939, in order to enable her to obtain the probate of the will executed by the deceased on August
17, 1918, pointing out certain facts and circumstances with their opinion indicate that petitioner
connived with the witness Canuto Perez in an effort to defeat and frustrate the probate of the 1939
will because of her knowledge that said will intrinsically defective in that "the one and only
testamentory disposition thereof was a "disposicion captatoria". These circumstances, counsel for
the appellants contend, constitute a series of steps deliberately taken by petitioner with a view to
insuring the realization of her plan of securing the probate of the 1918 will which she believed would
better safeguard her right to inherit from the decease.

These imputations of fraud and bad faith allegedly committed in connection with special proceedings
No. 8022, now closed and terminated, are vigorously met by counsel for petitioner who contends
that to raise them in these proceedings which are entirely new and distinct and completely
independent from the other is improper and unfair as they find no support whatsoever in any
evidence submitted by the parties in this case. They are merely based on the presumptions and
conjectures not supported by any proof. For this reason, counsel, contends, the lower court was
justified in disregarding them and in passing them sub silentio in its decision.

A careful examination of the evidence available in this case seems to justify this contention. There is
indeed no evidence which may justify the insinuation that petitioner had deliberately intended to
frustrate the probate of the 1939 will of the deceased to enable her to seek the probate of another
will other than a mere conjecture drawn from the apparently unexpected testimony of Canuto Perez
that he went out of the room to answer an urgent call of nature when Artemio Reyes was signing the
will and the failure of petitioner later to impeach the character of said witness in spite of the
opportunity given her by the court to do so. Apart from this insufficiency of evidence, the record
discloses that this failure has been explained by petitioner when she informed the court that she was
unable to impeach the character of her witness Canuto Perez because of her inability to find
witnesses who may impeach him, and this explanation stands uncontradicted. Whether this
explanation is satisfactory or not, it is not now, for us to determine. It is an incident that comes within
the province of the former case. The failure of petitioner to present the testimony of Artemio Reyes
at the hearing has also been explained, and it appears that petitioner has filed because his
whereabouts could not be found. Whether this is true or not is also for this Court to determine. It is
likewise within the province and function of the court in the former case. And the unfairness of this
imputation becomes more glaring when we stock of the developments that had taken place in these
proceedings which show in bold relief the true nature of the conduct, behavior and character of the
petitioner so bitterly assailed and held in disrepute by the oppositors.
It should be recalled that the first petition for the probate of the will executed on June 20, 1939, was
filed on February 7, 1941, by the petitioner. There being no opposition, the will was probated.
Subsequently, however, upon petition of the herein oppositors, the order of the court admitting said
will to probate was set aside, over the vigorous opposition of the herein petitioner, and the case was
reopened. The reopening was ordered because of the strong opposition of the oppositors who
contended that he will had not been executed as required by law. After the evidence of both parties
had been presented, the oppositors filed an extensive memorandum wherein they reiterated their
view that the will should be denied probate. And on the strenght of this opposition, the court
disallowed the will.

If petitioner then knew that the 1939 will was inherently defective and would make the testamentary
disposition in her favor invalid and ineffective, because it is a "disposicion captatoria", which
knowledge she may easily acquire through consultation with a lawyer, there was no need her to go
through the order of filing the petition for the probate of the will. She could accomplish her desire by
merely suppressing the will or tearing or destroying it, and then take steps leading to the probate of
the will executed in 1918. But for her conscience was clear and bade her to take the only proper step
possible under the circumstances, which is to institute the necessary proceedings for the probate of
the 1939 will. This she did and the will was admitted to probate. But then the unexpected happened.
Over her vigorous opposition, the herein appellants filed a petition for reopening, and over her
vigorous objection, the same was granted and the case was reopened. Her motion for
reconsideration was denied. Is it her fault that the case was reopened? Is it her fault that the order
admitting the will to probate was set aside? That was a contingency which petitioner never expected.
Had appellants not filed their opposition to the probate of the will and had they limited their objection
to the intrinsic validity of said will, their plan to defeat the will and secure the intestacy of the
deceased would have perhaps been accomplished. But they failed in their strategy. If said will was
denied probate it is due to their own effort. It is now unfair to impute bad faith petitioner simply
because she exerted every effort to protect her own interest and prevent the intestacy of the
deceased to happen.

Having reached the foregoing conclusions, it is obvious that the court did not commit the second and
third errors imputed to it by the counsel for appellants. Indeed, petitioner cannot be considered guilty
or estoppel which would prevent her from seeking the probate of the 1918 will simply because of her
effort to obtain the allowance of the 1939 will has failed considering that in both the 1918 and 1939
wills she was in by her husband as his universal heir. Nor can she be charged with bad faith far
having done so because of her desire to prevent the intestacy of her husband. She cannot be
blamed being zealous in protecting her interest.

The next contention of appellants refers to the revocatory clause contained in 1939 will of the
deceased which was denied probate. They contend that, notwithstanding the disallowance of said
will, the revocatory clause is valid and still has the effect of nullifying the prior of 1918.

Counsel for petitioner meets this argument by invoking the doctrine laid down in the case of Samson
vs. Naval, (41 Phil., 838). He contends that the facts involved in that case are on all fours with the
facts of this case. Hence, the doctrine is that case is here controlling.

There is merit in this contention. We have carefully read the facts involved in the Samson case we
are indeed impressed by their striking similarity with the facts of this case. We do not need to recite
here what those facts are; it is enough to point out that they contain many points and circumstances
in common. No reason, therefore, is seen by the doctrine laid down in that case (which we quote
hereunder) should not apply and control the present case.
 A subsequent will, containing a clause revoking a previous will, having been disallowed, for
the reason that it was not executed in conformity with the provisions of section 618 of the
Code of Civil Procedure as to the making of wills, cannot produce the effect of annulling the
previous will, inasmuch as said revocatory clause is void. (41 Phil., 838.)

Apropos of this question, counsel for oppositors make the remark that, while they do not disagree
with the soundness of the ruling laid down in the Samson case, there is reason to abandon said
ruling because it is archaic or antiquated and runs counter to the modern trend prevailing in
American jurisprudence. They maintain that said ruling is no longer controlling but merely represents
the point of view of the minority and should, therefore, be abandoned, more so if we consider the
fact that section 623 of our Code of Civil Procedure, which governs the revocation of wills, is of
American origin and as such should follow the prevailing trend of the majority view in the United
States. A long line of authorities is cited in support of this contention. And these authorities hold the
view, that "an express revocation is immediately effective upon the execution of the subsequent will,
and does not require that it first undergo the formality of a probate proceeding". (p. 63, appellants'
brief .

While they are many cases which uphold the view entertained by counsel for oppositors, and that
view appears to be in controlling the states where the decisions had been promulgated, however, we
are reluctant to fall in line with the assertion that is now the prevailing view in the United States. In
the search we have made of American authorities on the subject, we found ourselves in a pool of
conflicting opinions perhaps because of the peculiar provisions contained in the statutes adopted by
each State in the subject of revocation of wills. But the impression we gathered from a review and
the study of the pertinent authorities is that the doctrine laid down in the Samson case is still a good
law. On page 328 of the American Jurisprudence Vol. 57, which is a revision Published in 1948, we
found the following passages which in our opinion truly reflect the present trend of American
jurisprudence on this matter affecting the revocation of wills:

SEC. 471. Observance of Formalities in Execution of Instrument. — Ordinarily, statutes

which permit the revocation of a will by another writing provide that to be effective as a
revocation, the writing must be executed with the same formalities which are required to be
observed in the execution of a will. Accordingly, where, under the statutes, attestation is
necessary to the making of a valid will, an unattested non testamentary writing is not
effective to revoke a prior will. It has been held that a writing fails as a revoking instrument
where it is not executed with the formalities requisite for the execution of a will, even though
it is inscribed on the will itself, although it may effect a revocation by cancellation or
obliteration of the words of the will. A testator cannot reserve to himself the power to modify
a will by a written instrument subsequently prepared but not executed in the manner required
for a will.

SEC, 472. Subsequent Unexecuted, Invalid, or Ineffective Will or Codicil. — A will which is
invalid because of the incapacity of the testator, or of undue influence can have no effect
whatever as a revoking will. Moreover, a will is not revoked by the unexecuted draft of a later
one. Nor is a will revoked by a defectively executed will or codicil, even though the latter
contains a clause expressly revoking the former will, in a jurisdiction where it is provided by a
controlling statute that no writing other than a testamentary instrument is sufficient to revoke
a will, for the simple reason that there is no revoking will. Similarly where the statute provides
that a will may be revoked by a subsequent will or other writing executed with the same
formalities as are required in the execution of wills, a defectively executed will does not
revoke a prior will, since it cannot be said that there is a writing which complies with the
statute. Moreover, a will or codicil which, on account of the manner in which it is executed, is
sufficient to pass only personally does not affect dispositions of real estate made by a former
 will, even though it may expressly purport to do so. The intent of the testator to revoke is
immaterial, if he has not complied with the statute. (57 Am. Jur., 328, 329.)

We find the same opinion in the American Law Reports, Annotated, edited in 1939. On page 1400,
Volume 123, there appear many authorities on the "application of rules where second will is invalid",
among which a typical one is the following:

It is universally agreed that where the second will is invalid on account of not being executed
in accordance with the provisions of the statute, or where the testator who has not sufficient
mental capacity to make a will or the will is procured through undue influence, or the such, in
other words, where the second will is really no will, it does not revoke the first will or affect it
in any manner. Mort vs. Baker University (193-5) 229 Mo. App., 632, 78 S.W. (2d), 498.

These treaties cannot be mistaken. They uphold the view on which the ruling in the Samson case is
predicated. They reflect the opinion that this ruling is sound and good and for this reason, we see no
justification for abondoning it as now suggested by counsel for the oppositors.

It is true that our law on the matter (sec. 623, Code Civil Procedure) provides that a will may be
some will, codicil, or other writing executed as proved in case of wills" but it cannot be said that the
1939 will should be regarded, not as a will within the meaning of said word, but as "other writing
executed as provided in the case of wills", simply because it was denied probate. And even if it be
regarded as any other writing within the meaning of said clause, there is authority for holding that
unless said writing is admitted to probate, it cannot have the effect of revocation. (See 57 Am. Jur.
pp. 329-330).

But counsel for oppositors contemned that, regardless of said revocatory clause, said will of 1918
cannot still be given effect because of the presumption that it was deliberately revoked by the
testator himself. The oppositors contend that the testator, after executing the 1939 will, and with full
knowledge of the recovatory clause contained said will, himself deliberately destroyed the original of
the 1918 will, and for that reason the will submitted by petitioner for probate in these proceedings is
only a duplicate of said original.

There is no evidence which may directly indicate that the testator deliberately destroyed the original
of the 1918 will because of his knowledge of the revocatory clause contained in the will he executed
in 1939. The only evidence we have is that when the first will was executed in 1918, Juan Salcedo,
who prepared it, gave the original and copies to the testator himself and apparently they remained in
his possession until he executed his second will in 1939. And when the 1939 will was denied probate
on November 29, 1943, and petitioner was asked by her attorney to look for another will, she found
the duplicate copy (Exhibit A) among the papers or files of the testator. She did not find the original.

If it can be inferred that the testator deliberately destroyed the 1918 will because of his knowledge of
the revocatory clause of the 1939 will, and it is true that he gave a duplicate copy thereof to his wife,
the herein petitioner, the most logical step for the testator to take is to recall said duplicate copy in
order that it may likewise be destroyed. But this was not done as shown by the fact that said
duplicate copy remained in the possession of petitioner. It is possible that because of the long lapse
of twenty-one (21) years since the first will was executed, the original of the will had been misplaced
or lost, and forgetting that there was a copy, the testator deemed it wise to execute another will
containing exactly the same testamentary dispositions. Whatever may be the conclusion we may
draw from this chain of circumstances, the stubborn fact is that there is no direct evidence of
voluntary or deliberate destruction of the first will by the testator. This matter cannot be inference or
conjectur.
Granting for the sake of argument that the earlier will was voluntarily destroyed by the testator after
the execution of the second will, which revoked the first, could there be any doubt, under this theory,
that said earlier will was destroyed by the testator in the honest belief that it was no longer
necessary because he had expressly revoked it in his will of 1939? In other words, can we not say
that the destruction of the earlier will was but the necessary consequence of the testator's belief that
the revocatory clause contained in the subsequent will was valid and the latter would be given
effect? If such is the case, then it is our opinion that the earlier will can still be admitted to probate
under the principle of "dependent relative revocation".

This doctrine is known as that of dependent relative revocation, and is usually applied where
the testator cancels or destroys a will or executes an instrument intended to revoke a will
with a present intention to make a new testamentary disposition as a substitute for the old,
and the new disposition is not made or, if made, fails of effect for same reason. The doctrine
is n limited to the existence of some other document, however, and has been applied where
a will was destroyed as a consequence of a mistake of law. . . . (68 C.J.P. 799).

The rule is established that where the act of destruction is connected with the making of
another will so as fairly to raise the inference that the testator meant the revocation of the old
to depend upon the efficacy of a new disposition intended to be substituted, the revocation
will be conditional and dependent upon the efficacy of the new disposition; and if, for any
reason, the new will intended to be made as a substitute is inoperative, the revocation fails
and the original will remains in full force. (Gardner, pp. 232, 233.)

This is the doctrine of dependent relative revocation. The failure of a new testamentary
disposition upon whose validity the revocation depends, is equivalent to the non-fulfillment of
a suspensive conditions, and hence prevents the revocation of the original will. But a mere
intent to make at some time a will in the place of that destroyed will not render the
destruction conditional. It must appear that the revocation is dependent upon the valid
execution of a new will. (1 Alexander, p. 751; Gardner, p. 253.)

We hold therefore, that even in the supposition that the destruction of the original will by the testator
could be presumed from the failure of the petitioner to produce it in court, such destruction cannot
have the effect of defeating the prior will of 1918 because of the fact that it is founded on the
mistaken belief that the will of 1939 has been validly executed and would be given due effect. The
theory on which this principle is predicated is that the testator did not intend to die intestate. And this
intention is clearly manifest when he executed two wills on two different occasion and instituted his
wife as his universal heir. There can therefore be no mistake as to his intention of dying testate.

The remaining question to be determined refers to the sufficiency of the evidence to prove the due
execution of the will.

The will in question was attested, as required by law, by three witnesses, Lorenzo Morales, Rufino
Enriquez, and Angel Cuenca. The first two witnesses died before the commencement of the present
proceedings. So the only instrumental witness available was Angel Cuenca and under our law and
precedents, his testimony is sufficient to prove the due execution of the will. However, petitioner
presented not only the testimony of Cuenca but placed on the witness stand Juan Salcedo, the
notary public who prepared and notarized the will upon the express desire and instruction of the
testator, The testimony of these witnesses shows that the will had been executed in the manner
required by law. We have read their testimony and we were impressed by their readiness and
sincerity. We are convinced that they told the truth.

Wherefore, the order appealed from is hereby affirmed, with costs against the appellants. 1âwphïl.nêt
Paras, C.J. Feria, Pablo Bengzon, Tuason and Jugo JJ., concur.
G.R. Nos. L-27860 and L-27896 March 29, 1974

PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, Administrator of the Testate Estate of

Charles Newton Hodges (Sp. Proc. No. 1672 of the Court of First Instance of Iloilo), petitioner,
vs.
THE HONORABLE VENICIO ESCOLIN, Presiding Judge of the Court of First Instance of Iloilo,
Branch II, and AVELINA A. MAGNO, respondents.

G.R. Nos. L-27936 & L-27937 March 29, 1974

TESTATE ESTATE OF THE LATE LINNIE JANE HODGES (Sp. Proc. No. 1307). TESTATE
ESTATE OF THE LATE CHARLES NEWTON HODGES (Sp. Proc. No. 1672). PHILIPPINE
COMMERCIAL AND INDUSTRIAL BANK, administrator-appellant,
vs.
LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL, SALVADOR GUZMAN,
BELCESAR CAUSING, FLORENIA BARRIDO, PURIFICACION CORONADO, GRACIANO
LUCERO, ARITEO THOMAS JAMIR, MELQUIADES BATISANAN, PEPITO IYULORES,
ESPERIDION PARTISALA, WINIFREDO ESPADA, ROSARIO ALINGASA, ADELFA
PREMAYLON, SANTIAGO PACAONSIS, and AVELINA A. MAGNO, the last as Administratrix in
Sp. Proc. No. 1307, appellees, WESTERN INSTITUTE OF TECHNOLOGY, INC., movant-
appellee.

San Juan, Africa, Gonzales and San Agustin for Philippine Commercial and Industrial Bank.

Manglapus Law Office, Antonio Law Office and Rizal R. Quimpo for private respondents and
appellees Avelina A. Magno, etc., et al.

BARREDO, J.:p

Certiorari and prohibition with preliminary injunction; certiorari to "declare all acts of the respondent
court in the Testate Estate of Linnie Jane Hodges (Sp. Proc. No. 1307 of the Court of First Instance
of Iloilo) subsequent to the order of December 14, 1957 as null and void for having been issued
without jurisdiction"; prohibition to enjoin the respondent court from allowing, tolerating, sanctioning,
or abetting private respondent Avelina A. Magno to perform or do any acts of administration, such as
those enumerated in the petition, and from exercising any authority or power as Regular
Administratrix of above-named Testate Estate, by entertaining manifestations, motion and pleadings
filed by her and acting on them, and also to enjoin said court from allowing said private respondent
to interfere, meddle or take part in any manner in the administration of the Testate Estate of Charles
Newton Hodges (Sp. Proc. No. 1672 of the same court and branch); with prayer for preliminary
injunction, which was issued by this Court on August 8, 1967 upon a bond of P5,000; the petition
being particularly directed against the orders of the respondent court of October 12, 1966 denying
petitioner's motion of April 22, 1966 and its order of July 18, 1967 denying the motion for
reconsideration of said order.

Related to and involving basically the same main issue as the foregoing petition, thirty-three (33)
appeals from different orders of the same respondent court approving or otherwise sanctioning the
acts of administration of the respondent Magno on behalf of the testate Estate of Mrs. Hodges.

THE FACTS
On May 23, 1957, Linnie Jane Hodges died in Iloilo City leaving a will executed on November 22,
1952 pertinently providing as follows:

FIRST: I direct that all my just debts and funeral expenses be first paid out of my
estate.

SECOND: I give, devise and bequeath all of the rest, residue and remainder of my
estate, both personal and real, wherever situated, or located, to my beloved
husband, Charles Newton Hodges, to have and to hold unto him, my said husband,
during his natural lifetime.

THIRD: I desire, direct and provide that my husband, Charles Newton Hodges, shall
have the right to manage, control, use and enjoy said estate during his lifetime, and
he is hereby given the right to make any changes in the physical properties of said
estate, by sale or any part thereof which he may think best, and the purchase of any
other or additional property as he may think best; to execute conveyances with or
without general or special warranty, conveying in fee simple or for any other term or
time, any property which he may deem proper to dispose of; to lease any of the real
property for oil, gas and/or other minerals, and all such deeds or leases shall pass
the absolute fee simple title to the interest so conveyed in such property as he may
elect to sell. All rents, emoluments and income from said estate shall belong to him,
and he is further authorized to use any part of the principal of said estate as he may
need or desire. It is provided herein, however, that he shall not sell or otherwise
dispose of any of the improved property now owned by us located at, in or near the
City of Lubbock, Texas, but he shall have the full right to lease, manage and enjoy
the same during his lifetime, above provided. He shall have the right to subdivide any
farm land and sell lots therein. and may sell unimproved town lots.

FOURTH: At the death of my said husband, Charles Newton Hodges, I give, devise
and bequeath all of the rest, residue and remainder of my estate, both real and
personal, wherever situated or located, to be equally divided among my brothers and
sisters, share and share alike, namely:

Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Saddie Rascoe, Era
Roman and Nimroy Higdon.

FIFTH: In case of the death of any of my brothers and/or sisters named in item
Fourth, above, prior to the death of my husband, Charles Newton Hodges, then it is
my will and bequest that the heirs of such deceased brother or sister shall take jointly
the share which would have gone to such brother or sister had she or he survived.

SIXTH: I nominate and appoint my said husband, Charles Newton Hodges, to be

executor of this, my last will and testament, and direct that no bond or other security
be required of him as such executor.

SEVENTH: It is my will and bequest that no action be had in the probate court, in the
administration of my estate, other than that necessary to prove and record this will
and to return an inventory and appraisement of my estate and list of claims. (Pp. 2-4,
Petition.)
This will was subsequently probated in aforementioned Special Proceedings No. 1307 of respondent
court on June 28, 1957, with the widower Charles Newton Hodges being appointed as Executor,
pursuant to the provisions thereof.

Previously, on May 27, 1957, the said widower (hereafter to be referred to as Hodges) had been
appointed Special Administrator, in which capacity he filed a motion on the same date as follows:

URGENT EX-PARTE MOTION TO ALLOW OR AUTHORIZE PETITIONER TO

CONTINUE THE BUSINESS IN WHICH HE WAS ENGAGED AND TO PERFORM
ACTS WHICH HE HAD BEEN DOING WHILE DECEASED WAS LIVING

Come petitioner in the above-entitled special proceedings, thru his undersigned attorneys, to the
Hon. Court, most respectfully states:

1. — That Linnie Jane Hodges died leaving her last will and testament, a copy of
which is attached to the petition for probate of the same.

2. — That in said last will and testament herein petitioner Charles Newton Hodges is
directed to have the right to manage, control use and enjoy the estate of deceased
Linnie Jane Hodges, in the same way, a provision was placed in paragraph two, the
following: "I give, devise and bequeath all of the rest, residue and remainder of my
estate, to my beloved husband, Charles Newton Hodges, to have and (to) hold unto
him, my said husband, during his natural lifetime."

3. — That during the lifetime of Linnie Jane Hodges, herein petitioner was engaged
in the business of buying and selling personal and real properties, and do such acts
which petitioner may think best.

4. — That deceased Linnie Jane Hodges died leaving no descendants or

ascendants, except brothers and sisters and herein petitioner as executor surviving
spouse, to inherit the properties of the decedent.

5. — That the present motion is submitted in order not to paralyze the business of
petitioner and the deceased, especially in the purchase and sale of properties. That
proper accounting will be had also in all these transactions.

WHEREFORE, it is most respectfully prayed that, petitioner C. N. Hodges (Charles

Newton Hodges) be allowed or authorized to continue the business in which he was
engaged and to perform acts which he had been doing while deceased Linnie Jane
Hodges was living.

City of Iloilo, May 27, 1957. (Annex "D", Petition.)

which the respondent court immediately granted in the following order:

It appearing in the urgent ex-parte motion filed by petitioner C. N. Hodges, that the
business in which said petitioner and the deceased were engaged will be paralyzed,
unless and until the Executor is named and appointed by the Court, the said
petitioner is allowed or authorized to continue the business in which he was engaged
and to perform acts which he had been doing while the deceased was living.
 SO ORDERED.

City of Iloilo May 27, 1957. (Annex "E", Petition.)

Under date of December 11, 1957, Hodges filed as such Executor another motion thus:

MOTION TO APPROVE ALL SALES, CONVEYANCES, LEASES, MORTGAGES

THAT THE EXECUTOR HAD MADE FURTHER AND SUBSEQUENT
TRANSACTIONS WHICH THE EXECUTOR MAY DO IN ACCORDANCE WITH THE
LAST WISH OF THE DECEASED LINNIE JANE HODGES.

Comes the Executor in the above-entitled proceedings, thru his undersigned

attorney, to the Hon. Court, most respectfully states:

1. — That according to the last will and testament of the deceased Linnie Jane
Hodges, the executor as the surviving spouse and legatee named in the will of the
deceased; has the right to dispose of all the properties left by the deceased, portion
of which is quoted as follows:

Second: I give, devise and bequeath all of the rest, residue and remainder of my
estate, both personal and real, wherever situated, or located, to my beloved
husband, Charles Newton Hodges, to have and to hold unto him, my said husband,
during his natural lifetime.

Third: I desire, direct and provide that my husband, Charles Newton Hodges, shall
have the right to manage, control, use and enjoy said estate during his lifetime, and
he is hereby given the right to make any changes in the physical properties of said
estate, by sale or any part thereof which he may think best, and the purchase of any
other or additional property as he may think best; to execute conveyances with or
without general or special warranty, conveying in fee simple or for any other term or
time, any property which he may deem proper to dispose of; to lease any of the real
property for oil, gas and/or other minerals, and all such deeds or leases shall pass
the absolute fee simple title to the interest so conveyed in such property as he may
elect to sell. All rents, emoluments and income from said estate shall belong to him,
and he is further authorized to use any part of the principal of said estate as he may
need or desire. ...

2. — That herein Executor, is not only part owner of the properties left as conjugal,
but also, the successor to all the properties left by the deceased Linnie Jane Hodges.
That during the lifetime of herein Executor, as Legatee has the right to sell, convey,
lease or dispose of the properties in the Philippines. That inasmuch as C.N. Hodges
was and is engaged in the buy and sell of real and personal properties, even before
the death of Linnie Jane Hodges, a motion to authorize said C.N. Hodges was filed in
Court, to allow him to continue in the business of buy and sell, which motion was
favorably granted by the Honorable Court.

3. — That since the death of Linnie Jane Hodges, Mr. C.N. Hodges had been buying
and selling real and personal properties, in accordance with the wishes of the late
Linnie Jane Hodges.
 4. — That the Register of Deeds for Iloilo, had required of late the herein Executor to
have all the sales, leases, conveyances or mortgages made by him, approved by the
Hon. Court.

5. — That it is respectfully requested, all the sales, conveyances leases and

mortgages executed by the Executor, be approved by the Hon. Court. and
subsequent sales conveyances, leases and mortgages in compliances with the
wishes of the late Linnie Jane Hodges, and within the scope of the terms of the last
will and testament, also be approved;

6. — That the Executor is under obligation to submit his yearly accounts, and the
properties conveyed can also be accounted for, especially the amounts received.

WHEREFORE, it is most respectfully prayed that, all the sales, conveyances, leases,
and mortgages executed by the Executor, be approved by the Hon. Court, and also
the subsequent sales, conveyances, leases, and mortgages in consonance with the
wishes of the deceased contained in her last will and testament, be with authorization
and approval of the Hon. Court.

City of Iloilo, December 11, 1967.

(Annex "G", Petition.)

which again was promptly granted by the respondent court on December 14, 1957 as follows:

ORDER

As prayed for by Attorney Gellada, counsel for the Executor for the reasons stated in
his motion dated December 11, 1957, which the Court considers well taken all the
sales, conveyances, leases and mortgages of all properties left by the deceased
Linnie Jane Hodges executed by the Executor Charles N. Hodges are hereby
APPROVED. The said Executor is further authorized to execute subsequent sales,
conveyances, leases and mortgages of the properties left by the said deceased
Linnie Jane Hodges in consonance with the wishes conveyed in the last will and
testament of the latter.

So ordered.

Iloilo City. December 14, 1957.

(Annex "H", Petition.)

On April 14, 1959, in submitting his first statement of account as Executor for approval, Hodges
alleged:

Pursuant to the provisions of the Rules of Court, herein executor of the deceased,
renders the following account of his administration covering the period from January
1, 1958 to December 31, 1958, which account may be found in detail in the individual
income tax return filed for the estate of deceased Linnie Jane Hodges, to wit:
 That a certified public accountant has examined the statement of net worth of the
estate of Linnie Jane Hodges, the assets and liabilities, as well as the income and
expenses, copy of which is hereto attached and made integral part of this statement
of account as Annex "A".

IN VIEW OF THE FOREGOING, it is most respectfully prayed that, the statement of

net worth of the estate of Linnie Jane Hodges, the assets and liabilities, income and
expenses as shown in the individual income tax return for the estate of the deceased
and marked as Annex "A", be approved by the Honorable Court, as substantial
compliance with the requirements of the Rules of Court.

That no person interested in the Philippines of the time and place of examining the
herein accounts be given notice, as herein executor is the only devisee or legatee of
the deceased, in accordance with the last will and testament already probated by the
Honorable court.

City of Iloilo April 14, 1959.

(Annex "I", Petition.)

The respondent court approved this statement of account on April 21, 1959 in its order worded thus:

Upon petition of Atty. Gellada, in representation of the Executor, the statement of net
worth of the estate of Linnie Jane Hodges, assets and liabilities, income and
expenses as shown in the individual income tax return for the estate of the deceased
and marked as Annex "A" is approved.

SO ORDERED.

City of Iloilo April 21, 1959.

(Annex "J", Petition.)

His accounts for the periods January 1, 1959 to December 31, 1959 and January 1, 1960 to
December 31, 1960 were submitted likewise accompanied by allegations identical mutatis
mutandis to those of April 14, 1959, quoted above; and the respective orders approving the same,
dated July 30, 1960 and May 2, 1961, were substantially identical to the above-quoted order of April
21, 1959. In connection with the statements of account just mentioned, the following assertions
related thereto made by respondent-appellee Magno in her brief do not appear from all indications
discernible in the record to be disputable:

Under date of April 14, 1959, C.N. Hodges filed his first "Account by the Executor" of
the estate of Linnie Jane Hodges. In the "Statement of Networth of Mr. C.N. Hodges
and the Estate of Linnie Jane Hodges" as of December 31, 1958 annexed thereto,
C.N. Hodges reported that the combined conjugal estate earned a net income of
P328,402.62, divided evenly between him and the estate of Linnie Jane Hodges.
Pursuant to this, he filed an "individual income tax return" for calendar year 1958 on
the estate of Linnie Jane Hodges reporting, under oath, the said estate as having
earned income of P164,201.31, exactly one-half of the net income of his combined
personal assets and that of the estate of Linnie Jane Hodges. (p. 91, Appellee's
Brief.)
 xxx xxx xxx

Under date of July 21, 1960, C.N. Hodges filed his second "Annual Statement of
Account by the Executor" of the estate of Linnie Jane Hodges. In the "Statement of
Networth of Mr. C.N. Hodges and the Estate of Linnie Jane Hodges" as of December
31, 1959 annexed thereto, C.N. Hodges reported that the combined conjugal estate
earned a net income of P270,623.32, divided evenly between him and the estate of
Linnie Jane Hodges. Pursuant to this, he filed an "individual income tax return" for
calendar year 1959 on the estate of Linnie Jane Hodges reporting, under oath, the
said estate as having earned income of P135,311.66, exactly one-half of the net
income of his combined personal assets and that of the estate of Linnie Jane
Hodges. (pp. 91-92. Appellee's Brief.)

xxx xxx xxx

Under date of April 20, 1961, C.N. Hodges filed his third "Annual Statement of
Account by the Executor for the Year 1960" of the estate of Linnie Jane Hodges. In
the "Statement of Net Worth of Mr. C.N. Hodges and the Estate of Linnie Jane
Hodges" as of December 31, 1960 annexed thereto, C.N. Hodges reported that the
combined conjugal estate earned a net income of P314,857.94, divided evenly
between him and the estate of Linnie Jane Hodges. Pursuant to this, he filed an
"individual income tax return" for calendar year 1960 on the estate of Linnie Jane
Hodges reporting, under oath, the said estate as having earned income of
P157,428.97, exactly one-half of the net income of his combined personal assets and
that of the estate of Linnie Jane Hodges. (Pp. 92-93, Appellee's Brief.)

Likewise the following:

In the petition for probate that he (Hodges) filed, he listed the seven brothers and
sisters of Linnie Jane as her "heirs" (see p. 2, Green ROA). The order of the court
admitting the will to probate unfortunately omitted one of the heirs, Roy Higdon (see
p. 14, Green ROA). Immediately, C.N. Hodges filed a verified motion to have Roy
Higdon's name included as an heir, stating that he wanted to straighten the records
"in order the heirs of deceased Roy Higdon may not think or believe they were
omitted, and that they were really and are interested in the estate of deceased Linnie
Jane Hodges. .

As an executor, he was bound to file tax returns for the estate he was administering
under American law. He did file such as estate tax return on August 8, 1958. In
Schedule "M" of such return, he answered "Yes" to the question as to whether he
was contemplating "renouncing the will". On the question as to what property
interests passed to him as the surviving spouse, he answered:

"None, except for purposes of administering the Estate, paying debts,

taxes and other legal charges. It is the intention of the surviving
husband of deceased to distribute the remaining property and
interests of the deceased in their Community estate to the devisees
and legatees named in the will when the debts, liabilities, taxes and
expenses of administration are finally determined and paid."
 Again, on August 9, 1962, barely four months before his death, he executed an
"affidavit" wherein he ratified and confirmed all that he stated in Schedule "M" of his
estate tax returns as to his having renounced what was given him by his wife's will.1

As appointed executor, C.N. Hodges filed an "Inventory" dated May 12, 1958. He
listed all the assets of his conjugal partnership with Linnie Jane Hodges on a
separate balance sheet and then stated expressly that her estate which has come
into his possession as executor was "one-half of all the items" listed in said balance
sheet. (Pp. 89-90, Appellee's Brief.)

Parenthetically, it may be stated, at this juncture, that We are taking pains to quote wholly or at least,
extensively from some of the pleadings and orders whenever We feel that it is necessary to do so for
a more comprehensive and clearer view of the important and decisive issues raised by the parties
and a more accurate appraisal of their respective positions in regard thereto.

The records of these cases do not show that anything else was done in the above-mentioned
Special Proceedings No. 1307 until December 26, 1962, when on account of the death of Hodges
the day before, the same lawyer, Atty. Leon P. Gellada, who had been previously acting as counsel
for Hodges in his capacity as Executor of his wife's estate, and as such had filed the aforequoted
motions and manifestations, filed the following:

URGENT EX-PARTE MOTION FOR THE APPOINTMENT OF A

SPECIAL ADMINISTRATRIX

COMES the undersigned attorney for the Executor in the above-entitled proceedings,
to the Honorable Court, most respectfully states:

1. That in accordance with the Last Will and Testament of Linnie Jane Hodges
(deceased), her husband, Charles Newton Hodges was to act as Executor, and in
fact, in an order issued by this Hon. Court dated June 28, 1957, the said Charles
Newton Hodges was appointed Executor and had performed the duties as such.

2. That last December 22, 1962, the said Charles Newton Hodges was stricken ill,
and brought to the Iloilo Mission Hospital for treatment, but unfortunately, he died on
December 25, 1962, as shown by a copy of the death certificate hereto attached and
marked as Annex "A".

3. That in accordance with the provisions of the last will and testament of Linnie Jane
Hodges, whatever real and personal properties that may remain at the death of her
husband Charles Newton Hodges, the said properties shall be equally divided among
their heirs. That there are real and personal properties left by Charles Newton
Hodges, which need to be administered and taken care of.

4. That the estate of deceased Linnie Jane Hodges, as well as that of Charles
Newton Hodges, have not as yet been determined or ascertained, and there is
necessity for the appointment of a general administrator to liquidate and distribute
the residue of the estate to the heirs and legatees of both spouses. That in
accordance with the provisions of Section 2 of Rule 75 of the Rules of Court, the
conjugal partnership of Linnie Jane Hodges and Charles Newton Hodges shall be
liquidated in the testate proceedings of the wife.
 5. That the undersigned counsel, has perfect personal knowledge of the existence of
the last will and testament of Charles Newton Hodges, with similar provisions as that
contained in the last will and testament of Linnie Jane Hodges. However, said last
will and testament of Charles Newton Hodges is kept inside the vault or iron safe in
his office, and will be presented in due time before this honorable Court.

6. That in the meantime, it is imperative and indispensable that, an Administratrix be

appointed for the estate of Linnie Jane Hodges and a Special Administratrix for the
estate of Charles Newton Hodges, to perform the duties required by law, to
administer, collect, and take charge of the goods, chattels, rights, credits, and estate
of both spouses, Charles Newton Hodges and Linnie Jane Hodges, as provided for
in Section 1 and 2, Rule 81 of the Rules of Court.

7. That there is delay in granting letters testamentary or of administration, because

the last will and testament of deceased, Charles Newton Hodges, is still kept in his
safe or vault, and in the meantime, unless an administratrix (and,) at the same time,
a Special Administratrix is appointed, the estate of both spouses are in danger of
being lost, damaged or go to waste.

8. That the most trusted employee of both spouses Linnie Jane Hodges and C.N.
Hodges, who had been employed for around thirty (30) years, in the person of Miss
Avelina Magno, (should) be appointed Administratrix of the estate of Linnie Jane
Hodges and at the same time Special Administratrix of the estate of Charles Newton
Hodges. That the said Miss Avelina Magno is of legal age, a resident of the
Philippines, the most fit, competent, trustworthy and well-qualified person to serve
the duties of Administratrix and Special Administratrix and is willing to act as such.

9. That Miss Avelina Magno is also willing to file bond in such sum which the Hon.
Court believes reasonable.

WHEREFORE, in view of all the foregoing, it is most respectfully prayed that, Miss
AVELINA A. MAGNO be immediately appointed Administratrix of the estate of Linnie
Jane Hodges and as Special Administratrix of the estate of Charles Newton Hodges,
with powers and duties provided for by law. That the Honorable Court fix the
reasonable bond of P1,000.00 to be filed by Avelina A. Magno.

(Annex "O", Petition.)

which respondent court readily acted on in its order of even date thus: .

For the reasons alleged in the Urgent Ex-parte Motion filed by counsel for the
Executor dated December 25, 1962, which the Court finds meritorious, Miss
AVELINA A. MAGNO, is hereby appointed Administratrix of the estate of Linnie Jane
Hodges and as Special Administratrix of the estate of Charles Newton Hodges, in the
latter case, because the last will of said Charles Newton Hodges is still kept in his
vault or iron safe and that the real and personal properties of both spouses may be
lost, damaged or go to waste, unless a Special Administratrix is appointed.

Miss Avelina A. Magno is required to file bond in the sum of FIVE THOUSAND
PESOS (P5,000.00), and after having done so, let letters of Administration be issued
to her." (Annex "P", Petition.)
 On December 29, 1962, however, upon urgent ex-parte petition of respondent
Magno herself, thru Atty. Gellada, Harold, R. Davies, "a representative of the heirs of
deceased Charles Newton Hodges (who had) arrived from the United States of
America to help in the administration of the estate of said deceased" was appointed
as Co-Special Administrator of the estate of Hodges, (pp. 29-33, Yellow - Record on
Appeal) only to be replaced as such co-special administrator on January 22, 1963 by
Joe Hodges, who, according to the motion of the same attorney, is "the nephew of
the deceased (who had) arrived from the United States with instructions from the
other heirs of the deceased to administer the properties or estate of Charles Newton
Hodges in the Philippines, (Pp. 47-50, id.)

Meanwhile, under date of January 9, 1963, the same Atty. Gellada filed in Special Proceedings 1672
a petition for the probate of the will of Hodges,2 with a prayer for the issuance of letters of
administration to the same Joe Hodges, albeit the motion was followed on February 22, 1963 by a
separate one asking that Atty. Fernando Mirasol be appointed as his co-administrator. On the same
date this latter motion was filed, the court issued the corresponding order of probate and letters of
administration to Joe Hodges and Atty. Mirasol, as prayed for.

At this juncture, again, it may also be explained that just as, in her will, Mrs. Hodges bequeathed her
whole estate to her husband "to have and to hold unto him, my said husband, during his natural
lifetime", she, at the same time or in like manner, provided that "at the death of my said husband — I
give devise and bequeath all of the rest, residue and remainder of my estate, both real and personal,
wherever situated or located, to be equally divided among my brothers and sisters, share and share
alike —". Accordingly, it became incumbent upon Hodges, as executor of his wife's will, to duly
liquidate the conjugal partnership, half of which constituted her estate, in order that upon the
eventuality of his death, "the rest, residue and remainder" thereof could be determined and
correspondingly distributed or divided among her brothers and sisters. And it was precisely because
no such liquidation was done, furthermore, there is the issue of whether the distribution of her estate
should be governed by the laws of the Philippines or those of Texas, of which State she was a
national, and, what is more, as already stated, Hodges made official and sworn statements or
manifestations indicating that as far as he was concerned no "property interests passed to him as
surviving spouse — "except for purposes of administering the estate, paying debts, taxes and other
legal charges" and it was the intention of the surviving husband of the deceased to distribute the
remaining property and interests of the deceased in their Community Estate to the devisees and
legatees named in the will when the debts, liabilities, taxes and expenses of administration are finally
determined and paid", that the incidents and controversies now before Us for resolution arose. As
may be observed, the situation that ensued upon the death of Hodges became rather unusual and
so, quite understandably, the lower court's actuations presently under review are apparently wanting
in consistency and seemingly lack proper orientation.

Thus, We cannot discern clearly from the record before Us the precise perspective from which the
trial court proceeded in issuing its questioned orders. And, regretably, none of the lengthy briefs
submitted by the parties is of valuable assistance in clearing up the matter.

To begin with, We gather from the two records on appeal filed by petitioner, as appellant in the
appealed cases, one with green cover and the other with a yellow cover, that at the outset, a sort of
modus operandi had been agreed upon by the parties under which the respective administrators of
the two estates were supposed to act conjointly, but since no copy of the said agreement can be
found in the record before Us, We have no way of knowing when exactly such agreement was
entered into and under what specific terms. And while reference is made to said modus operandi in
the order of September 11, 1964, on pages 205-206 of the Green Record on Appeal, reading thus:
 The present incident is to hear the side of administratrix, Miss Avelina A. Magno, in
answer to the charges contained in the motion filed by Atty. Cesar Tirol on
September 3, 1964. In answer to the said charges, Miss Avelina A. Magno, through
her counsel, Atty. Rizal Quimpo, filed a written manifestation.

After reading the manifestation here of Atty. Quimpo, for and in behalf of the
administratrix, Miss Avelina A. Magno, the Court finds that everything that happened
before September 3, 1964, which was resolved on September 8, 1964, to the
satisfaction of parties, was simply due to a misunderstanding between the
representative of the Philippine Commercial and Industrial Bank and Miss Magno
and in order to restore the harmonious relations between the parties, the Court
ordered the parties to remain in status quo as to their modus operandi before
September 1, 1964, until after the Court can have a meeting with all the parties and
their counsels on October 3, as formerly agreed upon between counsels, Attys.
Ozaeta, Gibbs and Ozaeta, Attys. Tirol and Tirol and Atty. Rizal Quimpo.

In the meantime, the prayers of Atty. Quimpo as stated in his manifestation shall not
be resolved by this Court until October 3, 1964.

SO ORDERED.

there is nothing in the record indicating whatever happened to it afterwards, except that again,
reference thereto was made in the appealed order of October 27, 1965, on pages 292-295 of the
Green Record on Appeal, as follows:

On record is an urgent motion to allow PCIB to open all doors and locks in the
Hodges Office at 206-208 Guanco Street, Iloilo City, to take immediate and exclusive
possession thereof and to place its own locks and keys for security purposes of the
PCIB dated October 27, 1965 thru Atty. Cesar Tirol. It is alleged in said urgent
motion that Administratrix Magno of the testate estate of Linnie Jane Hodges refused
to open the Hodges Office at 206-208 Guanco Street, Iloilo City where PCIB holds
office and therefore PCIB is suffering great moral damage and prejudice as a result
of said act. It is prayed that an order be issued authorizing it (PCIB) to open all doors
and locks in the said office, to take immediate and exclusive possession thereof and
place thereon its own locks and keys for security purposes; instructing the clerk of
court or any available deputy to witness and supervise the opening of all doors and
locks and taking possession of the PCIB.

A written opposition has been filed by Administratrix Magno of even date (Oct. 27)
thru counsel Rizal Quimpo stating therein that she was compelled to close the office
for the reason that the PCIB failed to comply with the order of this Court signed by
Judge Anacleto I. Bellosillo dated September 11, 1964 to the effect that both estates
should remain in status quo to their modus operandi as of September 1, 1964.

To arrive at a happy solution of the dispute and in order not to interrupt the operation
of the office of both estates, the Court aside from the reasons stated in the urgent
motion and opposition heard the verbal arguments of Atty. Cesar Tirol for the PCIB
and Atty. Rizal Quimpo for Administratix Magno.

After due consideration, the Court hereby orders Magno to open all doors and locks
in the Hodges Office at 206-208 Guanco Street, Iloilo City in the presence of the
PCIB or its duly authorized representative and deputy clerk of court Albis of this
 branch not later than 7:30 tomorrow morning October 28, 1965 in order that the office
of said estates could operate for business.

Pursuant to the order of this Court thru Judge Bellosillo dated September 11, 1964, it
is hereby ordered:

(a) That all cash collections should be deposited in the joint account of the estates of
Linnie Jane Hodges and estates of C.N. Hodges;

(b) That whatever cash collections that had been deposited in the account of either of
the estates should be withdrawn and since then deposited in the joint account of the
estate of Linnie Jane Hodges and the estate of C.N. Hodges;

(c) That the PCIB should countersign the check in the amount of P250 in favor of
Administratrix Avelina A. Magno as her compensation as administratrix of the Linnie
Jane Hodges estate chargeable to the testate estate of Linnie Jane Hodges only;

(d) That Administratrix Magno is hereby directed to allow the PCIB to inspect
whatever records, documents and papers she may have in her possession in the
same manner that Administrator PCIB is also directed to allow Administratrix Magno
to inspect whatever records, documents and papers it may have in its possession;

(e) That the accountant of the estate of Linnie Jane Hodges shall have access to all
records of the transactions of both estates for the protection of the estate of Linnie
Jane Hodges; and in like manner the accountant or any authorized representative of
the estate of C.N. Hodges shall have access to the records of transactions of the
Linnie Jane Hodges estate for the protection of the estate of C.N. Hodges.

Once the estates' office shall have been opened by Administratrix Magno in the
presence of the PCIB or its duly authorized representative and deputy clerk Albis or
his duly authorized representative, both estates or any of the estates should not
close it without previous consent and authority from this court.

SO ORDERED.

As may be noted, in this order, the respondent court required that all collections from the properties
in the name of Hodges should be deposited in a joint account of the two estates, which indicates that
seemingly the so-called modus operandi was no longer operative, but again there is nothing to show
when this situation started.

Likewise, in paragraph 3 of the petitioner's motion of September 14, 1964, on pages 188-201 of the
Green Record on Appeal, (also found on pp. 83-91 of the Yellow Record on Appeal) it is alleged
that:

3. On January 24, 1964 virtually all of the heirs of C.N. Hodges, Joe Hodges and
Fernando P. Mirasol acting as the two co-administrators of the estate of C.N.
Hodges, Avelina A. Magno acting as the administratrix of the estate of Linnie Jane
Hodges and Messrs. William Brown and Ardell Young acting for all of the Higdon
family who claim to be the sole beneficiaries of the estate of Linnie Jane Hodges and
various legal counsel representing the aforementioned parties entered into an
amicable agreement, which was approved by this Honorable Court, wherein the
 parties thereto agreed that certain sums of money were to be paid in settlement of
different claims against the two estates and that the assets (to the extent they
existed) of both estates would be administered jointly by the PCIB as administrator of
the estate of C.N. Hodges and Avelina A. Magno as administratrix of the estate of
Linnie Jane Hodges, subject, however, to the aforesaid October 5, 1963 Motion,
namely, the PCIB's claim to exclusive possession and ownership of one hundred
percent (100%) (or, in the alternative, seventy-five percent (75%) of all assets owned
by C.N. Hodges or Linnie Jane Hodges situated in the Philippines. On February 1,
1964 (pp. 934-935, CFI Rec., S.P. No. 1672) this Honorable Court amended its order
of January 24, 1964 but in no way changed its recognition of the afore-described
basic demand by the PCIB as administrator of the estate of C.N. Hodges to one
hundred percent (100%) of the assets claimed by both estates.

but no copy of the mentioned agreement of joint administration of the two estates exists in the
record, and so, We are not informed as to what exactly are the terms of the same which could be
relevant in the resolution of the issues herein.

On the other hand, the appealed order of November 3, 1965, on pages 313-320 of the Green
Record on Appeal, authorized payment by respondent Magno of, inter alia, her own fees as
administratrix, the attorney's fees of her lawyers, etc., as follows:

Administratrix Magno thru Attys. Raul S. Manglapus and Rizal. R. Quimpo filed a
Manifestation and Urgent Motion dated June 10, 1964 asking for the approval of the
Agreement dated June 6, 1964 which Agreement is for the purpose of retaining their
services to protect and defend the interest of the said Administratrix in these
proceedings and the same has been signed by and bears the express conformity of
the attorney-in-fact of the late Linnie Jane Hodges, Mr. James L. Sullivan. It is further
prayed that the Administratrix of the Testate Estate of Linnie Jane Hodges be
directed to pay the retailers fee of said lawyers, said fees made chargeable as
expenses for the administration of the estate of Linnie Jane Hodges (pp. 1641-1642,
Vol. V, Sp. 1307).

An opposition has been filed by the Administrator PCIB thru Atty. Herminio Ozaeta
dated July 11, 1964, on the ground that payment of the retainers fee of Attys.
Manglapus and Quimpo as prayed for in said Manifestation and Urgent Motion is
prejudicial to the 100% claim of the estate of C. N. Hodges; employment of Attys.
Manglapus and Quimpo is premature and/or unnecessary; Attys. Quimpo and
Manglapus are representing conflicting interests and the estate of Linnie Jane
Hodges should be closed and terminated (pp. 1679-1684, Vol, V, Sp. 1307).

Atty. Leon P. Gellada filed a memorandum dated July 28, 1964 asking that the
Manifestation and Urgent Motion filed by Attys. Manglapus and Quimpo be denied
because no evidence has been presented in support thereof. Atty. Manglapus filed a
reply to the opposition of counsel for the Administrator of the C. N. Hodges estate
wherein it is claimed that expenses of administration include reasonable counsel or
attorney's fees for services to the executor or administrator. As a matter of fact the
fee agreement dated February 27, 1964 between the PCIB and the law firm of
Ozaeta, Gibbs & Ozaeta as its counsel (Pp. 1280-1284, Vol. V, Sp. 1307) which
stipulates the fees for said law firm has been approved by the Court in its order dated
March 31, 1964. If payment of the fees of the lawyers for the administratrix of the
estate of Linnie Jane Hodges will cause prejudice to the estate of C. N. Hodges, in
like manner the very agreement which provides for the payment of attorney's fees to
the counsel for the PCIB will also be prejudicial to the estate of Linnie Jane Hodges
(pp. 1801-1814, Vol. V, Sp. 1307).

Atty. Herminio Ozaeta filed a rejoinder dated August 10, 1964 to the reply to the
opposition to the Manifestation and Urgent Motion alleging principally that the estates
of Linnie Jane Hodges and C. N. Hodges are not similarly situated for the reason that
C. N. Hodges is an heir of Linnie Jane Hodges whereas the latter is not an heir of the
former for the reason that Linnie Jane Hodges predeceased C. N. Hodges (pp. 1839-
1848, Vol. V, Sp. 1307); that Attys. Manglapus and Quimpo formally entered their
appearance in behalf of Administratrix of the estate of Linnie Jane Hodges on June
10, 1964 (pp. 1639-1640, Vol. V, Sp. 1307).

Atty. Manglapus filed a manifestation dated December 18, 1964 stating therein that
Judge Bellosillo issued an order requiring the parties to submit memorandum in
support of their respective contentions. It is prayed in this manifestation that the
Manifestation and Urgent Motion dated June 10, 1964 be resolved (pp. 6435-6439,
Vol. VII, Sp. 1307).

Atty. Roman Mabanta, Jr. for the PCIB filed a counter- manifestation dated January
5, 1965 asking that after the consideration by the court of all allegations and
arguments and pleadings of the PCIB in connection therewith (1) said manifestation
and urgent motion of Attys. Manglapus and Quimpo be denied (pp. 6442-6453, Vol.
VII, Sp. 1307). Judge Querubin issued an order dated January 4, 1965 approving the
motion dated June 10, 1964 of the attorneys for the administratrix of the estate of
Linnie Jane Hodges and agreement annexed to said motion. The said order further
states: "The Administratrix of the estate of Linnie Jane Hodges is authorized to issue
or sign whatever check or checks may be necessary for the above purpose and the
administrator of the estate of C. N. Hodges is ordered to countersign the same. (pp.
6518-6523, Vol VII, Sp. 1307).

Atty. Roman Mabanta, Jr. for the PCIB filed a manifestation and motion dated
January 13, 1965 asking that the order of January 4, 1965 which was issued by
Judge Querubin be declared null and void and to enjoin the clerk of court and the
administratrix and administrator in these special proceedings from all proceedings
and action to enforce or comply with the provision of the aforesaid order of January
4, 1965. In support of said manifestation and motion it is alleged that the order of
January 4, 1965 is null and void because the said order was never delivered to the
deputy clerk Albis of Branch V (the sala of Judge Querubin) and the alleged order
was found in the drawer of the late Judge Querubin in his office when said drawer
was opened on January 13, 1965 after the death of Judge Querubin by Perfecto
Querubin, Jr., the son of the judge and in the presence of Executive Judge Rovira
and deputy clerk Albis (Sec. 1, Rule 36, New Civil Code) (Pp. 6600-6606, Vol. VIII,
Sp. 1307).

Atty. Roman Mabanta, Jr. for the PCIB filed a motion for reconsideration dated
February 23, 1965 asking that the order dated January 4, 1964 be reversed on the
ground that:

1. Attorneys retained must render services to the estate not to the personal heir;

2. If services are rendered to both, fees should be pro-rated between them;

 3. Attorneys retained should not represent conflicting interests; to the prejudice of the
other heirs not represented by said attorneys;

4. Fees must be commensurate to the actual services rendered to the estate;

5. There must be assets in the estate to pay for said fees (Pp. 6625-6636, Vol. VIII,
Sp. 1307).

Atty. Quimpo for Administratrix Magno of the estate of Linnie Jane Hodges filed a
motion to submit dated July 15, 1965 asking that the manifestation and urgent motion
dated June 10, 1964 filed by Attys. Manglapus and Quimpo and other incidents
directly appertaining thereto be considered submitted for consideration and approval
(pp. 6759-6765, Vol. VIII, Sp. 1307).

Considering the arguments and reasons in support to the pleadings of both the
Administratrix and the PCIB, and of Atty. Gellada, hereinbefore mentioned, the Court
believes that the order of January 4, 1965 is null and void for the reason that the said
order has not been filed with deputy clerk Albis of this court (Branch V) during the
lifetime of Judge Querubin who signed the said order. However, the said
manifestation and urgent motion dated June 10, 1964 is being treated and
considered in this instant order. It is worthy to note that in the motion dated January
24, 1964 (Pp. 1149- 1163, Vol. V, Sp. 1307) which has been filed by Atty. Gellada
and his associates and Atty. Gibbs and other lawyers in addition to the stipulated
fees for actual services rendered. However, the fee agreement dated February 27,
1964, between the Administrator of the estate of C. N. Hodges and Atty. Gibbs which
provides for retainer fee of P4,000 monthly in addition to specific fees for actual
appearances, reimbursement for expenditures and contingent fees has also been
approved by the Court and said lawyers have already been paid. (pp. 1273-1279,
Vol. V, Sp. Proc. 1307 pp. 1372-1373, Vol. V, Sp. Proc. 1307).

WHEREFORE, the order dated January 4, 1965 is hereby declared null and void.

The manifestation and motion dated June 10, 1964 which was filed by the attorneys
for the administratrix of the testate estate of Linnie Jane Hodges is granted and the
agreement annexed thereto is hereby approved.

The administratrix of the estate of Linnie Jane Hodges is hereby directed to be

needed to implement the approval of the agreement annexed to the motion and the
administrator of the estate of C. N. Hodges is directed to countersign the said check
or checks as the case may be.

SO ORDERED.

thereby implying somehow that the court assumed the existence of independent but simultaneous
administrations.

Be that as it may, again, it appears that on August 6, 1965, the court, acting on a motion of petitioner
for the approval of deeds of sale executed by it as administrator of the estate of Hodges, issued the
following order, also on appeal herein:
 Acting upon the motion for approval of deeds of sale for registered land of the PCIB,
Administrator of the Testate Estate of C. N. Hodges in Sp. Proc. 1672 (Vol. VII, pp.
2244-2245), dated July 16, 1965, filed by Atty. Cesar T. Tirol in representation of the
law firms of Ozaeta, Gibbs and Ozaeta and Tirol and Tirol and the opposition thereto
of Atty. Rizal R. Quimpo (Vol. VIII, pp. 6811-6813) dated July 22, 1965 and
considering the allegations and reasons therein stated, the court believes that the
deeds of sale should be signed jointly by the PCIB, Administrator of the Testate
Estate of C. N. Hodges and Avelina A. Magno, Administratrix of the Testate Estate of
Linnie Jane Hodges and to this effect the PCIB should take the necessary steps so
that Administratrix Avelina A. Magno could sign the deeds of sale.

SO ORDERED. (p. 248, Green Record on Appeal.)

Notably this order required that even the deeds executed by petitioner, as administrator of the Estate
of Hodges, involving properties registered in his name, should be co-signed by respondent
Magno.3 And this was not an isolated instance.

In her brief as appellee, respondent Magno states:

After the lower court had authorized appellee Avelina A. Magno to execute final
deeds of sale pursuant to contracts to sell executed by C. N. Hodges on February
20, 1963 (pp. 45-46, Green ROA), motions for the approval of final deeds of sale
(signed by appellee Avelina A. Magno and the administrator of the estate of C. N.
Hodges, first Joe Hodges, then Atty. Fernando Mirasol and later the appellant) were
approved by the lower court upon petition of appellee Magno's counsel, Atty. Leon P.
Gellada, on the basis of section 8 of Rule 89 of the Revised Rules of Court.
Subsequently, the appellant, after it had taken over the bulk of the assets of the two
estates, started presenting these motions itself. The first such attempt was a "Motion
for Approval of Deeds of Sale for Registered Land and Cancellations of Mortgages"
dated July 21, 1964 filed by Atty. Cesar T. Tirol, counsel for the appellant, thereto
annexing two (2) final deeds of sale and two (2) cancellations of mortgages signed
by appellee Avelina A. Magno and D. R. Paulino, Assistant Vice-President and
Manager of the appellant (CFI Record, Sp. Proc. No. 1307, Vol. V, pp. 1694-1701).
This motion was approved by the lower court on July 27, 1964. It was followed by
another motion dated August 4, 1964 for the approval of one final deed of sale again
signed by appellee Avelina A. Magno and D. R. Paulino (CFI Record, Sp. Proc. No.
1307. Vol. V, pp. 1825-1828), which was again approved by the lower court on
August 7, 1964. The gates having been opened, a flood ensued: the appellant
subsequently filed similar motions for the approval of a multitude of deeds of sales
and cancellations of mortgages signed by both the appellee Avelina A. Magno and
the appellant.

A random check of the records of Special Proceeding No. 1307 alone will show Atty.
Cesar T. Tirol as having presented for court approval deeds of sale of real properties
signed by both appellee Avelina A. Magno and D. R. Paulino in the following
numbers: (a) motion dated September 21, 1964 — 6 deeds of sale; (b) motion dated
November 4, 1964 — 1 deed of sale; (c) motion dated December 1, 1964 — 4 deeds
of sale; (d) motion dated February 3, 1965 — 8 deeds of sale; (f) motion dated May
7, 1965 — 9 deeds of sale. In view of the very extensive landholdings of the Hodges
spouses and the many motions filed concerning deeds of sale of real properties
executed by C. N. Hodges the lower court has had to constitute special separate
 expedientes in Special Proceedings Nos. 1307 and 1672 to include mere motions for
the approval of deeds of sale of the conjugal properties of the Hodges spouses.

As an example, from among the very many, under date of February 3, 1965, Atty.
Cesar T. Tirol, as counsel for the appellant, filed "Motion for Approval of Deeds of
Sale for Registered Land and Cancellations of Mortgages" (CFI Record, Sp. Proc.
No. 1307, Vol. VIII, pp. 6570-6596) the allegations of which read:

"1. In his lifetime, the late C. N. Hodges executed "Contracts to Sell" real property,
and the prospective buyers under said contracts have already paid the price and
complied with the terms and conditions thereof;

"2. In the course of administration of both estates, mortgage debtors have already
paid their debts secured by chattel mortgages in favor of the late C. N. Hodges, and
are now entitled to release therefrom;

"3. There are attached hereto documents executed jointly by the Administratrix in Sp.
Proc. No. 1307 and the Administrator in Sp. Proc. No. 1672, consisting of deeds of
sale in favor —

Fernando Cano, Bacolod City, Occ. Negros

Fe Magbanua, Iloilo City
Policarpio M. Pareno, La Paz, Iloilo City
Rosario T. Libre, Jaro, Iloilo City
Federico B. Torres, Iloilo City
Reynaldo T. Lataquin, La Paz, Iloilo City
Anatolio T. Viray, Iloilo City
Benjamin Rolando, Jaro, Iloilo City

and cancellations of mortgages in favor of —

Pablo Manzano, Oton, Iloilo

Ricardo M. Diana, Dao, San Jose, Antique
Simplicio Tingson, Iloilo City
Amado Magbanua, Pototan, Iloilo
Roselia M. Baes, Bolo, Roxas City
William Bayani, Rizal Estanzuela, Iloilo City
Elpidio Villarete, Molo, Iloilo City
Norma T. Ruiz, Jaro, Iloilo City

"4. That the approval of the aforesaid documents will not reduce the
assets of the estates so as to prevent any creditor from receiving his
full debt or diminish his dividend."

And the prayer of this motion is indeed very revealing:

"WHEREFORE, it is respectfully prayed that, under Rule 89, Section 8 of the Rules
of Court, this honorable court approve the aforesaid deeds of sale and cancellations
of mortgages." (Pp. 113-117, Appellee's Brief.)

None of these assertions is denied in Petitioner's reply brief.

Further indicating lack of concrete perspective or orientation on the part of the respondent court and
its hesitancy to clear up matters promptly, in its other appealed order of November 23, 1965, on
pages 334-335 of the Green Record on Appeal, said respondent court allowed the movant Ricardo
Salas, President of appellee Western Institute of Technology (successor of Panay Educational
Institutions, Inc.), one of the parties with whom Hodges had contracts that are in question in the
appeals herein, to pay petitioner, as Administrator of the estate of Hodges and/or respondent
Magno, as Administrator of the estate of Mrs. Hodges, thus:

Considering that in both cases there is as yet no judicial declaration of heirs nor
distribution of properties to whomsoever are entitled thereto, the Court believes that
payment to both the administrator of the testate estate of C. N. Hodges and the
administratrix of the testate estate of Linnie Jane Hodges or to either one of the two
estates is proper and legal.

WHEREFORE, movant Ricardo T. Salas can pay to both estates or either of them.

SO ORDERED.

(Pp. 334-335, Green Record on Appeal.)

On the other hand, as stated earlier, there were instances when respondent Magno was given
authority to act alone. For instance, in the other appealed order of December 19, 1964, on page 221
of the Green Record on Appeal, the respondent court approved payments made by her of overtime
pay to some employees of the court who had helped in gathering and preparing copies of parts of
the records in both estates as follows:

Considering that the expenses subject of the motion to approve payment of overtime
pay dated December 10, 1964, are reasonable and are believed by this Court to be a
proper charge of administration chargeable to the testate estate of the late Linnie
Jane Hodges, the said expenses are hereby APPROVED and to be charged against
the testate estate of the late Linnie Jane Hodges. The administrator of the testate
estate of the late Charles Newton Hodges is hereby ordered to countersign the check
or checks necessary to pay the said overtime pay as shown by the bills marked
Annex "A", "B" and "C" of the motion.

SO ORDERED.

(Pp. 221-222, Green Record on Appeal.)

Likewise, the respondent court approved deeds of sale executed by respondent Magno alone, as
Administratrix of the estate of Mrs. Hodges, covering properties in the name of Hodges, pursuant to
"contracts to sell" executed by Hodges, irrespective of whether they were executed by him before or
after the death of his wife. The orders of this nature which are also on appeal herein are the
following:

1. Order of March 30, 1966, on p. 137 of the Green Record on Appeal, approving the deed of sale
executed by respondent Magno in favor of appellee Lorenzo Carles on February 24, 1966, pursuant
to a "contract to sell" signed by Hodges on June 17, 1958, after the death of his wife, which contract
petitioner claims was cancelled by it for failure of Carles to pay the installments due on January 7,
1965.
2. Order of April 5, 1966, on pp. 139-140, id., approving the deed of sale executed by respondent
Magno in favor of appellee Salvador Guzman on February 28, 1966 pursuant to a "contract to sell"
signed by Hodges on September 13, 1960, after the death of his wife, which contract petitioner
claims it cancelled on March 3, 1965 in view of failure of said appellee to pay the installments on
time.

3. Order of April 20, 1966, on pp. 167-168, id., approving the deed of sale executed by respondent
Magno in favor of appellee Purificacion Coronado on March 28, 1966 pursuant to a "contract to sell"
signed by Hodges on August 14, 1961, after the death of his wife.

4. Order of April 20, 1966, on pp. 168-169, id., approving the deed of sale executed by respondent
Magno in favor of appellee Florenia Barrido on March 28, 1966, pursuant to a "contract to sell"
signed by Hodges on February 21, 1958, after the death of his wife.

5. Order of June 7, 1966, on pp. 184-185, id., approving the deed of sale executed by respondent
Magno in favor of appellee Belcezar Causing on May 2, 1966, pursuant to a "contract to sell" signed
by Hodges on February 10, 1959, after the death of his wife.

6. Order of June 21, 1966, on pp. 211-212, id., approving the deed of sale executed by respondent
Magno in favor of appellee Artheo Thomas Jamir on June 3, 1966, pursuant to a "contract to sell"
signed by Hodges on May 26, 1961, after the death of his wife.

7. Order of June 21, 1966, on pp. 212-213, id., approving the deed of sale executed by respondent
Magno in favor of appellees Graciano Lucero and Melquiades Batisanan on June 6 and June 3,
1966, respectively, pursuant to "contracts to sell" signed by Hodges on June 9, 1959 and November
27, 1961, respectively, after the death of his wife.

8. Order of December 2, 1966, on pp. 303-304, id., approving the deed of sale executed by
respondent Magno in favor of appellees Espiridion Partisala, Winifredo Espada and Rosario
Alingasa on September 6, 1966, August 17, 1966 and August 3, 1966, respectively, pursuant to
"contracts to sell" signed by Hodges on April 20, 1960, April 18, 1960 and August 25, 1958,
respectively, that is, after the death of his wife.

9. Order of April 5, 1966, on pp. 137-138, id., approving the deed of sale executed by respondent
Magno in favor of appellee Alfredo Catedral on March 2, 1966, pursuant to a "contract to sell" signed
by Hodges on May 29, 1954, before the death of his wife, which contract petitioner claims it had
cancelled on February 16, 1966 for failure of appellee Catedral to pay the installments due on time.

10. Order of April 5, 1966, on pp. 138-139, id., approving the deed of sale executed by respondent
Magno in favor of appellee Jose Pablico on March 7, 1966, pursuant to a "contract to sell" signed by
Hodges on March 7, 1950, after the death of his wife, which contract petitioner claims it had
cancelled on June 29, 1960, for failure of appellee Pablico to pay the installments due on time.

11. Order of December 2, 1966, on pp. 303-304, id., insofar as it approved the deed of sale
executed by respondent Magno in favor of appellee Pepito Iyulores on September 6, 1966, pursuant
to a "contract to sell" signed by Hodges on February 5, 1951, before the death of his wife.

12. Order of January 3, 1967, on pp. 335-336, id., approving three deeds of sale executed by
respondent Magno, one in favor of appellees Santiago Pacaonsis and two in favor of appellee Adelfa
Premaylon on December 5, 1966 and November 3, 1966, respectively, pursuant to separate
"promises to sell" signed respectively by Hodges on May 26, 1955 and January 30, 1954, before the
death of his wife, and October 31, 1959, after her death.
In like manner, there were also instances when respondent court approved deeds of sale executed
by petitioner alone and without the concurrence of respondent Magno, and such approvals have not
been the subject of any appeal. No less than petitioner points this out on pages 149-150 of its brief
as appellant thus:

The points of fact and law pertaining to the two abovecited assignments of error have
already been discussed previously. In the first abovecited error, the order alluded to
was general, and as already explained before, it was, as admitted by the lower court
itself, superseded by the particular orders approving specific final deeds of sale
executed by the appellee, Avelina A. Magno, which are subject of this appeal, as well
as the particular orders approving specific final deeds of sale executed by the
appellant, Philippine Commercial and Industrial Bank, which were never appealed by
the appellee, Avelina A. Magno, nor by any party for that matter, and which are now
therefore final.

Now, simultaneously with the foregoing incidents, others of more fundamental and all embracing
significance developed. On October 5, 1963, over the signature of Atty. Allison J. Gibbs in
representation of the law firm of Ozaeta, Gibbs & Ozaeta, as counsel for the co-administrators Joe
Hodges and Fernando P. Mirasol, the following self-explanatory motion was filed:

URGENT MOTION FOR AN ACCOUNTING AND DELIVERY TO

ADMINISTRATION OF THE ESTATE OF C. N. HODGES OF ALL
OF THE ASSETS OF THE CONJUGAL PARTNERSHIP OF THE
DECEASED LINNIE JANE HODGES AND C N. HODGES EXISTING
AS OF MAY 23, 1957 PLUS ALL THE RENTS, EMOLUMENTS AND
INCOME THEREFROM.

COMES NOW the co-administrator of the estate of C. N. Hodges, Joe Hodges,

through his undersigned attorneys in the above-entitled proceedings, and to this
Honorable Court respectfully alleges:

(1) On May 23, 1957 Linnie Jane Hodges died in Iloilo City.

(2) On June 28, 1957 this Honorable Court admitted to probate the Last Will and
Testament of the deceased Linnie Jane Hodges executed November 22, 1952 and
appointed C. N. Hodges as Executor of the estate of Linnie Jane Hodges (pp. 24-25,
Rec. Sp. Proc. 1307).

(3) On July 1, 1957 this Honorable Court issued Letters Testamentary to C. N.

Hodges in the Estate of Linnie Jane Hodges (p. 30, Rec. Sp. Proc. 1307).

(4) On December 14, 1957 this Honorable Court, on the basis of the following
allegations in a Motion dated December 11, 1957 filed by Leon P. Gellada as
attorney for the executor C. N. Hodges:

"That herein Executor, (is) not only part owner of the properties left as
conjugal, but also, the successor to all the properties left by the
deceased Linnie Jane Hodges."

(p. 44, Rec. Sp. Proc. 1307; emphasis supplied.)

issued the following order:

"As prayed for by Attorney Gellada, counsel for the Executory, for the
reasons stated in his motion dated December 11, 1957 which the
court considers well taken, all the sales, conveyances, leases and
mortgages of all properties left by the deceased Linnie Jane Hodges
are hereby APPROVED. The said executor is further authorized to
execute subsequent sales, conveyances, leases and mortgages of
the properties left by the said deceased Linnie Jane Hodges in
consonance with the wishes contained in the last will and testament
of the latter."

(p. 46, Rec. Sp. Proc. 1307; emphasis supplied.)

(5) On April 21, 1959 this Honorable Court approved the inventory and accounting
submitted by C. N. Hodges through his counsel Leon P. Gellada on April 14, 1959
wherein he alleged among other things

"That no person interested in the Philippines of the time and place of

examining the herein account, be given notice, as herein executor is
the only devisee or legatee of the deceased, in accordance with the
last will and testament already probated by the Honorable Court."

(pp. 77-78, Rec. Sp. Proc. 1307; emphasis supplied.).

(6) On July 30, 1960 this Honorable Court approved the "Annual Statement of
Account" submitted by C. N. Hodges through his counsel Leon P. Gellada on July 21,
1960 wherein he alleged among other things:

"That no person interested in the Philippines of the time and place of

examining the herein account, be given notice as herein executor is
the only devisee or legatee of the deceased Linnie Jane Hodges, in
accordance with the last will and testament of the deceased, already
probated by this Honorable Court."

(pp. 81-82. Rec. Sp. Proc. 1307; emphasis supplied.)

(7) On May 2, 1961 this Honorable court approved the "Annual Statement of Account
By The Executor for the Year 1960" submitted through Leon P. Gellada on April 20,
1961 wherein he alleged:

That no person interested in the Philippines be given notice, of the

time and place of examining the herein account, as herein Executor is
the only devisee or legatee of the deceased Linnie Jane Hodges, in
accordance with the last will and testament of the deceased, already
probated by this Honorable Court.

(pp. 90-91. Rec. Sp. Proc. 1307; emphasis supplied.)

(8) On December 25, 1962, C.N. Hodges died.

(9) On December 25, 1962, on the Urgent Ex-parte Motion of Leon P. Gellada filed
only in Special Proceeding No. 1307, this Honorable Court appointed Avelina A.
Magno

"Administratrix of the estate of Linnie Jane Hodges and as Special Administratrix of

the estate of Charles Newton Hodges, in the latter case, because the last will of said
Charles Newton Hodges is still kept in his vault or iron safe and that the real and
personal properties of both spouses may be lost, damaged or go to waste, unless a
Special Administratrix is appointed."

(p. 100. Rec. Sp. Proc. 1307)

(10) On December 26, 1962 Letters of Administration were issued to Avelina Magno
pursuant to this Honorable Court's aforesaid Order of December 25, 1962

"With full authority to take possession of all the property of said

deceased in any province or provinces in which it may be situated
and to perform all other acts necessary for the preservation of said
property, said Administratrix and/or Special Administratrix having filed
a bond satisfactory to the Court."

(p. 102, Rec. Sp. Proc. 1307)

(11) On January 22, 1963 this Honorable Court on petition of Leon P. Gellada of
January 21, 1963 issued Letters of Administration to:

(a) Avelina A. Magno as Administratrix of the estate of Linnie Jane Hodges;

(b) Avelina A. Magno as Special Administratrix of the Estate of Charles Newton

Hodges; and

(c) Joe Hodges as Co-Special Administrator of the Estate of Charles Newton

Hodges.

(p. 43, Rec. Sp. Proc. 1307)

(12) On February 20, 1963 this Honorable Court on the basis of a motion filed by
Leon P. Gellada as legal counsel on February 16, 1963 for Avelina A. Magno acting
as Administratrix of the Estate of Charles Newton Hodges (pp. 114-116, Sp. Proc.
1307) issued the following order:

"... se autoriza a aquella (Avelina A. Magno) a firmar escrituras de

venta definitiva de propiedades cubiertas por contratos para vender,
firmados, en vida, por el finado Charles Newton Hodges, cada vez
que el precio estipulado en cada contrato este totalmente pagado. Se
autoriza igualmente a la misma a firmar escrituras de cancelacion de
hipoteca tanto de bienes reales como personales cada vez que la
consideracion de cada hipoteca este totalmente pagada.

"Cada una de dichas escrituras que se otorguen debe ser sometida

para la aprobacion de este Juzgado."
 (p. 117, Sp. Proc. 1307).

[Par 1 (c), Reply to Motion For Removal of Joe Hodges]

(13) On September l6, 1963 Leon P. Gellada, acting as attorney for Avelina A.
Magno as Administratrix of the estate of Linnie Jane Hodges, alleges:

3. — That since January, 1963, both estates of Linnie Jane Hodges

and Charles Newton Hodges have been receiving in full, payments
for those "contracts to sell" entered into by C. N. Hodges during his
lifetime, and the purchasers have been demanding the execution of
definite deeds of sale in their favor.

4. — That hereto attached are thirteen (13) copies deeds of sale

executed by the Administratrix and by the co-administrator (Fernando
P. Mirasol) of the estate of Linnie Jane Hodges and Charles Newton
Hodges respectively, in compliance with the terms and conditions of
the respective "contracts to sell" executed by the parties thereto."

(14) The properties involved in the aforesaid motion of September 16, 1963 are all
registered in the name of the deceased C. N. Hodges.

(15) Avelina A. Magno, it is alleged on information and belief, has been advertising in
the newspaper in Iloilo thusly:

For Sale

Testate Estate of Linnie Jane Hodges and Charles Newton Hodges.

All Real Estate or Personal Property will be sold on First Come First Served Basis.

Avelina
A.
Magno
Admini
stratrix

(16) Avelina A. Magno, it is alleged on information and belief, has paid and still is
paying sums of money to sundry persons.

(17) Joe Hodges through the undersigned attorneys manifested during the hearings
before this Honorable Court on September 5 and 6, 1963 that the estate of C. N.
Hodges was claiming all of the assets belonging to the deceased spouses Linnie
Jane Hodges and C. N. Hodges situated in Philippines because of the aforesaid
election by C. N. Hodges wherein he claimed and took possession as sole owner of
all of said assets during the administration of the estate of Linnie Jane Hodges on the
ground that he was the sole devisee and legatee under her Last Will and Testament.

(18) Avelina A. Magno has submitted no inventory and accounting of her

administration as Administratrix of the estate of Linnie Jane Hodges and Special
Administratrix of the estate of C. N. Hodges. However, from manifestations made by
 Avelina A. Magno and her legal counsel, Leon P. Gellada, there is no question she
will claim that at least fifty per cent (50%) of the conjugal assets of the deceased
spouses and the rents, emoluments and income therefrom belong to the Higdon
family who are named in paragraphs Fourth and Fifth of the Will of Linnie Jane
Hodges (p. 5, Rec. Sp. Proc. 1307).

WHEREFORE, premises considered, movant respectfully prays that this Honorable

Court, after due hearing, order:

(1) Avelina A. Magno to submit an inventory and accounting of all of the funds,
properties and assets of any character belonging to the deceased Linnie Jane
Hodges and C. N. Hodges which have come into her possession, with full details of
what she has done with them;

(2) Avelina A. Magno to turn over and deliver to the Administrator of the estate of C.
N. Hodges all of the funds, properties and assets of any character remaining in her
possession;

(3) Pending this Honorable Court's adjudication of the aforesaid issues, Avelina A.
Magno to stop, unless she first secures the conformity of Joe Hodges (or his duly
authorized representative, such as the undersigned attorneys) as the Co-
administrator and attorney-in-fact of a majority of the beneficiaries of the estate of C.
N. Hodges:

(a) Advertising the sale and the sale of the properties of the estates:

(b) Employing personnel and paying them any compensation.

(4) Such other relief as this Honorable Court may deem just and equitable in the
premises. (Annex "T", Petition.)

Almost a year thereafter, or on September 14, 1964, after the co-administrators Joe Hodges and
Fernando P. Mirasol were replaced by herein petitioner Philippine Commercial and Industrial Bank
as sole administrator, pursuant to an agreement of all the heirs of Hodges approved by the court,
and because the above motion of October 5, 1963 had not yet been heard due to the absence from
the country of Atty. Gibbs, petitioner filed the following:

MANIFESTATION AND MOTION, INCLUDING MOTION TO SET

FOR HEARING AND RESOLVE "URGENT MOTION FOR AN
ACCOUNTING AND DELIVERY TO ADMINISTRATORS OF THE
ESTATE OF C. N. HODGES OF ALL THE ASSETS OF THE
CONJUGAL PARTNERSHIP OF THE DECEASED LINNIE JANE
HODGES AND C. N. HODGES EXISTING AS OF MAY 23, 1957
PLUS ALL OF THE RENTS, EMOLUMENTS AND INCOME
THEREFROM OF OCTOBER 5, 1963.

COMES NOW Philippine Commercial and Industrial Bank (hereinafter referred to as

PCIB), the administrator of the estate of C. N. Hodges, deceased, in Special
Proceedings No. 1672, through its undersigned counsel, and to this Honorable Court
respectfully alleges that:
1. On October 5, 1963, Joe Hodges acting as the co-administrator of the estate of C.
N. Hodges filed, through the undersigned attorneys, an "Urgent Motion For An
Accounting and Delivery To Administrator of the Estate of C. N. Hodges of all Of The
Assets Of The Conjugal Partnership of The Deceased Linnie Jane Hodges and C. N.
Hodges Existing as Of May, 23, 1957 Plus All Of The Rents, Emoluments and
Income Therefrom" (pp. 536-542, CFI Rec. S. P. No. 1672).

2. On January 24, 1964 this Honorable Court, on the basis of an amicable agreement
entered into on January 23, 1964 by the two co-administrators of the estate of C. N.
Hodges and virtually all of the heirs of C. N. Hodges (p. 912, CFI Rec., S. P. No.
1672), resolved the dispute over who should act as administrator of the estate of C.
N. Hodges by appointing the PCIB as administrator of the estate of C. N. Hodges
(pp. 905-906, CFI Rec. S. P. No. 1672) and issuing letters of administration to the
PCIB.

3. On January 24, 1964 virtually all of the heirs of C. N. Hodges, Joe Hodges and
Fernando P. Mirasol acting as the two co-administrators of the estate of C. N.
Hodges, Avelina A. Magno acting as the administratrix of the estate of Linnie Jane
Hodges, and Messrs. William Brown and Ardel Young Acting for all of the Higdon
family who claim to be the sole beneficiaries of the estate of Linnie Jane Hodges and
various legal counsel representing the aforenamed parties entered into an amicable
agreement, which was approved by this Honorable Court, wherein the parties thereto
agreed that certain sums of money were to be paid in settlement of different claims
against the two estates and that the assets (to the extent they existed)of both estates
would be administrated jointly by the PCIB as administrator of the estate of C. N.
Hodges and Avelina A. Magno as administratrix of the estate of Linnie Jane Hodges,
subject, however, to the aforesaid October 5, 1963 Motion, namely, the PCIB's claim
to exclusive possession and ownership of one-hundred percent (10017,) (or, in the
alternative, seventy-five percent [75%] of all assets owned by C. N. Hodges or Linnie
Jane Hodges situated in the Philippines. On February 1, 1964 (pp. 934-935, CFI
Rec., S. P. No. 1672) this Honorable Court amended its order of January 24, 1964
but in no way changes its recognition of the aforedescribed basic demand by the
PCIB as administrator of the estate of C. N. Hodges to one hundred percent (100%)
of the assets claimed by both estates.

4. On February 15, 1964 the PCIB filed a "Motion to Resolve" the aforesaid Motion of
October 5, 1963. This Honorable Court set for hearing on June 11, 1964 the Motion
of October 5, 1963.

5. On June 11, 1964, because the undersigned Allison J. Gibbs was absent in the
United States, this Honorable Court ordered the indefinite postponement of the
hearing of the Motion of October 5, 1963.

6. Since its appointment as administrator of the estate of C. N. Hodges the PCIB has
not been able to properly carry out its duties and obligations as administrator of the
estate of C. N. Hodges because of the following acts, among others, of Avelina A.
Magno and those who claim to act for her as administratrix of the estate of Linnie
Jane Hodges:

(a) Avelina A. Magno illegally acts as if she is in exclusive control of

all of the assets in the Philippines of both estates including those
claimed by the estate of C. N. Hodges as evidenced in part by her
 locking the premises at 206-208 Guanco Street, Iloilo City on August
31, 1964 and refusing to reopen same until ordered to do so by this
Honorable Court on September 7, 1964.

(b) Avelina A. Magno illegally acts as though she alone may decide
how the assets of the estate of C.N. Hodges should be administered,
who the PCIB shall employ and how much they may be paid as
evidenced in party by her refusal to sign checks issued by the PCIB
payable to the undersigned counsel pursuant to their fee agreement
approved by this Honorable Court in its order dated March 31, 1964.

(c) Avelina A. Magno illegally gives access to and turns over

possession of the records and assets of the estate of C.N. Hodges to
the attorney-in-fact of the Higdon Family, Mr. James L. Sullivan, as
evidenced in part by the cashing of his personal checks.

(d) Avelina A. Magno illegally refuses to execute checks prepared by

the PCIB drawn to pay expenses of the estate of C. N. Hodges as
evidenced in part by the check drawn to reimburse the PCIB's
advance of P48,445.50 to pay the 1964 income taxes reported due
and payable by the estate of C.N. Hodges.

7. Under and pursuant to the orders of this Honorable Court, particularly those of
January 24 and February 1, 1964, and the mandate contained in its Letters of
Administration issued on January 24, 1964 to the PCIB, it has

"full authority to take possession of all the property of

the deceased C. N. Hodges

"and to perform all other acts necessary for the preservation of said
property." (p. 914, CFI Rec., S.P. No. 1672.)

8. As administrator of the estate of C. N. Hodges, the PCIB claims the right to the
immediate exclusive possession and control of all of the properties, accounts
receivables, court cases, bank accounts and other assets, including the documentary
records evidencing same, which existed in the Philippines on the date of C. N.
Hodges' death, December 25, 1962, and were in his possession and registered in his
name alone. The PCIB knows of no assets in the Philippines registered in the name
of Linnie Jane Hodges, the estate of Linnie Jane Hodges, or, C. N. Hodges, Executor
of the Estate of Linnie Jane Hodges on December 25, 1962. All of the assets of
which the PCIB has knowledge are either registered in the name of C. N. Hodges,
alone or were derived therefrom since his death on December 25, 1962.

9. The PCIB as the current administrator of the estate of C. N. Hodges, deceased,

succeeded to all of the rights of the previously duly appointed administrators of the
estate of C. N. Hodges, to wit:

(a) On December 25, 1962, date of C. N. Hodges' death, this

Honorable Court appointed Miss Avelina A. Magno simultaneously
as:
 (i) Administratrix of the estate of Linnie Jane Hodges (p. 102, CFI
Rec., S.P. No. 1307) to replace the deceased C. N. Hodges who on
May 28, 1957 was appointed Special Administrator (p. 13. CFI Rec.
S.P. No. 1307) and on July 1, 1957 Executor of the estate of Linnie
Jane Hodges (p. 30, CFI Rec., S. P. No. 1307).

(ii) Special Administratrix of the estate of C. N. Hodges (p. 102, CFI

Rec., S.P. No. 1307).

(b) On December 29, 1962 this Honorable Court appointed Harold K.

Davies as co-special administrator of the estate of C.N. Hodges along
with Avelina A. Magno (pp. 108-111, CFI Rec., S. P. No. 1307).

(c) On January 22, 1963, with the conformity of Avelina A. Magno,

Harold K. Davies resigned in favor of Joe Hodges (pp. 35-36, CFI
Rec., S.P. No. 1672) who thereupon was appointed on January 22,
1963 by this Honorable Court as special co-administrator of the
estate of C.N. Hodges (pp. 38-40 & 43, CFI Rec. S.P. No. 1672)
along with Miss Magno who at that time was still acting as special co-
administratrix of the estate of C. N. Hodges.

(d) On February 22, 1963, without objection on the part of Avelina A.

Magno, this Honorable Court appointed Joe Hodges and Fernando P.
Mirasol as co-administrators of the estate of C.N. Hodges (pp. 76-78,
81 & 85, CFI Rec., S.P. No. 1672).

10. Miss Avelina A. Magno, pursuant to the orders of this Honorable Court of
December 25, 1962, took possession of all Philippine Assets now claimed by the two
estates. Legally, Miss Magno could take possession of the assets registered in the
name of C. N. Hodges alone only in her capacity as Special Administratrix of the
Estate of C.N. Hodges. With the appointment by this Honorable Court on February
22, 1963 of Joe Hodges and Fernando P. Mirasol as the co-administrators of the
estate of C.N. Hodges, they legally were entitled to take over from Miss Magno the
full and exclusive possession of all of the assets of the estate of C.N. Hodges. With
the appointment on January 24, 1964 of the PCIB as the sole administrator of the
estate of C.N. Hodges in substitution of Joe Hodges and Fernando P. Mirasol, the
PCIB legally became the only party entitled to the sole and exclusive possession of
all of the assets of the estate of C. N. Hodges.

11. The PCIB's predecessors submitted their accounting and this Honorable Court
approved same, to wit:

(a) The accounting of Harold K. Davies dated January 18, 1963 (pp.
16-33, CFI Rec. S.P. No. 1672); which shows or its face the:

(i) Conformity of Avelina A. Magno acting as "Administratrix of the

Estate of Linnie Jane Hodges and Special Administratrix of the Estate
of C. N. Hodges";

(ii) Conformity of Leslie Echols, a Texas lawyer acting for the heirs of
C.N. Hodges; and
 (iii) Conformity of William Brown, a Texas lawyer acting for the
Higdon family who claim to be the only heirs of Linnie Jane Hodges
(pp. 18, 25-33, CFI Rec., S. P. No. 1672).

Note: This accounting was approved by this Honorable Court on January 22, 1963
(p. 34, CFI Rec., S. P. No. 1672).

(b) The accounting of Joe Hodges and Fernando P. Mirasol as of

January 23, 1964, filed February 24, 1964 (pp. 990-1000, CFI Rec.
S.P. No. 1672 and pp. 1806-1848, CFI Rec. S.P. No. 1307).

Note: This accounting was approved by this Honorable Court on March 3, 1964.

(c) The PCIB and its undersigned lawyers are aware of no report or
accounting submitted by Avelina A. Magno of her acts as
administratrix of the estate of Linnie Jane Hodges or special
administratrix of the estate of C.N. Hodges, unless it is the accounting
of Harold K. Davies as special co-administrator of the estate of C.N.
Hodges dated January 18, 1963 to which Miss Magno manifested her
conformity (supra).

12. In the aforesaid agreement of January 24, 1964, Miss Avelina A. Magno agreed to receive
P10,000.00

"for her services as administratrix of the estate of Linnie Jane

Hodges"

and in addition she agreed to be employed, starting February 1, 1964, at

"a monthly salary of P500.00 for her services as an employee of both

estates."

24 ems.

13. Under the aforesaid agreement of January 24, 1964 and the orders of this
Honorable Court of same date, the PCIB as administrator of the estate of C. N.
Hodges is entitled to the exclusive possession of all records, properties and assets in
the name of C. N. Hodges as of the date of his death on December 25, 1962 which
were in the possession of the deceased C. N. Hodges on that date and which then
passed to the possession of Miss Magno in her capacity as Special Co-Administratrix
of the estate of C. N. Hodges or the possession of Joe Hodges or Fernando P.
Mirasol as co-administrators of the estate of C. N. Hodges.

14. Because of Miss Magno's refusal to comply with the reasonable request of PCIB
concerning the assets of the estate of C. N. Hodges, the PCIB dismissed Miss
Magno as an employee of the estate of C. N. Hodges effective August 31, 1964. On
September 1, 1964 Miss Magno locked the premises at 206-208 Guanco Street and
denied the PCIB access thereto. Upon the Urgent Motion of the PCIB dated
September 3, 1964, this Honorable Court on September 7, 1964 ordered Miss
Magno to reopen the aforesaid premises at 206-208 Guanco Street and permit the
PCIB access thereto no later than September 8, 1964.
15. The PCIB pursuant to the aforesaid orders of this Honorable Court is again in
physical possession of all of the assets of the estate of C. N. Hodges. However, the
PCIB is not in exclusive control of the aforesaid records, properties and assets
because Miss Magno continues to assert the claims hereinabove outlined in
paragraph 6, continues to use her own locks to the doors of the aforesaid premises
at 206-208 Guanco Street, Iloilo City and continues to deny the PCIB its right to know
the combinations to the doors of the vault and safes situated within the premises at
206-208 Guanco Street despite the fact that said combinations were known to only
C. N. Hodges during his lifetime.

16. The Philippine estate and inheritance taxes assessed the estate of Linnie Jane
Hodges were assessed and paid on the basis that C. N. Hodges is the sole
beneficiary of the assets of the estate of Linnie Jane Hodges situated in the
Philippines. Avelina A. Magno and her legal counsel at no time have questioned the
validity of the aforesaid assessment and the payment of the corresponding Philippine
death taxes.

17. Nothing further remains to be done in the estate of Linnie Jane Hodges except to
resolve the aforesaid Motion of October 5, 1963 and grant the PCIB the exclusive
possession and control of all of the records, properties and assets of the estate of C.
N. Hodges.

18. Such assets as may have existed of the estate of Linnie Jane Hodges were
ordered by this Honorable Court in special Proceedings No. 1307 to be turned over
and delivered to C. N. Hodges alone. He in fact took possession of them before his
death and asserted and exercised the right of exclusive ownership over the said
assets as the sole beneficiary of the estate of Linnie Jane Hodges.

WHEREFORE, premises considered, the PCIB respectfully petitions that this

Honorable court:

(1) Set the Motion of October 5, 1963 for hearing at the earliest possible date with
notice to all interested parties;

(2) Order Avelina A. Magno to submit an inventory and accounting as Administratrix

of the Estate of Linnie Jane Hodges and Co-Administratrix of the Estate of C. N.
Hodges of all of the funds, properties and assets of any character belonging to the
deceased Linnie Jane Hodges and C. N. Hodges which have come into her
possession, with full details of what she has done with them;

(3) Order Avelina A. Magno to turn over and deliver to the PCIB as administrator of
the estate of C. N. Hodges all of the funds, properties and assets of any character
remaining in her possession;

(4) Pending this Honorable Court's adjudication of the aforesaid issues, order Avelina
A. Magno and her representatives to stop interferring with the administration of the
estate of C. N. Hodges by the PCIB and its duly authorized representatives;

(5) Enjoin Avelina A. Magno from working in the premises at 206-208 Guanco Street,
Iloilo City as an employee of the estate of C. N. Hodges and approve her dismissal
as such by the PCIB effective August 31, 1964;
 (6) Enjoin James L. Sullivan, Attorneys Manglapus and Quimpo and others allegedly
representing Miss Magno from entering the premises at 206-208 Guanco Street,
Iloilo City or any other properties of C. N. Hodges without the express permission of
the PCIB;

(7) Order such other relief as this Honorable Court finds just and equitable in the
premises. (Annex "U" Petition.)

On January 8, 1965, petitioner also filed a motion for "Official Declaration of Heirs of Linnie Jane
Hodges Estate" alleging:

COMES NOW Philippine Commercial and Industrial Bank (hereinafter referred to as PCIB), as
administrator of the estate of the late C. N. Hodges, through the undersigned counsel, and to this
Honorable Court respectfully alleges that:

1. During their marriage, spouses Charles Newton Hodges and Linnie Jane Hodges,
American citizens originally from the State of Texas, U.S.A., acquired and
accumulated considerable assets and properties in the Philippines and in the States
of Texas and Oklahoma, United States of America. All said properties constituted
their conjugal estate.

2. Although Texas was the domicile of origin of the Hodges spouses, this Honorable
Court, in its orders dated March 31 and December 12, 1964 (CFI Record, Sp. Proc.
No. 1307, pp. ----; Sp. Proc. No. 1672, p. ----), conclusively found and categorically
ruled that said spouses had lived and worked for more than 50 years in Iloilo City and
had, therefore, acquired a domicile of choice in said city, which they retained until the
time of their respective deaths.

3. On November 22, 1952, Linnie Jane Hodges executed in the City of Iloilo her Last
Will and Testament, a copy of which is hereto attached as Annex "A". The bequests
in said will pertinent to the present issue are the second, third, and fourth provisions,
which we quote in full hereunder.

SECOND: I give, devise and bequeath all of the rest, residue and
remainder of my estate, both personal and real, wherever situated, or
located, to my husband, Charles Newton Hodges, to have and to hold
unto him, my said husband during his natural lifetime.

THIRD: I desire, direct and provide that my husband, Charles Newton

Hodges, shall have the right to manage, control, use and enjoy said
estate during his lifetime, and he is hereby given the right to make
any changes in the physical properties of said estate by sale of any
part thereof which he think best, and the purchase of any other or
additional property as he may think best; to execute conveyances
with or without general or special warranty, conveying in fee simple or
for any other term or time, any property which he may deem proper to
dispose of; to lease any of the real property for oil, gas and/or other
minerals, and all such deeds or leases shall pass the absolute fee
simple title to the interest so conveyed in such property as he may
elect to sell. All rents, emoluments and income from said estate shall
belong to him, and he is further authorized to use any part of the
principal of said estate as he may need or desire. It is provided
 herein, however, that he shall not sell or otherwise dispose of any of
the improved property now owned by us located at, in or near the City
of Lubbock, Texas, but he shall have the full right to lease, manage
and enjoy the same during his lifetime, as above provided. He shall
have the right to sub-divide any farmland and sell lots therein, and
may sell unimproved town lots.

FOURTH: At the death of my said husband, Charles Newton Hodges,

I give, devise and bequeath all of the rest, residue and remainder of
my estate both real and personal, wherever situated or located, to be
equally divided among my brothers and sisters, share and share
alike, namely:

"Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie

Rascoe, Era Boman and Nimray Higdon."

4. On November 14, 1953, C. N. Hodges executed in the City of Iloilo his Last Will
and Testament, a copy of which is hereto attached as Annex "B ". In said Will, C. N.
Hodges designated his wife, Linnie Jane Hodges, as his beneficiary using the
identical language she used in the second and third provisos of her Will, supra.

5. On May 23, 1957 Linnie Jane Hodges died in Iloilo City, predeceasing her
husband by more than five (5) years. At the time of her death, she had no forced or
compulsory heir, except her husband, C. N. Hodges. She was survived also by
various brothers and sisters mentioned in her Will (supra), which, for convenience,
we shall refer to as the HIGDONS.

6. On June 28, 1957, this Honorable Court admitted to probate the Last Will and
Testament of the deceased Linnie Jane Hodges (Annex "A"), and appointed C. N.
Hodges as executor of her estate without bond. (CFI Record, Sp. Proc. No. 1307, pp.
24-25). On July 1, 1957, this Honorable Court issued letters testamentary to C. N.
Hodges in the estate of Linnie Jane Hodges. (CFI Record, Sp. Proc. No. 1307, p.
30.)

7. The Will of Linnie Jane Hodges, with respect to the order of succession, the
amount of successional rights, and the intrinsic of its testamentary provisions, should
be governed by Philippine laws because:

(a) The testatrix, Linnie Jane Hodges, intended Philippine laws to

govern her Will;

(b) Article 16 of the Civil Code provides that "the national law of the
person whose succession is under consideration, whatever may be
the nature of the property and regardless of the country wherein said
property may be found", shall prevail. However, the Conflict of Law of
Texas, which is the "national law" of the testatrix, Linnie Jane
Hodges, provide that the domiciliary law (Philippine law — see
paragraph 2, supra) should govern the testamentary dispositions and
successional rights over movables (personal properties), and the law
of the situs of the property (also Philippine law as to properties
located in the Philippines) with regards immovable (real properties).
Thus applying the "Renvoi Doctrine", as approved and applied by our
 Supreme Court in the case of "In The Matter Of The Testate Estate of
Eduard E. Christensen", G.R. No.
L-16749, promulgated January 31, 1963, Philippine law should apply
to the Will of Linnie Jane Hodges and to the successional rights to
her estate insofar as her movable and immovable assets in the
Philippines are concerned. We shall not, at this stage, discuss what
law should govern the assets of Linnie Jane Hodges located in
Oklahoma and Texas, because the only assets in issue in this motion
are those within the jurisdiction of this motion Court in the two above-
captioned Special Proceedings.

8. Under Philippine and Texas law, the conjugal or community estate of spouses
shall, upon dissolution, be divided equally between them. Thus, upon the death of
Linnie Jane Hodges on May 23, 1957, one-half (1/2) of the entirety of the assets of
the Hodges spouses constituting their conjugal estate pertained automatically to
Charles Newton Hodges, not by way of inheritance, but in his own right as partner in
the conjugal partnership. The other one-half (1/2) portion of the conjugal estate
constituted the estate of Linnie Jane Hodges. This is the only portion of the conjugal
estate capable of inheritance by her heirs.

9. This one-half (1/2) portion of the conjugal assets pertaining to Linnie Jane Hodges
cannot, under a clear and specific provision of her Will, be enhanced or increased by
income, earnings, rents, or emoluments accruing after her death on May 23, 1957.
Linnie Jane Hodges' Will provides that "all rents, emoluments and income from said
estate shall belong to him (C. N. Hodges) and he is further authorized to use any part
of the principal of said estate as he may need or desire." (Paragraph 3, Annex "A".)
Thus, by specific provision of Linnie Jane Hodges' Will, "all rents, emoluments and
income" must be credited to the one-half (1/2) portion of the conjugal estate
pertaining to C. N. Hodges. Clearly, therefore, the estate of Linnie Jane Hodges,
capable of inheritance by her heirs, consisted exclusively of no more than one-half
(1/2) of the conjugal estate, computed as of the time of her death on May 23, 1957.

10. Articles 900, 995 and 1001 of the New Civil Code provide that the surviving
spouse of a deceased leaving no ascendants or descendants is entitled, as a matter
of right and by way of irrevocable legitime, to at least one-half (1/2) of the estate of
the deceased, and no testamentary disposition by the deceased can legally and
validly affect this right of the surviving spouse. In fact, her husband is entitled to said
one-half (1/2) portion of her estate by way of legitime. (Article 886, Civil Code.)
Clearly, therefore, immediately upon the death of Linnie Jane Hodges, C. N. Hodges
was the owner of at least three-fourths (3/4) or seventy-five (75%) percent of all of
the conjugal assets of the spouses, (1/2 or 50% by way of conjugal partnership share
and 1/4 or 25% by way of inheritance and legitime) plus all "rents, emoluments and
income" accruing to said conjugal estate from the moment of Linnie Jane Hodges'
death (see paragraph 9, supra).

11. The late Linnie Jane Hodges designated her husband C.N. Hodges as her sole
and exclusive heir with full authority to do what he pleased, as exclusive heir and
owner of all the assets constituting her estate, except only with regards certain
properties "owned by us, located at, in or near the City of Lubbock, Texas". Thus,
even without relying on our laws of succession and legitime, which we have cited
above, C. N. Hodges, by specific testamentary designation of his wife, was entitled to
the entirely to his wife's estate in the Philippines.
12. Article 777 of the New Civil Code provides that "the rights of the successor are
transmitted from the death of the decedent". Thus, title to the estate of Linnie Jane
Hodges was transmitted to C. N. Hodges immediately upon her death on May 23,
1957. For the convenience of this Honorable Court, we attached hereto as Annex "C"
a graph of how the conjugal estate of the spouses Hodges should be divided in
accordance with Philippine law and the Will of Linnie Jane Hodges.

13. In his capacity as sole heir and successor to the estate of Linnie Jane Hodges as
above-stated, C. N. Hodges, shortly after the death of Linnie Jane Hodges,
appropriated to himself the entirety of her estate. He operated all the assets,
engaged in business and performed all acts in connection with the entirety of the
conjugal estate, in his own name alone, just as he had been operating, engaging and
doing while the late Linnie Jane Hodges was still alive. Upon his death on December
25, 1962, therefore, all said conjugal assets were in his sole possession and control,
and registered in his name alone, not as executor, but as exclusive owner of all said
assets.

14. All these acts of C. N. Hodges were authorized and sanctioned expressly and
impliedly by various orders of this Honorable Court, as follows:

(a) In an Order dated May 27, 1957, this Honorable Court ruled that C. N. Hodges "is
allowed or authorized to continue the business in which he was engaged, and to
perform acts which he had been doing while the deceased was living." (CFI Record,
Sp. Proc. No. 1307, p. 11.)

(b) On December 14, 1957, this Honorable Court, on the basis of the following fact,
alleged in the verified Motion dated December 11, 1957 filed by Leon P. Gellada as
attorney for the executor C. N. Hodges:

That herein Executor, (is) not only part owner of the properties left as conjugal, but
also, the successor to all the properties left by the deceased Linnie Jane Hodges.'
(CFI Record, Sp. Proc. No. 1307, p. 44; emphasis supplied.)

issued the following order:

"As prayed for by Attorney Gellada, counsel for the Executor, for the reasons stated
in his motion dated December 11, 1957, which the Court considers well taken, all the
sales, conveyances, leases and mortgages of all the properties left by the deceased
Linnie Jane Hodges executed by the Executor, Charles Newton Hodges are hereby
APPROVED. The said Executor is further authorized to execute subsequent sales,
conveyances, leases and mortgages of the properties left by the said deceased
Linnie Jane Hodges in consonance with the wishes contained in the last will and
testament of the latter." (CFI Record. Sp. Proc. No. 1307, p. 46; emphasis supplied.)

24 ems

(c) On April 21, 1959, this Honorable Court approved the verified inventory and
accounting submitted by C. N. Hodges through his counsel Leon P. Gellada on April
14, 1959 wherein he alleged among other things,

"That no person interested in the Philippines of the time and place of

examining the herein account, be given notice, as herein executor is
 the only devisee or legatee of the deceased, in accordance with the
last will and testament already probated by the Honorable Court."
(CFI Record, Sp. Proc. No. 1307, pp. 77-78; emphasis supplied.)

(d) On July 20, 1960, this Honorable Court approved the verified "Annual Statement
of Account" submitted by C. N. Hodges through his counsel Leon P. Gellada on July
21, 1960 wherein he alleged, among other things.

"That no person interested in the Philippines of the time and place of

examining the herein account, be given notice as herein executor is
the only devisee or legatee of the deceased Linnie Jane Hodges, in
accordance with the last will and testament ofthe deceased, already
probated by this Honorable Court." (CFI Record, Sp. Proc. No. 1307,
pp. 81-82; emphasis supplied.)

(e) On May 2, 1961, this Honorable Court approved the verified "Annual Statement of
Account By The Executor For the Year 1960" submitted through Leon P. Gellada on
April 20, 1961 wherein he alleged:

"That no person interested in the Philippines be given notice, ofthe time and place of
examining the herein account, as herein executor is the only devisee or legatee of
the deceased Linnie Jane Hodges, in accordance with the last will and testament
ofthe deceased, already probated by this Honorable Court." (CFI Record, Sp. Proc.
No. 1307, pp. 90-91; emphasis supplied.)

15. Since C. N. Hodges was the sole and exclusive heir of Linnie Jane Hodges, not
only by law, but in accordance with the dispositions of her will, there was, in fact, no
need to liquidate the conjugal estate of the spouses. The entirely of said conjugal
estate pertained to him exclusively, therefore this Honorable Court sanctioned and
authorized, as above-stated, C. N. Hodges to manage, operate and control all the
conjugal assets as owner.

16. By expressly authorizing C. N. Hodges to act as he did in connection with the

estate of his wife, this Honorable Court has (1) declared C. N. Hodges as the sole
heir of the estate of Linnie Jane Hodges, and (2) delivered and distributed her estate
to C. N. Hodges as sole heir in accordance with the terms and conditions of her Will.
Thus, although the "estate of Linnie Jane Hodges" still exists as a legal and juridical
personality, it had no assets or properties located in the Philippines registered in its
name whatsoever at the time of the death of C. N. Hodges on December 25, 1962.

17. The Will of Linnie Jane Hodges (Annex "A"), fourth paragraph, provides as
follows:

"At the death of my said husband, Charles Newton Hodges, I give,

devise and bequeath all of the rest, residue and remainder of my
estate both real and personal, wherever situated or located, to be
equally divided among my brothers and sisters, share and share
alike, namely:

"Esta Higdon, Emma Howell, Leonard Higdon, Roy

Higdon, Sadie Rascoe, Era Boman and Nimray
Higdon."
Because of the facts hereinabove set out there is no "rest, residue and remainder", at
least to the extent of the Philippine assets, which remains to vest in the HIGDONS,
assuming this proviso in Linnie Jane Hodges' Will is valid and binding against the
estate of C. N. Hodges.

18. Any claims by the HIGDONS under the above-quoted provision of Linnie Jane
Hodges' Will is without merit because said provision is void and invalid at least as to
the Philippine assets. It should not, in anyway, affect the rights of the estate of C. N.
Hodges or his heirs to the properties, which C. N. Hodges acquired by way of
inheritance from his wife Linnie Jane Hodges upon her death.

(a) In spite of the above-mentioned provision in the Will of Linnie

Jane Hodges, C. N. Hodges acquired, not merely a usufructuary
right, but absolute title and ownership to her estate. In a recent case
involving a very similar testamentary provision, the Supreme Court
held that the heir first designated acquired full ownership of the
property bequeathed by the will, not mere usufructuary rights.
(Consolacion Florentino de Crisologo, et al., vs. Manuel Singson, G.
R. No. L-13876, February 28, 1962.)

(b) Article 864, 872 and 886 of the New Civil Code clearly provide
that no charge, condition or substitution whatsoever upon the legitime
can be imposed by a testator. Thus, under the provisions of Articles
900, 995 and 1001 of the New Civil Code, the legitime of a surviving
spouse is 1/2 of the estate of the deceased spouse. Consequently,
the above-mentioned provision in the Will of Linnie Jane Hodges is
clearly invalid insofar as the legitime of C. N. Hodges was concerned,
which consisted of 1/2 of the 1/2 portion of the conjugal estate, or 1/4
of the entire conjugal estate of the deceased.

(c) There are generally only two kinds of substitution provided for and
authorized by our Civil Code (Articles 857-870), namely, (1) simple or
common substitution, sometimes referred to as vulgar substitution
(Article 859), and (2) fideicommissary substitution (Article 863). All
other substitutions are merely variations of these. The substitution
provided for by paragraph four of the Will of Linnie Jane Hodges is
not fideicommissary substitution, because there is clearly no
obligation on the part of C. N. Hodges as the first heir designated, to
preserve the properties for the substitute heirs. (Consolacion
Florentino de Crisologo et al. vs. Manuel Singson, G. R. No.
L-13876.) At most, it is a vulgar or simple substitution. However, in
order that a vulgar or simple substitution can be valid, three
alternative conditions must be present, namely, that the first
designated heir (1) should die before the testator; or (2) should not
wish to accept the inheritance; or (3) should be incapacitated to do
so. None of these conditions apply to C. N. Hodges, and, therefore,
the substitution provided for by the above-quoted provision of the Will
is not authorized by the Code, and, therefore, it is void. Manresa,
commenting on these kisses of substitution, meaningfully stated that:
"... cuando el testador instituyeun primer heredero, y por fallecimiento
de este nombra otro u otros, ha de entenderse que estas segundas
designaciones solo han de llegar a tener efectividad en el caso de
que el primer instituido muera antes que el testador, fuera o no esta
 su verdadera intencion. ...". (6 Manresa, 7 a ed., pag. 175.) In other
words, when another heir is designated to inherit upon the death of a
first heir, the second designation can have effect only in case the first
instituted heir dies before the testator, whether or not that was the
true intention of said testator. Since C. N. Hodges did not die before
Linnie Jane Hodges, the provision for substitution contained in Linnie
Jane Hodges' Willis void.

(d) In view of the invalidity of the provision for substitution in the Will,
C. N. Hodges' inheritance to the entirety of the Linnie Jane Hodges
estate is irrevocable and final.

19. Be that as it may, at the time of C. N. Hodges' death, the entirety of the conjugal
estate appeared and was registered in him exclusively as owner. Thus, the
presumption is that all said assets constituted his estate. Therefore —

(a) If the HIGDONS wish to enforce their dubious rights as substituted heirs to 1/4 of
the conjugal estate (the other 1/4 is covered by the legitime of C. N. Hodges which
can not be affected by any testamentary disposition), their remedy, if any, is to file
their claim against the estate of C. N. Hodges, which should be entitled at the
present time to full custody and control of all the conjugal estate of the spouses.

(b) The present proceedings, in which two estates exist under separate
administration, where the administratrix of the Linnie Jane Hodges estate exercises
an officious right to object and intervene in matters affecting exclusively the C. N.
Hodges estate, is anomalous.

WHEREFORE, it is most respectfully prayed that after trial and reception of

evidence, this Honorable Court declare:

1. That the estate of Linnie Jane Hodges was and is composed exclusively of one-
half (1/2) share in the conjugal estate of the spouses Hodges, computed as of the
date of her death on May 23, 1957;

2. That the other half of the conjugal estate pertained exclusively to C. N. Hodges as
his share as partner in the conjugal partnership;

3. That all "rents, emoluments and income" of the conjugal estate accruing after
Linnie Jane Hodges' death pertains to C. N. Hodges;

4. That C. N. Hodges was the sole and exclusive heir of the estate of Linnie Jane
Hodges;

5. That, therefore, the entire conjugal estate of the spouses located in the
Philippines, plus all the "rents, emoluments and income" above-mentioned, now
constitutes the estate of C. N. Hodges, capable of distribution to his heirs upon
termination of Special Proceedings No. 1672;

6. That PCIB, as administrator of the estate of C. N. Hodges, is entitled to full and

exclusive custody, control and management of all said properties; and
 7. That Avelina A. Magno, as administratrix of the estate of Linnie Jane Hodges, as
well as the HIGDONS, has no right to intervene or participate in the administration of
the C. N. Hodges estate.

PCIB further prays for such and other relief as may be deemed just and equitable in
the premises."

(Record, pp. 265-277)

Before all of these motions of petitioner could be resolved, however, on December 21, 1965, private
respondent Magno filed her own "Motion for the Official Declaration of Heirs of the Estate of Linnie
Jane Hodges" as follows:

COMES NOW the Administratrix of the Estate of Linnie Jane Hodges and, through
undersigned counsel, unto this Honorable Court most respectfully states and
manifests:

1. That the spouses Charles Newton Hodges and Linnie Jane Hodges were
American citizens who died at the City of Iloilo after having amassed and
accumulated extensive properties in the Philippines;

2. That on November 22, 1952, Linnie Jane Hodges executed a last will and
testament (the original of this will now forms part of the records of these proceedings
as Exhibit "C" and appears as Sp. Proc. No. 1307, Folio I, pp. 17-18);

3. That on May 23, 1957, Linnie Jane Hodges died at the City of Iloilo at the time
survived by her husband, Charles Newton Hodges, and several relatives named in
her last will and testament;

4. That on June 28, 1957, a petition therefor having been priorly filed and duly heard,
this Honorable Court issued an order admitting to probate the last will and testament
of Linnie Jane Hodges (Sp. Proc. No. 1307, Folio I, pp. 24-25, 26-28);

5. That the required notice to creditors and to all others who may have any claims
against the decedent, Linnie Jane Hodges has already been printed, published and
posted (Sp. Proc. No. 1307, Folio I. pp. 34-40) and the reglamentary period for filing
such claims has long ago lapsed and expired without any claims having been
asserted against the estate of Linnie Jane Hodges, approved by the
Administrator/Administratrix of the said estate, nor ratified by this Honorable Court;

6. That the last will and testament of Linnie Jane Hodges already admitted to probate
contains an institution of heirs in the following words:

"SECOND: I give, devise and bequeath all of the rest, residue and
remainder of my estate, both personal and real, wherever situated or
located, to my beloved husband, Charles Newton Hodges to have
and to hold unto him, my said husband, during his natural lifetime.

THIRD: I desire, direct and provide that my husband, Charles Newton

Hodges, shall have the right to manage, control, use and enjoy said
estate during his lifetime, and, he is hereby given the right to make
 any changes in the physical properties of said estate, by sale of any
part thereof which he may think best, and the purchase of any other
or additional property as he may think best; to execute conveyances
with or without general or special warranty, conveying in fee simple or
for any other term or time, any property which he may deem proper to
dispose of; to lease any of the real property for oil, gas and/or other
minerals, and all such deeds or leases shall pass the absolute fee
simple title to the interest so conveyed in such property as he elect to
sell. All rents, emoluments and income from said estate shall belong
to him, and he is further authorized to use any part of the principal of
said estate as he may need or desire. It is provided herein, however,
that he shall not sell or otherwise dispose of any of the improved
property now owned by us located at, in or near the City of Lubbock
Texas, but he shall have the full right to lease, manage and enjoy the
same during his lifetime, above provided. He shall have the right to
subdivide any farm land and sell lots therein, and may sell
unimproved town lots.

FOURTH: At the death of my said husband, Charles Newton Hodges,

I give, devise and bequeath all of the rest, residue and remainder of
my estate, both real and personal, wherever situated or located, to be
equally divided among my brothers and sisters, share and share
alike, namely:

Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie

Rascoe, Era Boman and Nimroy Higdon.

FIFTH: In case of the death of any of my brothers and/or sisters

named in item Fourth, above, prior to the death of my husband,
Charles Newton Hodges, then it is my will and bequest that the heirs
of such deceased brother or sister shall take jointly the share which
would have gone to such brother or sister had she or he survived."

7. That under the provisions of the last will and testament already above-quoted,
Linnie Jane Hodges gave a life-estate or a usufruct over all her estate to her
husband, Charles Newton Hodges, and a vested remainder-estate or the naked title
over the same estate to her relatives named therein;

8. That after the death of Linnie Jane Hodges and after the admission to probate of
her last will and testament, but during the lifetime of Charles Newton Hodges, the
said Charles Newton Hodges with full and complete knowledge of the life-estate or
usufruct conferred upon him by the will since he was then acting as Administrator of
the estate and later as Executor of the will of Linnie Jane Hodges, unequivocably and
clearly through oral and written declarations and sworn public statements,
renounced, disclaimed and repudiated his life-estate and usufruct over the estate of
Linnie Jane Hodges;

9. That, accordingly, the only heirs left to receive the estate of Linnie Jane Hodges
pursuant to her last will and testament, are her named brothers and sisters, or their
heirs, to wit: Esta Higdon, Emma Howell, Leonard Higdon, Aline Higdon and David
Higdon, the latter two being the wife and son respectively of the deceased Roy
Higdon, Sadie Rascoe Era Boman and Nimroy Higdon, all of legal ages, American
citizens, with residence at the State of Texas, United States of America;

10. That at the time of the death of Linnie Jane Hodges on May 23, 1957, she was
the co-owner (together with her husband Charles Newton Hodges) of an undivided
one-half interest in their conjugal properties existing as of that date, May 23, 1957,
which properties are now being administered sometimes jointly and sometimes
separately by the Administratrix of the estate of Linnie Jane Hodges and/or the
Administrator of the estate of C. N. Hodges but all of which are under the control and
supervision of this Honorable Court;

11. That because there was no separation or segregation of the interests of husband
and wife in the combined conjugal estate, as there has been no such separation or
segregation up to the present, both interests have continually earned exactly the
same amount of "rents, emoluments and income", the entire estate having been
continually devoted to the business of the spouses as if they were alive;

12. That the one-half interest of Linnie Jane Hodges in the combined conjugal estate
was earning "rents, emoluments and income" until her death on May 23, 1957, when
it ceased to be saddled with any more charges or expenditures which are purely
personal to her in nature, and her estate kept on earning such "rents, emoluments
and income" by virtue of their having been expressly renounced, disclaimed and
repudiated by Charles Newton Hodges to whom they were bequeathed for life under
the last will and testament of Linnie Jane Hodges;

13. That, on the other hand, the one-half interest of Charles Newton Hodges in the
combined conjugal estate existing as of May 23, 1957, while it may have earned
exactly the same amount of "rents, emoluments and income" as that of the share
pertaining to Linnie Jane Hodges, continued to be burdened by charges,
expenditures, and other dispositions which are purely personal to him in nature, until
the death of Charles Newton Hodges himself on December 25, 1962;

14. That of all the assets of the combined conjugal estate of Linnie Jane Hodges and
Charles Newton Hodges as they exist today, the estate of Linnie Jane Hodges is
clearly entitled to a portion more than fifty percent (50%) as compared to the portion
to which the estate of Charles Newton Hodges may be entitled, which portions can
be exactly determined by the following manner:

a. An inventory must be made of the assets of the combined conjugal

estate as they existed on the death of Linnie Jane Hodges on May
23, 1957 — one-half of these assets belong to the estate of Linnie
Jane Hodges;

b. An accounting must be made of the "rents, emoluments and

income" of all these assets — again one-half of these belong to the
estate of Linnie Jane Hodges;

c. Adjustments must be made, after making a deduction of charges,

disbursements and other dispositions made by Charles Newton
Hodges personally and for his own personal account from May 23,
1957 up to December 25, 1962, as well as other charges,
 disbursements and other dispositions made for him and in his behalf
since December 25, 1962 up to the present;

15. That there remains no other matter for disposition now insofar as the estate of
Linnie Jane Hodges is concerned but to complete the liquidation of her estate,
segregate them from the conjugal estate, and distribute them to her heirs pursuant to
her last will and testament.

WHEREFORE, premises considered, it is most respectfully moved and prayed that

this Honorable Court, after a hearing on the factual matters raised by this motion,
issue an order:

a. Declaring the following persons, to wit: Esta Higdon, Emma Howell, Leonard
Higdon, Aline Higdon, David Higdon, Sadie Rascoe, Era Boman and Nimroy Higdon,
as the sole heirs under the last will and testament of Linnie Jane Hodges and as the
only persons entitled to her estate;

b. Determining the exact value of the estate of Linnie Jane Hodges in accordance
with the system enunciated in paragraph 14 of this motion;

c. After such determination ordering its segregation from the combined conjugal
estate and its delivery to the Administratrix of the estate of Linnie Jane Hodges for
distribution to the heirs to whom they properly belong and appertain.

(Green Record on Appeal, pp. 382-391)

whereupon, instead of further pressing on its motion of January 8, 1965 aforequoted, as it had been
doing before, petitioner withdrew the said motion and in addition to opposing the above motion of
respondent Magno, filed a motion on April 22, 1966 alleging in part that:

1. That it has received from the counsel for the administratrix of the supposed estate
of Linnie Jane Hodges a notice to set her "Motion for Official Declaration of Heirs of
the Estate of Linnie Jane Hodges";

2. That before the aforesaid motion could be heard, there are matters pending before
this Honorable Court, such as:

a. The examination already ordered by this Honorable Court of

documents relating to the allegation of Avelina Magno that Charles
Newton Hodges "through ... written declarations and sworn public
statements, renounced, disclaimed and repudiated life-estate and
usufruct over the estate of Linnie Jane Hodges';

b. That "Urgent Motion for An Accounting and Delivery to the Estate

of C. N. Hodges of All the Assets of the Conjugal Partnership of the
Deceased Linnie Jane Hodges and C. N. Hodges Existing as of May
23, 1957 Plus All the Rents, Emoluments and Income Therefrom";

c. Various motions to resolve the aforesaid motion;

 d. Manifestation of September 14, 1964, detailing acts of interference
of Avelina Magno under color of title as administratrix of the Estate of
Linnie Jane Hodges;

which are all prejudicial, and which involve no issues of fact, all facts involved therein
being matters of record, and therefore require only the resolution of questions of law;

3. That whatever claims any alleged heirs or other persons may have could be very
easily threshed out in the Testate Estate of Charles Newton Hodges;

4. That the maintenance of two separate estate proceedings and two administrators
only results in confusion and is unduly burdensome upon the Testate Estate of
Charles Newton Hodges, particularly because the bond filed by Avelina Magno is
grossly insufficient to answer for the funds and property which she has inofficiously
collected and held, as well as those which she continues to inofficiously collect
and hold;

5. That it is a matter of record that such state of affairs affects and inconveniences
not only the estate but also third-parties dealing with it;" (Annex "V", Petition.)

and then, after further reminding the court, by quoting them, of the relevant allegations of its earlier
motion of September 14, 1964, Annex U, prayed that:

1. Immediately order Avelina Magno to account for and deliver to the administrator of
the Estate of C. N. Hodges all the assets of the conjugal partnership of the deceased
Linnie Jane Hodges and C. N. Hodges, plus all the rents, emoluments and income
therefrom;

2. Pending the consideration of this motion, immediately order Avelina Magno to turn
over all her collections to the administrator Philippine Commercial & Industrial Bank;

3. Declare the Testate Estate of Linnie Jane Hodges (Sp. Proc. No. 1307) closed;

4. Defer the hearing and consideration of the motion for declaration of heirs in the
Testate Estate of Linnie Jane Hodges until the matters hereinabove set forth are
resolved.
(Prayer, Annex "V" of Petition.)

On October 12, 1966, as already indicated at the outset of this opinion, the respondent court denied
the foregoing motion, holding thus:

ORDER

On record is a motion (Vol. X, Sp. 1672, pp. 4379-4390) dated April 22, 1966 of
administrator PCIB praying that (1) Immediately order Avelina Magno to account for
and deliver to the administrator of the estate of C. N. Hodges all assets of the
conjugal partnership of the deceased Linnie Jane Hodges and C. N. Hodges, plus all
the rents, emoluments and income therefrom; (2) Pending the consideration of this
motion, immediately order Avelina Magno to turn over all her collections to the
administrator PCIB; (3) Declare the Testate Estate of Linnie Jane Hodges (Sp. Proc.
No. 1307) closed; and (4) Defer the hearing and consideration of the motion for
declaration of heirs in the Testate Estate of Linnie Jane Hodges until the matters
hereinabove set forth are resolved.

This motion is predicated on the fact that there are matters pending before this court
such as (a) the examination already ordered by this Honorable Court of documents
relating to the allegation of Avelina Magno that Charles Newton Hodges thru written
declaration and sworn public statements renounced, disclaimed and repudiated his
life-estate and usufruct over the estate of Linnie Jane Hodges (b) the urgent motion
for accounting and delivery to the estate of C. N. Hodges of all the assets of the
conjugal partnership of the deceased Linnie Jane Hodges and C. N. Hodges existing
as of May 23, 1957 plus all the rents, emoluments and income therefrom; (c) various
motions to resolve the aforesaid motion; and (d) manifestation of September 14,
1964, detailing acts of interference of Avelina Magno under color of title as
administratrix of the estate of Linnie Jane Hodges.

These matters, according to the instant motion, are all pre-judicial involving no issues
of facts and only require the resolution of question of law; that in the motion of
October 5, 1963 it is alleged that in a motion dated December 11, 1957 filed by Atty.
Leon Gellada as attorney for the executor C. N. Hodges, the said executor C. N.
Hodges is not only part owner of the properties left as conjugal but also the
successor to all the properties left by the deceased Linnie Jane Hodges.

Said motion of December 11, 1957 was approved by the Court in consonance with
the wishes contained in the last will and testament of Linnie Jane Hodges.

That on April 21, 1959 this Court approved the inventory and accounting submitted
by C. N. Hodges thru counsel Atty. Leon Gellada in a motion filed on April 14, 1959
stating therein that executor C. N. Hodges is the only devisee or legatee of Linnie
Jane Hodges in accordance with the last will and testament already probated by the
Court.

That on July 13, 1960 the Court approved the annual statement of accounts
submitted by the executor C. N. Hodges thru his counsel Atty. Gellada on July 21,
1960 wherein it is stated that the executor, C. N. Hodges is the only devisee or
legatee of the deceased Linnie Jane Hodges; that on May 2, 1961 the Court
approved the annual statement of accounts submitted by executor, C. N. Hodges for
the year 1960 which was submitted by Atty. Gellada on April 20, 1961 wherein it is
stated that executor Hodges is the only devisee or legatee of the deceased Linnie
Jane Hodges;

That during the hearing on September 5 and 6, 1963 the estate of C. N. Hodges
claimed all the assets belonging to the deceased spouses Linnie Jane Hodges and
C. N. Hodges situated in the Philippines; that administratrix Magno has executed
illegal acts to the prejudice of the testate estate of C. N. Hodges.

An opposition (Sp. 1672, Vol. X, pp. 4415-4421) dated April 27, 1966 of
administratrix Magno has been filed asking that the motion be denied for lack of merit
and that the motion for the official declaration of heirs of the estate of Linnie Jane
Hodges be set for presentation and reception of evidence.

It is alleged in the aforesaid opposition that the examination of documents which are
in the possession of administratrix Magno can be made prior to the hearing of the
motion for the official declaration of heirs of the estate of Linnie Jane Hodges, during
said hearing.

That the matters raised in the PCIB's motion of October 5, 1963 (as well as the other
motion) dated September 14, 1964 have been consolidated for the purpose of
presentation and reception of evidence with the hearing on the determination of the
heirs of the estate of Linnie Jane Hodges. It is further alleged in the opposition that
the motion for the official declaration of heirs of the estate of Linnie Jane Hodges is
the one that constitutes a prejudicial question to the motions dated October 5 and
September 14, 1964 because if said motion is found meritorious and granted by the
Court, the PCIB's motions of October 5, 1963 and September 14, 1964 will become
moot and academic since they are premised on the assumption and claim that the
only heir of Linnie Jane Hodges was C. N. Hodges.

That the PCIB and counsel are estopped from further questioning the determination
of heirs in the estate of Linnie Jane Hodges at this stage since it was PCIB as early
as January 8, 1965 which filed a motion for official declaration of heirs of Linnie Jane
Hodges that the claim of any heirs of Linnie Jane Hodges can be determined only in
the administration proceedings over the estate of Linnie Jane Hodges and not that of
C. N. Hodges, since the heirs of Linnie Jane Hodges are claiming her estate and not
the estate of C. N. Hodges.

A reply (Sp. 1672, Vol. X, pp. 4436-4444) dated May 11, 1966 of the PCIB has been
filed alleging that the motion dated April 22, 1966 of the PCIB is not to seek
deferment of the hearing and consideration of the motion for official declaration of
heirs of Linnie Jane Hodges but to declare the testate estate of Linnie Jane Hodges
closed and for administratrix Magno to account for and deliver to the PCIB all assets
of the conjugal partnership of the deceased spouses which has come to her
possession plus all rents and income.

A rejoinder (Sp. 1672, Vol. X, pp. 4458-4462) of administratrix Magno dated May 19,
1966 has been filed alleging that the motion dated December 11, 1957 only sought
the approval of all conveyances made by C. N. Hodges and requested the Court
authority for all subsequent conveyances that will be executed by C. N. Hodges; that
the order dated December 14, 1957 only approved the conveyances made by C. N.
Hodges; that C. N. Hodges represented by counsel never made any claim in the
estate of Linnie Jane Hodges and never filed a motion to declare himself as the heir
of the said Linnie Jane Hodges despite the lapse of more than five (5) years after the
death of Linnie Jane Hodges; that it is further alleged in the rejoinder that there can
be no order of adjudication of the estate unless there has been a prior express
declaration of heirs and so far no declaration of heirs in the estate of Linnie Jane
Hodges (Sp. 1307) has been made.

Considering the allegations and arguments in the motion and of the PCIB as well as
those in the opposition and rejoinder of administratrix Magno, the Court finds the
opposition and rejoinder to be well taken for the reason that so far there has been no
official declaration of heirs in the testate estate of Linnie Jane Hodges and therefore
no disposition of her estate.

WHEREFORE, the motion of the PCIB dated April 22, 1966 is hereby DENIED.
(Annex "W", Petition)
In its motion dated November 24, 1966 for the reconsideration of this order, petitioner alleged inter
alia that:

It cannot be over-stressed that the motion of December 11, 1957 was based on the
fact that:

a. Under the last will and testament of the deceased, Linnie Jane
Hodges, the late Charles Newton Hodges was the sole heir instituted
insofar as her properties in the Philippines are concerned;

b. Said last will and testament vested upon the said late Charles
Newton Hodges rights over said properties which, in sum, spell
ownership, absolute and in fee simple;

c. Said late Charles Newton Hodges was, therefore, "not only part
owner of the properties left as conjugal, but also, the successor to all
the properties left by the deceased Linnie Jane Hodges.

Likewise, it cannot be over-stressed that the aforesaid motion was granted by this
Honorable Court "for the reasons stated" therein.

Again, the motion of December 11, 1957 prayed that not only "all the sales,
conveyances, leases, and mortgages executed by" the late Charles Newton Hodges,
but also all "the subsequent sales, conveyances, leases, and mortgages ..." be
approved and authorized. This Honorable Court, in its order of December 14, 1957,
"for the reasons stated" in the aforesaid motion, granted the same, and not only
approved all the sales, conveyances, leases and mortgages of all properties left by
the deceased Linnie Jane Hodges executed by the late Charles Newton Hodges, but
also authorized "all subsequent sales, conveyances, leases and mortgages of the
properties left by the said deceased Linnie Jane Hodges. (Annex "X", Petition)

and reiterated its fundamental pose that the Testate Estate of Linnie Jane Hodges had already been
factually, although not legally, closed with the virtual declaration of Hodges and adjudication to him,
as sole universal heir of all the properties of the estate of his wife, in the order of December 14,
1957, Annex G. Still unpersuaded, on July 18, 1967, respondent court denied said motion for
reconsideration and held that "the court believes that there is no justification why the order of
October 12, 1966 should be considered or modified", and, on July 19, 1967, the motion of
respondent Magno "for official declaration of heirs of the estate of Linnie Jane Hodges", already
referred to above, was set for hearing.

In consequence of all these developments, the present petition was filed on August 1, 1967 (albeit
petitioner had to pay another docketing fee on August 9, 1967, since the orders in question were
issued in two separate testate estate proceedings, Nos. 1307 and 1672, in the court below).

Together with such petition, there are now pending before Us for resolution herein, appeals from the
following:

1. The order of December 19, 1964 authorizing payment by respondent Magno of

overtime pay, (pp. 221, Green Record on Appeal) together with the subsequent
orders of January 9, 1965, (pp. 231-232,id.) October 27, 1965, (pp. 227, id.) and
February 15, 1966 (pp. 455-456, id.) repeatedly denying motions for reconsideration
thereof.
 2. The order of August 6, 1965 (pp. 248, id.) requiring that deeds executed by
petitioner to be co-signed by respondent Magno, as well as the order of October 27,
1965 (pp. 276-277) denying reconsideration.

3. The order of October 27, 1965 (pp. 292-295, id.) enjoining the deposit of all
collections in a joint account and the same order of February 15, 1966 mentioned in
No. 1 above which included the denial of the reconsideration of this order of October
27, 1965.

4. The order of November 3, 1965 (pp. 313-320, id.) directing the payment of
attorney's fees, fees of the respondent administratrix, etc. and the order of February
16, 1966 denying reconsideration thereof.

5. The order of November 23, 1965 (pp. 334-335, id.) allowing appellee Western
Institute of Technology to make payments to either one or both of the administrators
of the two estates as well as the order of March 7, 1966 (p. 462, id.) denying
reconsideration.

6. The various orders hereinabove earlier enumerated approving deeds of sale

executed by respondent Magno in favor of appellees Carles, Catedral, Pablito,
Guzman, Coronado, Barrido, Causing, Javier, Lucero and Batisanan, (see pp. 35 to
37 of this opinion), together with the two separate orders both dated December 2,
1966 (pp. 306-308, and pp. 308-309, Yellow Record on Appeal) denying
reconsideration of said approval.

7. The order of January 3, 1967, on pp. 335-336, Yellow Record on Appeal,

approving similar deeds of sale executed by respondent Magno, as those in No. 6, in
favor of appellees Pacaonsis and Premaylon, as to which no motion for
reconsideration was filed.

8. Lastly, the order of December 2, 1966, on pp. 305-306, Yellow Record on Appeal,
directing petitioner to surrender to appellees Lucero, Batisanan, Javier, Pablito,
Barrido, Catedral, Causing, Guzman, and Coronado, the certificates of title covering
the lands involved in the approved sales, as to which no motion for reconsideration
was filed either.

Strictly speaking, and considering that the above orders deal with different matters, just as they
affect distinctly different individuals or persons, as outlined by petitioner in its brief as appellant on
pp. 12-20 thereof, there are, therefore, thirty-three (33) appeals before Us, for which reason,
petitioner has to pay also thirty-one (31) more docket fees.

It is as well perhaps to state here as elsewhere in this opinion that in connection with these appeals,
petitioner has assigned a total of seventy-eight (LXXVIII) alleged errors, the respective discussions
and arguments under all of them covering also the fundamental issues raised in respect to the
petition for certiorari and prohibition, thus making it feasible and more practical for the Court to
dispose of all these cases together.4

The assignments of error read thus:

I to IV
 THE ORDER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN
FAVOR OF THE APPELLEES, PEPITO G. IYULORES, ESPIRIDION PARTISALA,
WINIFREDO C. ESPADA AND ROSARIO ALINGASA, EXECUTED BY THE
APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY
THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO
SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME.

V to VIII

THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR

OF THE APPELLEES, PEPITO G. IYULORES, ESPIRIDION PARTISALA,
WINIFREDO C. ESPADA AND ROSARIO ALINGASA, COVERING PARCELS OF
LAND FOR WHICH THEY HAVE NEVER PAID IN FULL IN ACCORDANCE WITH
THE ORIGINAL CONTRACTS TO SELL.

IX to XII

THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF OWNERSHIP

OVER REAL PROPERTY OF THE APPELLEES, PEPITO G. IYULORES,
ESPIRIDION PARTISALA, WINIFREDO C. ESPADA AND ROSARIO ALINGASA,
WHILE ACTING AS A PROBATE COURT.

XIII to XV

THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN

FAVOR OF THE APPELLEES ADELFA PREMAYLON (LOT NO. 102), SANTIAGO
PACAONSIS, AND ADELFA PREMAYLON (LOT NO. 104), EXECUTED BY THE
APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY
THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO
SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME.

XVI to XVIII

THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR

OF THE APPELLEES ADELFA PREMAYLON (LOT NO. 102), SANTIAGO
PACAONSIS, AND ADELFA PREMAYLON (LOT NO. 104) COVERING PARCELS
OF LAND FOR WHICH THEY HAVE NEVER PAID IN FULL IN ACCORDANCE
WITH THE ORIGINAL CONTRACTS TO SELL.

XIX to XXI

THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF OWNERSHIP

OVER REAL PROPERTY OF THE APPELLEES ADELFA PREMAYLON (LOT NO.
102), SANTIAGO PACAONSIS, AND ADELFA PREMAYLON (LOT NO. 104) WHILE
ACTING AS A PROBATE COURT.

XXII to XXV

THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN

FAVOR OF THE APPELLEES LORENZO CARLES, JOSE PABLICO, ALFREDO
CATEDRAL AND SALVADOR S. GUZMAN, EXECUTED BY THE APPELLEE,
 AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE
DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL
COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME.

XXVI to XXIX

THE LOWER COURT ERRED IN APPROVING THE FINAL DEED OF SALE

EXECUTED IN FAVOR OF THE APPELLEES, LORENZO CARLES, JOSE
PABLICO, ALFREDO CATEDRAL AND SALVADOR S. GUZMAN PURSUANT TO
CONTRACTS TO SPELL WHICH WERE CANCELLED AND RESCINDED.

XXX to XXXIV

THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF OWNERSHIP

OVER REAL PROPERTY OF THE LORENZO CARLES, JOSE PABLICO,
ALFREDO CATEDRAL AND SALVADOR S. GUZMAN, WHILE ACTING AS A
PROBATE COURT.

XXXV to XXXVI

THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN

FAVOR OF THE APPELLEES, FLORENIA BARRIDO AND PURIFICACION
CORONADO, EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING
PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON
HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE
EXECUTED BY HIM DURING HIS LIFETIME.

XXXVII to XXXVIII

THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR

OF THE APPELLEES, FLORENIA BARRIDO AND PURIFICACION CORONADO,
ALTHOUGH THEY WERE IN ARREARS IN THE PAYMENTS AGREED UPON IN
THE ORIGINAL CONTRACT TO SELL WHICH THEY EXECUTED WITH THE
DECEASED, CHARLES NEWTON HODGES, IN THE AMOUNT OF P10,680.00 and
P4,428.90, RESPECTIVELY.

XXXIX to XL

THE LOWER COURT ERRED IN DEPRIVING THE DECEASED, CHARLES

NEWTON HODGES, OF THE CONTRACTUAL RIGHT, EXERCISED THROUGH
HIS ADMINISTRATOR, THE INSTANT APPELLANT, TO CANCEL THE
CONTRACTS TO SELL OF THE APPELLEES, FLORENIA BARRIDO AND
PURIFICACION CORONADO.

XLI to XLIII

THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN

FAVOR OF THE APPELLEES, GRACIANO LUCERO, ARITEO THOMAS JAMIR
AND MELQUIADES BATISANAN, EXECUTED BY THE APPELLEE, AVELINA A.
MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED,
 CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING
WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME.

XLIV to XLVI

THE LOWER COURT ERRED IN APPROVING THE FINAL DEED OF SALE IN

FAVOR OF THE APPELLEES, GRACIANO LUCERO, ARITEO THOMAS JAMIR
AND MELQUIADES BATISANAN, PURSUANT TO CONTRACTS TO SELL
EXECUTED BY THEM WITH THE DECEASED, CHARLES NEWTON HODGES,
THE TERMS AND CONDITIONS OF WHICH THEY HAVE NEVER COMPLIED
WITH.

XLVII to XLIX

THE LOWER COURT ERRED IN DEPRIVING THE DECEASED, CHARLES

NEWTON HODGES, OF HIS RIGHT, EXERCISED THROUGH HIS
ADMINISTRATION, THE INSTANT APPELLANT, TO CANCEL THE CONTRACTS
TO SELL OF THE APPELLEES, GRACIANO LUCERO, ARITEO THOMAS JAMIR
AND MELQUIADES BATISANAN, AND IN DETERMINING THE RIGHTS OF THE
SAID APPELLEES OVER REAL PROPERTY WHILE ACTING AS A PROBATE
COURT.

THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN

FAVOR OF THE APPELLEE, BELCESAR CAUSING, EXECUTED BY THE
APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY
THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO
SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME.

LI

THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR

OF THE APPELLEE, BELCESAR CAUSING, ALTHOUGH HE WAS IN ARREARS
IN THE PAYMENTS AGREED UPON IN THE ORIGINAL CONTRACT TO SELL
WHICH HE EXECUTED WITH THE DECEASED, CHARLES NEWTON HODGES,
IN THE AMOUNT OF P2,337.50.

LII

THE LOWER COURT ERRED IN APPROVING THE DEED OF SALE IN FAVOR OF

THE APPELLEE, BELCESAR CAUSING, ALTHOUGH THE SAME WAS NOT
EXECUTED IN ACCORDANCE WITH THE RULES OF COURT.

LIII to LXI

THE LOWER COURT ERRED IN ORDERING THE APPELLANT, PHILIPPINE

COMMERCIAL AND INDUSTRIAL BANK TO SURRENDER THE OWNER'S
DUPLICATE CERTIFICATES OF TITLE OVER THE RESPECTIVE LOTS
COVERED BY THE DEEDS OF SALE EXECUTED BY THE APPELLEE, AVELINA
A. MAGNO, IN FAVOR OF THE OTHER APPELLEES, JOSE PABLICO, ALFREDO
 CATEDRAL, SALVADOR S. GUZMAN, FLRENIA BARRIDO, PURIFICACION
CORONADO, BELCESAR CAUSING, ARITEO THOMAS JAMIR, MAXIMA
BATISANAN AND GRACIANO L. LUCERO.

LXII

THE LOWER COURT ERRED IN RESOLVING THE MOTION OF THE APPELLEE,

WESTERN INSTITUTE OF TECHNOLOGY, DATED NOVEMBER 3, 1965,
WITHOUT ANY COPY THEREOF HAVING BEEN SERVED UPON THE
APPELLANT, PHILIPPINE COMMERCIAL & INDUSTRIAL BANK.

LXIII

THE LOWER COURT ERRED IN HEARING AND CONSIDERING THE MOTION OF

THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, DATED NOVEMBER
3rd, 1965, ON NOVEMBER 23, 1965, WHEN THE NOTICE FOR THE HEARING
THEREOF WAS FOR NOVEMBER 20, 1965.

LXIV

THE LOWER COURT ERRED IN GRANTING THE APPELLEE, WESTERN

INSTITUTE OF TECHNOLOGY A RELIEF OTHER THAN THAT PRAYED FOR IN
ITS MOTION, DATED NOVEMBER 3, 1965, IN THE ABSENCE OF A PRAYER FOR
GENERAL RELIEF CONTAINED THEREIN.

LXV

THE LOWER COURT ERRED IN ALLOWING THE APPELLEE, WESTERN

INSTITUTE OF TECHNOLOGY, TO CONTINUE PAYMENTS UPON A CONTRACT
TO SELL THE TERMS AND CONDITIONS OF WHICH IT HAS FAILED TO
FULFILL.

LXVI

THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF THE

APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY OVER THE REAL
PROPERTY SUBJECT MATTER OF THE CONTRACT TO SELL IT EXECUTED
WITH THE DECEASED, CHARLES NEWTON HODGES, WHILE ACTING AS A
PROBATE COURT.

LXVII

LOWER COURT ERRED IN ALLOWING THE CONTINUATION OF PAYMENTS BY

THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, UPON A CONTRACT
TO SELL EXECUTED BY IT AND THE DECEASED, CHARLES NEWTON
HODGES, TO A PERSON OTHER THAN HIS LAWFULLY APPOINTED
ADMINISTRATOR.

LXVIII
 THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF RETAINER'S
FEES FROM THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE
HODGES, WHEN THERE IS NEITHER SUCH ESTATE NOR ASSETS THEREOF.

LXIX

THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF RETAINER'S

FEES OF LAWYERS OF ALLEGED HEIRS TO THE SUPPOSED ESTATE OF THE
DECEASED, LINNIE JANE HODGES.

LXX

THE LOWER COURT ERRED IN IMPLEMENTING THE ALLEGED AGREEMENT

BETWEEN THE HEIRS OF THE SUPPOSED ESTATE OF THE DECEASED,
LINNIE JANE HODGES, AND THEIR LAWYERS.

LXXI

THE LOWER COURT ERRED IN ORDERING THE PREMATURE DISTRIBUTION

OF ESTATE ASSETS TO ALLEGED HEIRS OR BENEFICIARIES THEREOF, BY
WAY OF RETAINER'S FEES.

LXXII

THE LOWER COURT ERRED IN ORDERING THAT ALL FINAL DEEDS OF SALE
EXECUTED PURSUANT TO CONTRACTS TO SELL ENTERED INTO BY THE
DECEASED, CHARLES NEWTON HODGES, DURING HIS LIFETIME, BE SIGNED
JOINTLY BY THE APPELLEE, AVELINA A. MAGNO, AND THE APPELLANT,
PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, AND NOT BY THE LATTER
ONLY AS THE LAWFULLY APPOINTED ADMINISTRATOR OF HIS ESTATE.

LXXIII

THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF LEGAL

EXPENSES FROM THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE
HODGES, WHEN THERE IS NEITHER SUCH ESTATE NOR ASSETS THEREOF.

LXXIV

THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF LEGAL

EXPENSES OF LAWYERS OF ALLEGED HEIRS TO THE SUPPOSED ESTATE
OF THE DECEASED, LINNIE JANE HODGES.

LXXV

THE LOWER COURT ERRED IN ORDERING THE PREMATURE DISTRIBUTION

OF ESTATE ASSETS TO ALLEGED HEIRS OR BENEFICIARIES THEREOF, BY
WAY OF LEGAL EXPENSES.

LXXVI
 THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF
COMPENSATION TO THE PURPORTED ADMINISTRATRIX OF THE SUPPOSED
ESTATE OF THE DECEASED, LINNIE JANE HODGES, THE INSTANT APPELLEE,
AVELINA A. MAGNO, WHEN THERE IS NEITHER SUCH ESTATE NOR ASSETS
THEREOF.

LXXVII

THE LOWER COURT ERRED IN ORDERING THAT THE FUNDS OF THE

TESTATE ESTATE OF THE DECEASED, CHARLES NEWTON HODGES, BE
PLACED IN A JOINT ACCOUNT OF THE APPELLANT, PHILIPPINE
COMMERCIAL AND INDUSTRIAL BANK, AND THE APPELLEE, AVELINA A.
MAGNO, WHO IS A COMPLETE STRANGER TO THE AFORESAID ESTATE.

LXXVIII

THE LOWER COURT ERRED IN ORDERING THAT THE APPELLEE, AVELINA A.

MAGNO, BE GIVEN EQUAL ACCESS TO THE RECORDS OF THE TESTATE
ESTATE OF THE DECEASED, CHARLES NEWTON HODGES, WHEN SHE IS A
COMPLETE STRANGER TO THE AFORESAID ESTATE. (Pp. 73-83, Appellant's
Brief.)

To complete this rather elaborate, and unavoidably extended narration of the factual setting of these
cases, it may also be mentioned that an attempt was made by the heirs of Mrs. Hodges to have
respondent Magno removed as administratrix, with the proposed appointment of Benito J. Lopez in
her place, and that respondent court did actually order such proposed replacement, but the Court
declared the said order of respondent court violative of its injunction of August 8, 1967, hence
without force and effect (see Resolution of September 8, 1972 and February 1, 1973). Subsequently,
Atty. Efrain B. Trenas, one of the lawyers of said heirs, appeared no longer for the proposed
administrator Lopez but for the heirs themselves, and in a motion dated October 26, 1972 informed
the Court that a motion had been filed with respondent court for the removal of petitioner PCIB as
administrator of the estate of C. N. Hodges in Special Proceedings 1672, which removal motion
alleged that 22.968149% of the share of C. N. Hodges had already been acquired by the heirs of
Mrs. Hodges from certain heirs of her husband. Further, in this connection, in the answer of PCIB to
the motion of respondent Magno to have it declared in contempt for disregarding the Court's
resolution of September 8, 1972 modifying the injunction of August 8, 1967, said petitioner annexed
thereto a joint manifestation and motion, appearing to have been filed with respondent court,
informing said court that in addition to the fact that 22% of the share of C. N. Hodges had already
been bought by the heirs of Mrs. Hodges, as already stated, certain other heirs of Hodges
representing 17.343750% of his estate were joining cause with the heirs of Mrs. Hodges as against
PCIB, thereby making somewhat precarious, if not possibly untenable, petitioners' continuation as
administrator of the Hodges estate.

RESOLUTION OF ISSUES IN THE CERTIORARI AND

PROHIBITION CASES

As to the Alleged Tardiness

of the Present Appeals
The priority question raised by respondent Magno relates to the alleged tardiness of all the
aforementioned thirty-three appeals of PCIB. Considering, however, that these appeals revolve
around practically the same main issues and that it is admitted that some of them have been timely
taken, and, moreover, their final results hereinbelow to be stated and explained make it of no
consequence whether or not the orders concerned have become final by the lapsing of the
respective periods to appeal them, We do not deem it necessary to pass upon the timeliness of any
of said appeals.

II

The Propriety Here of Certiorari and

Prohibition instead of Appeal

The other preliminary point of the same respondent is alleged impropriety of the special civil action
of certiorari and prohibition in view of the existence of the remedy of appeal which it claims is proven
by the very appeals now before Us. Such contention fails to take into account that there is a
common thread among the basic issues involved in all these thirty-three appeals which, unless
resolved in one single proceeding, will inevitably cause the proliferation of more or less similar or
closely related incidents and consequent eventual appeals. If for this consideration alone, and
without taking account anymore of the unnecessary additional effort, expense and time which would
be involved in as many individual appeals as the number of such incidents, it is logical and proper to
hold, as We do hold, that the remedy of appeal is not adequate in the present cases. In determining
whether or not a special civil action of certiorari or prohibition may be resorted to in lieu of appeal, in
instances wherein lack or excess of jurisdiction or grave abuse of discretion is alleged, it is not
enough that the remedy of appeal exists or is possible. It is indispensable that taking all the relevant
circumstances of the given case, appeal would better serve the interests of justice. Obviously, the
longer delay, augmented expense and trouble and unnecessary repetition of the same work
attendant to the present multiple appeals, which, after all, deal with practically the same basic issues
that can be more expeditiously resolved or determined in a single special civil action, make the
remedies of certiorari and prohibition, pursued by petitioner, preferable, for purposes of resolving the
common basic issues raised in all of them, despite the conceded availability of appeal. Besides, the
settling of such common fundamental issues would naturally minimize the areas of conflict between
the parties and render more simple the determination of the secondary issues in each of them.
Accordingly, respondent Magno's objection to the present remedy of certiorariand prohibition must
be overruled.

We come now to the errors assigned by petitioner-appellant, Philippine Commercial & Industrial
Bank, (PCIB, for short) in the petition as well as in its main brief as appellant.

III

On Whether or Not There is Still Any Part of the Testate

Estate Mrs. Hodges that may be Adjudicated to her brothers
and sisters as her estate, of which respondent Magno is the
unquestioned Administratrix in special Proceedings 1307.

In the petition, it is the position of PCIB that the respondent court exceeded its jurisdiction or gravely
abused its discretion in further recognizing after December 14, 1957 the existence of the Testate
Estate of Linnie Jane Hodges and in sanctioning purported acts of administration therein of
respondent Magno. Main ground for such posture is that by the aforequoted order of respondent
court of said date, Hodges was already allowed to assert and exercise all his rights as universal heir
of his wife pursuant to the provisions of her will, quoted earlier, hence, nothing else remains to be
done in Special Proceedings 1307 except to formally close it. In other words, the contention of PCIB
is that in view of said order, nothing more than a formal declaration of Hodges as sole and exclusive
heir of his wife and the consequent formal unqualified adjudication to him of all her estate remain to
be done to completely close Special Proceedings 1307, hence respondent Magno should be
considered as having ceased to be Administratrix of the Testate Estate of Mrs. Hodges since then.

After carefully going over the record, We feel constrained to hold that such pose is patently
untenable from whatever angle it is examined.

To start with, We cannot find anywhere in respondent Order of December 14, 1957 the sense being
read into it by PCIB. The tenor of said order bears no suggestion at all to such effect. The
declaration of heirs and distribution by the probate court of the estate of a decedent is its most
important function, and this Court is not disposed to encourage judges of probate proceedings to be
less than definite, plain and specific in making orders in such regard, if for no other reason than that
all parties concerned, like the heirs, the creditors, and most of all the government, the devisees and
legatees, should know with certainty what are and when their respective rights and obligations
ensuing from the inheritance or in relation thereto would begin or cease, as the case may be,
thereby avoiding precisely the legal complications and consequent litigations similar to those that
have developed unnecessarily in the present cases. While it is true that in instances wherein all the
parties interested in the estate of a deceased person have already actually distributed among
themselves their respective shares therein to the satisfaction of everyone concerned and no rights of
creditors or third parties are adversely affected, it would naturally be almost ministerial for the court
to issue the final order of declaration and distribution, still it is inconceivable that the special
proceeding instituted for the purpose may be considered terminated, the respective rights of all the
parties concerned be deemed definitely settled, and the executor or administrator thereof be
regarded as automatically discharged and relieved already of all functions and responsibilities
without the corresponding definite orders of the probate court to such effect.

Indeed, the law on the matter is specific, categorical and unequivocal. Section 1 of Rule 90 provides:

SECTION 1. When order for distribution of residue made. — When the debts, funeral
charges, and expenses of administration, the allowance to the widow and inheritance
tax, if any, chargeable to the estate in accordance with law have been paid, the
court, on the application of the executor or administrator, or of a person interested in
the estate, and after hearing upon notice, shall assign the residue of the estate to the
persons entitled to the same, naming them and the proportions, or parts, to which
each is entitled, and such persons may demand and recover their respective shares
from the executor or administrator, or any other person having the same in his
possession. If there is a controversy before the court as to who are the lawful heirs of
the deceased person or as to the distributive shares to which each person is entitled
under the law, the controversy shall be heard and decided as in ordinary cases.

No distribution shall be allowed until the payment of the obligations above mentioned
has been made or provided for, unless the distributees, or any of them give a bond,
in a sum to be fixed by the court, conditioned for the payment of said obligations
within such time as the court directs.

These provisions cannot mean anything less than that in order that a proceeding for the settlement
of the estate of a deceased may be deemed ready for final closure, (1) there should have been
issued already an order of distribution or assignment of the estate of the decedent among or to those
entitled thereto by will or by law, but (2) such order shall not be issued until after it is shown that the
"debts, funeral expenses, expenses of administration, allowances, taxes, etc. chargeable to the
estate" have been paid, which is but logical and proper. (3) Besides, such an order is usually issued
upon proper and specific application for the purpose of the interested party or parties, and not of the
court.

... it is only after, and not before, the payment of all debts, funeral charges, expenses
of administration, allowance to the widow, and inheritance tax shall have been
effected that the court should make a declaration of heirs or of such persons as are
entitled by law to the residue. (Moran, Comments on the Rules of Court, 2nd ed., Vol.
II, p. 397, citing Capistrano vs. Nadurata, 49 Phil., 726; Lopez vs. Lopez, 37 Off.
Gaz., 3091.) (JIMOGA-ON v. BELMONTE, 84 Phil. 545, 548) (p. 86, Appellee's Brief)

xxx xxx xxx

Under Section 753 of the Code of Civil Procedure, (corresponding to Section 1, Rule
90) what brings an intestate (or testate) proceeding to a close is the order of
distribution directing delivery of the residue to the persons entitled thereto after
paying the indebtedness, if any, left by the deceased. (Santiesteban vs.
Santiesteban, 68 Phil. 367, 370.)

In the cases at bar, We cannot discern from the voluminous and varied facts, pleadings and orders
before Us that the above indispensable prerequisites for the declaration of heirs and the adjudication
of the estate of Mrs. Hodges had already been complied with when the order of December 14, 1957
was issued. As already stated, We are not persuaded that the proceedings leading to the issuance
of said order, constituting barely of the motion of May 27, 1957, Annex D of the petition, the order of
even date, Annex E, and the motion of December 11, 1957, Annex H, all aforequoted, are what the
law contemplates. We cannot see in the order of December 14, 1957, so much relied upon by the
petitioner, anything more than an explicit approval of "all the sales, conveyances, leases and
mortgages of all the properties left by the deceased Linnie Jane Hodges executed by the Executor
Charles N. Hodges" (after the death of his wife and prior to the date of the motion), plus a general
advance authorization to enable said "Executor — to execute subsequent sales, conveyances,
leases and mortgages of the properties left the said deceased Linnie Jane Hodges in consonance
with wishes conveyed in the last will and testament of the latter", which, certainly, cannot amount to
the order of adjudication of the estate of the decedent to Hodges contemplated in the law. In fact, the
motion of December 11, 1957 on which the court predicated the order in question did not pray for
any such adjudication at all. What is more, although said motion did allege that "herein Executor
(Hodges) is not only part owner of the properties left as conjugal, but also, the successor to all the
properties left by the deceased Linnie Jane Hodges", it significantly added that "herein Executor, as
Legatee (sic), has the right to sell, convey, lease or dispose of the properties in the Philippines —
during his lifetime", thereby indicating that what said motion contemplated was nothing more than
either the enjoyment by Hodges of his rights under the particular portion of the dispositions of his
wife's will which were to be operative only during his lifetime or the use of his own share of the
conjugal estate, pending the termination of the proceedings. In other words, the authority referred to
in said motions and orders is in the nature of that contemplated either in Section 2 of Rule 109 which
permits, in appropriate cases, advance or partial implementation of the terms of a duly probated will
before final adjudication or distribution when the rights of third parties would not be adversely
affected thereby or in the established practice of allowing the surviving spouse to dispose of his own
share of he conjugal estate, pending its final liquidation, when it appears that no creditors of the
conjugal partnership would be prejudiced thereby, (see the Revised Rules of Court by Francisco,
Vol. V-B, 1970 ed. p. 887) albeit, from the tenor of said motions, We are more inclined to believe that
Hodges meant to refer to the former. In any event, We are fully persuaded that the quoted
allegations of said motions read together cannot be construed as a repudiation of the rights
unequivocally established in the will in favor of Mrs. Hodges' brothers and sisters to whatever have
not been disposed of by him up to his death.
Indeed, nowhere in the record does it appear that the trial court subsequently acted upon the
premise suggested by petitioner. On the contrary, on November 23, 1965, when the court resolved
the motion of appellee Western Institute of Technology by its order We have quoted earlier, it
categorically held that as of said date, November 23, 1965, "in both cases (Special Proceedings
1307 and 1672) there is as yet no judicial declaration of heirs nor distribution of properties to
whomsoever are entitled thereto." In this connection, it may be stated further against petitioner, by
way of some kind of estoppel, that in its own motion of January 8, 1965, already quoted in full on
pages 54-67 of this decision, it prayed inter alia that the court declare that "C. N. Hodges was the
sole and exclusive heir of the estate of Linnie Jane Hodges", which it would not have done if it were
really convinced that the order of December 14, 1957 was already the order of adjudication and
distribution of her estate. That said motion was later withdrawn when Magno filed her own motion for
determination and adjudication of what should correspond to the brothers and sisters of Mrs. Hodges
does not alter the indubitable implication of the prayer of the withdrawn motion.

It must be borne in mind that while it is true that Mrs. Hodges bequeathed her whole estate to her
husband and gave him what amounts to full powers of dominion over the same during his lifetime,
she imposed at the same time the condition that whatever should remain thereof upon his death
should go to her brothers and sisters. In effect, therefore, what was absolutely given to Hodges was
only so much of his wife's estate as he might possibly dispose of during his lifetime; hence, even
assuming that by the allegations in his motion, he did intend to adjudicate the whole estate to
himself, as suggested by petitioner, such unilateral act could not have affected or diminished in any
degree or manner the right of his brothers and sisters-in-law over what would remain thereof upon
his death, for surely, no one can rightly contend that the testamentary provision in question allowed
him to so adjudicate any part of the estate to himself as to prejudice them. In other words,
irrespective of whatever might have been Hodges' intention in his motions, as Executor, of May 27,
1957 and December 11, 1957, the trial court's orders granting said motions, even in the terms in
which they have been worded, could not have had the effect of an absolute and unconditional
adjudication unto Hodges of the whole estate of his wife. None of them could have deprived his
brothers and sisters-in-law of their rights under said will. And it may be added here that the fact that
no one appeared to oppose the motions in question may only be attributed, firstly, to the failure of
Hodges to send notices to any of them, as admitted in the motion itself, and, secondly, to the fact
that even if they had been notified, they could not have taken said motions to be for the final
distribution and adjudication of the estate, but merely for him to be able, pending such final
distribution and adjudication, to either exercise during his lifetime rights of dominion over his wife's
estate in accordance with the bequest in his favor, which, as already observed, may be allowed
under the broad terms of Section 2 of Rule 109, or make use of his own share of the conjugal estate.
In any event, We do not believe that the trial court could have acted in the sense pretended by
petitioner, not only because of the clear language of the will but also because none of the interested
parties had been duly notified of the motion and hearing thereof. Stated differently, if the orders of
May 27, 1957 and December 4, 1957 were really intended to be read in the sense contended by
petitioner, We would have no hesitancy in declaring them null and void.

Petitioner cites the case of Austria vs. Ventenilla, G. R. No. L-10018, September 19, 1956,
(unreported but a partial digest thereof appears in 99 Phil. 1069) in support of its insistence that with
the orders of May 27 and December 14, 1957, the closure of Mrs. Hodges' estate has become a
mere formality, inasmuch as said orders amounted to the order of adjudication and distribution
ordained by Section 1 of Rule 90. But the parallel attempted to be drawn between that case and the
present one does not hold. There the trial court had in fact issued a clear, distinct and express order
of adjudication and distribution more than twenty years before the other heirs of the deceased filed
their motion asking that the administratrix be removed, etc. As quoted in that decision, the order of
the lower court in that respect read as follows:
 En orden a la mocion de la administradora, el juzgado la encuentra procedente bajo
la condicion de que no se hara entrega ni adjudicacion de los bienes a los herederos
antes de que estos presten la fianza correspondiente y de acuerdo con lo prescrito
en el Art. 754 del Codigo de Procedimientos: pues, en autos no aparece que hayan
sido nombrados comisionados de avaluo y reclamaciones. Dicha fianza podra ser
por un valor igual al de los bienes que correspondan a cada heredero segun el
testamento. Creo que no es obice para la terminacion del expediente el hecho de
que la administradora no ha presentado hasta ahora el inventario de los bienes;
pues, segun la ley, estan exentos de esta formalidad os administradores que son
legatarios del residuo o remanente de los bienes y hayan prestado fianza para
responder de las gestiones de su cargo, y aparece en el testamento que la
administradora Alejandra Austria reune dicha condicion.

POR TODO LO EXPUESTO, el juzgado declara, 1.o: no haber lugar a la mocion de

Ramon Ventenilla y otros; 2.o, declara asimismo que los unicos herederos del finado
Antonio Ventenilla son su esposa Alejandra Austria, Maria Ventenilla, hermana del
testador, y Ramon Ventenilla, Maria Ventenilla, Ramon Soriano, Eulalio Soriano,
Jose Soriano, Gabriela Ventenilla, Lorenzo Ventenilla, Felicitas Ventenilla, Eugenio
Ventenilla y Alejandra Ventenilla, en representacion de los difuntos Juan, Tomas,
Catalino y Froilan, hermanos del testador, declarando, ademas que la heredera
Alejandra Austria tiene derecho al remanente de todos los bienes dejados por el
finado, despues de deducir de ellos la porcion que corresponde a cada uno de sus
coherederos, conforme esta mandado en las clausulas 8.a, 9.a, 10.a, 11.a, 12.a y
13.a del testamento; 3.o, se aprueba el pago hecho por la administradora de los
gastos de la ultima enfermedad y funerales del testador, de la donacion hecha por el
testador a favor de la Escuela a Publica del Municipio de Mangatarem, y de las
misas en sufragio del alma del finado; 4.o, que una vez prestada la fianza
mencionada al principio de este auto, se haga la entrega y adjudicacion de los
bienes, conforme se dispone en el testamento y se acaba de declarar en este auto;
5.o, y, finalmente, que verificada la adjudicacion, se dara por terminada la
administracion, revelandole toda responsabilidad a la administradora, y cancelando
su fianza.

ASI SE ORDENA.

Undoubtedly, after the issuance of an order of such tenor, the closure of any proceedings for the
settlement of the estate of a deceased person cannot be but perfunctory.

In the case at bar, as already pointed out above, the two orders relied upon by petitioner do not
appear ex-facie to be of the same tenor and nature as the order just quoted, and, what is more, the
circumstances attendant to its issuance do not suggest that such was the intention of the court, for
nothing could have been more violative of the will of Mrs. Hodges.

Indeed, to infer from Hodges' said motions and from his statements of accounts for the years 1958,
1959 and 1960, A Annexes I, K and M, respectively, wherein he repeatedly claimed that "herein
executor (being) the only devisee or legatee of the deceased, in accordance with the last will and
testament already probated," there is "no (other) person interested in the Philippines of the time and
place of examining herein account to be given notice", an intent to adjudicate unto himself the whole
of his wife's estate in an absolute manner and without regard to the contingent interests of her
brothers and sisters, is to impute bad faith to him, an imputation which is not legally permissible,
much less warranted by the facts of record herein. Hodges knew or ought to have known that, legally
speaking, the terms of his wife's will did not give him such a right. Factually, there are enough
circumstances extant in the records of these cases indicating that he had no such intention to ignore
the rights of his co-heirs. In his very motions in question, Hodges alleged, thru counsel, that the
"deceased Linnie Jane Hodges died leaving no descendants and ascendants, except brothers and
sisters and herein petitioner, as surviving spouse, to inherit the properties of the decedent", and
even promised that "proper accounting will be had — in all these transactions" which he had
submitted for approval and authorization by the court, thereby implying that he was aware of his
responsibilities vis-a-vis his co-heirs. As alleged by respondent Magno in her brief as appellee:

Under date of April 14, 1959, C. N. Hodges filed his first "Account by the Executor" of
the estate of Linnie Jane Hodges. In the "Statement of Networth of Mr. C. N. Hodges
and the Estate of Linnie Jane Hodges" as of December 31, 1958 annexed thereto, C.
N. Hodges reported that the combined conjugal estate earned a net income of
P328,402.62, divided evenly between him and the estate of Linnie Jane Hodges.
Pursuant to this, he filed an "individual income tax return" for calendar year 1958 on
the estate of Linnie Jane Hodges reporting, under oath, the said estate as having
earned income of P164,201.31, exactly one-half of the net income of his combined
personal assets and that of the estate of Linnie Jane Hodges. (p. 91, Appellee's
Brief.)

Under date of July 21, 1960, C. N. Hodges filed his second "Annual Statement of
Account by the Executor" of the estate of Linnie Jane Hodges. In the "Statement of
Networth of Mr. C. N. Hodges and the Estate of Linnie Jane Hodges" as of
December 31, 1959 annexed thereto, C. N. Hodges reported that the combined
conjugal estate earned a net income of P270,623.32, divided evenly between him
and the estate of Linnie Jane Hodges. Pursuant to this, he filed an "individual income
tax return" for calendar year 1959 on the estate of Linnie Jane Hodges reporting,
under oath, the said estate as having earned income of P135,311.66, exactly one-
half of the net income of his combined personal assets and that of the estate of
Linnie Jane Hodges. (pp. 91-92, id.)

Under date of April 20, 1961, C. N. Hodges filed his third "Annual Statement of
Account by the Executor for the year 1960" of the estate of Linnie Jane Hodges. In
the "Statement of Net Worth of Mr. C. N. Hodges and the Estate of Linnie Jane
Hodges" as of December 31, 1960 annexed thereto, C. N. Hodges reported that the
combined conjugal estate earned a net income of P314,857.94, divided of Linnie
Jane Hodges. Pursuant to this, he filed an "individual evenly between him and the
estate income tax return" for calendar year 1960 on the estate of Linnie Jane Hodges
reporting, under oath, the said estate as having earned income of P157,428.97,
exactly one-half of the net income of his combined personal assets and that of the
estate of Linnie Jane Hodges. (pp. 92-93, id.)

In the petition for probate that he (Hodges) filed, he listed the seven brothers and
sisters of Linnie Jane as her "heirs" (see p. 2, Green ROA). The order of the court
admitting the will to probate unfortunately omitted one of the heirs, Roy Higdon (see
p. 14, Green ROA). Immediately, C. N. Hodges filed a verified motion to have Roy
Higdon's name included as an heir, stating that he wanted to straighten the records
"in order (that) the heirs of deceased Roy Higdon may not think or believe they were
omitted, and that they were really and are interested in the estate of deceased Linnie
Jane Hodges".

Thus, he recognized, if in his own way, the separate identity of his wife's estate from his own share
of the conjugal partnership up to the time of his death, more than five years after that of his wife. He
never considered the whole estate as a single one belonging exclusively to himself. The only
conclusion one can gather from this is that he could have been preparing the basis for the eventual
transmission of his wife's estate, or, at least, so much thereof as he would not have been able to
dispose of during his lifetime, to her brothers and sisters in accordance with her expressed desire,
as intimated in his tax return in the United States to be more extensively referred to anon. And
assuming that he did pay the corresponding estate and inheritance taxes in the Philippines on the
basis of his being sole heir, such payment is not necessarily inconsistent with his recognition of the
rights of his co-heirs. Without purporting to rule definitely on the matter in these proceedings, We
might say here that We are inclined to the view that under the peculiar provisions of his wife's will,
and for purposes of the applicable inheritance tax laws, Hodges had to be considered as her sole
heir, pending the actual transmission of the remaining portion of her estate to her other heirs, upon
the eventuality of his death, and whatever adjustment might be warranted should there be any such
remainder then is a matter that could well be taken care of by the internal revenue authorities in due
time.

It is to be noted that the lawyer, Atty. Leon P. Gellada, who signed the motions of May 27, 1957 and
December 11, 1957 and the aforementioned statements of account was the very same one who also
subsequently signed and filed the motion of December 26, 1962 for the appointment of respondent
Magno as "Administratrix of the Estate of Mrs. Linnie Jane Hodges" wherein it was alleged that "in
accordance with the provisions of the last will and testament of Linnie Jane Hodges, whatever real
properties that may remain at the death of her husband, Charles Newton Hodges, the said
properties shall be equally divided among their heirs." And it appearing that said attorney was
Hodges' lawyer as Executor of the estate of his wife, it stands to reason that his understanding of the
situation, implicit in his allegations just quoted, could somehow be reflective of Hodges' own
understanding thereof.

As a matter of fact, the allegations in the motion of the same Atty. Gellada dated July 1, 1957, a
"Request for Inclusion of the Name of Roy Higdon in the Order of the Court dated July 19, 1957,
etc.", reference to which is made in the above quotation from respondent Magno's brief, are over the
oath of Hodges himself, who verified the motion. Said allegations read:

1. — That the Hon. Court issued orders dated June 29, 1957, ordering the probate of
the will.

2. — That in said order of the Hon. Court, the relatives of the deceased Linnie Jane
Hodges were enumerated. However, in the petition as well as in the testimony of
Executor during the hearing, the name Roy Higdon was mentioned, but deceased. It
was unintentionally omitted the heirs of said Roy Higdon who are his wife Aline
Higdon and son David Higdon, all of age, and residents of Quinlan, Texas, U.S.A.

3. — That to straighten the records, and in order the heirs of deceased Roy Higdon
may not think or believe they were omitted, and that they were really and are
interested in the estate of deceased Linnie Jane Hodges, it is requested of the Hon.
Court to insert the names of Aline Higdon and David Higdon, wife and son of
deceased Roy Higdon in the said order of the Hon. Court dated June 29, 1957. (pars.
1 to 3, Annex 2 of Magno's Answer — Record, p. 260)

As can be seen, these italicized allegations indicate, more or less, the real attitude of Hodges in
regard to the testamentary dispositions of his wife.

In connection with this point of Hodges' intent, We note that there are documents, copies of which
are annexed to respondent Magno's answer, which purportedly contain Hodges' own solemn
declarations recognizing the right of his co-heirs, such as the alleged tax return he filed with the
United States Taxation authorities, identified as Schedule M, (Annex 4 of her answer) and his
supposed affidavit of renunciation, Annex 5. In said Schedule M, Hodges appears to have answered
the pertinent question thus:

2a. Had the surviving spouse the right to declare an election between (1) the
provisions made in his or her favor by the will and (11) dower, curtesy or a statutory
interest? (X) Yes ( ) No

2d. Does the surviving spouse contemplate renouncing the will and electing to take
dower, curtesy, or a statutory interest? (X) Yes ( ) No

3. According to the information and belief of the person or persons filing the return, is
any action described under question 1 designed or contemplated? ( ) Yes (X) No
(Annex 4, Answer — Record, p. 263)

and to have further stated under the item, "Description of property interests passing to surviving
spouse" the following:

None, except for purposes of administering the Estate, paying debts, taxes and other
legal charges. It is the intention of the surviving husband of deceased to distribute
the remaining property and interests of the deceased in their Community Estate to
the devisees and legatees named in the will when the debts, liabilities, taxes and
expenses of administration are finally determined and paid. (Annex 4, Answer —
Record, p. 263)

In addition, in the supposed affidavit of Hodges, Annex 5, it is stated:

I, C. N. Hodges, being duly sworn, on oath affirm that at the time the United States
Estate Tax Return was filed in the Estate of Linnie Jane Hodges on August 8, 1958, I
renounced and disclaimed any and all right to receive the rents, emoluments and
income from said estate, as shown by the statement contained in Schedule M at
page 29 of said return, a copy of which schedule is attached to this affidavit and
made a part hereof.

The purpose of this affidavit is to ratify and confirm, and I do hereby ratify and
confirm, the declaration made in Schedule M of said return and hereby formally
disclaim and renounce any right on my part to receive any of the said rents,
emoluments and income from the estate of my deceased wife, Linnie Jane Hodges.
This affidavit is made to absolve me or my estate from any liability for the payment of
income taxes on income which has accrued to the estate of Linnie Jane Hodges
since the death of the said Linnie Jane Hodges on May 23, 1957. (Annex 5, Answer
— Record, p. 264)

Although it appears that said documents were not duly presented as evidence in the court below,
and We cannot, therefore, rely on them for the purpose of the present proceedings, still, We cannot
close our eyes to their existence in the record nor fail to note that their tenor jibes with Our
conclusion discussed above from the circumstances related to the orders of May 27 and December
14, 1957. 5 Somehow, these documents, considering they are supposed to be copies of their
originals found in the official files of the governments of the United States and of the Philippines,
serve to lessen any possible apprehension that Our conclusion from the other evidence of Hodges'
manifest intent vis-a-vis the rights of his co-heirs is without basis in fact.
Verily, with such eloquent manifestations of his good intentions towards the other heirs of his wife,
We find it very hard to believe that Hodges did ask the court and that the latter agreed that he be
declared her sole heir and that her whole estate be adjudicated to him without so much as just
annotating the contingent interest of her brothers and sisters in what would remain thereof upon his
demise. On the contrary, it seems to us more factual and fairer to assume that Hodges was well
aware of his position as executor of the will of his wife and, as such, had in mind the following
admonition made by the Court in Pamittan vs. Lasam, et al., 60 Phil., 908, at pp. 913-914:

Upon the death of Bernarda in September, 1908, said lands continued to be conjugal
property in the hands of the defendant Lasam. It is provided in article 1418 of the
Civil Code that upon the dissolution of the conjugal partnership, an inventory shall
immediately be made and this court in construing this provision in connection with
section 685 of the Code of Civil Procedure (prior to its amendment by Act No. 3176
of November 24, 1924) has repeatedly held that in the event of the death of the wife,
the law imposes upon the husband the duty of liquidating the affairs of the
partnership without delay (desde luego) (Alfonso vs. Natividad, 6 Phil., 240; Prado
vs. Lagera, 7 Phil., 395; De la Rama vs. De la Rama, 7 Phil., 745; Enriquez vs.
Victoria, 10 Phil., 10; Amancio vs. Pardo, 13 Phil., 297; Rojas vs. Singson Tongson,
17 Phil., 476; Sochayseng vs. Trujillo, 31 Phil., 153; Molera vs. Molera, 40 Phil., 566;
Nable Jose vs. Nable Jose, 41 Phil., 713.)

In the last mentioned case this court quoted with approval the case of Leatherwood
vs. Arnold (66 Texas, 414, 416, 417), in which that court discussed the powers of the
surviving spouse in the administration of the community property. Attention was
called to the fact that the surviving husband, in the management of the conjugal
property after the death of the wife, was a trustee of unique character who is liable
for any fraud committed by him with relation to the property while he is charged with
its administration. In the liquidation of the conjugal partnership, he had wide powers
(as the law stood prior to Act No. 3176) and the high degree of trust reposed in him
stands out more clearly in view of the fact that he was the owner of a half interest in
his own right of the conjugal estate which he was charged to administer. He could
therefore no more acquire a title by prescription against those for whom he was
administering the conjugal estate than could a guardian against his ward or a judicial
administrator against the heirs of estate. Section 38 of Chapter III of the Code of Civil
Procedure, with relation to prescription, provides that "this chapter shall not apply ...
in the case of a continuing and subsisting trust." The surviving husband in the
administration and liquidation of the conjugal estate occupies the position of a trustee
of the highest order and is not permitted by the law to hold that estate or any portion
thereof adversely to those for whose benefit the law imposes upon him the duty of
administration and liquidation. No liquidation was ever made by Lasam — hence, the
conjugal property which came into his possession on the death of his wife in
September, 1908, still remains conjugal property, a continuing and subsisting trust.
He should have made a liquidation immediately (desde luego). He cannot now be
permitted to take advantage of his own wrong. One of the conditions of title by
prescription (section 41, Code of Civil Procedure) is possession "under a claim of title
exclusive of any other right". For a trustee to make such a claim would be a manifest
fraud.

And knowing thus his responsibilities in the premises, We are not convinced that Hodges arrogated
everything unto himself leaving nothing at all to be inherited by his wife's brothers and sisters.

PCIB insists, however, that to read the orders of May 27 and December 14, 1957, not as
adjudicatory, but merely as approving past and authorizing future dispositions made by Hodges in a
wholesale and general manner, would necessarily render the said orders void for being violative of
the provisions of Rule 89 governing the manner in which such dispositions may be made and how
the authority therefor and approval thereof by the probate court may be secured. If We sustained
such a view, the result would only be that the said orders should be declared ineffective either way
they are understood, considering We have already seen it is legally impossible to consider them as
adjudicatory. As a matter of fact, however, what surges immediately to the surface, relative to PCIB's
observations based on Rule 89, is that from such point of view, the supposed irregularity would
involve no more than some non-jurisdictional technicalities of procedure, which have for their evident
fundamental purpose the protection of parties interested in the estate, such as the heirs, its
creditors, particularly the government on account of the taxes due it; and since it is apparent here
that none of such parties are objecting to said orders or would be prejudiced by the unobservance by
the trial court of the procedure pointed out by PCIB, We find no legal inconvenience in nor
impediment to Our giving sanction to the blanket approval and authority contained in said orders.
This solution is definitely preferable in law and in equity, for to view said orders in the sense
suggested by PCIB would result in the deprivation of substantive rights to the brothers and sisters of
Mrs. Hodges, whereas reading them the other way will not cause any prejudice to anyone, and,
withal, will give peace of mind and stability of rights to the innocent parties who relied on them in
good faith, in the light of the peculiar pertinent provisions of the will of said decedent.

Now, the inventory submitted by Hodges on May 12, 1958 referred to the estate of his wife as
consisting of "One-half of all the items designated in the balance sheet, copy of which is hereto
attached and marked as "Annex A"." Although, regrettably, no copy of said Annex A appears in the
records before Us, We take judicial notice, on the basis of the undisputed facts in these cases, that
the same consists of considerable real and other personal kinds of properties. And since, according
to her will, her husband was to be the sole owner thereof during his lifetime, with full power and
authority to dispose of any of them, provided that should there be any remainder upon his death,
such remainder would go to her brothers and sisters, and furthermore, there is no pretension, much
less any proof that Hodges had in fact disposed of all of them, and, on the contrary, the indications
are rather to the effect that he had kept them more or less intact, it cannot truthfully be said that,
upon the death of Hodges, there was no more estate of Mrs. Hodges to speak of. It is Our
conclusion, therefore, that properties do exist which constitute such estate, hence Special
Proceedings 1307 should not yet be closed.

Neither is there basis for holding that respondent Magno has ceased to be the Administratrix in said
proceeding. There is no showing that she has ever been legally removed as such, the attempt to
replace her with Mr. Benito Lopez without authority from the Court having been expressly held
ineffective by Our resolution of September 8, 1972. Parenthetically, on this last point, PCIB itself is
very emphatic in stressing that it is not questioning said respondent's status as such administratrix.
Indeed, it is not clear that PCIB has any standing to raise any objection thereto, considering it is a
complete stranger insofar as the estate of Mrs. Hodges is concerned.

It is the contention of PCIB, however, that as things actually stood at the time of Hodges' death, their
conjugal partnership had not yet been liquidated and, inasmuch as the properties composing the
same were thus commingled pro indiviso and, consequently, the properties pertaining to the estate
of each of the spouses are not yet identifiable, it is PCIB alone, as administrator of the estate of
Hodges, who should administer everything, and all that respondent Magno can do for the time being
is to wait until the properties constituting the remaining estate of Mrs. Hodges have been duly
segregated and delivered to her for her own administration. Seemingly, PCIB would liken the Testate
Estate of Linnie Jane Hodges to a party having a claim of ownership to some properties included in
the inventory of an administrator of the estate of a decedent, (here that of Hodges) and who normally
has no right to take part in the proceedings pending the establishment of his right or title; for which
as a rule it is required that an ordinary action should be filed, since the probate court is without
jurisdiction to pass with finality on questions of title between the estate of the deceased, on the one
hand, and a third party or even an heir claiming adversely against the estate, on the other.

We do not find such contention sufficiently persuasive. As We see it, the situation obtaining herein
cannot be compared with the claim of a third party the basis of which is alien to the pending probate
proceedings. In the present cases what gave rise to the claim of PCIB of exclusive ownership by the
estate of Hodges over all the properties of the Hodges spouses, including the share of Mrs. Hodges
in the community properties, were the orders of the trial court issued in the course of the very
settlement proceedings themselves, more specifically, the orders of May 27 and December 14, 1957
so often mentioned above. In other words, the root of the issue of title between the parties is
something that the court itself has done in the exercise of its probate jurisdiction. And since in the
ultimate analysis, the question of whether or not all the properties herein involved pertain exclusively
to the estate of Hodges depends on the legal meaning and effect of said orders, the claim that
respondent court has no jurisdiction to take cognizance of and decide the said issue is incorrect. If it
was within the competence of the court to issue the root orders, why should it not be within its
authority to declare their true significance and intent, to the end that the parties may know whether
or not the estate of Mrs. Hodges had already been adjudicated by the court, upon the initiative of
Hodges, in his favor, to the exclusion of the other heirs of his wife instituted in her will?

At this point, it bears emphasis again that the main cause of all the present problems confronting the
courts and the parties in these cases was the failure of Hodges to secure, as executor of his wife's
estate, from May, 1957 up to the time of his death in December, 1962, a period of more than five
years, the final adjudication of her estate and the closure of the proceedings. The record is bare of
any showing that he ever exerted any effort towards the early settlement of said estate. While, on
the one hand, there are enough indications, as already discuss that he had intentions of leaving
intact her share of the conjugal properties so that it may pass wholly to his co-heirs upon his death,
pursuant to her will, on the other hand, by not terminating the proceedings, his interests in his own
half of the conjugal properties remained commingled pro-indiviso with those of his co-heirs in the
other half. Obviously, such a situation could not be conducive to ready ascertainment of the portion
of the inheritance that should appertain to his co-heirs upon his death. Having these considerations
in mind, it would be giving a premium for such procrastination and rather unfair to his co-heirs, if the
administrator of his estate were to be given exclusive administration of all the properties in question,
which would necessarily include the function of promptly liquidating the conjugal partnership, thereby
identifying and segregating without unnecessary loss of time which properties should be considered
as constituting the estate of Mrs. Hodges, the remainder of which her brothers and sisters are
supposed to inherit equally among themselves.

To be sure, an administrator is not supposed to represent the interests of any particular party and his
acts are deemed to be objectively for the protection of the rights of everybody concerned with the
estate of the decedent, and from this point of view, it maybe said that even if PCIB were to act alone,
there should be no fear of undue disadvantage to anyone. On the other hand, however, it is
evidently implicit in section 6 of Rule 78 fixing the priority among those to whom letters of
administration should be granted that the criterion in the selection of the administrator is not his
impartiality alone but, more importantly, the extent of his interest in the estate, so much so that the
one assumed to have greater interest is preferred to another who has less. Taking both of these
considerations into account, inasmuch as, according to Hodges' own inventory submitted by him as
Executor of the estate of his wife, practically all their properties were conjugal which means that the
spouses have equal shares therein, it is but logical that both estates should be administered jointly
by representatives of both, pending their segregation from each other. Particularly is such an
arrangement warranted because the actuations so far of PCIB evince a determined, albeit
groundless, intent to exclude the other heirs of Mrs. Hodges from their inheritance. Besides, to allow
PCIB, the administrator of his estate, to perform now what Hodges was duty bound to do as
executor is to violate the spirit, if not the letter, of Section 2 of Rule 78 which expressly provides that
"The executor of an executor shall not, as such, administer the estate of the first testator." It goes
without saying that this provision refers also to the administrator of an executor like PCIB here.

We are not unmindful of the fact that under Section 2 of Rule 73, "When the marriage is dissolved by
the death of the husband or wife, the community property shall be inventoried, administered, and
liquidated, and the debts thereof paid, in the testate or intestate proceedings of the deceased
spouse. If both spouses have died, the conjugal partnership shall be liquidated in the testate or
intestate proceedings of either." Indeed, it is true that the last sentence of this provision allows or
permits the conjugal partnership of spouses who are both deceased to be settled or liquidated in the
testate or intestate proceedings of either, but precisely because said sentence allows or permits that
the liquidation be made in either proceeding, it is a matter of sound judicial discretion in which one it
should be made. After all, the former rule referring to the administrator of the husband's estate in
respect to such liquidation was done away with by Act 3176, the pertinent provisions of which are
now embodied in the rule just cited.

Thus, it can be seen that at the time of the death of Hodges, there was already the pending judicial
settlement proceeding of the estate of Mrs. Hodges, and, more importantly, that the former was the
executor of the latter's will who had, as such, failed for more than five years to see to it that the same
was terminated earliest, which was not difficult to do, since from ought that appears in the record,
there were no serious obstacles on the way, the estate not being indebted and there being no
immediate heirs other than Hodges himself. Such dilatory or indifferent attitude could only spell
possible prejudice of his co-heirs, whose rights to inheritance depend entirely on the existence of
any remainder of Mrs. Hodges' share in the community properties, and who are now faced with the
pose of PCIB that there is no such remainder. Had Hodges secured as early as possible the
settlement of his wife's estate, this problem would not arisen. All things considered, We are fully
convinced that the interests of justice will be better served by not permitting or allowing PCIB or any
administrator of the estate of Hodges exclusive administration of all the properties in question. We
are of the considered opinion and so hold that what would be just and proper is for both
administrators of the two estates to act conjointly until after said estates have been segregated from
each other.

At this juncture, it may be stated that we are not overlooking the fact that it is PCIB's contention that,
viewed as a substitution, the testamentary disposition in favor of Mrs. Hodges' brothers and sisters
may not be given effect. To a certain extent, this contention is correct. Indeed, legally speaking, Mrs.
Hodges' will provides neither for a simple or vulgar substitution under Article 859 of the Civil Code
nor for a fideicommissary substitution under Article 863 thereof. There is no vulgar substitution
therein because there is no provision for either (1) predecease of the testator by the designated heir
or (2) refusal or (3) incapacity of the latter to accept the inheritance, as required by Article 859; and
neither is there a fideicommissary substitution therein because no obligation is imposed thereby
upon Hodges to preserve the estate or any part thereof for anyone else. But from these premises, it
is not correct to jump to the conclusion, as PCIB does, that the testamentary dispositions in question
are therefore inoperative and invalid.

The error in PCIB's position lies simply in the fact that it views the said disposition exclusively in the
light of substitutions covered by the Civil Code section on that subject, (Section 3, Chapter 2, Title
IV, Book III) when it is obvious that substitution occurs only when another heir is appointed in a will
"so that he may enter into inheritance in default of the heir originally instituted," (Article 857, id.) and,
in the present case, no such possible default is contemplated. The brothers and sisters of Mrs.
Hodges are not substitutes for Hodges because, under her will, they are not to inherit what Hodges
cannot, would not or may not inherit, but what he would not dispose of from his inheritance; rather,
therefore, they are also heirs instituted simultaneously with Hodges, subject, however, to certain
conditions, partially resolutory insofar as Hodges was concerned and correspondingly suspensive
with reference to his brothers and sisters-in-law. It is partially resolutory, since it bequeaths unto
Hodges the whole of her estate to be owned and enjoyed by him as universal and sole heir with
absolute dominion over them6 only during his lifetime, which means that while he could completely
and absolutely dispose of any portion thereof inter vivos to anyone other than himself, he was not
free to do so mortis causa, and all his rights to what might remain upon his death would cease
entirely upon the occurrence of that contingency, inasmuch as the right of his brothers and sisters-in-
law to the inheritance, although vested already upon the death of Mrs. Hodges, would automatically
become operative upon the occurrence of the death of Hodges in the event of actual existence of
any remainder of her estate then.

Contrary to the view of respondent Magno, however, it was not the usufruct alone of her estate, as
contemplated in Article 869 of the Civil Code, that she bequeathed to Hodges during his lifetime, but
the full ownership thereof, although the same was to last also during his lifetime only, even as there
was no restriction whatsoever against his disposing or conveying the whole or any portion thereof to
anybody other than himself. The Court sees no legal impediment to this kind of institution, in this
jurisdiction or under Philippine law, except that it cannot apply to the legitime of Hodges as the
surviving spouse, consisting of one-half of the estate, considering that Mrs. Hodges had no surviving
ascendants nor descendants. (Arts. 872, 900, and 904, New Civil Code.)

But relative precisely to the question of how much of Mrs. Hodges' share of the conjugal partnership
properties may be considered as her estate, the parties are in disagreement as to how Article 16 of
the Civil Code7 should be applied. On the one hand, petitioner claims that inasmuch as Mrs. Hodges
was a resident of the Philippines at the time of her death, under said Article 16, construed in relation
to the pertinent laws of Texas and the principle of renvoi, what should be applied here should be the
rules of succession under the Civil Code of the Philippines, and, therefore, her estate could consist
of no more than one-fourth of the said conjugal properties, the other fourth being, as already
explained, the legitime of her husband (Art. 900, Civil Code) which she could not have disposed of
nor burdened with any condition (Art. 872, Civil Code). On the other hand, respondent Magno denies
that Mrs. Hodges died a resident of the Philippines, since allegedly she never changed nor intended
to change her original residence of birth in Texas, United States of America, and contends that,
anyway, regardless of the question of her residence, she being indisputably a citizen of Texas, under
said Article 16 of the Civil Code, the distribution of her estate is subject to the laws of said State
which, according to her, do not provide for any legitime, hence, the brothers and sisters of Mrs.
Hodges are entitled to the remainder of the whole of her share of the conjugal partnership properties
consisting of one-half thereof. Respondent Magno further maintains that, in any event, Hodges had
renounced his rights under the will in favor of his co-heirs, as allegedly proven by the documents
touching on the point already mentioned earlier, the genuineness and legal significance of which
petitioner seemingly questions. Besides, the parties are disagreed as to what the pertinent laws of
Texas provide. In the interest of settling the estates herein involved soonest, it would be best,
indeed, if these conflicting claims of the parties were determined in these proceedings. The Court
regrets, however, that it cannot do so, for the simple reason that neither the evidence submitted by
the parties in the court below nor their discussion, in their respective briefs and memoranda before
Us, of their respective contentions on the pertinent legal issues, of grave importance as they are,
appear to Us to be adequate enough to enable Us to render an intelligent comprehensive and just
resolution. For one thing, there is no clear and reliable proof of what in fact the possibly applicable
laws of Texas are. 7* Then also, the genuineness of documents relied upon by respondent Magno is
disputed. And there are a number of still other conceivable related issues which the parties may wish
to raise but which it is not proper to mention here. In Justice, therefore, to all the parties concerned,
these and all other relevant matters should first be threshed out fully in the trial court in the
proceedings hereafter to be held therein for the purpose of ascertaining and adjudicating and/or
distributing the estate of Mrs. Hodges to her heirs in accordance with her duly probated will.

To be more explicit, all that We can and do decide in connection with the petition for certiorari and
prohibition are: (1) that regardless of which corresponding laws are applied, whether of the
Philippines or of Texas, and taking for granted either of the respective contentions of the parties as
to provisions of the latter,8 and regardless also of whether or not it can be proven by competent
evidence that Hodges renounced his inheritance in any degree, it is easily and definitely discernible
from the inventory submitted by Hodges himself, as Executor of his wife's estate, that there are
properties which should constitute the estate of Mrs. Hodges and ought to be disposed of or
distributed among her heirs pursuant to her will in said Special Proceedings 1307; (2) that, more
specifically, inasmuch as the question of what are the pertinent laws of Texas applicable to the
situation herein is basically one of fact, and, considering that the sole difference in the positions of
the parties as to the effect of said laws has reference to the supposed legitime of Hodges — it being
the stand of PCIB that Hodges had such a legitime whereas Magno claims the negative - it is now
beyond controversy for all future purposes of these proceedings that whatever be the provisions
actually of the laws of Texas applicable hereto, the estate of Mrs. Hodges is at least, one-fourth of
the conjugal estate of the spouses; the existence and effects of foreign laws being questions of fact,
and it being the position now of PCIB that the estate of Mrs. Hodges, pursuant to the laws of Texas,
should only be one-fourth of the conjugal estate, such contention constitutes an admission of fact,
and consequently, it would be in estoppel in any further proceedings in these cases to claim that
said estate could be less, irrespective of what might be proven later to be actually the provisions of
the applicable laws of Texas; (3) that Special Proceedings 1307 for the settlement of the testate
estate of Mrs. Hodges cannot be closed at this stage and should proceed to its logical conclusion,
there having been no proper and legal adjudication or distribution yet of the estate therein involved;
and (4) that respondent Magno remains and continues to be the Administratrix therein. Hence,
nothing in the foregoing opinion is intended to resolve the issues which, as already stated, are not
properly before the Court now, namely, (1) whether or not Hodges had in fact and in law waived or
renounced his inheritance from Mrs. Hodges, in whole or in part, and (2) assuming there had been
no such waiver, whether or not, by the application of Article 16 of the Civil Code, and in the light of
what might be the applicable laws of Texas on the matter, the estate of Mrs. Hodges is more than
the one-fourth declared above. As a matter of fact, even our finding above about the existence of
properties constituting the estate of Mrs. Hodges rests largely on a general appraisal of the size and
extent of the conjugal partnership gathered from reference made thereto by both parties in their
briefs as well as in their pleadings included in the records on appeal, and it should accordingly yield,
as to which exactly those properties are, to the more concrete and specific evidence which the
parties are supposed to present in support of their respective positions in regard to the foregoing
main legal and factual issues. In the interest of justice, the parties should be allowed to present such
further evidence in relation to all these issues in a joint hearing of the two probate proceedings
herein involved. After all, the court a quo has not yet passed squarely on these issues, and it is best
for all concerned that it should do so in the first instance.

Relative to Our holding above that the estate of Mrs. Hodges cannot be less than the remainder of
one-fourth of the conjugal partnership properties, it may be mentioned here that during the
deliberations, the point was raised as to whether or not said holding might be inconsistent with Our
other ruling here also that, since there is no reliable evidence as to what are the applicable laws of
Texas, U.S.A. "with respect to the order of succession and to the amount of successional rights" that
may be willed by a testator which, under Article 16 of the Civil Code, are controlling in the instant
cases, in view of the undisputed Texan nationality of the deceased Mrs. Hodges, these cases should
be returned to the court a quo, so that the parties may prove what said law provides, it is premature
for Us to make any specific ruling now on either the validity of the testamentary dispositions herein
involved or the amount of inheritance to which the brothers and sisters of Mrs. Hodges are entitled.
After nature reflection, We are of the considered view that, at this stage and in the state of the
records before Us, the feared inconsistency is more apparent than real. Withal, it no longer lies in
the lips of petitioner PCIB to make any claim that under the laws of Texas, the estate of Mrs. Hodges
could in any event be less than that We have fixed above.
It should be borne in mind that as above-indicated, the question of what are the laws of Texas
governing the matters herein issue is, in the first instance, one of fact, not of law. Elementary is the
rule that foreign laws may not be taken judicial notice of and have to be proven like any other fact in
dispute between the parties in any proceeding, with the rare exception in instances when the said
laws are already within the actual knowledge of the court, such as when they are well and generally
known or they have been actually ruled upon in other cases before it and none of the parties
concerned do not claim otherwise. (5 Moran, Comments on the Rules of Court, p. 41, 1970 ed.)
In Fluemer vs. Hix, 54 Phil. 610, it was held:

It is the theory of the petitioner that the alleged will was executed in Elkins West Virginia, on
November 3, 1925, by Hix who had his residence in that jurisdiction, and that the laws of West
Virginia govern. To this end, there was submitted a copy of section 3868 of Acts 1882, c. 84 as
found in West Virginia Code, Annotated, by Hogg Charles E., vol. 2, 1914, p. 1960, and as certified
to by the Director of the National Library. But this was far from a compliance with the law. The laws
of a foreign jurisdiction do not prove themselves in our courts. The courts of the Philippine Islands
are not authorized to take judicial notice of the laws of the various States of the American Union.
Such laws must be proved as facts. (In re Estate of Johnson [1918], 39 Phil., 156.) Here the
requirements of the law were not met. There was no showing that the book from which an extract
was taken was printed or published under the authority of the State of West Virginia, as provided in
section 300 of the Code of Civil Procedure. Nor was the extract from the law attested by the
certificate of the officer having charge of the original, under the seal of the State of West Virginia, as
provided in section 301 of the Code of Civil Procedure. No evidence was introduced to show that the
extract from the laws of West Virginia was in force at the time the alleged will was executed."

No evidence of the nature thus suggested by the Court may be found in the records of the cases at
bar. Quite to the contrary, the parties herein have presented opposing versions in their respective
pleadings and memoranda regarding the matter. And even if We took into account that in Aznar vs.
Garcia, the Court did make reference to certain provisions regarding succession in the laws of
Texas, the disparity in the material dates of that case and the present ones would not permit Us to
indulge in the hazardous conjecture that said provisions have not been amended or changed in the
meantime.

On the other hand, in In re Estate of Johnson, 39 Phil. 156, We held:

Upon the other point — as to whether the will was executed in conformity with the
statutes of the State of Illinois — we note that it does not affirmatively appear from
the transcription of the testimony adduced in the trial court that any witness was
examined with reference to the law of Illinois on the subject of the execution of will.
The trial judge no doubt was satisfied that the will was properly executed by
examining section 1874 of the Revised Statutes of Illinois, as exhibited in volume 3 of
Starr & Curtis's Annotated Illinois Statutes, 2nd ed., p. 426; and he may have
assumed that he could take judicial notice of the laws of Illinois under section 275 of
the Code of Civil Procedure. If so, he was in our opinion mistaken. That section
authorizes the courts here to take judicial notice, among other things, of the acts of
the legislative department of the United States. These words clearly have reference
to Acts of the Congress of the United States; and we would hesitate to hold that our
courts can, under this provision, take judicial notice of the multifarious laws of the
various American States. Nor do we think that any such authority can be derived
from the broader language, used in the same section, where it is said that our courts
may take judicial notice of matters of public knowledge "similar" to those therein
enumerated. The proper rule we think is to require proof of the statutes of the States
of the American Union whenever their provisions are determinative of the issues in
any action litigated in the Philippine courts.
 Nevertheless, even supposing that the trial court may have erred in taking judicial
notice of the law of Illinois on the point in question, such error is not now available to
the petitioner, first, because the petition does not state any fact from which it would
appear that the law of Illinois is different from what the court found, and, secondly,
because the assignment of error and argument for the appellant in this court raises
no question based on such supposed error. Though the trial court may have acted
upon pure conjecture as to the law prevailing in the State of Illinois, its judgment
could not be set aside, even upon application made within six months under section
113 of the Code of Civil Procedure, unless it should be made to appear affirmatively
that the conjecture was wrong. The petitioner, it is true, states in general terms that
the will in question is invalid and inadequate to pass real and personal property in the
State of Illinois, but this is merely a conclusion of law. The affidavits by which the
petition is accompanied contain no reference to the subject, and we are cited to no
authority in the appellant's brief which might tend to raise a doubt as to the
correctness of the conclusion of the trial court. It is very clear, therefore, that this
point cannot be urged as of serious moment.

It is implicit in the above ruling that when, with respect to certain aspects of the foreign laws
concerned, the parties in a given case do not have any controversy or are more or less in
agreement, the Court may take it for granted for the purposes of the particular case before it that the
said laws are as such virtual agreement indicates, without the need of requiring the presentation of
what otherwise would be the competent evidence on the point. Thus, in the instant cases wherein it
results from the respective contentions of both parties that even if the pertinent laws of Texas were
known and to be applied, the amount of the inheritance pertaining to the heirs of Mrs. Hodges is as
We have fixed above, the absence of evidence to the effect that, actually and in fact, under said
laws, it could be otherwise is of no longer of any consequence, unless the purpose is to show that it
could be more. In other words, since PCIB, the petitioner-appellant, concedes that upon application
of Article 16 of the Civil Code and the pertinent laws of Texas, the amount of the estate in
controversy is just as We have determined it to be, and respondent-appellee is only claiming, on her
part, that it could be more, PCIB may not now or later pretend differently.

To be more concrete, on pages 20-21 of its petition herein, dated July 31, 1967, PCIB states
categorically:

Inasmuch as Article 16 of the Civil Code provides that "intestate and testamentary
successions both with respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary provisions, shall be
regulated by the national law of the person whose succession is under consideration,
whatever may be the nature of the property and regardless of the country wherein
said property may be found", while the law of Texas (the Hodges spouses being
nationals of U.S.A., State of Texas), in its conflicts of law rules, provides that the
domiciliary law (in this case Philippine law) governs the testamentary dispositions
and successional rights over movables or personal properties, while the law of the
situs (in this case also Philippine law with respect to all Hodges properties located in
the Philippines), governs with respect to immovable properties, and applying
therefore the 'renvoi doctrine' as enunciated and applied by this Honorable Court in
the case of In re Estate of Christensen (G.R. No. L-16749, Jan. 31, 1963), there can
be no question that Philippine law governs the testamentary dispositions contained in
the Last Will and Testament of the deceased Linnie Jane Hodges, as well as the
successional rights to her estate, both with respect to movables, as well as to
immovables situated in the Philippines.

In its main brief dated February 26, 1968, PCIB asserts:

 The law governing successional rights.

As recited above, there is no question that the deceased, Linnie Jane Hodges, was
an American citizen. There is also no question that she was a national of the State of
Texas, U.S.A. Again, there is likewise no question that she had her domicile of
choice in the City of Iloilo, Philippines, as this has already been pronounced by the
above-cited orders of the lower court, pronouncements which are by now res
adjudicata (par. [a], See. 49, Rule 39, Rules of Court; In re Estate of Johnson, 39
Phil. 156).

Article 16 of the Civil Code provides:

"Real property as well as personal property is subject to the law of the country where
it is situated.

However, intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the nature of the property and
regardless of the country wherein said property may be found."

Thus the aforecited provision of the Civil Code points towards the national law of the
deceased, Linnie Jane Hodges, which is the law of Texas, as governing succession
"both with respect to the order of succession and to the amount of successional
rights and to the intrinsic validity of testamentary provisions ...". But the law of Texas,
in its conflicts of law rules, provides that the domiciliary law governs the testamentary
dispositions and successional rights over movables or personal property, while the
law of the situs governs with respect to immovable property. Such that with respect
to both movable property, as well as immovable property situated in the Philippines,
the law of Texas points to the law of the Philippines.

Applying, therefore, the so-called "renvoi doctrine", as enunciated and applied by this
Honorable Court in the case of "In re Christensen" (G.R. No. L-16749, Jan. 31,
1963), there can be no question that Philippine law governs the testamentary
provisions in the Last Will and Testament of the deceased Linnie Jane Hodges, as
well as the successional rights to her estate, both with respect to movables, as well
as immovables situated in the Philippines.

The subject of successional rights.

Under Philippine law, as it is under the law of Texas, the conjugal or community
property of the spouses, Charles Newton Hodges and Linnie Jane Hodges, upon the
death of the latter, is to be divided into two, one-half pertaining to each of the
spouses, as his or her own property. Thus, upon the death of Linnie Jane Hodges,
one-half of the conjugal partnership property immediately pertained to Charles
Newton Hodges as his own share, and not by virtue of any successional rights.
There can be no question about this.

Again, Philippine law, or more specifically, Article 900 of the Civil Code provides:
 If the only survivor is the widow or widower, she or he shall be
entitled to one-half of the hereditary estate of the deceased spouse,
and the testator may freely dispose of the other half.

If the marriage between the surviving spouse and the testator was
solemnized in articulo mortis, and the testator died within three
months from the time of the marriage, the legitime of the surviving
spouse as the sole heir shall be one-third of the hereditary estate,
except when they have been living as husband and wife for more
than five years. In the latter case, the legitime of the surviving spouse
shall be that specified in the preceding paragraph.

This legitime of the surviving spouse cannot be burdened by a fideicommisary

substitution (Art. 864, Civil code), nor by any charge, condition, or substitution (Art,
872, Civil code). It is clear, therefore, that in addition to one-half of the conjugal
partnership property as his own conjugal share, Charles Newton Hodges was also
immediately entitled to one-half of the half conjugal share of the deceased, Linnie
Jane Hodges, or one-fourth of the entire conjugal property, as his legitime.

One-fourth of the conjugal property therefore remains at issue.

In the summary of its arguments in its memorandum dated April 30, 1968, the following appears:

Briefly, the position advanced by the petitioner is:

a. That the Hodges spouses were domiciled legally in the Philippines (pp. 19-20,
petition). This is now a matter of res adjudicata (p. 20, petition).

b. That under Philippine law, Texas law, and the renvoi doctrine, Philippine law
governs the successional rights over the properties left by the deceased, Linnie Jane
Hodges (pp. 20-21, petition).

c. That under Philippine as well as Texas law, one-half of the Hodges properties
pertains to the deceased, Charles Newton Hodges (p. 21, petition). This is not
questioned by the respondents.

d. That under Philippine law, the deceased, Charles Newton Hodges, automatically
inherited one-half of the remaining one-half of the Hodges properties as his legitime
(p. 21, petition).

e. That the remaining 25% of the Hodges properties was inherited by the deceased,
Charles Newton Hodges, under the will of his deceased spouse (pp. 22-23, petition).
Upon the death of Charles Newton Hodges, the substitution 'provision of the will of
the deceased, Linnie Jane Hodges, did not operate because the same is void (pp.
23-25, petition).

f. That the deceased, Charles Newton Hodges, asserted his sole ownership of the
Hodges properties and the probate court sanctioned such assertion (pp. 25-29,
petition). He in fact assumed such ownership and such was the status of the
properties as of the time of his death (pp. 29-34, petition).
Of similar tenor are the allegations of PCIB in some of its pleadings quoted in the earlier part of this
option.

On her part, it is respondent-appellee Magno's posture that under the laws of Texas, there is no
system of legitime, hence the estate of Mrs. Hodges should be one-half of all the conjugal
properties.

It is thus unquestionable that as far as PCIB is concerned, the application to these cases of Article
16 of the Civil Code in relation to the corresponding laws of Texas would result in that the Philippine
laws on succession should control. On that basis, as We have already explained above, the estate
of Mrs. Hodges is the remainder of one-fourth of the conjugal partnership properties, considering
that We have found that there is no legal impediment to the kind of disposition ordered by Mrs.
Hodges in her will in favor of her brothers and sisters and, further, that the contention of PCIB that
the same constitutes an inoperative testamentary substitution is untenable. As will be recalled,
PCIB's position that there is no such estate of Mrs. Hodges is predicated exclusively on two
propositions, namely: (1) that the provision in question in Mrs. Hodges' testament violates the rules
on substitution of heirs under the Civil Code and (2) that, in any event, by the orders of the trial court
of May 27, and December 14, 1957, the trial court had already finally and irrevocably adjudicated to
her husband the whole free portion of her estate to the exclusion of her brothers and sisters, both of
which poses, We have overruled. Nowhere in its pleadings, briefs and memoranda does PCIB
maintain that the application of the laws of Texas would result in the other heirs of Mrs. Hodges not
inheriting anything under her will. And since PCIB's representations in regard to the laws of Texas
virtually constitute admissions of fact which the other parties and the Court are being made to rely
and act upon, PCIB is "not permitted to contradict them or subsequently take a position contradictory
to or inconsistent with them." (5 Moran, id, p. 65, citing Cunanan vs. Amparo, 80 Phil. 227; Sta. Ana
vs. Maliwat, L-23023, Aug. 31, 1968, 24 SCRA 1018).

Accordingly, the only question that remains to be settled in the further proceedings hereby ordered
to be held in the court below is how much more than as fixed above is the estate of Mrs. Hodges,
and this would depend on (1) whether or not the applicable laws of Texas do provide in effect for
more, such as, when there is no legitime provided therein, and (2) whether or not Hodges has validly
waived his whole inheritance from Mrs. Hodges.

In the course of the deliberations, it was brought out by some members of the Court that to avoid or,
at least, minimize further protracted legal controversies between the respective heirs of the Hodges
spouses, it is imperative to elucidate on the possible consequences of dispositions made by Hodges
after the death of his wife from the mass of the unpartitioned estates without any express indication
in the pertinent documents as to whether his intention is to dispose of part of his inheritance from his
wife or part of his own share of the conjugal estate as well as of those made by PCIB after the death
of Hodges. After a long discussion, the consensus arrived at was as follows: (1) any such
dispositions made gratuitously in favor of third parties, whether these be individuals, corporations or
foundations, shall be considered as intended to be of properties constituting part of Hodges'
inheritance from his wife, it appearing from the tenor of his motions of May 27 and December 11,
1957 that in asking for general authority to make sales or other disposals of properties under the
jurisdiction of the court, which include his own share of the conjugal estate, he was not invoking
particularly his right over his own share, but rather his right to dispose of any part of his inheritance
pursuant to the will of his wife; (2) as regards sales, exchanges or other remunerative transfers, the
proceeds of such sales or the properties taken in by virtue of such exchanges, shall be considered
as merely the products of "physical changes" of the properties of her estate which the will expressly
authorizes Hodges to make, provided that whatever of said products should remain with the estate
at the time of the death of Hodges should go to her brothers and sisters; (3) the dispositions made
by PCIB after the death of Hodges must naturally be deemed as covering only the properties
belonging to his estate considering that being only the administrator of the estate of Hodges, PCIB
could not have disposed of properties belonging to the estate of his wife. Neither could such
dispositions be considered as involving conjugal properties, for the simple reason that the conjugal
partnership automatically ceased when Mrs. Hodges died, and by the peculiar provision of her will,
under discussion, the remainder of her share descended also automatically upon the death of
Hodges to her brothers and sisters, thus outside of the scope of PCIB's administration. Accordingly,
these construction of the will of Mrs. Hodges should be adhered to by the trial court in its final order
of adjudication and distribution and/or partition of the two estates in question.

THE APPEALS

A cursory examination of the seventy-eight assignments of error in appellant PCIB's brief would
readily reveal that all of them are predicated mainly on the contention that inasmuch as Hodges had
already adjudicated unto himself all the properties constituting his wife's share of the conjugal
partnership, allegedly with the sanction of the trial court per its order of December 14, 1957, there
has been, since said date, no longer any estate of Mrs. Hodges of which appellee Magno could be
administratrix, hence the various assailed orders sanctioning her actuations as such are not in
accordance with law. Such being the case, with the foregoing resolution holding such posture to be
untenable in fact and in law and that it is in the best interest of justice that for the time being the two
estates should be administered conjointly by the respective administrators of the two estates, it
should follow that said assignments of error have lost their fundamental reasons for being. There are
certain matters, however, relating peculiarly to the respective orders in question, if commonly among
some of them, which need further clarification. For instance, some of them authorized respondent
Magno to act alone or without concurrence of PCIB. And with respect to many of said orders, PCIB
further claims that either the matters involved were not properly within the probate jurisdiction of the
trial court or that the procedure followed was not in accordance with the rules. Hence, the necessity
of dealing separately with the merits of each of the appeals.

Indeed, inasmuch as the said two estates have until now remained commingled pro-indiviso, due to
the failure of Hodges and the lower court to liquidate the conjugal partnership, to recognize appellee
Magno as Administratrix of the Testate Estate of Mrs. Hodges which is still unsegregated from that
of Hodges is not to say, without any qualification, that she was therefore authorized to do and
perform all her acts complained of in these appeals, sanctioned though they might have been by the
trial court. As a matter of fact, it is such commingling pro-indiviso of the two estates that should
deprive appellee of freedom to act independently from PCIB, as administrator of the estate of
Hodges, just as, for the same reason, the latter should not have authority to act independently from
her. And considering that the lower court failed to adhere consistently to this basic point of view, by
allowing the two administrators to act independently of each other, in the various instances already
noted in the narration of facts above, the Court has to look into the attendant circumstances of each
of the appealed orders to be able to determine whether any of them has to be set aside or they may
all be legally maintained notwithstanding the failure of the court a quo to observe the pertinent
procedural technicalities, to the end only that graver injury to the substantive rights of the parties
concerned and unnecessary and undesirable proliferation of incidents in the subject proceedings
may be forestalled. In other words, We have to determine, whether or not, in the light of the unusual
circumstances extant in the record, there is need to be more pragmatic and to adopt a rather
unorthodox approach, so as to cause the least disturbance in rights already being exercised by
numerous innocent third parties, even if to do so may not appear to be strictly in accordance with the
letter of the applicable purely adjective rules.

Incidentally, it may be mentioned, at this point, that it was principally on account of the confusion that
might result later from PCIB's continuing to administer all the community properties, notwithstanding
the certainty of the existence of the separate estate of Mrs. Hodges, and to enable both estates to
function in the meantime with a relative degree of regularity, that the Court ordered in the resolution
of September 8, 1972 the modification of the injunction issued pursuant to the resolutions of August
8, October 4 and December 6, 1967, by virtue of which respondent Magno was completely barred
from any participation in the administration of the properties herein involved. In the September 8
resolution, We ordered that, pending this decision, Special Proceedings 1307 and 1672 should
proceed jointly and that the respective administrators therein "act conjointly — none of them to act
singly and independently of each other for any purpose." Upon mature deliberation, We felt that to
allow PCIB to continue managing or administering all the said properties to the exclusion of the
administratrix of Mrs. Hodges' estate might place the heirs of Hodges at an unduly advantageous
position which could result in considerable, if not irreparable, damage or injury to the other parties
concerned. It is indeed to be regretted that apparently, up to this date, more than a year after said
resolution, the same has not been given due regard, as may be gleaned from the fact that recently,
respondent Magno has filed in these proceedings a motion to declare PCIB in contempt for alleged
failure to abide therewith, notwithstanding that its repeated motions for reconsideration thereof have
all been denied soon after they were filed.9

Going back to the appeals, it is perhaps best to begin first with what appears to Our mind to be the
simplest, and then proceed to the more complicated ones in that order, without regard to the
numerical sequence of the assignments of error in appellant's brief or to the order of the discussion
thereof by counsel.

Assignments of error numbers

LXXII, LXXVII and LXXVIII.

These assignments of error relate to (1) the order of the trial court of August 6, 1965 providing that
"the deeds of sale (therein referred to involving properties in the name of Hodges) should be signed
jointly by the PCIB, as Administrator of Testate Estate of C.N. Hodges, and Avelina A. Magno, as
Administratrix of the Testate Estate of Linnie Jane Hodges, and to this effect, the PCIB should take
the necessary steps so that Administratrix Avelina A. Magno could sign the deeds of sale," (p. 248,
Green Rec. on Appeal) (2) the order of October 27, 1965 denying the motion for reconsideration of
the foregoing order, (pp. 276-277, id.) (3) the other order also dated October 27, 1965 enjoining inter
alia, that "(a) all cash collections should be deposited in the joint account of the estate of Linnie Jane
Hodges and estate of C. N. Hodges, (b) that whatever cash collections (that) had been deposited in
the account of either of the estates should be withdrawn and since then (sic) deposited in the joint
account of the estate of Linnie Jane Hodges and the estate of C. N. Hodges; ... (d) (that)
Administratrix Magno — allow the PCIB to inspect whatever records, documents and papers she
may have in her possession, in the same manner that Administrator PCIB is also directed to allow
Administratrix Magno to inspect whatever records, documents and papers it may have in its
possession" and "(e) that the accountant of the estate of Linnie Jane Hodges shall have access to all
records of the transactions of both estates for the protection of the estate of Linnie Jane Hodges;
and in like manner, the accountant or any authorized representative of the estate of C. N. Hodges
shall have access to the records of transactions of the Linnie Jane Hodges estate for the protection
of the estate of C. N. Hodges", (pp. 292-295, id.) and (4) the order of February 15, 1966, denying,
among others, the motion for reconsideration of the order of October 27, 1965 last referred to. (pp.
455-456, id.)

As may be readily seen, the thrust of all these four impugned orders is in line with the Court's above-
mentioned resolution of September 8, 1972 modifying the injunction previously issued on August 8,
1967, and, more importantly, with what We have said the trial court should have always done
pending the liquidation of the conjugal partnership of the Hodges spouses. In fact, as already stated,
that is the arrangement We are ordering, by this decision, to be followed. Stated differently, since the
questioned orders provide for joint action by the two administrators, and that is precisely what We
are holding out to have been done and should be done until the two estates are separated from each
other, the said orders must be affirmed. Accordingly the foregoing assignments of error must be, as
they are hereby overruled.
Assignments of error Numbers LXVIII
to LXXI and LXXIII to LXXVI.

The orders complained of under these assignments of error commonly deal with expenditures made
by appellee Magno, as Administratrix of the Estate of Mrs. Hodges, in connection with her
administration thereof, albeit additionally, assignments of error Numbers LXIX to LXXI put into
question the payment of attorneys fees provided for in the contract for the purpose, as constituting,
in effect, premature advances to the heirs of Mrs. Hodges.

More specifically, assignment Number LXXIII refers to reimbursement of overtime pay paid to six
employees of the court and three other persons for services in copying the court records to enable
the lawyers of the administration to be fully informed of all the incidents in the proceedings. The
reimbursement was approved as proper legal expenses of administration per the order of December
19, 1964, (pp. 221-222, id.) and repeated motions for reconsideration thereof were denied by the
orders of January 9, 1965, (pp. 231-232, id.) October 27, 1965, (p. 277, id.) and February 15, 1966.
(pp. 455-456, id.) On the other hand, Assignments Numbers LXVIII to LXXI, LXXIV and LXXV
question the trial court's order of November 3, 1965 approving the agreement of June 6, 1964
between Administratrix Magno and James L. Sullivan, attorney-in-fact of the heirs of Mrs. Hodges,
as Parties of the First Part, and Attorneys Raul Manglapus and Rizal R. Quimpo, as Parties of the
Second Part, regarding attorneys fees for said counsel who had agreed "to prosecute and defend
their interests (of the Parties of the First Part) in certain cases now pending litigation in the Court of
First Instance of Iloilo —, more specifically in Special Proceedings 1307 and 1672 —" (pp. 126-
129, id.) and directing Administratrix Magno "to issue and sign whatever check or checks maybe
needed to implement the approval of the agreement annexed to the motion" as well as the
"administrator of the estate of C. N. Hodges — to countersign the said check or checks as the case
maybe." (pp. 313-320, id.), reconsideration of which order of approval was denied in the order of
February 16, 1966, (p. 456, id.) Assignment Number LXXVI imputes error to the lower court's order
of October 27, 1965, already referred to above, insofar as it orders that "PCIB should counter sign
the check in the amount of P250 in favor of Administratrix Avelina A. Magno as her compensation as
administratrix of Linnie Jane Hodges estate chargeable to the Testate Estate of Linnie Jane Hodges
only." (p. 294, id.)

Main contention again of appellant PCIB in regard to these eight assigned errors is that there is no
such estate as the estate of Mrs. Hodges for which the questioned expenditures were made, hence
what were authorized were in effect expenditures from the estate of Hodges. As We have already
demonstrated in Our resolution above of the petition for certiorari and prohibition, this posture is
incorrect. Indeed, in whichever way the remaining issues between the parties in these cases are
ultimately resolved, 10 the final result will surely be that there are properties constituting the estate of
Mrs. Hodges of which Magno is the current administratrix. It follows, therefore, that said appellee
had the right, as such administratrix, to hire the persons whom she paid overtime pay and to be paid
for her own services as administratrix. That she has not yet collected and is not collecting amounts
as substantial as that paid to or due appellant PCIB is to her credit.

Of course, she is also entitled to the services of counsel and to that end had the authority to enter
into contracts for attorney's fees in the manner she had done in the agreement of June 6, 1964. And
as regards to the reasonableness of the amount therein stipulated, We see no reason to disturb the
discretion exercised by the probate court in determining the same. We have gone over the
agreement, and considering the obvious size of the estate in question and the nature of the issues
between the parties as well as the professional standing of counsel, We cannot say that the fees
agreed upon require the exercise by the Court of its inherent power to reduce it.
PCIB insists, however, that said agreement of June 6, 1964 is not for legal services to the estate but
to the heirs of Mrs. Hodges, or, at most, to both of them, and such being the case, any payment
under it, insofar as counsels' services would redound to the benefit of the heirs, would be in the
nature of advances to such heirs and a premature distribution of the estate. Again, We hold that
such posture cannot prevail.

Upon the premise We have found plausible that there is an existing estate of Mrs. Hodges, it results
that juridically and factually the interests involved in her estate are distinct and different from those
involved in her estate of Hodges and vice versa. Insofar as the matters related exclusively to the
estate of Mrs. Hodges, PCIB, as administrator of the estate of Hodges, is a complete stranger and it
is without personality to question the actuations of the administratrix thereof regarding matters not
affecting the estate of Hodges. Actually, considering the obviously considerable size of the estate of
Mrs. Hodges, We see no possible cause for apprehension that when the two estates are segregated
from each other, the amount of attorney's fees stipulated in the agreement in question will prejudice
any portion that would correspond to Hodges' estate.

And as regards the other heirs of Mrs. Hodges who ought to be the ones who should have a say on
the attorney's fees and other expenses of administration assailed by PCIB, suffice it to say that they
appear to have been duly represented in the agreement itself by their attorney-in-fact, James L.
Sullivan and have not otherwise interposed any objection to any of the expenses incurred by Magno
questioned by PCIB in these appeals. As a matter of fact, as ordered by the trial court, all the
expenses in question, including the attorney's fees, may be paid without awaiting the determination
and segregation of the estate of Mrs. Hodges.

Withal, the weightiest consideration in connection with the point under discussion is that at this stage
of the controversy among the parties herein, the vital issue refers to the existence or non-existence
of the estate of Mrs. Hodges. In this respect, the interest of respondent Magno, as the appointed
administratrix of the said estate, is to maintain that it exists, which is naturally common and identical
with and inseparable from the interest of the brothers and sisters of Mrs. Hodges. Thus, it should not
be wondered why both Magno and these heirs have seemingly agreed to retain but one counsel. In
fact, such an arrangement should be more convenient and economical to both. The possibility of
conflict of interest between Magno and the heirs of Mrs. Hodges would be, at this stage, quite
remote and, in any event, rather insubstantial. Besides, should any substantial conflict of interest
between them arise in the future, the same would be a matter that the probate court can very well
take care of in the course of the independent proceedings in Case No. 1307 after the corresponding
segregation of the two subject estates. We cannot perceive any cogent reason why, at this stage,
the estate and the heirs of Mrs. Hodges cannot be represented by a common counsel.

Now, as to whether or not the portion of the fees in question that should correspond to the heirs
constitutes premature partial distribution of the estate of Mrs. Hodges is also a matter in which
neither PCIB nor the heirs of Hodges have any interest. In any event, since, as far as the records
show, the estate has no creditors and the corresponding estate and inheritance taxes, except those
of the brothers and sisters of Mrs. Hodges, have already been paid, 11 no prejudice can caused to
anyone by the comparatively small amount of attorney's fees in question. And in this connection, it
may be added that, although strictly speaking, the attorney's fees of the counsel of an administrator
is in the first instance his personal responsibility, reimbursable later on by the estate, in the final
analysis, when, as in the situation on hand, the attorney-in-fact of the heirs has given his conformity
thereto, it would be idle effort to inquire whether or not the sanction given to said fees by the probate
court is proper.

For the foregoing reasons, Assignments of Error LXVIII to LXXI and LXXIII to LXXVI should be as
they are hereby overruled.
Assignments of error I to IV,
XIII to XV, XXII to XXV, XXXV
to XXX VI, XLI to XLIII and L.

These assignments of error deal with the approval by the trial court of various deeds of sale of real
properties registered in the name of Hodges but executed by appellee Magno, as Administratrix of
the Estate of Mrs. Hodges, purportedly in implementation of corresponding supposed written
"Contracts to Sell" previously executed by Hodges during the interim between May 23, 1957, when
his wife died, and December 25, 1962, the day he died. As stated on pp. 118-120 of appellant's main
brief, "These are: the, contract to sell between the deceased, Charles Newton Hodges, and the
appellee, Pepito G. Iyulores executed on February 5, 1961; the contract to sell between the
deceased, Charles Newton Hodges, and the appellant Esperidion Partisala, executed on April 20,
1960; the contract to sell between the deceased, Charles Newton Hodges, and the appellee,
Winifredo C. Espada, executed on April 18, 1960; the contract to sell between the deceased,
Charles Newton Hodges, and the appellee, Rosario Alingasa, executed on August 25, 1958; the
contract to sell between the deceased, Charles Newton Hodges, and the appellee, Lorenzo Carles,
executed on June 17, 1958; the contract to sell between the deceased, Charles Newton Hodges,
and the appellee, Salvador S. Guzman, executed on September 13, 1960; the contract to sell
between the deceased, Charles Newton Hodges, and the appellee, Florenia Barrido, executed on
February 21, 1958; the contract to sell between the deceased, Charles Newton Hodges, and the
appellee, Purificacion Coronado, executed on August 14, 1961; the contract to sell between the
deceased, Charles Newton Hodges, and the appellee, Graciano Lucero, executed on November 27,
1961; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Ariteo
Thomas Jamir, executed on May 26, 1961; the contract to sell between the deceased, Charles
Newton Hodges, and the appellee, Melquiades Batisanan, executed on June 9, 1959; the contract to
sell between the deceased, Charles Newton Hodges, and the appellee, Belcezar Causing, executed
on February 10, 1959 and the contract to sell between the deceased, Charles Newton Hodges, and
the appellee, Adelfa Premaylon, executed on October 31, 1959, re Title No. 13815."

Relative to these sales, it is the position of appellant PCIB that, inasmuch as pursuant to the will of
Mrs. Hodges, her husband was to have dominion over all her estate during his lifetime, it was as
absolute owner of the properties respectively covered by said sales that he executed the
aforementioned contracts to sell, and consequently, upon his death, the implementation of said
contracts may be undertaken only by the administrator of his estate and not by the administratrix of
the estate of Mrs. Hodges. Basically, the same theory is invoked with particular reference to five
other sales, in which the respective "contracts to sell" in favor of these appellees were executed by
Hodges before the death of his wife, namely, those in favor of appellee Santiago Pacaonsis, Alfredo
Catedral, Jose Pablico, Western Institute of Technology and Adelfa Premaylon.

Anent those deeds of sale based on promises or contracts to sell executed by Hodges after the
death of his wife, those enumerated in the quotation in the immediately preceding paragraph, it is
quite obvious that PCIB's contention cannot be sustained. As already explained earlier, 11* all
proceeds of remunerative transfers or dispositions made by Hodges after the death of his wife
should be deemed as continuing to be parts of her estate and, therefore, subject to the terms of her
will in favor of her brothers and sisters, in the sense that should there be no showing that such
proceeds, whether in cash or property have been subsequently conveyed or assigned subsequently
by Hodges to any third party by acts inter vivos with the result that they could not thereby belong to
him anymore at the time of his death, they automatically became part of the inheritance of said
brothers and sisters. The deeds here in question involve transactions which are exactly of this
nature. Consequently, the payments made by the appellees should be considered as payments to
the estate of Mrs. Hodges which is to be distributed and partitioned among her heirs specified in the
will.
The five deeds of sale predicated on contracts to sell executed Hodges during the lifetime of his
wife, present a different situation. At first blush, it would appear that as to them, PCIB's position has
some degree of plausibility. Considering, however, that the adoption of PCIB's theory would
necessarily have tremendous repercussions and would bring about considerable disturbance of
property rights that have somehow accrued already in favor of innocent third parties, the five
purchasers aforenamed, the Court is inclined to take a pragmatic and practical view of the legal
situation involving them by overlooking the possible technicalities in the way, the non-observance of
which would not, after all, detract materially from what should substantially correspond to each and
all of the parties concerned.

To start with, these contracts can hardly be ignored. Bona fide third parties are involved; as much as
possible, they should not be made to suffer any prejudice on account of judicial controversies not of
their own making. What is more, the transactions they rely on were submitted by them to the probate
court for approval, and from already known and recorded actuations of said court then, they had
reason to believe that it had authority to act on their motions, since appellee Magno had, from time
to time prior to their transactions with her, been allowed to act in her capacity as administratrix of
one of the subject estates either alone or conjointly with PCIB. All the sales in question were
executed by Magno in 1966 already, but before that, the court had previously authorized or
otherwise sanctioned expressly many of her act as administratrix involving expenditures from the
estate made by her either conjointly with or independently from PCIB, as Administrator of the Estate
of Hodges. Thus, it may be said that said buyers-appellees merely followed precedents in previous
orders of the court. Accordingly, unless the impugned orders approving those sales indubitably
suffer from some clearly fatal infirmity the Court would rather affirm them.

It is quite apparent from the record that the properties covered by said sales are equivalent only to a
fraction of what should constitute the estate of Mrs. Hodges, even if it is assumed that the same
would finally be held to be only one-fourth of the conjugal properties of the spouses as of the time of
her death or, to be more exact, one-half of her estate as per the inventory submitted by Hodges as
executor, on May 12, 1958. In none of its numerous, varied and voluminous pleadings, motions and
manifestations has PCIB claimed any possibility otherwise. Such being the case, to avoid any
conflict with the heirs of Hodges, the said properties covered by the questioned deeds of sale
executed by appellee Magno may be treated as among those corresponding to the estate of Mrs.
Hodges, which would have been actually under her control and administration had Hodges complied
with his duty to liquidate the conjugal partnership. Viewing the situation in that manner, the only ones
who could stand to be prejudiced by the appealed orders referred to in the assignment of errors
under discussion and who could, therefore, have the requisite interest to question them would be
only the heirs of Mrs. Hodges, definitely not PCIB.

It is of no moment in what capacity Hodges made the "contracts to sell' after the death of his wife.
Even if he had acted as executor of the will of his wife, he did not have to submit those contracts to
the court nor follow the provisions of the rules, (Sections 2, 4, 5, 6, 8 and 9 of Rule 89 quoted by
appellant on pp. 125 to 127 of its brief) for the simple reason that by the very orders, much relied
upon by appellant for other purposes, of May 27, 1957 and December 14, 1957, Hodges was
"allowed or authorized" by the trial court "to continue the business in which he was engaged and to
perform acts which he had been doing while the deceased was living", (Order of May 27) which
according to the motion on which the court acted was "of buying and selling personal and real
properties", and "to execute subsequent sales, conveyances, leases and mortgages of the
properties left by the said deceased Linnie Jane Hodges in consonance with the wishes conveyed in
the last will and testament of the latter." (Order of December 14) In other words, if Hodges acted
then as executor, it can be said that he had authority to do so by virtue of these blanket orders, and
PCIB does not question the legality of such grant of authority; on the contrary, it is relying on the
terms of the order itself for its main contention in these cases. On the other hand, if, as PCIB
contends, he acted as heir-adjudicatee, the authority given to him by the aforementioned orders
would still suffice.

As can be seen, therefore, it is of no moment whether the "contracts to sell" upon which the deeds in
question were based were executed by Hodges before or after the death of his wife. In a word, We
hold, for the reasons already stated, that the properties covered by the deeds being assailed pertain
or should be deemed as pertaining to the estate of Mrs. Hodges; hence, any supposed irregularity
attending the actuations of the trial court may be invoked only by her heirs, not by PCIB, and since
the said heirs are not objecting, and the defects pointed out not being strictly jurisdictional in nature,
all things considered, particularly the unnecessary disturbance of rights already created in favor of
innocent third parties, it is best that the impugned orders are not disturbed.

In view of these considerations, We do not find sufficient merit in the assignments of error under
discussion.

Assignments of error V to VIII,

XVI to XVIII, XXVI to XXIX, XXXVII
to XXXVIII, XLIV to XLVI and LI.

All these assignments of error commonly deal with alleged non-fulfillment by the respective vendees,
appellees herein, of the terms and conditions embodied in the deeds of sale referred to in the
assignments of error just discussed. It is claimed that some of them never made full payments in
accordance with the respective contracts to sell, while in the cases of the others, like Lorenzo
Carles, Jose Pablico, Alfredo Catedral and Salvador S. Guzman, the contracts with them had
already been unilaterally cancelled by PCIB pursuant to automatic rescission clauses contained in
them, in view of the failure of said buyers to pay arrearages long overdue. But PCIB's posture is
again premised on its assumption that the properties covered by the deeds in question could not
pertain to the estate of Mrs. Hodges. We have already held above that, it being evident that a
considerable portion of the conjugal properties, much more than the properties covered by said
deeds, would inevitably constitute the estate of Mrs. Hodges, to avoid unnecessary legal
complications, it can be assumed that said properties form part of such estate. From this point of
view, it is apparent again that the questions, whether or not it was proper for appellee Magno to have
disregarded the cancellations made by PCIB, thereby reviving the rights of the respective buyers-
appellees, and, whether or not the rules governing new dispositions of properties of the estate were
strictly followed, may not be raised by PCIB but only by the heirs of Mrs. Hodges as the persons
designated to inherit the same, or perhaps the government because of the still unpaid inheritance
taxes. But, again, since there is no pretense that any objections were raised by said parties or that
they would necessarily be prejudiced, the contentions of PCIB under the instant assignments of error
hardly merit any consideration.

Assignments of error IX to XII, XIX

to XXI, XXX to XXIV, XXXIX to XL,
XLVII to XLIX, LII and LIII to LXI.

PCIB raises under these assignments of error two issues which according to it are fundamental,
namely: (1) that in approving the deeds executed by Magno pursuant to contracts to sell already
cancelled by it in the performance of its functions as administrator of the estate of Hodges, the trial
court deprived the said estate of the right to invoke such cancellations it (PCIB) had made and (2)
that in so acting, the court "arrogated unto itself, while acting as a probate court, the power to
determine the contending claims of third parties against the estate of Hodges over real property,"
since it has in effect determined whether or not all the terms and conditions of the respective
contracts to sell executed by Hodges in favor of the buyers-appellees concerned were complied with
by the latter. What is worse, in the view of PCIB, is that the court has taken the word of the appellee
Magno, "a total stranger to his estate as determinative of the issue".

Actually, contrary to the stand of PCIB, it is this last point regarding appellee Magno's having agreed
to ignore the cancellations made by PCIB and allowed the buyers-appellees to consummate the
sales in their favor that is decisive. Since We have already held that the properties covered by the
contracts in question should be deemed to be portions of the estate of Mrs. Hodges and not that of
Hodges, it is PCIB that is a complete stranger in these incidents. Considering, therefore, that the
estate of Mrs. Hodges and her heirs who are the real parties in interest having the right to oppose
the consummation of the impugned sales are not objecting, and that they are the ones who are
precisely urging that said sales be sanctioned, the assignments of error under discussion have no
basis and must accordingly be as they are hereby overruled.

With particular reference to assignments LIII to LXI, assailing the orders of the trial court requiring
PCIB to surrender the respective owner's duplicate certificates of title over the properties covered by
the sales in question and otherwise directing the Register of Deeds of Iloilo to cancel said certificates
and to issue new transfer certificates of title in favor of the buyers-appellees, suffice it to say that in
the light of the above discussion, the trial court was within its rights to so require and direct, PCIB
having refused to give way, by withholding said owners' duplicate certificates, of the corresponding
registration of the transfers duly and legally approved by the court.

Assignments of error LXII to LXVII

All these assignments of error commonly deal with the appeal against orders favoring appellee
Western Institute of Technology. As will be recalled, said institute is one of the buyers of real
property covered by a contract to sell executed by Hodges prior to the death of his wife. As of
October, 1965, it was in arrears in the total amount of P92,691.00 in the payment of its installments
on account of its purchase, hence it received under date of October 4, 1965 and October 20, 1965,
letters of collection, separately and respectively, from PCIB and appellee Magno, in their respective
capacities as administrators of the distinct estates of the Hodges spouses, albeit, while in the case of
PCIB it made known that "no other arrangement can be accepted except by paying all your past due
account", on the other hand, Magno merely said she would "appreciate very much if you can make
some remittance to bring this account up-to-date and to reduce the amount of the obligation." (See
pp. 295-311, Green R. on A.) On November 3, 1965, the Institute filed a motion which, after alleging
that it was ready and willing to pay P20,000 on account of its overdue installments but uncertain
whether it should pay PCIB or Magno, it prayed that it be "allowed to deposit the aforesaid amount
with the court pending resolution of the conflicting claims of the administrators." Acting on this
motion, on November 23, 1965, the trial court issued an order, already quoted in the narration of
facts in this opinion, holding that payment to both or either of the two administrators is "proper and
legal", and so "movant — can pay to both estates or either of them", considering that "in both cases
(Special Proceedings 1307 and 1672) there is as yet no judicial declaration of heirs nor distribution
of properties to whomsoever are entitled thereto."

The arguments under the instant assignments of error revolve around said order. From the
procedural standpoint, it is claimed that PCIB was not served with a copy of the Institute's motion,
that said motion was heard, considered and resolved on November 23, 1965, whereas the date set
for its hearing was November 20, 1965, and that what the order grants is different from what is
prayed for in the motion. As to the substantive aspect, it is contended that the matter treated in the
motion is beyond the jurisdiction of the probate court and that the order authorized payment to a
person other than the administrator of the estate of Hodges with whom the Institute had contracted.
The procedural points urged by appellant deserve scant consideration. We must assume, absent
any clear proof to the contrary, that the lower court had acted regularly by seeing to it that appellant
was duly notified. On the other hand, there is nothing irregular in the court's having resolved the
motion three days after the date set for hearing the same. Moreover, the record reveals that
appellants' motion for reconsideration wherein it raised the same points was denied by the trial court
on March 7, 1966 (p. 462, Green R. on A.) Withal, We are not convinced that the relief granted is not
within the general intent of the Institute's motion.

Insofar as the substantive issues are concerned, all that need be said at this point is that they are
mere reiterations of contentions We have already resolved above adversely to appellants' position.
Incidentally, We may add, perhaps, to erase all doubts as to the propriety of not disturbing the lower
court's orders sanctioning the sales questioned in all these appeal s by PCIB, that it is only when
one of the parties to a contract to convey property executed by a deceased person raises substantial
objections to its being implemented by the executor or administrator of the decedent's estate that
Section 8 of Rule 89 may not apply and, consequently, the matter has, to be taken up in a separate
action outside of the probate court; but where, as in the cases of the sales herein involved, the
interested parties are in agreement that the conveyance be made, it is properly within the jurisdiction
of the probate court to give its sanction thereto pursuant to the provisions of the rule just mentioned.
And with respect to the supposed automatic rescission clauses contained in the contracts to sell
executed by Hodges in favor of herein appellees, the effect of said clauses depend on the true
nature of the said contracts, despite the nomenclature appearing therein, which is not controlling, for
if they amount to actual contracts of sale instead of being mere unilateral accepted "promises to
sell", (Art. 1479, Civil Code of the Philippines, 2nd paragraph) thepactum commissorium or the
automatic rescission provision would not operate, as a matter of public policy, unless there has been
a previous notarial or judicial demand by the seller (10 Manresa 263, 2nd ed.) neither of which have
been shown to have been made in connection with the transactions herein involved.

Consequently, We find no merit in the assignments of error

Number LXII to LXVII.

SUMMARY

Considering the fact that this decision is unusually extensive and that the issues herein taken up and
resolved are rather numerous and varied, what with appellant making seventy-eight assignments of
error affecting no less than thirty separate orders of the court a quo, if only to facilitate proper
understanding of the import and extent of our rulings herein contained, it is perhaps desirable that a
brief restatement of the whole situation be made together with our conclusions in regard to its
various factual and legal aspects. .

The instant cases refer to the estate left by the late Charles Newton Hodges as well as that of his
wife, Linnie Jane Hodges, who predeceased him by about five years and a half. In their respective
wills which were executed on different occasions, each one of them provided mutually as follows: "I
give, devise and bequeath all of the rest, residue and remainder (after funeral and administration
expenses, taxes and debts) of my estate, both real and personal, wherever situated or located, to
my beloved (spouse) to have and to hold unto (him/her) — during (his/her) natural lifetime", subject
to the condition that upon the death of whoever of them survived the other, the remainder of what he
or she would inherit from the other is "give(n), devise(d) and bequeath(ed)" to the brothers and
sisters of the latter.

Mrs. Hodges died first, on May 23, 1957. Four days later, on May 27, Hodges was appointed special
administrator of her estate, and in a separate order of the same date, he was "allowed or authorized
to continue the business in which he was engaged, (buying and selling personal and real properties)
and to perform acts which he had been doing while the deceased was living." Subsequently, on
December 14, 1957, after Mrs. Hodges' will had been probated and Hodges had been appointed and
had qualified as Executor thereof, upon his motion in which he asserted that he was "not only part
owner of the properties left as conjugal, but also, the successor to all the properties left by the
deceased Linnie Jane Hodges", the trial court ordered that "for the reasons stated in his motion
dated December 11, 1957, which the Court considers well taken, ... all the sales, conveyances,
leases and mortgages of all properties left by the deceased Linnie Jane Hodges executed by the
Executor, Charles Newton Hodges are hereby APPROVED. The said Executor is further authorized
to execute subsequent sales, conveyances, leases and mortgages of the properties left by the said
deceased Linnie Jane Hodges in consonance with the wishes contained in the last will and
testament of the latter."

Annually thereafter, Hodges submitted to the court the corresponding statements of account of his
administration, with the particularity that in all his motions, he always made it point to urge the that
"no person interested in the Philippines of the time and place of examining the herein accounts be
given notice as herein executor is the only devisee or legatee of the deceased in accordance with
the last will and testament already probated by the Honorable Court." All said accounts approved as
prayed for.

Nothing else appears to have been done either by the court a quo or Hodges until December 25,
1962. Importantly to be the provision in the will of Mrs. Hodges that her share of the conjugal
partnership was to be inherited by her husband "to have and to hold unto him, my said husband,
during his natural lifetime" and that "at the death of my said husband, I give, devise and bequeath all
the rest, residue and remainder of my estate, both real and personal, wherever situated or located,
to be equally divided among my brothers and sisters, share and share alike", which provision
naturally made it imperative that the conjugal partnership be promptly liquidated, in order that the
"rest, residue and remainder" of his wife's share thereof, as of the time of Hodges' own death, may
be readily known and identified, no such liquidation was ever undertaken. The record gives no
indication of the reason for such omission, although relatedly, it appears therein:

1. That in his annual statement submitted to the court of the net worth of C. N.
Hodges and the Estate of Linnie Jane Hodges, Hodges repeatedly and consistently
reported the combined income of the conjugal partnership and then merely divided
the same equally between himself and the estate of the deceased wife, and, more
importantly, he also, as consistently, filed corresponding separate income tax returns
for each calendar year for each resulting half of such combined income, thus
reporting that the estate of Mrs. Hodges had its own income distinct from his own.

2. That when the court a quo happened to inadvertently omit in its order probating
the will of Mrs. Hodges, the name of one of her brothers, Roy Higdon then already
deceased, Hodges lost no time in asking for the proper correction "in order that the
heirs of deceased Roy Higdon may not think or believe they were omitted, and that
they were really interested in the estate of the deceased Linnie Jane Hodges".

3. That in his aforementioned motion of December 11, 1957, he expressly stated that
"deceased Linnie Jane Hodges died leaving no descendants or ascendants except
brothers and sisters and herein petitioner as the surviving spouse, to inherit the
properties of the decedent", thereby indicating that he was not excluding his wife's
brothers and sisters from the inheritance.

4. That Hodges allegedly made statements and manifestations to the United States
inheritance tax authorities indicating that he had renounced his inheritance from his
 wife in favor of her other heirs, which attitude he is supposed to have reiterated or
ratified in an alleged affidavit subscribed and sworn to here in the Philippines and in
which he even purportedly stated that his reason for so disclaiming and renouncing
his rights under his wife's will was to "absolve (him) or (his) estate from any liability
for the payment of income taxes on income which has accrued to the estate of Linnie
Jane Hodges", his wife, since her death.

On said date, December 25, 1962, Hodges died. The very next day, upon motion of herein
respondent and appellee, Avelina A. Magno, she was appointed by the trial court as Administratrix of
the Testate Estate of Linnie Jane Hodges, in Special Proceedings No. 1307 and as Special
Administratrix of the estate of Charles Newton Hodges, "in the latter case, because the last will of
said Charles Newton Hodges is still kept in his vault or iron safe and that the real and personal
properties of both spouses may be lost, damaged or go to waste, unless Special Administratrix is
appointed," (Order of December 26, 1962, p. 27, Yellow R. on A.) although, soon enough, on
December 29, 1962, a certain Harold K. Davies was appointed as her Co-Special Administrator, and
when Special Proceedings No. 1672, Testate Estate of Charles Newton Hodges, was opened, Joe
Hodges, as next of kin of the deceased, was in due time appointed as Co-Administrator of said
estate together with Atty. Fernando P. Mirasol, to replace Magno and Davies, only to be in turn
replaced eventually by petitioner PCIB alone.

At the outset, the two probate proceedings appear to have been proceeding jointly, with each
administrator acting together with the other, under a sort of modus operandi. PCIB used to secure at
the beginning the conformity to and signature of Magno in transactions it wanted to enter into and
submitted the same to the court for approval as their joint acts. So did Magno do likewise. Somehow,
however, differences seem to have arisen, for which reason, each of them began acting later on
separately and independently of each other, with apparent sanction of the trial court. Thus, PCIB had
its own lawyers whom it contracted and paid handsomely, conducted the business of the estate
independently of Magno and otherwise acted as if all the properties appearing in the name of
Charles Newton Hodges belonged solely and only to his estate, to the exclusion of the brothers and
sisters of Mrs. Hodges, without considering whether or not in fact any of said properties
corresponded to the portion of the conjugal partnership pertaining to the estate of Mrs. Hodges. On
the other hand, Magno made her own expenditures, hired her own lawyers, on the premise that
there is such an estate of Mrs. Hodges, and dealth with some of the properties, appearing in the
name of Hodges, on the assumption that they actually correspond to the estate of Mrs. Hodges. All
of these independent and separate actuations of the two administrators were invariably approved by
the trial court upon submission. Eventually, the differences reached a point wherein Magno, who
was more cognizant than anyone else about the ins and outs of the businesses and properties of the
deceased spouses because of her long and intimate association with them, made it difficult for PCIB
to perform normally its functions as administrator separately from her. Thus, legal complications
arose and the present judicial controversies came about.

Predicating its position on the tenor of the orders of May 27 and December 14, 1957 as well as the
approval by the court a quo of the annual statements of account of Hodges, PCIB holds to the view
that the estate of Mrs. Hodges has already been in effect closed with the virtual adjudication in the
mentioned orders of her whole estate to Hodges, and that, therefore, Magno had already ceased
since then to have any estate to administer and the brothers and sisters of Mrs. Hodges have no
interests whatsoever in the estate left by Hodges. Mainly upon such theory, PCIB has come to this
Court with a petition for certiorari and prohibition praying that the lower court's orders allowing
respondent Magno to continue acting as administratrix of the estate of Mrs. Hodges in Special
Proceedings 1307 in the manner she has been doing, as detailed earlier above, be set aside.
Additionally, PCIB maintains that the provision in Mrs. Hodges' will instituting her brothers and
sisters in the manner therein specified is in the nature of a testamentary substitution, but inasmuch
as the purported substitution is not, in its view, in accordance with the pertinent provisions of the
Civil Code, it is ineffective and may not be enforced. It is further contended that, in any event,
inasmuch as the Hodges spouses were both residents of the Philippines, following the decision of
this Court in Aznar vs. Garcia, or the case of Christensen, 7 SCRA 95, the estate left by Mrs.
Hodges could not be more than one-half of her share of the conjugal partnership, notwithstanding
the fact that she was citizen of Texas, U.S.A., in accordance with Article 16 in relation to Articles 900
and 872 of the Civil Code. Initially, We issued a preliminary injunction against Magno and allowed
PCIB to act alone.

At the same time PCIB has appealed several separate orders of the trial court approving individual
acts of appellee Magno in her capacity as administratrix of the estate of Mrs. Hodges, such as, hiring
of lawyers for specified fees and incurring expenses of administration for different purposes and
executing deeds of sale in favor of her co-appellees covering properties which are still registered in
the name of Hodges, purportedly pursuant to corresponding "contracts to sell" executed by Hodges.
The said orders are being questioned on jurisdictional and procedural grounds directly or indirectly
predicated on the principal theory of appellant that all the properties of the two estates belong
already to the estate of Hodges exclusively.

On the other hand, respondent-appellee Magno denies that the trial court's orders of May 27 and
December 14, 1957 were meant to be finally adjudicatory of the hereditary rights of Hodges and
contends that they were no more than the court's general sanction of past and future acts of Hodges
as executor of the will of his wife in due course of administration. As to the point regarding
substitution, her position is that what was given by Mrs. Hodges to her husband under the provision
in question was a lifetime usufruct of her share of the conjugal partnership, with the naked ownership
passing directly to her brothers and sisters. Anent the application of Article 16 of the Civil Code, she
claims that the applicable law to the will of Mrs. Hodges is that of Texas under which, she alleges,
there is no system of legitime, hence, the estate of Mrs. Hodges cannot be less than her share or
one-half of the conjugal partnership properties. She further maintains that, in any event, Hodges had
as a matter of fact and of law renounced his inheritance from his wife and, therefore, her whole
estate passed directly to her brothers and sisters effective at the latest upon the death of Hodges.

In this decision, for the reasons discussed above, and upon the issues just summarized, We
overrule PCIB's contention that the orders of May 27, 1957 and December 14, 1957 amount to an
adjudication to Hodges of the estate of his wife, and We recognize the present existence of the
estate of Mrs. Hodges, as consisting of properties, which, while registered in that name of Hodges,
do actually correspond to the remainder of the share of Mrs. Hodges in the conjugal partnership, it
appearing that pursuant to the pertinent provisions of her will, any portion of said share still existing
and undisposed of by her husband at the time of his death should go to her brothers and sisters
share and share alike. Factually, We find that the proven circumstances relevant to the said orders
do not warrant the conclusion that the court intended to make thereby such alleged final
adjudication. Legally, We hold that the tenor of said orders furnish no basis for such a conclusion,
and what is more, at the time said orders were issued, the proceedings had not yet reached the
point when a final distribution and adjudication could be made. Moreover, the interested parties were
not duly notified that such disposition of the estate would be done. At best, therefore, said orders
merely allowed Hodges to dispose of portions of his inheritance in advance of final adjudication,
which is implicitly permitted under Section 2 of Rule 109, there being no possible prejudice to third
parties, inasmuch as Mrs. Hodges had no creditors and all pertinent taxes have been paid.

More specifically, We hold that, on the basis of circumstances presently extant in the record, and on
the assumption that Hodges' purported renunciation should not be upheld, the estate of Mrs. Hodges
inherited by her brothers and sisters consists of one-fourth of the community estate of the spouses
at the time of her death, minus whatever Hodges had gratuitously disposed of therefrom during the
period from, May 23, 1957, when she died, to December 25, 1962, when he died provided, that with
regard to remunerative dispositions made by him during the same period, the proceeds thereof,
whether in cash or property, should be deemed as continuing to be part of his wife's estate, unless it
can be shown that he had subsequently disposed of them gratuitously.

At this juncture, it may be reiterated that the question of what are the pertinent laws of Texas and
what would be the estate of Mrs. Hodges under them is basically one of fact, and considering the
respective positions of the parties in regard to said factual issue, it can already be deemed as settled
for the purposes of these cases that, indeed, the free portion of said estate that could possibly
descend to her brothers and sisters by virtue of her will may not be less than one-fourth of the
conjugal estate, it appearing that the difference in the stands of the parties has reference solely to
the legitime of Hodges, PCIB being of the view that under the laws of Texas, there is such a legitime
of one-fourth of said conjugal estate and Magno contending, on the other hand, that there is none. In
other words, hereafter, whatever might ultimately appear, at the subsequent proceedings, to be
actually the laws of Texas on the matter would no longer be of any consequence, since PCIB would
anyway be in estoppel already to claim that the estate of Mrs. Hodges should be less than as
contended by it now, for admissions by a party related to the effects of foreign laws, which have to
be proven in our courts like any other controverted fact, create estoppel.

In the process, We overrule PCIB's contention that the provision in Mrs. Hodges' will in favor of her
brothers and sisters constitutes ineffective hereditary substitutions. But neither are We sustaining, on
the other hand, Magno's pose that it gave Hodges only a lifetime usufruct. We hold that by said
provision, Mrs. Hodges simultaneously instituted her brothers and sisters as co-heirs with her
husband, with the condition, however, that the latter would have complete rights of dominion over
the whole estate during his lifetime and what would go to the former would be only the remainder
thereof at the time of Hodges' death. In other words, whereas they are not to inherit only in case of
default of Hodges, on the other hand, Hodges was not obliged to preserve anything for them. Clearly
then, the essential elements of testamentary substitution are absent; the provision in question is a
simple case of conditional simultaneous institution of heirs, whereby the institution of Hodges is
subject to a partial resolutory condition the operative contingency of which is coincidental with that of
the suspensive condition of the institution of his brothers and sisters-in-law, which manner of
institution is not prohibited by law.

We also hold, however, that the estate of Mrs. Hodges inherited by her brothers and sisters could be
more than just stated, but this would depend on (1) whether upon the proper application of the
principle of renvoi in relation to Article 16 of the Civil Code and the pertinent laws of Texas, it will
appear that Hodges had no legitime as contended by Magno, and (2) whether or not it can be held
that Hodges had legally and effectively renounced his inheritance from his wife. Under the
circumstances presently obtaining and in the state of the record of these cases, as of now, the Court
is not in a position to make a final ruling, whether of fact or of law, on any of these two issues, and
We, therefore, reserve said issues for further proceedings and resolution in the first instance by the
court a quo, as hereinabove indicated. We reiterate, however, that pending such further
proceedings, as matters stand at this stage, Our considered opinion is that it is beyond cavil that
since, under the terms of the will of Mrs. Hodges, her husband could not have anyway legally
adjudicated or caused to be adjudicated to himself her whole share of their conjugal partnership,
albeit he could have disposed any part thereof during his lifetime, the resulting estate of Mrs.
Hodges, of which Magno is the uncontested administratrix, cannot be less than one-fourth of the
conjugal partnership properties, as of the time of her death, minus what, as explained earlier, have
been gratuitously disposed of therefrom, by Hodges in favor of third persons since then, for even if it
were assumed that, as contended by PCIB, under Article 16 of the Civil Code and
applying renvoi the laws of the Philippines are the ones ultimately applicable, such one-fourth share
would be her free disposable portion, taking into account already the legitime of her husband under
Article 900 of the Civil Code.
The foregoing considerations leave the Court with no alternative than to conclude that in predicating
its orders on the assumption, albeit unexpressed therein, that there is an estate of Mrs. Hodges to
be distributed among her brothers and sisters and that respondent Magno is the legal administratrix
thereof, the trial court acted correctly and within its jurisdiction. Accordingly, the petition
for certiorari and prohibition has to be denied. The Court feels however, that pending the liquidation
of the conjugal partnership and the determination of the specific properties constituting her estate,
the two administrators should act conjointly as ordered in the Court's resolution of September 8,
1972 and as further clarified in the dispositive portion of its decision.

Anent the appeals from the orders of the lower court sanctioning payment by appellee Magno, as
administratrix, of expenses of administration and attorney's fees, it is obvious that, with Our holding
that there is such an estate of Mrs. Hodges, and for the reasons stated in the body of this opinion,
the said orders should be affirmed. This We do on the assumption We find justified by the evidence
of record, and seemingly agreed to by appellant PCIB, that the size and value of the properties that
should correspond to the estate of Mrs. Hodges far exceed the total of the attorney's fees and
administration expenses in question.

With respect to the appeals from the orders approving transactions made by appellee Magno, as
administratrix, covering properties registered in the name of Hodges, the details of which are related
earlier above, a distinction must be made between those predicated on contracts to sell executed by
Hodges before the death of his wife, on the one hand, and those premised on contracts to sell
entered into by him after her death. As regards the latter, We hold that inasmuch as the payments
made by appellees constitute proceeds of sales of properties belonging to the estate of Mrs.
Hodges, as may be implied from the tenor of the motions of May 27 and December 14, 1957, said
payments continue to pertain to said estate, pursuant to her intent obviously reflected in the relevant
provisions of her will, on the assumption that the size and value of the properties to correspond to
the estate of Mrs. Hodges would exceed the total value of all the properties covered by the
impugned deeds of sale, for which reason, said properties may be deemed as pertaining to the
estate of Mrs. Hodges. And there being no showing that thus viewing the situation, there would be
prejudice to anyone, including the government, the Court also holds that, disregarding procedural
technicalities in favor of a pragmatic and practical approach as discussed above, the assailed orders
should be affirmed. Being a stranger to the estate of Mrs. Hodges, PCIB has no personality to raise
the procedural and jurisdictional issues raised by it. And inasmuch as it does not appear that any of
the other heirs of Mrs. Hodges or the government has objected to any of the orders under appeal,
even as to these parties, there exists no reason for said orders to be set aside.

DISPOSITIVE PART

IN VIEW OF ALL THE FOREGOING PREMISES, judgment is hereby rendered DISMISSING the
petition in G. R. Nos. L-27860 and L-27896, and AFFIRMING, in G. R. Nos. L-27936-37 and the
other thirty-one numbers hereunder ordered to be added after payment of the corresponding docket
fees, all the orders of the trial court under appeal enumerated in detail on pages 35 to 37 and 80 to
82 of this decision; the existence of the Testate Estate of Linnie Jane Hodges, with respondent-
appellee Avelina A. Magno, as administratrix thereof is recognized, and it is declared that, until final
judgment is ultimately rendered regarding (1) the manner of applying Article 16 of the Civil Code of
the Philippines to the situation obtaining in these cases and (2) the factual and legal issue of whether
or not Charles Newton Hodges had effectively and legally renounced his inheritance under the will of
Linnie Jane Hodges, the said estate consists of one-fourth of the community properties of the said
spouses, as of the time of the death of the wife on May 23, 1957, minus whatever the husband had
already gratuitously disposed of in favor of third persons from said date until his death, provided,
first, that with respect to remunerative dispositions, the proceeds thereof shall continue to be part of
the wife's estate, unless subsequently disposed of gratuitously to third parties by the husband, and
second, that should the purported renunciation be declared legally effective, no deductions
whatsoever are to be made from said estate; in consequence, the preliminary injunction of August 8,
1967, as amended on October 4 and December 6, 1967, is lifted, and the resolution of September 8,
1972, directing that petitioner-appellant PCIB, as Administrator of the Testate Estate of Charles
Newton Hodges, in Special Proceedings 1672, and respondent-appellee Avelina A. Magno, as
Administratrix of the Testate Estate of Linnie Jane Hodges, in Special Proceedings 1307, should act
thenceforth always conjointly, never independently from each other, as such administrators, is
reiterated, and the same is made part of this judgment and shall continue in force, pending the
liquidation of the conjugal partnership of the deceased spouses and the determination and
segregation from each other of their respective estates, provided, that upon the finality of this
judgment, the trial court should immediately proceed to the partition of the presently combined
estates of the spouses, to the end that the one-half share thereof of Mrs. Hodges may be properly
and clearly identified; thereafter, the trial court should forthwith segregate the remainder of the one-
fourth herein adjudged to be her estate and cause the same to be turned over or delivered to
respondent for her exclusive administration in Special Proceedings 1307, while the other one-fourth
shall remain under the joint administration of said respondent and petitioner under a joint
proceedings in Special Proceedings 1307 and 1672, whereas the half unquestionably pertaining to
Hodges shall be administered by petitioner exclusively in Special Proceedings 1672, without
prejudice to the resolution by the trial court of the pending motions for its removal as administrator12;
and this arrangement shall be maintained until the final resolution of the two issues of renvoi and
renunciation hereby reserved for further hearing and determination, and the corresponding complete
segregation and partition of the two estates in the proportions that may result from the said
resolution.

Generally and in all other respects, the parties and the court a quo are directed to adhere
henceforth, in all their actuations in Special Proceedings 1307 and 1672, to the views passed and
ruled upon by the Court in the foregoing opinion.

Appellant PCIB is ordered to pay, within five (5) days from notice hereof, thirty-one additional appeal
docket fees, but this decision shall nevertheless become final as to each of the parties herein after
fifteen (15) days from the respective notices to them hereof in accordance with the rules.

Costs against petitioner-appellant PCIB.

Zaldivar, Castro, Esguerra and Fernandez, JJ., concur.

Makasiar, Antonio, Muñoz Palma and Aquino, JJ., concur in the result.

Separate Opinions

FERNANDO, J., concurring:

I concur on the basis of the procedural pronouncements in the opinion.

TEEHANKEE, J., concurring:

I concur in the result of dismissal of the petition for certiorari and prohibition in Cases L-27860 and L-
27896 and with the affirmance of the appealed orders of the probate court in Cases L-27936-37.

I also concur with the portion of the dispositive part of the judgment penned by Mr. Justice Barredo
decreeing the lifting of the Court's writ of preliminary injunction of August 8, 1967 as amended on
October 4, and December 6, 19671 and ordering in lieu thereof that the Court's resolution of
September 8, 19722 which directed that petitioner-appellant PCIB as administrator of C. N. (Charles
Newton) Hodges' estate (Sp. Proc. No. 1672 and respondent-appellee Avelina A. Magno as
administratrix of Linnie Jane Hodges' estate (Sp. Proc. No. 1307) should act always conjointly never
independently from each other, as such administrators, is reiterated and shall continue in force and
made part of the judgment.

It is manifest from the record that petitioner-appellant PCIB's primal contention in the cases at bar
belatedly filed by it with this Court on August 1, 1967 (over ten (10) years after Linnie Jane Hodges'
death on May 23, 1957 and (over five (5) years after her husband C.N. Hodges' death on December
25, 1962 — during which time both estates have been pending settlement and distribution to the
decedents' respective rightful heirs all this time up to now) — that the probate court per its order of
December 14, 1957 (supplementing an earlier order of May 25, 1957)3 in granting C. N. Hodges'
motion as Executor of his wife Linnie's estate to continue their "business of buying and selling
personal and real properties" and approving "all sales, conveyances, leases and mortgages" made
and to be made by him as such executor under his obligation to submit his yearly accounts in effect
declared him as sole heir of his wife's estate and nothing remains to be done except to formally
close her estate (Sp. Proc. No. 1307) as her estate was thereby merged with his own so
that nothing remains of it that may be adjudicated to her brothers and sisters as her designated heirs
after him,4 — is wholly untenable and deserves scant consideration.

Aside from having been put forth as an obvious afterthought much too late in the day, this contention
of PCIB that there no longer exists any separate estate of Linnie Jane Hodges after the probate
court's order of December 14, 1957 goes against the very acts and judicial admissions of C.N.
Hodges as her executor whereby he consistently recognized the separate existence and identity of
his wife's estate apart from his own separate estate and from his own share of their conjugal
partnership and estate and "never considered the whole estate as a single one belonging exclusively
to himself" during the entire period that he survived her for over five (5) years up to the time of his
own death on December 25, 19625 and against the identical acts and judicial admissions of PCIB as
administrator of C.N. Hodges' estate until PCIB sought in 1966 to take over both estates as
pertaining to its sole administration.

PCIB is now barred and estopped from contradicting or taking a belated position contradictory to or
inconsistent with its previous admissions 6 (as well as those of C.N. Hodges himself in his lifetime
and of whose estate PCIB is merely an administrator) recognizing the existence and identity of
Linnie Jane Hodges' separate estate and the legal rights and interests therein of her brothers and
sisters as her designated heirs in her will.

PCIB's petition for certiorari and prohibition to declare all acts of the probate court in Linnie Jane
Hodges' estate subsequent to its order of December 14, 1957 as "null and void for having been
issued without jurisdiction" must therefore be dismissed with the rejection of its belated and
untenable contention that there is no longer any estate of Mrs. Hodges of which respondent Avelina
Magno is the duly appointed and acting administratrix.
PCIB's appeal7 from the probate court's various orders recognizing respondent Magno as
administratrix of Linnie's estate (Sp. Proc No. 1307) and sanctioning her acts of administration of
said estate and approving the sales contracts executed by her with the various individual appellees,
which involve basically the same primal issue raised in the petition as to whether there still exists a
separate estate of Linnie of which respondent-appellee Magno may continue to be the administratrix,
must necessarily fail — a result of the Court's main opinion at bar that there doesexist such an
estate and that the two estates (husband's and wife's) must be administered cojointly by their
respective administrators (PCIB and Magno).

The dispositive portion of the main opinion

The main opinion disposes that:

IN VIEW OF ALL THE FOREGOING PREMISES, judgment is hereby rendered

DISMISSING the petition in G. R. Nos. L-27860 and L-27896, and AFFIRMING, in G.
R. Nos. L-27936-37 and the other thirty-one numbers hereunder ordered to be added
after payment of the corresponding docket fees, all the orders of the trial court under
appeal enumerated in detail on pages 35 to 37 and 80 to 82 of this decision:

The existence of the Testate Estate of Linnie Jane Hodges, with respondent-appellee
Avelina A. Magno, as administratrix thereof is recognized, and

It is declared that, until final judgment is ultimately rendered regarding (1) the manner
of applying Article 16 of the Civil Code of the Philippines to the situation obtaining in
these cases and (2) the factual and legal issues of whether or not Charles Newton
Hodges has effectively and legally renounced his inheritance under the will of Linnie
Jane Hodges, the said estate consists of one-fourthof the community properties of
the said spouses, as of the time of the death of the wife on May 23,
1957, minus whatever the husband had already gratuitously disposed of in favor of
third persons from said date until his death, provided, first, that with respect
to remunerative dispositions, the proceeds thereof shall continue to be part of
the wife's estate, unless subsequently disposed of gratuitously to third parties by the
husband, and second, that should the purported renunciation be declared legally
effective, no deduction whatsoever are to be made from said estate;

In consequence, the preliminary injunction of August 8, 1967, as amended on

October 4 and December 6, 1967, is lifted and the resolution of September 8, 1972,
directing that petitioner-appellant PCIB, as Administrator of the Testate Estate of
Charles Newton Hodges in Special Proceedings 1672, and respondent-appellee
Avelina A. Magno, as Administratrix of the Testate Estate of Linnie Jane Hodges in
Special Proceedings 1307, should act thenceforth always conjointly, never
independently from each other, as such administrators, is reiterated, and the same
is made part of this judgment and shall continue in force, pending the liquidation of
the conjugal partnership of the deceased spouses and
the determination and segregation from each other of their respective estates;
provided, that upon the finality of this judgment, the trial court should immediately
proceed to the partition of the presently combined estates of the spouses, to the end
that the one-half share thereof of Mrs. Hodges may be properly and clearly identified;

Thereafter, the trial court should forthwith segregate the remainder of the one-
fourth herein adjudged to be her estate and cause the same to be turned over or
delivered to respondent for her exclusive administration in Special Proceedings
 1307, while the other one-fourth shall remain under the joint administrative of said
respondent and petitioner under a joint proceedings in Special Proceedings 1307
and 1672, whereas the half unquestionably pertaining to Hodges shall
be administered by petitioner exclusively in Special Proceedings 1672, without
prejudice to the resolution by the trial court of thepending motions for its removal as
administrator;

And this arrangement shall be maintained until the final resolution of the two issues
of renvoi and renunciation hereby reserved for further hearing and determination,
and the corresponding completesegregation and partition of the two estates in the
proportions that may result from the said resolution.

Generally and in all other respects, the parties and the court a quo are directed to
adhere henceforth, in all their actuations in Special Proceedings 1307 and 1672, to
the views passed and ruled upon by the Court in the foregoing opinion.8

Minimum estimate of Mrs. Hodges' estate:

One-fourth of conjugal properties.

The main opinion in declaring the existence of a separate estate of Linnie Jane Hodges which shall
pass to her brothers and sisters with right of representation (by their heirs) as her duly designated
heirs declares that her estate consists as a minimum (i.e. assuming (1) that under Article 16 of the
Philippine Civil Code C. N. Hodges as surviving husband was entitled to one-half of her estate
as legitime and (2) that he had not effectively and legally renouncedhis inheritance under her will) of
"one-fourth of the community properties of the said spouses, as of the time of the death of the wife
on May 23, 1957, minus whatever the husband had already gratuitously disposed of in favor of third
persons from said date until his death," with the proviso that proceeds of remunerative dispositions
or sales for valuable consideration made by C. N. Hodges after his wife Linnie's death shall continue
to be part of her estate unless subsequently disposed of by him gratuitously to third parties subject
to the condition, however, that if he is held to have validly and effectively renounced his inheritance
under his wife's will, no deductions of any dispositions made by Hodges even if gratuitously are to be
made from his wife Linnie's estate which shall pass intact to her brothers and sisters as her
designated heirs called in her will to succeed to her estate upon the death of her husband C. N.
Hodges.

Differences with the main opinion

I do not share the main opinion's view that Linnie Jane Hodges instituted her husband as her heir
under her will "to have dominion over all her estate during his lifetime ... as absolute owner of the
properties ..."9 and that she bequeathed "the whole of her estate to be owned and enjoyed by him as
universal and sole heir with absolute dominion over them only during his lifetime, which means that
while he could completely and absolutely dispose of any portion thereof inter vivos to anyone other
than himself, he was not free to do so mortis causa, and all his rights to what might remain upon his
death would cease entirely upon the occurrence of that contingency, inasmuch as the right of his
brothers and sisters-in-law to the inheritance, although vested already upon the death of Mrs.
Hodges, would automatically become operative upon the occurrence of the death of Hodges in the
event of actual existence of any remainder of her estate then." 10

As will be amplified hereinafter, I do not subscribe to such a view that Linnie Jane Hodges willed "full
and absolute ownership" and "absolute dominion" over her estate to her husband, but rather that she
named her husband C. N. Hodges and her brothers and sisters as instituted heirs with a term under
Article 885 of our Civil Code, to wit, Hodges as instituted heir with a resolutory term whereunder his
right to the succession ceased in diem upon arrival of the resolutory term of his death on December
25, 1962 and her brothers and sisters as instituted heirs with a suspensive term whereunder their
right to the succession commenced ex die upon arrival of the suspensive term of the death of C. N.
Hodges on December 25, 1962.

Hence, while agreeing with the main opinion that the proceeds of all remunerative dispositions made
by C. N. Hodges after his wife's death remain an integral part of his wife's estate which she willed to
her brothers and sisters, I submit that C. N. Hodges could not validly make gratuitous dispositions of
any part or all of his wife's estate — "completely and absolutely dispose of any portion thereof inter
vivos to anyone other than himself" in the language of the main opinion, supra — and thereby render
ineffectual and nugatory her institution of her brothers and sisters as her designated heirs to
succeed to her whole estate "at the death of (her) husband." If according to the main opinion,
Hodges could not make such gratuitous "complete and absolute dispositions" of his wife Linnie's
estate "mortis causa," it would seem that by the same token and rationale he was likewise
proscribed by the will from making such dispositions of Linnie's estate inter vivos.

I believe that the two questions of renvoi and renunciation should be

resolved preferentially and expeditiously by the probate court ahead of the partition and segregation
of the minimum one-fourth of the conjugal or community properties constituting Linnie Jane
Hodges' separate estate, which task considering that it is now seventeen (17) years since Linnie
Jane Hodges' death and her conjugal estate with C. N. Hodges has remained unliquidated up to now
might take a similar number of years to unravel with the numerous items, transactions and details of
the sizable estates involved.

Such partition of the minimum one-fourth would not be final, since if the two prejudicial questions
of renvoi and renunciation were resolved favorably to Linnie's estate meaning to say that if it should
be held that C. N. Hodges is not entitled to any legitime of her estate and at any rate he had totally
renounced his inheritance under the will), then Linnie's estate would consist not only of the minimum
one-fourth but one-half of the conjugal or community properties of the Hodges spouses, which would
require again the partition and segregation of still another one-fourth of said. properties
to complete Linnie's separate estate.

My differences with the main opinion involve further the legal concepts, effects and consequences of
the testamentary dispositions of Linnie Jane Hodges in her will and the question of the best to reach
a solution of the pressing question of expediting the closing of the estates which after all do not
appear to involve any outstanding debts nor any dispute between the heirs and should therefore be
promptly settled now after all these years without any further undue complications and delays and
distributed to the heirs for their full enjoyment and benefit. As no consensus appears to have been
reached thereon by a majority of the Court, I propose to state views as concisely as possible with the
sole end in view that they may be of some assistance to the probate court and the parties in
reaching an expeditious closing and settlement of the estates of the Hodges spouses.

Two Assumptions

As indicated above, the declaration of the minimum of Mrs. Hodges' estate as one-fourth of the
conjugal properties is based on two assumptions most favorable to C. N. Hodges' estate and his
heirs, namely (1) that the probate court must accept the renvoi or "reference back" 11 allegedly
provided by the laws of the State of Texas (of which state the Hodges spouses were citizens)
whereby the civil laws of the Philippines as the domicile of the Hodges spouses would govern their
succession notwithstanding the provisions of Article 16 of our Civil Code (which provides that the
national law of the decedents, in this case, of Texas, shall govern their succession) with the result
that her estate would consist of no more than one-fourth of the conjugal properties since
the legitime of her husband (the other one-fourth of said conjugal properties or one-half
of her estate, under Article 900 of our Civil Code) could not then be disposed of nor burdened with
any condition by her and (2) that C.N. Hodges had not effectively and legally renounced his
inheritance under his wife's will.

These two assumptions are of course flatly disputed by respondent-appellee Magno as Mrs. Hodges'
administratrix, who avers that the law of the State of Texas governs her succession and
does not provide for and legitime, hence, her brothers and sisters are entitled to succeed to the
whole of her share of the conjugal properties which is one-halfthereof and that in any event, Hodges
had totally renounced all his rights under the will.

The main opinion concedes that "(I)n the interest of settling the estates herein involved soonest, it
would be best, indeed, if these conflicting claims of the parties were determined in these
proceedings." It observes however that this cannot be done due to the inadequacy of the evidence
submitted by the parties in the probate court and of the parties' discussion, viz, "there is no clear and
reliable proof of what the possibly applicable laws of Texas are. Then also, the genuineness of the
documents relied upon by respondent Magno [re Hodges' renunciation] is disputed." 12

Hence, the main opinion expressly reserves resolution and determination on these two conflicting
claims and issues which it deems "are not properly before the Court
now," 13 and specifically holds that "(A)ccordingly, the only question that remains to be settled in the
further proceedings hereby ordered to be held in the court below is how much more than as fixed
above is the estate of Mrs. Hodges, and this would depend on (1) whether or not the applicable laws
of Texas do provide in effect for more, such as, when there is no legitime provided therein, and (2)
whether or not Hodges has validly waived his whole inheritance from Mrs. Hodges." 14

Suggested guidelines

Considering that the only unresolved issue has thus been narrowed down and in consonance with
the ruling spirit of our probate law calling for the prompt settlement of the estates of deceased
persons for the benefit of creditors and those entitled to the residue by way of inheritance —
considering that the estates have been long pending settlement since 1957 and 1962, respectively
— it was felt that the Court should lay down specific guidelines for the guidance of the probate court
towards the end that it may expedite the closing of the protracted estates proceedings below to the
mutual satisfaction of the heirs and without need of a dissatisfied party elevating its resolution of
this only remaining issue once more to this Court and dragging out indefinitely the proceedings.

After all, the only question that remains depends for its determination on the resolution of the two
questions of renvoiand renunciation, i.e. as to whether C. N. Hodges can claim
a legitime and whether he had renounced the inheritance. But as already indicated above, the Court
without reaching a consensus which would finally resolve the conflicting claims here and now in this
case opted that "these and other relevant matters should first be threshed out fully in the trial court in
the proceedings hereinafter to be held for the purpose of ascertaining and/or distributing the estate
of Mrs. Hodges to her heirs in accordance with her duly probated will." 15

The writer thus feels that laying down the premises and principles governing the nature, effects and
consequences of Linnie Jane Hodges' testamentary dispositions in relation to her conjugal
partnership and co-ownership of properties with her husband C. N. Hodges and "thinking out" the
end results, depending on whether the evidence directed to be formally received by the probate
court would bear out that under renvoi C. N. Hodges was or was not entitled to claim a legitime of
one-half of his wife Linnie's estate and/or that he had or had not effectively and validly renounced his
inheritance should help clear the decks, as it were, and assist the probate court in resolving
the onlyremaining question of how much more than the minimum one-fourth of the community
properties of the Hodges spouses herein finally determined should be awarded as the separate
estate of Linnie, particularly since the views expressed in the main opinion have not gained a
consensus of the Court. Hence, the following suggested guidelines, which needless to state,
represent the personal opinion and views of the writer:

1. To begin with, as pointed out in the main opinion, "according to Hodges' own inventory submitted
by him as executor of the estate of his wife, practically all their properties were conjugal which
means that the spouses have equal shares therein." 16

2. Upon the death of Mrs. Hodges on May 23, 1957, and the dissolution thereby of the marriage, the
law imposed upon Hodges as surviving husband the duty of inventorying, administering and
liquidating the conjugal or community property. 17 Hodges failed to discharge this duty
of liquidating the conjugal partnership and estate. On the contrary, he sought and obtained
authorization from the probate court to continue the conjugal partnership's business of buying and
selling real and personal properties.

In his annual accounts submitted to the probate court as executor of Mrs. Hodges' estate, Hodges
thus consistentlyreported the considerable combined income (in six figures) of the conjugal
partnership or coownership and then divided the same equally between himself and Mrs. Hodges'
estate and as consistently filed separate income tax returns and paid the income taxes
for each resulting half of such combined income corresponding to his own and to Mrs. Hodges'
estate. 18 (Parenthetically, he could not in law do this, had he adjudicated Linnie's entire estate to
himself, thus supporting the view advanced even in the main opinion that "Hodges waived not only
his rights to the fruits but to the properties themselves." 19

By operation of the law of trust 20 as well as by his own acknowledgment and acts, therefore, all
transactions made by Hodges after his wife's death were deemed for and on behalf of
their unliquidated conjugal partnership and community estate and were so reported and treated by
him.

3. With this premise established that all transactions of Hodges after his wife's death were for and on
behalf of their unliquidated conjugal partnership and community estate, share and share alike, it
should be clear that no gratuitousdispositions, if any, made by C. N. Hodges from his wife Linnie's
estate should be deducted from her separateestate as held in the main opinion. On the contrary, any
such gratuitous dispositions should be charged to his own share of the conjugal estate since he had
no authority or right to make any gratuitous dispositions of Linnie's properties to the prejudice of her
brothers and sisters whom she called to her succession upon his death, not to mention that the very
authority obtained by him from the probate court per its orders of May 25, and December 14, 1957
was to continue the conjugal partnership's business of buying and selling real properties for the
account of their unliquidated conjugal estate and co-ownership, share and share alike and not to
make any free dispositions of Linnie's estate.

4. All transactions as well after the death on December 25, 1962 of Hodges himself appear perforce
and necessarily to have been conducted, on the same premise, for and on behalf of
their unliquidated conjugal partnership and/or co-ownership, share and share alike — since the
conjugal partnership remained unliquidated — which is another way of saying that such transactions,
purchases and sales, mostly the latter, must be deemed in effect to have been made for the
respective estates of C. N. Hodges and of his wife Linnie Jane Hodges, as both estates continued to
have an equal stake and share in the conjugal partnership which was not only left unliquidated but
continued as a co-ownership or joint business with the probate court's approval by Hodges during
the five-year period that he survived his wife.
This explains the probate court's action of requiring that deeds of sale executed by PCIB as Hodges'
estate's administrator be "signed jointly" by respondent Magno as Mrs. Hodges' estate's
administratrix, as well as its order authorizing payment by lot purchasers from the Hodges
to either estate, since "there is as yet no judicial declaration of heirs nor distribution of properties to
whomsoever are entitled thereto." 22

And this equally furnishes the rationale of the main opinion for continued conjoint administration by
the administrators of the two estates of the deceased spouses, "pending the liquidation of the
conjugal partnership," 23since "it is but logical that both estates should be administered jointly by the
representatives of both, pending their segregation from each other. Particularly ... because the
actuations so far of PCIB evince a determined, albeit groundless, intent to exclude the other heirs of
Mrs. Hodges from their inheritance." 24 5. Antly by the representatives of both, pending their
segregation from each other. Particularly ... because the actuations so far of PCIB evince a
determined, albeit groundless, intent to exclude the other heirs of Mrs. Hodges from their
inheritance." 24

5. As stressed in the main opinion, the determination of the only unresolved issue of how much more
than the minimum of one-fourth of the community or conjugal properties of the Hodges spouses
pertains to Mrs. Hodges' estate depends on the twin questions of renunciation and renvoi. It directed
consequently that "a joint hearing of the two probate proceedings herein involved" be held by the
probate court for the reception of "further evidence" in order to finally resolved these twin
questions. 25

(a) On the question of renunciation, it is believed that all that the probate court has to do is to receive
formally in evidence the various documents annexed to respondent Magno's answer at
bar, 26 namely: Copy of the U.S. Estate Tax Return filed on August 8, 1958 by C. N. Hodges for his
wife Linnie's estate wherein he purportedly declared that he was renouncing his inheritance under
his wife's will in favor of her brothers and sisters as co-heirs designated with him and that it was his
"intention (as) surviving husband of the deceased to distribute the remaining property and interests
of the deceased in their community estate to the devisee and legatees named in the will when the
debts, liabilities, taxes and expenses of administration are finally determined and paid;" 27 and

The affidavit of ratification of such renunciation (which places him in estoppel) allegedly executed on
August 9, 1962 by C. N. Hodges in Iloilo City wherein he reaffirmed that "... on August 8, 1958,
I renounced and disclaimed any and all right to receive the rents, emoluments and income from said
estate" and further declared that "(T)he purpose of this affidavit is to ratify and confirm, and I do
hereby ratify and confirm, the declaration made in schedule M of said return and hereby
formally disclaim and renounce any right on my part to receive any of the said rents, emoluments
and income from the estate of my deceased wife, Linnie Jane Hodges. This affidavit is made
to absolve me or my estate from any liability for the payment of income taxes on income which has
accrued to the estate of Linnie Jane Hodges since the death of the said Linnie Jane Hodges on May
23, 1957." 28

(b) On the question of renvoi, all that remains for the probate court to do is to formally receive in
evidence duly authenticated copies of the laws of the State of Texas governing the succession of
Linnie Jane Hodges and her husband C. N. Hodges as citizens of said State at the time of their
respective deaths on May 23, 1957 and December 25, 1962. 29

6. The text and tenor of the declarations by C. N. Hodges of renunciation of his inheritance from his
wife in favor of her other named heirs in her will (her brothers and sisters and their respective heirs)
as ratified and reiterated expressly in his affidavit of renunciation executed four years later for the
avowed purpose of not being held liable for payment of income taxes on income which has accrued
to his wife's estate since her death indicate a valid and effective renunciation.

Once the evidence has been formally admitted and its genuineness and legal effectivity established
by the probate court, the renunciation by C. N. Hodges must be given due effect with the result that
C. N. Hodges therefore acquired no part of his wife's one-half share of the community properties
since he removed himself as an heir by virtue of his renunciation. By simple substitution then under
Articles 857 and 859 of our Civil Code 30 and by virtue of the will's institution of heirs, since "the heir
originally instituted C. N. Hodges) does not become an heir" 31 by force of his renunciation, Mrs.
Hodges' brothers and sisters whom she designated as her heirs upon her husband's death are
called immediately to her succession.

Consequently, the said community and conjugal properties would then pertain pro indiviso share and
share alike to their respective estates, with each estate, however, shouldering its own expenses of
administration, estate and inheritance taxes, if any remain unpaid, attorneys' fees and other like
expenses and the net remainder to be adjudicated directly to the decedents' respective brothers and
sisters (and their heirs) as the heirs duly designated in their respective wills. The question
of renvoi becomes immaterial since most laws and our laws permit such renunciation of inheritance.

7. If there were no renunciation (or the same may somehow be declared to have not been valid and
effective) by C. N. Hodges of his inheritance from his wife, however, what would be the
consequence?

(a) If the laws on succession of the State of Texas do provide for renvoi or "reference back" to
Philippine law as the domiciliary law of the Hodges' spouses governing their succession, then
petitioners' view that Mrs. Hodges' estate would consist only of the minimum of "one-fourth of the
community properties of the said spouses, as of the time of (her) death on May 23, 1957" would
have to be sustained and C. N. Hodges' estate would consist of three-fourths of the community
properties, comprising his own one-half (or two-fourths) share and the other fourth of Mrs. Hodges'
estate as the legitime granted him as surviving spouse by Philippine law (Article 900 of the Civil
Code) which could not be disposed of nor burdened with any condition by Mrs. Hodges as testatrix.

(b) If the laws on succession of the State of Texas do not provide for such renvoi and respondent
Magno's assertion is correct that the Texas law which would then prevail, provides for no legitime for
C. N. Hodges as the surviving spouse, then respondent Magno's assertion that Mrs. Hodges' estate
would consist of one-half of the community properties (with the other half pertaining to C. N. Hodges)
would have to be sustained. The community and conjugal properties would then pertain share and
share alike to their respective estates, with each estate shouldering its own expenses of
administration in the same manner stated in the last paragraph of paragraph 6 hereof. .

8. As to the nature of the institution of heirs made by Mrs. Hodges in her will, the main opinion holds
that "(T)he brothers and sisters of Mrs. Hodges are not substitutes for Hodges; rather, they are also
heirs instituted simultaneously with Hodges," but goes further and holds that "it was not the usufruct
alone of her estate ... that she bequeathed to Hodges during his lifetime, but the full
ownership thereof, although the same was to last also during his lifetime only, even as there was no
restriction against his disposing or conveying the whole or any portion thereof anybody other than
himself" and describes Hodges "as universal and sole heir with absolute dominion over Mrs. Hodges'
estate (except over their Lubbock, Texas property ), 32 adding that "Hodges was not obliged to
preserve anything for them" (referring to Mrs. Hodges' brothers and sisters as instituted co-heirs). 33

Contrary to this view of the main opinion, the writer submits that the provisions of Mrs. Hodges' will
did not grant to C.N. Hodges "full ownership" nor "absolute dominion" over her estate, such that he
could as "universal and sole heir" by the mere expedient of gratuitously disposing to third persons
her whole estate during his lifetime nullify her institution of her brothers and sisters as his co-heirs to
succeed to her whole estate "at the death of (her) husband," deprive them of any inheritance and
make his own brothers and sisters in effect sole heirs not only of his own estate but of
his wife's estate as well.

Thus, while Linnie Jane Hodges did not expressly name her brothers and sisters as substitutes for
Hodges because she willed that they would enter into the succession upon his death, still it cannot
be gainsaid, as the main opinion concedes, "that they are also heirs instituted simultaneously with
Hodges, subject however to certain conditions, partially resolutory insofar as Hodges was concerned
and correspondingly suspensive with reference to his brothers and sisters-in-law." 34

Hence, if Hodges is found to have validly renounced his inheritance, there would be a substitution of
heirs in fact and in law since Linnie's brothers and sisters as the heirs "simultaneously instituted"
with a suspensive term would be called immediately to her succession instead of waiting for the
arrival of suspensive term of Hodges' death, since as the heir originally instituted he does not
become an heir by force of his renunciation and therefore they would "enter into the inheritance in
default of the heir originally instituted" (Hodges) under the provisions of Article 857 and 859 of our
Civil Code, supra, 35 thus accelerating their succession to her estate as a consequence of Hodges'
renunciation.

Consequently, Linnie Jane Hodges willed that her husband C.N. Hodges would "during his natural
lifetime ... manage, control, use and enjoy said estate" and that only "all rents,
emoluments and income" alone shall belong to him. She further willed that while he
could sell and purchase properties of her estate, and "use any part of the principal estate," such
principal notwithstanding "any changes in the physical properties of said estate"(i.e. new properties
acquired or exchanged) would still pertain to her estate, which at the time of his death would pass
in full dominion to her brothers and sisters as the ultimate sole and universal heirs of her estate. 36

The testatrix Linnie Jane Hodges in her will thus principally provided that "I give, devise and
bequeath all of the rest, residue and remainder of my estate, both personal and real ... to my
beloved husband, Charles Newton Hodges, to have and to hold with him ... during his natural
lifetime;" 37 that "(he) shall have the right to manage, control, use and enjoy said estate during his
lifetime, ... to make any changes in the physical properties of said estate, by sale ... and
the purchase of any other or additional property as he may think best ... . All rents,
emoluments and income from said estate shall belong to him and he is further authorized to use any
part of the principal of said estate as he may need or desire, ... he shall not sell or otherwise dispose
of any of the improved property now owned by us, located at ... City of Lubbock, Texas ... . He shall
have the right to subdivide any farm land and sell lots therein, and may sell unimproved
town lots;" 38 that "(A)t the death of my said husband, Charles Newton, I give, devise and bequeath
all of the rest, residue and remainder of my estate, both personal and real, ... to be equally
divided among my brothers and sisters, share and share alike, namely: Esta Higdon, Emma Howell,
Leonard Higdon, Roy Higdon, Sadie Rascoe, Era Roman and Nimroy Higdon;" 39 and that "(I)n case
of the death of any of my brothers and/or sisters ...prior to the death of my husband ... the heirs of
such deceased brother or sister shall take jointly the share which would have gone to such brother
or sister had she or he survived." 40

Such provisions are wholly consistent with the view already fully expounded above that all
transactions and sales made by Hodges after his wife Linnie's death were by operation of the law
of trust as well as by his own acknowledgment and acts deemed for and on behalf of
their unliquidated conjugal partnership and community estate, share and share alike, with the
express authorization of the probate court per its orders of May 25, and December 14, 1957 granting
Hodges' motion to continue the conjugal partnership business of buying and selling real estate even
after her death. By the same token, Hodges could not conceivably be deemed to have had any
authority or right to dispose gratuitously of any portion of her estate to whose succession she had
called her brothers and sisters upon his death.

9. Such institutions of heirs with a term are expressly recognized and permitted under Book III,
Chapter 2, section 4 of our Civil Code dealing with "conditional testamentary dispositions and
testamentary dispositions with a term." 41

Thus, Article 885 of our Civil Code expressly provides that:

ART 885. The designation of the day or time when the effects of the institution of an
heir shall commence or cease shall be valid.

In both cases, the legal heir shall be considered as called to the succession until the
arrival of the period or its expiration. But in the first case he shall not enter into
possession of the property until after having given sufficient security, with the
intervention of the instituted heir.

Accordingly, under the terms of Mrs. Hodges' will, her husband's right to the succession as the
instituted heir ceased in diem, i.e. upon the arrival of the resolutory term of his death on December
25, 1962, while her brothers' and sisters' right to the succession also as instituted heirs
commenced ex die, i.e. upon the expiration of the suspensive term (as far as they were concerned)
of the death of C. N. Hodges on December 25, 1962 . 42

As stated in Padilla's treatise on the Civil Code, "A term is a period whose arrival is certain although
the exact date thereof may be uncertain. A term may have either a suspensive or a resolutory effect.
The designation of the day when the legacy "shall commence" is ex die, or a term with a suspensive
effect, from a certain day. The designation of the day when the legacy "shall cease" is in diem or a
term with a resolutory effect, until a certain day." He adds that "A legacy based upon a certain age or
upon the death of a person is not a condition but a term. If the arrival of the term would commence
the right of the heir, it is suspensive. If the arrival of the term would terminate his right, it is
resolutory" and that "upon the arrival of the period, in case of a suspensive term, the instituted heir is
entitled to the succession, and in case of a resolutory term, his right terminates." 43

10. The sizable estates herein involved have now been pending settlement for a considerably
protracted period (of seventeen years counted from Linnie's death in 1957), and all that is left to be
done is to resolve the only remaining issue (involving the two questions of renunciation and renvoi)
hereinabove discussed in order to close up the estates and finally effect distribution to the deceased
spouses' respective brothers and sisters and their heirs as the heirs duly instituted in their wills long
admitted to probate. Hence, it is advisable for said instituted heirs and their heirs in turn 44 to come to
terms for the adjudication and distribution to them pro-indiviso of the up to now unliquidated
community properties of the estates of the Hodges spouses (derived from their unliquidated conjugal
partnership) rather than to get bogged down with the formidable task of physically
segregating and partitioning the two estates with the numerous transactions, items and details and
physical changes of properties involved. The estates proceedings would thus be closed and they
could then name their respective attorneys-in-fact to work out the details of segregating, dividing or
partitioning the unliquidated community properties or liquidating them — which can be done then on
their own without further need of intervention on the part of the probate court as well as allow them
meanwhile to enjoy and make use of the income and cash and liquid assets of the estates in such
manner as may be agreed upon between them.
Such a settlement or modus vivendi between the heirs of the unliquidated two estates for the mutual
benefit of all of them should not prove difficult, considering that it appears as stated in the main
opinion that 22.968149% of the share or undivided estate of C. N. Hodges have already been
acquired by the heirs of Linnie Jane Hodges from certain heirs of her husband, while certain other
heirs representing 17.34375% of Hodges' estate were joining cause with Linnie's heirs in their
pending and unresolved motion for the removal of petitioner PCIB as administrator of Hodges'
estate, 45 apparently impatient with the situation which has apparently degenerated into a running
battle between the administrators of the two estates to the common prejudice of all the heirs.

11. As earlier stated, the writer has taken the pain of suggesting these guidelines which may serve
to guide the probate court as well as the parties towards expediting the winding up and closing of the
estates and the distribution of the net estates to the instituted heirs and their successors duly entitled
thereto. The probate court should exert all effort towards this desired objective pursuant to the
mandate of our probate law, bearing in mind the Court's admonition in previous cases that "courts of
first instance should exert themselves to close up estate within twelve months from the time they are
presented, and they may refuse to allow any compensation to executors and administrators who do
not actively labor to that end, and they may even adopt harsher measures." 46

Timeliness of appeals and imposition of

thirty-one (31) additional docket fees

Two appeals were docketed with this Court, as per the two records on appeal submitted (one with a
green cover and the other with a yellow cover). As stated at the outset, these appeals involve
basically the same primal issue raised in the petition for certiorari as to whether there still exists a
separate estate of Linnie Jane Hodges which has to continue to be administered by respondent
Magno. Considering the main opinion's ruling in the affirmative and that her estate and that of her
husband (since they jointly comprise unliquidated community properties) must be
administered conjointly by their respective administrators (PCIB and Magno), the said appeals
(involving thirty-three different orders of the probate court approving sales contracts and other acts
of administration executed and performed by respondent Magno on behalf of Linnie's estate) have
been necessarily overruled by the Court's decision at bar.

(a) The "priority question" raised by respondent Magno as to the patent failure of the two records on
appeal to show on their face and state the material data that the appeals were timely taken within
the 30-day reglamentary period as required by Rule 41, section 6 of the Rules of Court, has been
brushed aside by the main opinion with the statement that it is "not necessary to pass upon the
timeliness of any of said appeals" since they "revolve around practically the same main issues and ...
it is admitted that some of them have been timely taken." 47 The main opinion thus proceeded with
the determination of the thirty-three appealed orders despite the grave defect of the appellant PCIB's
records on appeal and their failure to state the required material data showing the timeliness of the
appeals.

Such disposition of the question of timeliness deemed as "mandatory and jurisdictional" in a number
of cases merits the writer's concurrence in that the question raised has been subordinated to the
paramount considerations of substantial justice and a "liberal interpretation of the rules" applied so
as not to derogate and detract from the primary intent and purpose of the rules, viz "the proper and
just determination of a litigation"48 — which calls for "adherence to a liberal construction of the
procedural rules in order to attain their objective of substantial justice and of avoiding denials of
substantial justice due to procedural technicalities." 49

Thus, the main opinion in consonance with the same paramount considerations of substantial justice
has likewise overruled respondents' objection to petitioner's taking the recourse of "the present
remedy of certiorari and prohibition" — "despite the conceded availability of appeal" — on the
ground that "there is a common thread among the basic issues involved in all these thirty-three
appeals — (which) deal with practically the same basic issues that can be more expeditiously
resolved or determined in a single special civil action . . . " 50

(b) Since the basic issues have been in effect resolved in the special civil action at bar (as above
stated) with the dismissal of the petition by virtue of the Court's judgment as to the continued
existence of a separate estate of Linnie Jane Hodges and the affirmance as a necessary
consequence of the appealed orders approving and sanctioning respondent Magno's sales contracts
and acts of administration, some doubt would arise as to the propriety of the main opinion requiring
the payment by PCIB of thirty-one (31) additional appeal docket fees. This doubt is further enhanced
by the question of whether it would make the cost of appeal unduly expensive or prohibitive by
requiring the payment of a separate appeal docket fee for each incidental order questioned when the
resolution of all such incidental questioned orders involve basically one and the same main issue (in
this case, the existence of a separate estate of Linnie Jane Hodges) and can be more expeditiously
resolved or determined in a single special civil action" (for which a single docket fee is required) as
stated in the main opinion. 51 Considering the importance of the basic issues and the magnitude of
the estates involved, however, the writer has pro hac vice given his concurrence to the assessment
of the said thirty-one (31) additional appeal docket fees.

MAKALINTAL, C.J., concurring:

I concur in the separate opinion of Justice Teehankee, which in turn agrees with the dispositive
portion of the main opinion of Justice Barredo insofar as it dismisses the petition for certiorari and
prohibition in Cases L-27860 and L-27896 and affirms the appealed orders of the probate court in
cases L-27936-37.

However, I wish to make one brief observation for the sake of accuracy. Regardless of whether or
not C. N. Hodges was entitled to a legitime in his deceased wife's estate — which question, still to be
decided by the said probate court, may depend upon what is the law of Texas and upon its
applicability in the present case — the said estate consists of one-half, not one-fourth, of the
conjugal properties. There is neither a minimum of one-fourth nor a maximum beyond that. It is
important to bear this in mind because the estate of Linnie Hodges consists of her share in the
conjugal properties, is still under administration and until now has not been distributed by order of
the court.

The reference in both the main and separate opinions to a one-fourth portion of the conjugal
properties as Linnie Hodges' minimum share is a misnomer and is evidently meant only to indicate
that if her husband should eventually be declared entitled to a legitime, then the disposition made by
Linnie Hodges in favor of her collateral relatives would be valid only as to one-half of her share, or
one-fourth of the conjugal properties, since the remainder, which constitutes such legitime, would
necessarily go to her husband in absolute ownership, unburdened by any substitution, term or
condition, resolutory or otherwise. And until the estate is finally settled and adjudicated to the heirs
who may be found entitled to it, the administration must continue to cover Linnie's entire conjugal
share.

Separate Opinions
FERNANDO, J., concurring:

I concur on the basis of the procedural pronouncements in the opinion.

TEEHANKEE, J., concurring:

I concur in the result of dismissal of the petition for certiorari and prohibition in Cases L-27860 and L-
27896 and with the affirmance of the appealed orders of the probate court in Cases L-27936-37.

I also concur with the portion of the dispositive part of the judgment penned by Mr. Justice Barredo
decreeing the lifting of the Court's writ of preliminary injunction of August 8, 1967 as amended on
October 4, and December 6, 19671 and ordering in lieu thereof that the Court's resolution of
September 8, 19722 which directed that petitioner-appellant PCIB as administrator of C. N. (Charles
Newton) Hodges' estate (Sp. Proc. No. 1672 and respondent-appellee Avelina A. Magno as
administratrix of Linnie Jane Hodges' estate (Sp. Proc. No. 1307) should act always conjointly never
independently from each other, as such administrators, is reiterated and shall continue in force and
made part of the judgment.

It is manifest from the record that petitioner-appellant PCIB's primal contention in the cases at bar
belatedly filed by it with this Court on August 1, 1967 (over ten (10) years after Linnie Jane Hodges'
death on May 23, 1957 and (over five (5) years after her husband C.N. Hodges' death on December
25, 1962 — during which time both estates have been pending settlement and distribution to the
decedents' respective rightful heirs all this time up to now) — that the probate court per its order of
December 14, 1957 (supplementing an earlier order of May 25, 1957)3 in granting C. N. Hodges'
motion as Executor of his wife Linnie's estate to continue their "business of buying and selling
personal and real properties" and approving "all sales, conveyances, leases and mortgages" made
and to be made by him as such executor under his obligation to submit his yearly accounts in effect
declared him as sole heir of his wife's estate and nothing remains to be done except to formally
close her estate (Sp. Proc. No. 1307) as her estate was thereby merged with his own so
that nothing remains of it that may be adjudicated to her brothers and sisters as her designated heirs
after him,4 — is wholly untenable and deserves scant consideration.

Aside from having been put forth as an obvious afterthought much too late in the day, this contention
of PCIB that there no longer exists any separate estate of Linnie Jane Hodges after the probate
court's order of December 14, 1957 goes against the very acts and judicial admissions of C.N.
Hodges as her executor whereby he consistently recognized the separate existence and identity of
his wife's estate apart from his own separate estate and from his own share of their conjugal
partnership and estate and "never considered the whole estate as a single one belonging exclusively
to himself" during the entire period that he survived her for over five (5) years up to the time of his
own death on December 25, 19625 and against the identical acts and judicial admissions of PCIB as
administrator of C.N. Hodges' estate until PCIB sought in 1966 to take over both estates as
pertaining to its sole administration.

PCIB is now barred and estopped from contradicting or taking a belated position contradictory to or
inconsistent with its previous admissions 6 (as well as those of C.N. Hodges himself in his lifetime
and of whose estate PCIB is merely an administrator) recognizing the existence and identity of
Linnie Jane Hodges' separate estate and the legal rights and interests therein of her brothers and
sisters as her designated heirs in her will.

PCIB's petition for certiorari and prohibition to declare all acts of the probate court in Linnie Jane
Hodges' estate subsequent to its order of December 14, 1957 as "null and void for having been
issued without jurisdiction" must therefore be dismissed with the rejection of its belated and
untenable contention that there is no longer any estate of Mrs. Hodges of which respondent Avelina
Magno is the duly appointed and acting administratrix.

PCIB's appeal7 from the probate court's various orders recognizing respondent Magno as
administratrix of Linnie's estate (Sp. Proc No. 1307) and sanctioning her acts of administration of
said estate and approving the sales contracts executed by her with the various individual appellees,
which involve basically the same primal issue raised in the petition as to whether there still exists a
separate estate of Linnie of which respondent-appellee Magno may continue to be the administratrix,
must necessarily fail — a result of the Court's main opinion at bar that there doesexist such an
estate and that the two estates (husband's and wife's) must be administered cojointly by their
respective administrators (PCIB and Magno).

The dispositive portion of the main opinion

The main opinion disposes that:

IN VIEW OF ALL THE FOREGOING PREMISES, judgment is hereby rendered

DISMISSING the petition in G. R. Nos. L-27860 and L-27896, and AFFIRMING, in G.
R. Nos. L-27936-37 and the other thirty-one numbers hereunder ordered to be added
after payment of the corresponding docket fees, all the orders of the trial court under
appeal enumerated in detail on pages 35 to 37 and 80 to 82 of this decision:

The existence of the Testate Estate of Linnie Jane Hodges, with respondent-appellee
Avelina A. Magno, as administratrix thereof is recognized, and

It is declared that, until final judgment is ultimately rendered regarding (1) the manner
of applying Article 16 of the Civil Code of the Philippines to the situation obtaining in
these cases and (2) the factual and legal issues of whether or not Charles Newton
Hodges has effectively and legally renounced his inheritance under the will of Linnie
Jane Hodges, the said estate consists of one-fourthof the community properties of
the said spouses, as of the time of the death of the wife on May 23,
1957, minus whatever the husband had already gratuitously disposed of in favor of
third persons from said date until his death, provided, first, that with respect
to remunerative dispositions, the proceeds thereof shall continue to be part of
the wife's estate, unless subsequently disposed of gratuitously to third parties by the
husband, and second, that should the purported renunciation be declared legally
effective, no deduction whatsoever are to be made from said estate;

In consequence, the preliminary injunction of August 8, 1967, as amended on

October 4 and December 6, 1967, is lifted and the resolution of September 8, 1972,
directing that petitioner-appellant PCIB, as Administrator of the Testate Estate of
Charles Newton Hodges in Special Proceedings 1672, and respondent-appellee
Avelina A. Magno, as Administratrix of the Testate Estate of Linnie Jane Hodges in
Special Proceedings 1307, should act thenceforth always conjointly, never
independently from each other, as such administrators, is reiterated, and the same
is made part of this judgment and shall continue in force, pending the liquidation of
the conjugal partnership of the deceased spouses and
the determination and segregation from each other of their respective estates;
provided, that upon the finality of this judgment, the trial court should immediately
proceed to the partition of the presently combined estates of the spouses, to the end
that the one-half share thereof of Mrs. Hodges may be properly and clearly identified;
 Thereafter, the trial court should forthwith segregate the remainder of the one-
fourth herein adjudged to be her estate and cause the same to be turned over or
delivered to respondent for her exclusive administration in Special Proceedings
1307, while the other one-fourth shall remain under the joint administrative of said
respondent and petitioner under a joint proceedings in Special Proceedings 1307
and 1672, whereas the half unquestionably pertaining to Hodges shall
be administered by petitioner exclusively in Special Proceedings 1672, without
prejudice to the resolution by the trial court of thepending motions for its removal as
administrator;

And this arrangement shall be maintained until the final resolution of the two issues
of renvoi and renunciation hereby reserved for further hearing and determination,
and the corresponding completesegregation and partition of the two estates in the
proportions that may result from the said resolution.

Generally and in all other respects, the parties and the court a quo are directed to
adhere henceforth, in all their actuations in Special Proceedings 1307 and 1672, to
the views passed and ruled upon by the Court in the foregoing opinion.8

Minimum estimate of Mrs. Hodges' estate:

One-fourth of conjugal properties.

The main opinion in declaring the existence of a separate estate of Linnie Jane Hodges which shall
pass to her brothers and sisters with right of representation (by their heirs) as her duly designated
heirs declares that her estate consists as a minimum (i.e. assuming (1) that under Article 16 of the
Philippine Civil Code C. N. Hodges as surviving husband was entitled to one-half of her estate
as legitime and (2) that he had not effectively and legally renouncedhis inheritance under her will) of
"one-fourth of the community properties of the said spouses, as of the time of the death of the wife
on May 23, 1957, minus whatever the husband had already gratuitously disposed of in favor of third
persons from said date until his death," with the proviso that proceeds of remunerative dispositions
or sales for valuable consideration made by C. N. Hodges after his wife Linnie's death shall continue
to be part of her estate unless subsequently disposed of by him gratuitously to third parties subject
to the condition, however, that if he is held to have validly and effectively renounced his inheritance
under his wife's will, no deductions of any dispositions made by Hodges even if gratuitously are to be
made from his wife Linnie's estate which shall pass intact to her brothers and sisters as her
designated heirs called in her will to succeed to her estate upon the death of her husband C. N.
Hodges.

Differences with the main opinion

I do not share the main opinion's view that Linnie Jane Hodges instituted her husband as her heir
under her will "to have dominion over all her estate during his lifetime ... as absolute owner of the
properties ..."9 and that she bequeathed "the whole of her estate to be owned and enjoyed by him as
universal and sole heir with absolute dominion over them only during his lifetime, which means that
while he could completely and absolutely dispose of any portion thereof inter vivos to anyone other
than himself, he was not free to do so mortis causa, and all his rights to what might remain upon his
death would cease entirely upon the occurrence of that contingency, inasmuch as the right of his
brothers and sisters-in-law to the inheritance, although vested already upon the death of Mrs.
Hodges, would automatically become operative upon the occurrence of the death of Hodges in the
event of actual existence of any remainder of her estate then." 10
As will be amplified hereinafter, I do not subscribe to such a view that Linnie Jane Hodges willed "full
and absolute ownership" and "absolute dominion" over her estate to her husband, but rather that she
named her husband C. N. Hodges and her brothers and sisters as instituted heirs with a term under
Article 885 of our Civil Code, to wit, Hodges as instituted heir with a resolutory term whereunder his
right to the succession ceased in diem upon arrival of the resolutory term of his death on December
25, 1962 and her brothers and sisters as instituted heirs with a suspensive term whereunder their
right to the succession commenced ex die upon arrival of the suspensive term of the death of C. N.
Hodges on December 25, 1962.

Hence, while agreeing with the main opinion that the proceeds of all remunerative dispositions made
by C. N. Hodges after his wife's death remain an integral part of his wife's estate which she willed to
her brothers and sisters, I submit that C. N. Hodges could not validly make gratuitous dispositions of
any part or all of his wife's estate — "completely and absolutely dispose of any portion thereof inter
vivos to anyone other than himself" in the language of the main opinion, supra — and thereby render
ineffectual and nugatory her institution of her brothers and sisters as her designated heirs to
succeed to her whole estate "at the death of (her) husband." If according to the main opinion,
Hodges could not make such gratuitous "complete and absolute dispositions" of his wife Linnie's
estate "mortis causa," it would seem that by the same token and rationale he was likewise
proscribed by the will from making such dispositions of Linnie's estate inter vivos.

I believe that the two questions of renvoi and renunciation should be

resolved preferentially and expeditiously by the probate court ahead of the partition and segregation
of the minimum one-fourth of the conjugal or community properties constituting Linnie Jane
Hodges' separate estate, which task considering that it is now seventeen (17) years since Linnie
Jane Hodges' death and her conjugal estate with C. N. Hodges has remained unliquidated up to now
might take a similar number of years to unravel with the numerous items, transactions and details of
the sizable estates involved.

Such partition of the minimum one-fourth would not be final, since if the two prejudicial questions
of renvoi and renunciation were resolved favorably to Linnie's estate meaning to say that if it should
be held that C. N. Hodges is not entitled to any legitime of her estate and at any rate he had totally
renounced his inheritance under the will), then Linnie's estate would consist not only of the minimum
one-fourth but one-half of the conjugal or community properties of the Hodges spouses, which would
require again the partition and segregation of still another one-fourth of said. properties
to complete Linnie's separate estate.

My differences with the main opinion involve further the legal concepts, effects and consequences of
the testamentary dispositions of Linnie Jane Hodges in her will and the question of the best to reach
a solution of the pressing question of expediting the closing of the estates which after all do not
appear to involve any outstanding debts nor any dispute between the heirs and should therefore be
promptly settled now after all these years without any further undue complications and delays and
distributed to the heirs for their full enjoyment and benefit. As no consensus appears to have been
reached thereon by a majority of the Court, I propose to state views as concisely as possible with the
sole end in view that they may be of some assistance to the probate court and the parties in
reaching an expeditious closing and settlement of the estates of the Hodges spouses.

Two Assumptions

As indicated above, the declaration of the minimum of Mrs. Hodges' estate as one-fourth of the
conjugal properties is based on two assumptions most favorable to C. N. Hodges' estate and his
heirs, namely (1) that the probate court must accept the renvoi or "reference back" 11 allegedly
provided by the laws of the State of Texas (of which state the Hodges spouses were citizens)
whereby the civil laws of the Philippines as the domicile of the Hodges spouses would govern their
succession notwithstanding the provisions of Article 16 of our Civil Code (which provides that the
national law of the decedents, in this case, of Texas, shall govern their succession) with the result
that her estate would consist of no more than one-fourth of the conjugal properties since
the legitime of her husband (the other one-fourth of said conjugal properties or one-half
of her estate, under Article 900 of our Civil Code) could not then be disposed of nor burdened with
any condition by her and (2) that C.N. Hodges had not effectively and legally renounced his
inheritance under his wife's will.

These two assumptions are of course flatly disputed by respondent-appellee Magno as Mrs. Hodges'
administratrix, who avers that the law of the State of Texas governs her succession and
does not provide for and legitime, hence, her brothers and sisters are entitled to succeed to the
whole of her share of the conjugal properties which is one-halfthereof and that in any event, Hodges
had totally renounced all his rights under the will.

The main opinion concedes that "(I)n the interest of settling the estates herein involved soonest, it
would be best, indeed, if these conflicting claims of the parties were determined in these
proceedings." It observes however that this cannot be done due to the inadequacy of the evidence
submitted by the parties in the probate court and of the parties' discussion, viz, "there is no clear and
reliable proof of what the possibly applicable laws of Texas are. Then also, the genuineness of the
documents relied upon by respondent Magno [re Hodges' renunciation] is disputed." 12

Hence, the main opinion expressly reserves resolution and determination on these two conflicting
claims and issues which it deems "are not properly before the Court
now," 13 and specifically holds that "(A)ccordingly, the only question that remains to be settled in the
further proceedings hereby ordered to be held in the court below is how much more than as fixed
above is the estate of Mrs. Hodges, and this would depend on (1) whether or not the applicable laws
of Texas do provide in effect for more, such as, when there is no legitime provided therein, and (2)
whether or not Hodges has validly waived his whole inheritance from Mrs. Hodges." 14

Suggested guidelines

Considering that the only unresolved issue has thus been narrowed down and in consonance with
the ruling spirit of our probate law calling for the prompt settlement of the estates of deceased
persons for the benefit of creditors and those entitled to the residue by way of inheritance —
considering that the estates have been long pending settlement since 1957 and 1962, respectively
— it was felt that the Court should lay down specific guidelines for the guidance of the probate court
towards the end that it may expedite the closing of the protracted estates proceedings below to the
mutual satisfaction of the heirs and without need of a dissatisfied party elevating its resolution of
this only remaining issue once more to this Court and dragging out indefinitely the proceedings.

After all, the only question that remains depends for its determination on the resolution of the two
questions of renvoiand renunciation, i.e. as to whether C. N. Hodges can claim
a legitime and whether he had renounced the inheritance. But as already indicated above, the Court
without reaching a consensus which would finally resolve the conflicting claims here and now in this
case opted that "these and other relevant matters should first be threshed out fully in the trial court in
the proceedings hereinafter to be held for the purpose of ascertaining and/or distributing the estate
of Mrs. Hodges to her heirs in accordance with her duly probated will." 15

The writer thus feels that laying down the premises and principles governing the nature, effects and
consequences of Linnie Jane Hodges' testamentary dispositions in relation to her conjugal
partnership and co-ownership of properties with her husband C. N. Hodges and "thinking out" the
end results, depending on whether the evidence directed to be formally received by the probate
court would bear out that under renvoi C. N. Hodges was or was not entitled to claim a legitime of
one-half of his wife Linnie's estate and/or that he had or had not effectively and validly renounced his
inheritance should help clear the decks, as it were, and assist the probate court in resolving
the onlyremaining question of how much more than the minimum one-fourth of the community
properties of the Hodges spouses herein finally determined should be awarded as the separate
estate of Linnie, particularly since the views expressed in the main opinion have not gained a
consensus of the Court. Hence, the following suggested guidelines, which needless to state,
represent the personal opinion and views of the writer:

1. To begin with, as pointed out in the main opinion, "according to Hodges' own inventory submitted
by him as executor of the estate of his wife, practically all their properties were conjugal which
means that the spouses have equal shares therein." 16

2. Upon the death of Mrs. Hodges on May 23, 1957, and the dissolution thereby of the marriage, the
law imposed upon Hodges as surviving husband the duty of inventorying, administering and
liquidating the conjugal or community property. 17 Hodges failed to discharge this duty
of liquidating the conjugal partnership and estate. On the contrary, he sought and obtained
authorization from the probate court to continue the conjugal partnership's business of buying and
selling real and personal properties.

In his annual accounts submitted to the probate court as executor of Mrs. Hodges' estate, Hodges
thus consistentlyreported the considerable combined income (in six figures) of the conjugal
partnership or coownership and then divided the same equally between himself and Mrs. Hodges'
estate and as consistently filed separate income tax returns and paid the income taxes
for each resulting half of such combined income corresponding to his own and to Mrs. Hodges'
estate. 18 (Parenthetically, he could not in law do this, had he adjudicated Linnie's entire estate to
himself, thus supporting the view advanced even in the main opinion that "Hodges waived not only
his rights to the fruits but to the properties themselves." 19

By operation of the law of trust 20 as well as by his own acknowledgment and acts, therefore, all
transactions made by Hodges after his wife's death were deemed for and on behalf of
their unliquidated conjugal partnership and community estate and were so reported and treated by
him.

3. With this premise established that all transactions of Hodges after his wife's death were for and on
behalf of their unliquidated conjugal partnership and community estate, share and share alike, it
should be clear that no gratuitousdispositions, if any, made by C. N. Hodges from his wife Linnie's
estate should be deducted from her separateestate as held in the main opinion. On the contrary, any
such gratuitous dispositions should be charged to his own share of the conjugal estate since he had
no authority or right to make any gratuitous dispositions of Linnie's properties to the prejudice of her
brothers and sisters whom she called to her succession upon his death, not to mention that the very
authority obtained by him from the probate court per its orders of May 25, and December 14, 1957
was to continue the conjugal partnership's business of buying and selling real properties for the
account of their unliquidated conjugal estate and co-ownership, share and share alike and not to
make any free dispositions of Linnie's estate.

4. All transactions as well after the death on December 25, 1962 of Hodges himself appear perforce
and necessarily to have been conducted, on the same premise, for and on behalf of
their unliquidated conjugal partnership and/or co-ownership, share and share alike — since the
conjugal partnership remained unliquidated — which is another way of saying that such transactions,
purchases and sales, mostly the latter, must be deemed in effect to have been made for the
respective estates of C. N. Hodges and of his wife Linnie Jane Hodges, as both estates continued to
have an equal stake and share in the conjugal partnership which was not only left unliquidated but
continued as a co-ownership or joint business with the probate court's approval by Hodges during
the five-year period that he survived his wife.

This explains the probate court's action of requiring that deeds of sale executed by PCIB as Hodges'
estate's administrator be "signed jointly" by respondent Magno as Mrs. Hodges' estate's
administratrix, as well as its order authorizing payment by lot purchasers from the Hodges
to either estate, since "there is as yet no judicial declaration of heirs nor distribution of properties to
whomsoever are entitled thereto." 22

And this equally furnishes the rationale of the main opinion for continued conjoint administration by
the administrators of the two estates of the deceased spouses, "pending the liquidation of the
conjugal partnership," 23since "it is but logical that both estates should be administered jointly by the
representatives of both, pending their segregation from each other. Particularly ... because the
actuations so far of PCIB evince a determined, albeit groundless, intent to exclude the other heirs of
Mrs. Hodges from their inheritance." 24 5. Antly by the representatives of both, pending their
segregation from each other. Particularly ... because the actuations so far of PCIB evince a
determined, albeit groundless, intent to exclude the other heirs of Mrs. Hodges from their
inheritance." 24

5. As stressed in the main opinion, the determination of the only unresolved issue of how much more
than the minimum of one-fourth of the community or conjugal properties of the Hodges spouses
pertains to Mrs. Hodges' estate depends on the twin questions of renunciation and renvoi. It directed
consequently that "a joint hearing of the two probate proceedings herein involved" be held by the
probate court for the reception of "further evidence" in order to finally resolved these twin
questions. 25

(a) On the question of renunciation, it is believed that all that the probate court has to do is to receive
formally in evidence the various documents annexed to respondent Magno's answer at
bar, 26 namely: Copy of the U.S. Estate Tax Return filed on August 8, 1958 by C. N. Hodges for his
wife Linnie's estate wherein he purportedly declared that he was renouncing his inheritance under
his wife's will in favor of her brothers and sisters as co-heirs designated with him and that it was his
"intention (as) surviving husband of the deceased to distribute the remaining property and interests
of the deceased in their community estate to the devisee and legatees named in the will when the
debts, liabilities, taxes and expenses of administration are finally determined and paid;" 27 and

The affidavit of ratification of such renunciation (which places him in estoppel) allegedly executed on
August 9, 1962 by C. N. Hodges in Iloilo City wherein he reaffirmed that "... on August 8, 1958,
I renounced and disclaimed any and all right to receive the rents, emoluments and income from said
estate" and further declared that "(T)he purpose of this affidavit is to ratify and confirm, and I do
hereby ratify and confirm, the declaration made in schedule M of said return and hereby
formally disclaim and renounce any right on my part to receive any of the said rents, emoluments
and income from the estate of my deceased wife, Linnie Jane Hodges. This affidavit is made
to absolve me or my estate from any liability for the payment of income taxes on income which has
accrued to the estate of Linnie Jane Hodges since the death of the said Linnie Jane Hodges on May
23, 1957." 28

(b) On the question of renvoi, all that remains for the probate court to do is to formally receive in
evidence duly authenticated copies of the laws of the State of Texas governing the succession of
Linnie Jane Hodges and her husband C. N. Hodges as citizens of said State at the time of their
respective deaths on May 23, 1957 and December 25, 1962. 29
6. The text and tenor of the declarations by C. N. Hodges of renunciation of his inheritance from his
wife in favor of her other named heirs in her will (her brothers and sisters and their respective heirs)
as ratified and reiterated expressly in his affidavit of renunciation executed four years later for the
avowed purpose of not being held liable for payment of income taxes on income which has accrued
to his wife's estate since her death indicate a valid and effective renunciation.

Once the evidence has been formally admitted and its genuineness and legal effectivity established
by the probate court, the renunciation by C. N. Hodges must be given due effect with the result that
C. N. Hodges therefore acquired no part of his wife's one-half share of the community properties
since he removed himself as an heir by virtue of his renunciation. By simple substitution then under
Articles 857 and 859 of our Civil Code 30 and by virtue of the will's institution of heirs, since "the heir
originally instituted C. N. Hodges) does not become an heir" 31 by force of his renunciation, Mrs.
Hodges' brothers and sisters whom she designated as her heirs upon her husband's death are
called immediately to her succession.

Consequently, the said community and conjugal properties would then pertain pro indiviso share and
share alike to their respective estates, with each estate, however, shouldering its own expenses of
administration, estate and inheritance taxes, if any remain unpaid, attorneys' fees and other like
expenses and the net remainder to be adjudicated directly to the decedents' respective brothers and
sisters (and their heirs) as the heirs duly designated in their respective wills. The question
of renvoi becomes immaterial since most laws and our laws permit such renunciation of inheritance.

7. If there were no renunciation (or the same may somehow be declared to have not been valid and
effective) by C. N. Hodges of his inheritance from his wife, however, what would be the
consequence?

(a) If the laws on succession of the State of Texas do provide for renvoi or "reference back" to
Philippine law as the domiciliary law of the Hodges' spouses governing their succession, then
petitioners' view that Mrs. Hodges' estate would consist only of the minimum of "one-fourth of the
community properties of the said spouses, as of the time of (her) death on May 23, 1957" would
have to be sustained and C. N. Hodges' estate would consist of three-fourths of the community
properties, comprising his own one-half (or two-fourths) share and the other fourth of Mrs. Hodges'
estate as the legitime granted him as surviving spouse by Philippine law (Article 900 of the Civil
Code) which could not be disposed of nor burdened with any condition by Mrs. Hodges as testatrix.

(b) If the laws on succession of the State of Texas do not provide for such renvoi and respondent
Magno's assertion is correct that the Texas law which would then prevail, provides for no legitime for
C. N. Hodges as the surviving spouse, then respondent Magno's assertion that Mrs. Hodges' estate
would consist of one-half of the community properties (with the other half pertaining to C. N. Hodges)
would have to be sustained. The community and conjugal properties would then pertain share and
share alike to their respective estates, with each estate shouldering its own expenses of
administration in the same manner stated in the last paragraph of paragraph 6 hereof. .

8. As to the nature of the institution of heirs made by Mrs. Hodges in her will, the main opinion holds
that "(T)he brothers and sisters of Mrs. Hodges are not substitutes for Hodges; rather, they are also
heirs instituted simultaneously with Hodges," but goes further and holds that "it was not the usufruct
alone of her estate ... that she bequeathed to Hodges during his lifetime, but the full
ownership thereof, although the same was to last also during his lifetime only, even as there was no
restriction against his disposing or conveying the whole or any portion thereof anybody other than
himself" and describes Hodges "as universal and sole heir with absolute dominion over Mrs. Hodges'
estate (except over their Lubbock, Texas property ), 32 adding that "Hodges was not obliged to
preserve anything for them" (referring to Mrs. Hodges' brothers and sisters as instituted co-heirs). 33
Contrary to this view of the main opinion, the writer submits that the provisions of Mrs. Hodges' will
did not grant to C.N. Hodges "full ownership" nor "absolute dominion" over her estate, such that he
could as "universal and sole heir" by the mere expedient of gratuitously disposing to third persons
her whole estate during his lifetime nullify her institution of her brothers and sisters as his co-heirs to
succeed to her whole estate "at the death of (her) husband," deprive them of any inheritance and
make his own brothers and sisters in effect sole heirs not only of his own estate but of
his wife's estate as well.

Thus, while Linnie Jane Hodges did not expressly name her brothers and sisters as substitutes for
Hodges because she willed that they would enter into the succession upon his death, still it cannot
be gainsaid, as the main opinion concedes, "that they are also heirs instituted simultaneously with
Hodges, subject however to certain conditions, partially resolutory insofar as Hodges was concerned
and correspondingly suspensive with reference to his brothers and sisters-in-law." 34

Hence, if Hodges is found to have validly renounced his inheritance, there would be a substitution of
heirs in fact and in law since Linnie's brothers and sisters as the heirs "simultaneously instituted"
with a suspensive term would be called immediately to her succession instead of waiting for the
arrival of suspensive term of Hodges' death, since as the heir originally instituted he does not
become an heir by force of his renunciation and therefore they would "enter into the inheritance in
default of the heir originally instituted" (Hodges) under the provisions of Article 857 and 859 of our
Civil Code, supra, 35 thus accelerating their succession to her estate as a consequence of Hodges'
renunciation.

Consequently, Linnie Jane Hodges willed that her husband C.N. Hodges would "during his natural
lifetime ... manage, control, use and enjoy said estate" and that only "all rents,
emoluments and income" alone shall belong to him. She further willed that while he
could sell and purchase properties of her estate, and "use any part of the principal estate," such
principal notwithstanding "any changes in the physical properties of said estate"(i.e. new properties
acquired or exchanged) would still pertain to her estate, which at the time of his death would pass
in full dominion to her brothers and sisters as the ultimate sole and universal heirs of her estate. 36

The testatrix Linnie Jane Hodges in her will thus principally provided that "I give, devise and
bequeath all of the rest, residue and remainder of my estate, both personal and real ... to my
beloved husband, Charles Newton Hodges, to have and to hold with him ... during his natural
lifetime;" 37 that "(he) shall have the right to manage, control, use and enjoy said estate during his
lifetime, ... to make any changes in the physical properties of said estate, by sale ... and
the purchase of any other or additional property as he may think best ... . All rents,
emoluments and income from said estate shall belong to him and he is further authorized to use any
part of the principal of said estate as he may need or desire, ... he shall not sell or otherwise dispose
of any of the improved property now owned by us, located at ... City of Lubbock, Texas ... . He shall
have the right to subdivide any farm land and sell lots therein, and may sell unimproved
town lots;" 38 that "(A)t the death of my said husband, Charles Newton, I give, devise and bequeath
all of the rest, residue and remainder of my estate, both personal and real, ... to be equally
divided among my brothers and sisters, share and share alike, namely: Esta Higdon, Emma Howell,
Leonard Higdon, Roy Higdon, Sadie Rascoe, Era Roman and Nimroy Higdon;" 39 and that "(I)n case
of the death of any of my brothers and/or sisters ...prior to the death of my husband ... the heirs of
such deceased brother or sister shall take jointly the share which would have gone to such brother
or sister had she or he survived." 40

Such provisions are wholly consistent with the view already fully expounded above that all
transactions and sales made by Hodges after his wife Linnie's death were by operation of the law
of trust as well as by his own acknowledgment and acts deemed for and on behalf of
their unliquidated conjugal partnership and community estate, share and share alike, with the
express authorization of the probate court per its orders of May 25, and December 14, 1957 granting
Hodges' motion to continue the conjugal partnership business of buying and selling real estate even
after her death. By the same token, Hodges could not conceivably be deemed to have had any
authority or right to dispose gratuitously of any portion of her estate to whose succession she had
called her brothers and sisters upon his death.

9. Such institutions of heirs with a term are expressly recognized and permitted under Book III,
Chapter 2, section 4 of our Civil Code dealing with "conditional testamentary dispositions and
testamentary dispositions with a term." 41

Thus, Article 885 of our Civil Code expressly provides that:

ART 885. The designation of the day or time when the effects of the institution of an
heir shall commence or cease shall be valid.

In both cases, the legal heir shall be considered as called to the succession until the
arrival of the period or its expiration. But in the first case he shall not enter into
possession of the property until after having given sufficient security, with the
intervention of the instituted heir.

Accordingly, under the terms of Mrs. Hodges' will, her husband's right to the succession as the
instituted heir ceased in diem, i.e. upon the arrival of the resolutory term of his death on December
25, 1962, while her brothers' and sisters' right to the succession also as instituted heirs
commenced ex die, i.e. upon the expiration of the suspensive term (as far as they were concerned)
of the death of C. N. Hodges on December 25, 1962 . 42

As stated in Padilla's treatise on the Civil Code, "A term is a period whose arrival is certain although
the exact date thereof may be uncertain. A term may have either a suspensive or a resolutory effect.
The designation of the day when the legacy "shall commence" is ex die, or a term with a suspensive
effect, from a certain day. The designation of the day when the legacy "shall cease" is in diem or a
term with a resolutory effect, until a certain day." He adds that "A legacy based upon a certain age or
upon the death of a person is not a condition but a term. If the arrival of the term would commence
the right of the heir, it is suspensive. If the arrival of the term would terminate his right, it is
resolutory" and that "upon the arrival of the period, in case of a suspensive term, the instituted heir is
entitled to the succession, and in case of a resolutory term, his right terminates." 43

10. The sizable estates herein involved have now been pending settlement for a considerably
protracted period (of seventeen years counted from Linnie's death in 1957), and all that is left to be
done is to resolve the only remaining issue (involving the two questions of renunciation and renvoi)
hereinabove discussed in order to close up the estates and finally effect distribution to the deceased
spouses' respective brothers and sisters and their heirs as the heirs duly instituted in their wills long
admitted to probate. Hence, it is advisable for said instituted heirs and their heirs in turn 44 to come to
terms for the adjudication and distribution to them pro-indiviso of the up to now unliquidated
community properties of the estates of the Hodges spouses (derived from their unliquidated conjugal
partnership) rather than to get bogged down with the formidable task of physically
segregating and partitioning the two estates with the numerous transactions, items and details and
physical changes of properties involved. The estates proceedings would thus be closed and they
could then name their respective attorneys-in-fact to work out the details of segregating, dividing or
partitioning the unliquidated community properties or liquidating them — which can be done then on
their own without further need of intervention on the part of the probate court as well as allow them
meanwhile to enjoy and make use of the income and cash and liquid assets of the estates in such
manner as may be agreed upon between them.

Such a settlement or modus vivendi between the heirs of the unliquidated two estates for the mutual
benefit of all of them should not prove difficult, considering that it appears as stated in the main
opinion that 22.968149% of the share or undivided estate of C. N. Hodges have already been
acquired by the heirs of Linnie Jane Hodges from certain heirs of her husband, while certain other
heirs representing 17.34375% of Hodges' estate were joining cause with Linnie's heirs in their
pending and unresolved motion for the removal of petitioner PCIB as administrator of Hodges'
estate, 45 apparently impatient with the situation which has apparently degenerated into a running
battle between the administrators of the two estates to the common prejudice of all the heirs.

11. As earlier stated, the writer has taken the pain of suggesting these guidelines which may serve
to guide the probate court as well as the parties towards expediting the winding up and closing of the
estates and the distribution of the net estates to the instituted heirs and their successors duly entitled
thereto. The probate court should exert all effort towards this desired objective pursuant to the
mandate of our probate law, bearing in mind the Court's admonition in previous cases that "courts of
first instance should exert themselves to close up estate within twelve months from the time they are
presented, and they may refuse to allow any compensation to executors and administrators who do
not actively labor to that end, and they may even adopt harsher measures." 46

Timeliness of appeals and imposition of

thirty-one (31) additional docket fees

Two appeals were docketed with this Court, as per the two records on appeal submitted (one with a
green cover and the other with a yellow cover). As stated at the outset, these appeals involve
basically the same primal issue raised in the petition for certiorari as to whether there still exists a
separate estate of Linnie Jane Hodges which has to continue to be administered by respondent
Magno. Considering the main opinion's ruling in the affirmative and that her estate and that of her
husband (since they jointly comprise unliquidated community properties) must be
administered conjointly by their respective administrators (PCIB and Magno), the said appeals
(involving thirty-three different orders of the probate court approving sales contracts and other acts
of administration executed and performed by respondent Magno on behalf of Linnie's estate) have
been necessarily overruled by the Court's decision at bar.

(a) The "priority question" raised by respondent Magno as to the patent failure of the two records on
appeal to show on their face and state the material data that the appeals were timely taken within
the 30-day reglamentary period as required by Rule 41, section 6 of the Rules of Court, has been
brushed aside by the main opinion with the statement that it is "not necessary to pass upon the
timeliness of any of said appeals" since they "revolve around practically the same main issues and ...
it is admitted that some of them have been timely taken." 47 The main opinion thus proceeded with
the determination of the thirty-three appealed orders despite the grave defect of the appellant PCIB's
records on appeal and their failure to state the required material data showing the timeliness of the
appeals.

Such disposition of the question of timeliness deemed as "mandatory and jurisdictional" in a number
of cases merits the writer's concurrence in that the question raised has been subordinated to the
paramount considerations of substantial justice and a "liberal interpretation of the rules" applied so
as not to derogate and detract from the primary intent and purpose of the rules, viz "the proper and
just determination of a litigation"48 — which calls for "adherence to a liberal construction of the
procedural rules in order to attain their objective of substantial justice and of avoiding denials of
substantial justice due to procedural technicalities." 49
Thus, the main opinion in consonance with the same paramount considerations of substantial justice
has likewise overruled respondents' objection to petitioner's taking the recourse of "the present
remedy of certiorari and prohibition" — "despite the conceded availability of appeal" — on the
ground that "there is a common thread among the basic issues involved in all these thirty-three
appeals — (which) deal with practically the same basic issues that can be more expeditiously
resolved or determined in a single special civil action . . . " 50

(b) Since the basic issues have been in effect resolved in the special civil action at bar (as above
stated) with the dismissal of the petition by virtue of the Court's judgment as to the continued
existence of a separate estate of Linnie Jane Hodges and the affirmance as a necessary
consequence of the appealed orders approving and sanctioning respondent Magno's sales contracts
and acts of administration, some doubt would arise as to the propriety of the main opinion requiring
the payment by PCIB of thirty-one (31) additional appeal docket fees. This doubt is further enhanced
by the question of whether it would make the cost of appeal unduly expensive or prohibitive by
requiring the payment of a separate appeal docket fee for each incidental order questioned when the
resolution of all such incidental questioned orders involve basically one and the same main issue (in
this case, the existence of a separate estate of Linnie Jane Hodges) and can be more expeditiously
resolved or determined in a single special civil action" (for which a single docket fee is required) as
stated in the main opinion. 51 Considering the importance of the basic issues and the magnitude of
the estates involved, however, the writer has pro hac vice given his concurrence to the assessment
of the said thirty-one (31) additional appeal docket fees.

MAKALINTAL, C.J., concurring:

I concur in the separate opinion of Justice Teehankee, which in turn agrees with the dispositive
portion of the main opinion of Justice Barredo insofar as it dismisses the petition for certiorari and
prohibition in Cases L-27860 and L-27896 and affirms the appealed orders of the probate court in
cases L-27936-37.

However, I wish to make one brief observation for the sake of accuracy. Regardless of whether or
not C. N. Hodges was entitled to a legitime in his deceased wife's estate — which question, still to be
decided by the said probate court, may depend upon what is the law of Texas and upon its
applicability in the present case — the said estate consists of one-half, not one-fourth, of the
conjugal properties. There is neither a minimum of one-fourth nor a maximum beyond that. It is
important to bear this in mind because the estate of Linnie Hodges consists of her share in the
conjugal properties, is still under administration and until now has not been distributed by order of
the court.

The reference in both the main and separate opinions to a one-fourth portion of the conjugal
properties as Linnie Hodges' minimum share is a misnomer and is evidently meant only to indicate
that if her husband should eventually be declared entitled to a legitime, then the disposition made by
Linnie Hodges in favor of her collateral relatives would be valid only as to one-half of her share, or
one-fourth of the conjugal properties, since the remainder, which constitutes such legitime, would
necessarily go to her husband in absolute ownership, unburdened by any substitution, term or
condition, resolutory or otherwise. And until the estate is finally settled and adjudicated to the heirs
who may be found entitled to it, the administration must continue to cover Linnie's entire conjugal
share.
G.R. No. L-27952 February 15, 1982

TESTATE ESTATE OF JOSE EUGENIO RAMIREZ, MARIA LUISA PALACIOS,

Administratrix, petitioner-appellee,
vs.
MARCELLE D. VDA. DE RAMIREZ, ET AL., oppositors, JORGE and ROBERTO
RAMIREZ, legatees, oppositors- appellants.

ABAD SANTOS, J.:

The main issue in this appeal is the manner of partitioning the testate estate of Jose Eugenio
Ramirez among the principal beneficiaries, namely: his widow Marcelle Demoron de Ramirez; his
two grandnephews Roberto and Jorge Ramirez; and his companion Wanda de Wrobleski.

The task is not trouble-free because the widow Marcelle is a French who lives in Paris, while the
companion Wanda is an Austrian who lives in Spain. Moreover, the testator provided for
substitutions.

Jose Eugenio Ramirez, a Filipino national, died in Spain on December 11, 1964, with only his widow
as compulsory heir. His will was admitted to probate by the Court of First Instance of Manila, Branch
X, on July 27, 1965. Maria Luisa Palacios was appointed administratrix of the estate. In due time she
submitted an inventory of the estate as follows:

INVENTARIO

Una sexta parte (1/6) proindiviso de un te

rreno, con sus mejoras y edificaciones, situadoen

la Escolta, Manila............................................................. P500,000.00

Una sexta parte (1/6) proindiviso de dos

parcelas de terreno situadas en Antipolo, Rizal................... 658.34

Cuatrocientos noventa y uno (491) acciones

de la 'Central Azucarera de la Carlota a P17.00

por accion ................................................................................8,347.00

Diez mil ochocientos seize (10,806) acciones

de la 'Central Luzon Milling Co.', disuelta y en

liquidacion a P0.15 por accion ..............................................1,620.90

Cuenta de Ahorros en el Philippine Trust

 Co.............................................................................................. 2,350.73

TOTAL.............................................................. P512,976.97

MENOS:

Deuda al Banco de las Islas Filipinas, garan-

tizada con prenda de las acciones de La Carlota ......... P 5,000,00

VALOR LIQUIDO........................................... P507,976.97

The testamentary dispositions are as follows:

A.—En nuda propiedad, a D. Roberto y D. Jorge Ramirez, ambas menores de edad,

residentes en Manila, I.F., calle 'Alright, No. 1818, Malate, hijos de su sobrino D.
Jose Ma. Ramirez, con sustitucion vulgar a favor de sus respectivos descendientes,
y, en su defecto, con sustitucion vulgar reciprocal entre ambos.

El precedente legado en nuda propiedad de la participacion indivisa de la finca

Santa Cruz Building, lo ordena el testador a favor de los legatarios nombrados, en
atencion a que dicha propiedad fue creacion del querido padre del otorgante y por
ser aquellos continuadores del apellido Ramirez,

B.—Y en usufructo a saber: —

a. En cuanto a una tercera parte, a favor de la esposa del testador, Da. Marcelle
Ramirez, domiciliada en IE PECO, calle del General Gallieni No. 33, Seine Francia,
con sustitucion vulgar u fideicomisaria a favor de Da. Wanda de Wrobleski, de Palma
de Mallorca, Son Rapina Avenida de los Reyes 13,

b.—Y en cuanto a las dos terceras partes restantes, a favor de la nombrada Da.
Wanda de Nrobleski con sustitucion vulgar v fideicomisaria a saber:—

En cuanto a la mitad de dichas dos terceras partes, a favor de D. Juan Pablo

Jankowski, de Son Rapina Palma de Mallorca; y encuanto a la mitad restante, a
favor de su sobrino, D. Horace V. Ramirez, San Luis Building, Florida St. Ermita,
Manila, I.F.

A pesar de las sustituciones fideiconiisarias precedentemente ordinadas, las

usufiructuarias nombradas conjuntamente con los nudo propietarios, podran en
cualquier memento vender a tercero los bienes objeto delegado, sin intervencion
alguna de los titulares fideicomisaarios.

On June 23, 1966, the administratrix submitted a project of partition as follows: the property of the
deceased is to be divided into two parts. One part shall go to the widow 'en pleno dominio" in
satisfaction of her legitime; the other part or "free portion" shall go to Jorge and Roberto Ramirez "en
nuda propriedad." Furthermore, one third (1/3) of the free portion is charged with the widow's
usufruct and the remaining two-thirds (2/3) with a usufruct in favor of Wanda.
Jorge and Roberto opposed the project of partition on the grounds: (a) that the provisions for vulgar
substitution in favor of Wanda de Wrobleski with respect to the widow's usufruct and in favor of Juan
Pablo Jankowski and Horacio V. Ramirez, with respect to Wanda's usufruct are invalid because the
first heirs Marcelle and Wanda) survived the testator; (b) that the provisions for fideicommissary
substitutions are also invalid because the first heirs are not related to the second heirs or substitutes
within the first degree, as provided in Article 863 of the Civil Code; (c) that the grant of a usufruct
over real property in the Philippines in favor of Wanda Wrobleski, who is an alien, violates Section 5,
Article III of the Philippine Constitution; and that (d) the proposed partition of the testator's interest in
the Santa Cruz (Escolta) Building between the widow Marcelle and the appellants, violates the
testator's express win to give this property to them Nonetheless, the lower court approved the project
of partition in its order dated May 3, 1967. It is this order which Jorge and Roberto have appealed to
this Court.

1. The widow's legitime.

The appellant's do not question the legality of giving Marcelle one-half of the estate in full ownership.
They admit that the testator's dispositions impaired his widow's legitime. Indeed, under Art. 900 of
the Civil Code "If the only survivor is the widow or widower, she or he shall be entitled to one-half of
the hereditary estate." And since Marcelle alone survived the deceased, she is entitled to one-half of
his estate over which he could impose no burden, encumbrance, condition or substitution of any kind
whatsoever. (Art. 904, par. 2, Civil Code.)

It is the one-third usufruct over the free portion which the appellants question and justifiably so. It
appears that the court a quo approved the usufruct in favor of Marcelle because the testament
provides for a usufruct in her favor of one-third of the estate. The court a quo erred for Marcelle who
is entitled to one-half of the estate "en pleno dominio" as her legitime and which is more than what
she is given under the will is not entitled to have any additional share in the estate. To give Marcelle
more than her legitime will run counter to the testator's intention for as stated above his dispositions
even impaired her legitime and tended to favor Wanda.

2. The substitutions.

It may be useful to recall that "Substitution is the appoint- judgment of another heir so that he may
enter into the inheritance in default of the heir originally instituted." (Art. 857, Civil Code. And that
there are several kinds of substitutions, namely: simple or common, brief or compendious,
reciprocal, and fideicommissary (Art. 858, Civil Code.) According to Tolentino, "Although the Code
enumerates four classes, there are really only two principal classes of substitutions: the simple and
the fideicommissary. The others are merely variations of these two." (111 Civil Code, p. 185 [1973].)

The simple or vulgar is that provided in Art. 859 of the Civil Code which reads:

ART. 859. The testator may designate one or more persons to substitute the heir or
heirs instituted in case such heir or heirs should die before him, or should not wish,
or should be incapacitated to accept the inheritance.

A simple substitution, without a statement of the cases to which it refers, shall

comprise the three mentioned in the preceding paragraph, unless the testator has
otherwise provided.

The fideicommissary substitution is described in the Civil Code as follows:

 ART. 863. A fideicommissary substitution by virtue of which the fiduciary or first heir
instituted is entrusted with the obligation to preserve and to transmit to a second heir
the whole or part of inheritance, shall be valid and shall take effect, provided such
substitution does not go beyond one degree from the heir originally instituted, and
provided further that the fiduciary or first heir and the second heir are living at time of
the death of the testator.

It will be noted that the testator provided for a vulgar substitution in respect of the legacies of
Roberto and Jorge Ramirez, the appellants, thus: con sustitucion vulgar a favor de sus respectivos
descendientes, y, en su defecto, con substitution vulgar reciprocal entre ambos.

The appellants do not question the legality of the substitution so provided. The appellants question
the sustitucion vulgar y fideicomisaria a favor de Da. Wanda de Wrobleski" in connection with the
one-third usufruct over the estate given to the widow Marcelle However, this question has become
moot because as We have ruled above, the widow is not entitled to any usufruct.

The appellants also question the sustitucion vulgar y fideicomisaria in connection with Wanda's
usufruct over two thirds of the estate in favor of Juan Pablo Jankowski and Horace v. Ramirez.

They allege that the substitution in its vulgar aspect as void because Wanda survived the testator or
stated differently because she did not predecease the testator. But dying before the testator is not
the only case for vulgar substitution for it also includes refusal or incapacity to accept the inheritance
as provided in Art. 859 of the Civil Code, supra. Hence, the vulgar substitution is valid.

As regards the substitution in its fideicommissary aspect, the appellants are correct in their claim that
it is void for the following reasons:

(a) The substitutes (Juan Pablo Jankowski and Horace V. Ramirez) are not related to Wanda, the
heir originally instituted. Art. 863 of the Civil Code validates a fideicommissary substitution "provided
such substitution does not go beyond one degree from the heir originally instituted."

What is meant by "one degree" from the first heir is explained by Tolentino as follows:

Scaevola Maura, and Traviesas construe "degree" as designation, substitution, or

transmission. The Supreme Court of Spain has decidedly adopted this construction.
From this point of view, there can be only one tranmission or substitution, and the
substitute need not be related to the first heir. Manresa, Morell and Sanchez Roman,
however, construe the word "degree" as generation, and the present Code has
obviously followed this interpretation. by providing that the substitution shall not go
beyond one degree "from the heir originally instituted." The Code thus clearly
indicates that the second heir must be related to and be one generation from the first
heir.

From this, it follows that the fideicommissary can only be either a child or a parent of
the first heir. These are the only relatives who are one generation or degree from the
fiduciary (Op. cit., pp. 193-194.)

(b) There is no absolute duty imposed on Wanda to transmit the usufruct to the substitutes as
required by Arts. 865 and 867 of the Civil Code. In fact, the appellee admits "that the testator
contradicts the establishment of a fideicommissary substitution when he permits the properties
subject of the usufruct to be sold upon mutual agreement of the usufructuaries and the naked
owners." (Brief, p. 26.)
3. The usufruct of Wanda.

The appellants claim that the usufruct over real properties of the estate in favor of Wanda is void
because it violates the constitutional prohibition against the acquisition of lands by aliens.

The 1935 Constitution which is controlling provides as follows:

SEC. 5. Save in cases of hereditary succession, no private agricultural land shall be

transferred or assigned except to individuals, corporations, or associations qualified
to acquire or hold lands of the public domain in the Philippines. (Art. XIII.)

The court a quo upheld the validity of the usufruct given to Wanda on the ground that the
Constitution covers not only succession by operation of law but also testamentary succession. We
are of the opinion that the Constitutional provision which enables aliens to acquire private lands does
not extend to testamentary succession for otherwise the prohibition will be for naught and
meaningless. Any alien would be able to circumvent the prohibition by paying money to a Philippine
landowner in exchange for a devise of a piece of land.

This opinion notwithstanding, We uphold the usufruct in favor of Wanda because a usufruct, albeit a
real right, does not vest title to the land in the usufructuary and it is the vesting of title to land in favor
of aliens which is proscribed by the Constitution.

IN VIEW OF THE FOREGOING, the estate of Jose Eugenio Ramirez is hereby ordered distributed
as follows:

One-half (1/2) thereof to his widow as her legitime;

One-half (1/2) thereof which is the free portion to Roberto and Jorge Ramirez in naked ownership
and the usufruct to Wanda de Wrobleski with a simple substitution in favor of Juan Pablo Jankowski
and Horace V. Ramirez.

The distribution herein ordered supersedes that of the court a quo. No special pronouncement as to
costs.

SO ORDERED.
G.R. No. L-13876 February 28, 1962

CONSOLACION FLORENTINO DE CRISOLOGO, ET AL., plaintiffs-appellees,

vs.
DR. MANUEL SINGSON, defendant-appellant.

Felix V. Vergara for defendant-appellant.

B. Martinez for plaintiffs-appellees.

DIZON, J.:

Action for partition commenced by the spouses Consolacion Florentino and Francisco Crisologo
against Manuel Singson in connection with a residential lot located a Plaridel St., Vigan, Ilocos Sur,
with an area of approximately 193 square meters, and the improvements existing thereon, covered
by Tax No. 10765-C. Their complaint alleged that Singson owned one-half pro-indiviso of said
property and that Consolacion Florentino owned the other half by virtue of the provisions of the duly
probated last will of Dña. Leona Singson, the original owner, and the project of partition submitted to,
and approved by the Court of First Instance of Ilocos Sur in special Proceeding No. 453; that
plaintiffs had made demands for the partition of said property, but defendant refused to accede
thereto, thus compelling them to bring action.

Defendant's defense was that Consolacion Florentino was a mere usufructuary of, and not owner of
one-half pro-indiviso of the property in question, and that, therefore, she was not entitled to demand
partition thereof.

After trial upon the issue thus posed, the lower court rendered judgment as follows:

1. Declaring that the plaintiff is a co-owner pro-indiviso with the defendant of the house and
lot described in the complaint to the extent of each of an undivided 1/2 portion thereof; .

2. Ordering the aforesaid co-owners to execute an agreement of partition of the said property
within 30 days from receipt of this judgment unless it be shown that the division thereof may
render it unserviceable, in which case the provisions of Art. 498 of the New Civil Code may
be applied; .1äw phï1.ñët

3. That in the event the said parties shall fail to do so, this Court will appoint the
corresponding commissioners to make the partition in accordance with law; and .

4. Without special pronouncement as to costs." .

From the above judgment, defendant Singson appealed.

It is admitted that Dña. Leona Singson, who died single on January 13, 1948, was the owner of the
property in question at the time of her death. On July 31, 1951 she executed her last will which was
admitted to probate in Special Proceeding No. 453 of the lower court whose decision was affirmed
by the Court of Appeals in G.R. No. 3605-R. At the time of the execution of the will, her nearest living
relatives were her brothers Evaristo, Manuel and Dionisio Singson, her nieces Rosario, Emilia and
Trinidad, and her grandniece Consolation, all surnamed Florentino.

Clause IX of her last will reads as follows: .

 NOVENO. — Ordeno que se de a mi nieta por parte de mi hermana mia y que al mismo
tiempo vive en mi casa, y, por tanto, bajo mi proteccion, y es la CONSOLACION
FLORENTINO: —

(A). La mitad de mi casa de materials fuertes con techo de hierro galvanizado, incluyendo la
mitad de su solar, ubicado en la Poblacion de Vigan, Ilocos Sur, Calle Plaridel, actualmente
arrendada por los hermanos Fortunato, Teofilo y Pedro del appellido Kairuz. Pero si
falleciere antes o despues que yo mi citada nieta, esta propiedad se dara por partes iguales
entre mis tres hermanos Evaristo, Manuel y Dionisio, o a sus herederos forzosos en el caso
de que alguno de ellas murieie antes ... (Exhibit F.)

The issue to be decided is whether the testamentary disposition above-quoted provided for what is
called sustitucion vulgar or for a sustitucion fideicomisaria. This issue is, we believe, controlled by
the pertinent provisions of the Civil Code in force in the Philippines prior to the effectivity of the New
Civil Code, in view of the fact that the testatrix died on January 13, 1948. They are the following: .

Art. 774. The testator may designate one or more persons to substitute the heir or heirs
instituted in case such heir or heirs should die before him, or should not wish or should be
unable to accept the inheritance.

A simple substitution, without a statement of the cases to which it is to apply, shall include
the three mentioned in the next preceeding paragraph, unless the testator has otherwise
provided:

Art. 781. Fidei-commissary substitutions by virtue of which the heir is charged to preserve
and transmit to a third person the whole or part of the inheritance shall be valid and effective,
provided they do not go beyond the second degree, or that they are made in favor of persons
living at the time of the death of the testator." .

Art. 785. The following shall be inoperative: .

1. Fiduciary substitutions not made expressly, either by giving them this name or by imposing
upon the fiduciary the absolute obligation of delivering the property to a second heir." ....

In accordance with the first legal provision quoted above, the testator may not only designate the
heirs who will succeed him upon his death, but also provide for substitutes in the event that said
heirs do not accept or are in no position to accept the inheritance or legacies, or die ahead of him.

The testator may also bequeath his properties to a particular person with the obligation, on the part
of the latter, to deliver the same to another person, totally or partially, upon the occurrence of a
particular event (6 Manresa, p. 1112).

It is clear that the particular testamentary clause under consideration provides for a substitution of
the heir named therein in this manner: that upon the death of Consolacion Florentino — whether this
occurs before or after that of the testatrix — the property bequeathed to her shall be delivered ("se
dara") or shall belong in equal parts to the testatrix's three brothers, Evaristo, Manuel and Dionisio,
or their forced heirs, should anyone of them die ahead of Consolacion Florentino. If this clause
created what is known as sustitucion vulgar, the necessary result would be that Consolacion
Florentino, upon the death of the testatrix, became the owner of one undivided half of the property,
but if it provided for a sustitution fideicomisaria, she would have acquired nothing more than
usufructuary rights over the same half. In the former case, she would undoubtedly be entitled to
partition, but not in the latter. As Manresa says, if the fiduciary did not acquire full ownership of the
property bequeathed by will, but mere usufructuary rights thereon until the time came for him to
deliver said property to the fideicomisario, it is obvious that the nude ownership over the property,
upon the death of the testatrix, passed to and was acquired by another person, and the person
cannot be other than the fideicomisario (6 Manresa p. 145).

It seems to be of the essence of a fideicommissary substitution that an obligation be clearly imposed

upon the first heir to preserve and transmit to another the whole or part of the estate bequeathed to
him, upon his death or upon the happening of a particular event. For this reason, Art. 785 of the old
Civil Code provides that a fideicommissary substitution shall have no effect unless it is made
expressly ("de una manera expresa") either by giving it such name, or by imposing upon the first heir
the absolute obligation ("obligacion terminante") to deliver the inheritance to a substitute or second
heir. In this connection Manresa says: .

Para que la sustitucion sea fideicomisaria, es preciso segun el art. 781, que se ordeno o
encargue al primer heredero, cuando sea tal, que conserve y transmita a una tercera
persona o entidad el todo a parte de la herencia. O lo que es lo mismo, la sustitucion
fideicomisaria, como declaran las resoluciones de 25 de Junio de 1895, 10 de Febrero de
1899 y 19 de Julio de 1909, exige tres requisitos: .

1.o Un primer heredero llamado al goce de los bienes preferentemente.

2.o Obligacion claramente impuesta al mismo de conservar y transmitir a un tercero el todo

o parte del caudal.

3.o Un segundo heredero.

A estos requisitos anade la sentencia de 18 de Noviembre de 1918, otro mas, el del que el
fideicomisario tenga derecho a los bienes de la herencia desde el momento de la muerte del
testador, puesto que ha de suceder a este y no al fiduciario.

Por tanto, cuando el causante se limita a instituir dos herederos, y por fallecimiento de
ambos o de cualquiera de ellos, asigna la parte del fallecido o fallecidos, a los herederos
legitimos o a otras personas, solo existe una sustitucion vulgar, porque falta el requisito de
haberse impuesto a los primeros herederos la obligacion de conservar y transmitir los
bienes, y el articulo 789, en su parrafo primero, evige que la sustitucion sea expresa, ya
dandole el testador el nombre de sustitucion fideicomisaria, ya imponiendo al sustituido la
obligacion terminante de conservar y transmitir los bienes a un segundo heredero.

A careful perusal of the testamentary clause under consideration shows that the substitution of heirs
provided for therein is not expressly made of the fideicommissary kind, nor does it contain a clear
statement to the effect that appellee, during her lifetime, shall only enjoy usufructuary rights over the
property bequeathed to her, naked ownership thereof being vested in the brothers of the testatrix. As
already stated, it merely provides that upon appellee's death — whether this happens before or after
that of the testatrix — her share shall belong to the brothers of the testatrix.

In the light of the foregoing, we believe, and so hold, that the last will of the deceased Dña. Leona
Singson, established a mere sustitucion vulgar, the substitution Consolacion Florentino by the
brothers of the testatrix to be effective or to take place upon the death of the former, whether it
happens before or after that of the testatrix.

IN VIEW OF THE FOREGOING, the appealed judgment is affirmed, with costs.

G.R. No. L-22595 November 1, 1927

Testate Estate of Joseph G. Brimo, JUAN MICIANO, administrator, petitioner-appellee,

vs.
ANDRE BRIMO, opponent-appellant.

Ross, Lawrence and Selph for appellant.

Camus and Delgado for appellee.

ROMUALDEZ, J.:

The partition of the estate left by the deceased Joseph G. Brimo is in question in this case.

The judicial administrator of this estate filed a scheme of partition. Andre Brimo, one of the brothers
of the deceased, opposed it. The court, however, approved it.

The errors which the oppositor-appellant assigns are:

(1) The approval of said scheme of partition; (2) denial of his participation in the inheritance; (3) the
denial of the motion for reconsideration of the order approving the partition; (4) the approval of the
purchase made by the Pietro Lana of the deceased's business and the deed of transfer of said
business; and (5) the declaration that the Turkish laws are impertinent to this cause, and the failure
not to postpone the approval of the scheme of partition and the delivery of the deceased's business
to Pietro Lanza until the receipt of the depositions requested in reference to the Turkish laws.

The appellant's opposition is based on the fact that the partition in question puts into effect the
provisions of Joseph G. Brimo's will which are not in accordance with the laws of his Turkish
nationality, for which reason they are void as being in violation or article 10 of the Civil Code which,
among other things, provides the following:

Nevertheless, legal and testamentary successions, in respect to the order of succession as

well as to the amount of the successional rights and the intrinsic validity of their provisions,
shall be regulated by the national law of the person whose succession is in question,
whatever may be the nature of the property or the country in which it may be situated.

But the fact is that the oppositor did not prove that said testimentary dispositions are not in
accordance with the Turkish laws, inasmuch as he did not present any evidence showing what the
Turkish laws are on the matter, and in the absence of evidence on such laws, they are presumed to
be the same as those of the Philippines. (Lim and Lim vs. Collector of Customs, 36 Phil., 472.)

It has not been proved in these proceedings what the Turkish laws are. He, himself, acknowledges it
when he desires to be given an opportunity to present evidence on this point; so much so that he
assigns as an error of the court in not having deferred the approval of the scheme of partition until
the receipt of certain testimony requested regarding the Turkish laws on the matter.

The refusal to give the oppositor another opportunity to prove such laws does not constitute an error.
It is discretionary with the trial court, and, taking into consideration that the oppositor was granted
ample opportunity to introduce competent evidence, we find no abuse of discretion on the part of the
court in this particular. There is, therefore, no evidence in the record that the national law of the
testator Joseph G. Brimo was violated in the testamentary dispositions in question which, not being
contrary to our laws in force, must be complied with and executed. lawphil.net

Therefore, the approval of the scheme of partition in this respect was not erroneous.

In regard to the first assignment of error which deals with the exclusion of the herein appellant as a
legatee, inasmuch as he is one of the persons designated as such in will, it must be taken into
consideration that such exclusion is based on the last part of the second clause of the will, which
says:

Second. I like desire to state that although by law, I am a Turkish citizen, this citizenship
having been conferred upon me by conquest and not by free choice, nor by nationality and,
on the other hand, having resided for a considerable length of time in the Philippine Islands
where I succeeded in acquiring all of the property that I now possess, it is my wish that the
distribution of my property and everything in connection with this, my will, be made and
disposed of in accordance with the laws in force in the Philippine islands, requesting all of my
relatives to respect this wish, otherwise, I annul and cancel beforehand whatever disposition
found in this will favorable to the person or persons who fail to comply with this request.

The institution of legatees in this will is conditional, and the condition is that the instituted legatees
must respect the testator's will to distribute his property, not in accordance with the laws of his
nationality, but in accordance with the laws of the Philippines.

If this condition as it is expressed were legal and valid, any legatee who fails to comply with it, as the
herein oppositor who, by his attitude in these proceedings has not respected the will of the testator,
as expressed, is prevented from receiving his legacy.

The fact is, however, that the said condition is void, being contrary to law, for article 792 of the civil
Code provides the following:

Impossible conditions and those contrary to law or good morals shall be considered as not
imposed and shall not prejudice the heir or legatee in any manner whatsoever, even should
the testator otherwise provide.

And said condition is contrary to law because it expressly ignores the testator's national law when,
according to article 10 of the civil Code above quoted, such national law of the testator is the one to
govern his testamentary dispositions.

Said condition then, in the light of the legal provisions above cited, is considered unwritten, and the
institution of legatees in said will is unconditional and consequently valid and effective even as to the
herein oppositor.

It results from all this that the second clause of the will regarding the law which shall govern it, and to
the condition imposed upon the legatees, is null and void, being contrary to law.

All of the remaining clauses of said will with all their dispositions and requests are perfectly valid and
effective it not appearing that said clauses are contrary to the testator's national law.

Therefore, the orders appealed from are modified and it is directed that the distribution of this estate
be made in such a manner as to include the herein appellant Andre Brimo as one of the legatees,
and the scheme of partition submitted by the judicial administrator is approved in all other respects,
without any pronouncement as to costs.

So ordered.
G.R. No. L-22797 September 22, 1966

TESTACY OF MAXIMA SANTOS VDA. DE BLAS. ROSALINA SANTOS (Executrix), petitioner

and appellee,
vs.
FLORA BLAS DE BUENAVENTURA (Legatee), oppositor and appellant.

Vicente J. Francisco for oppositor and appellant.

J.T. de los Santos and R.M. Caluag for petitioner and appellee.

BENGZON, J.P., J.:

This is an appeal from two orders of the Court of First Instance of Rizal in Special Proceedings No.
2524 regarding the testacy of the deceased Maxima Santos Vda. de Blas.

On October 22, 1956, Rosalina Santos filed a petition with the Court of First Instance of Rizal for the
probate of the last will allegedly executed on September 22, 1956 by the deceased Maxima Santos
Vda. de Blas. 1 The nearest of kin of the deceased were her brothers and a sister, nephews and
nieces. Rosalinda Santos, petitioner-appellee herein, is one of said nieces. Among the legatees —
or more accurately, devisees — mentioned in the will is Flora Blas de Buenaventura. She is not
related by blood to the deceased.

Flora Blas de Buenaventura and Justo Garcia filed on November 28, 1956 an opposition to the
probate of said will.

Among the grounds for the opposition of Flora Blas and Justo Garcia were that the will was not
executed in accordance with law; that undue and improper pressure was exerted upon the testatrix
Maxima Santos in the execution thereof; that the signature of Maxima was secured through fraud;
and that at the time of the execution of the will Maxima was mentally incapable of making a will.2

After the probate court had received the evidence for both the petitioner and oppositors, but before
the latter could close their evidence, Flora Blas on November 6, 1957 filed a manifestation that she
is withdrawing her opposition to the probate of the will, quoted as follows:

Oppositor FLORA BLAS BUENAVENTURA, assisted by her counsel, unto this Honorable
Court respectfully manifests:

1. That she is hereby withdrawing her opposition to the petition for the probate of the will of
the deceased Maxima Santos Vda. de Blas;

2. That being a legatee named in the will, to protect and preserve her rights and interests,
she hereby makes of record that she is joining the proponent of said will for the legalization
of the same.

Some circumstances leading to said withdrawal may be noted. Flora had to sell her house for
P5,000 to pay for stenographic notes of this case. Rosalina Santos thereafter gave a party at the
Manila Hotel, aimed at settling the case amicably. And there Atty. Jose T. de los Santos —
appellee's lawyer — took Flora aside and told her that he learned she had sold her house, that it was
a foolish thing to have done, and that for her sake and her children's, she should withdraw her
opposition and receive her legacy, so that from its rent she could start a business.

The proceedings continued however as to the opposition of Justo Garcia.

On December 24, 1957, the court below issued an order allowing the probate of the will. After the
order had become final and executory, Flora Blas on February 27, 1958, filed a petition praying for
the delivery to her of a fishpond as a specific devise in her favor under Item No. 3, Clause No. 6, of
the will. To this petition, inspite of apparent understanding, Rosalina Santos filed an opposition
predicated on the ground that said specific devise in favor of Flora was forfeited in favor of the other
residuary heirs, pursuant to a provision of the will that should any of the heirs, devisees or legatees
contest or oppose its probate, the latter shall lose his or her right to receive any inheritance or
benefit under it, which shall be forfeited in favor of the other heirs, devisees and legatees.

The pertinent provisions of the will, translated into English from Tagalog, reads as follows:

Fourteenth.—I request all my heirs, devisees and legatees to look after each other, love and
help one another and accept with thanks what I have bequeathed to them, and treasure, love
and cherish the same. Any one of them who contests or opposes the probate of my will or
the carrying out of its provisions shall lose any right to receive any inheritance or benefit
under my will, and their inheritance or share shall pertain to the other heirs who have not
opposed.3

This is known in Anglo-American jurisdiction as the "no contest and forfeiture" clause of a will. 1aw phîl.nèt

In its order of April 30, 1958, the court a quo sustained the theory that the "no-contest and forfeiture"
clause of the will was valid and had the effect of depriving Flora of her devise in view of her previous
opposition to its probate, which it held not justified under the circumstances. Accordingly, it denied
the motion for delivery of the specific devise, declaring the same forfeited in favor of the other
residuary heirs. Flora's motion for reconsideration, superseded by a subsequent amended motion to
the same effect, was denied by the probate court in its order dated March 7, 1959.

From the foregoing two orders of the trial court, Flora Blas interposed an appeal to the Court of
Appeals. Said Court, in its resolution of March 25, 1964, certified the appeal to Us as calling for
determination of questions purely of law.

This appeal raises two issues: (1) Did Flora's actuations, under the facts and circumstances herein,
amount to a violation of the "no-contest and forfeiture" clause of the will; and (2) Is the "no-contest
and forfeiture" provision of the will valid?

Anent the second issue, the parties herein, relying mostly upon Spanish and Anglo-American
authorities, advance conflicting theories. Petitioner-appellee argues that the "no-contest and
forfeiture" clause is a valid, legal and efficacious testamentary condition. Against this position,
however, the devisee-appellant maintains that such provision in a will is null and void because it is
contrary to public policy.

It is, however, the first issue that We will now discuss. For this purpose, the point to determine
initially is whether or not appellant's filing of her opposition was justified under the particular
circumstances of the case; and then, whether or not a timely withdrawal of said opposition had
precluded violation of the "no contest and forfeiture clause"
The court a quo's conclusion is that "there is no justification for her to oppose or contest the probate
of said will" because "from the evidence given by her and by her witnesses during the pendency of
the probate of the will ..., it appears that Flora Blas was aware of the true facts surrounding the
execution of the will and of the mental state of mind of the said testatrix at the time of the execution
of the will in question, and yet she has charge her benefactor, the late Maxima Santos, as not
enjoying sound mind when the latter executed her will on September 22, 1956", and that "there is no
proof to show that the said Flora Blas was in any manner related by blood to Maxima Santos Vda.
de Blas so that her contest of the said will cannot benefit her."4

We disagree with the above conclusion of the lower court, which is not the inference borne out by
the facts and the evidence — both testimonial and documentary — adduced in the case.

Appellant knew about the existence of another will executed earlier in 1953 in which she stood to
receive more — much more — than what is devised to her in the 1956 will.5 Since 1953 up to the
death of the testatrix, appellant did not fall out of the good graces of the deceased. Their relationship
stayed as close as ever. She did not give any cause to alienate the deceased's affections. Why,
then, the supposed change of heart?

She was addressed as Flora Buendia in the will,6 yet she has been using the name Flora Blas as far
as she could remember, apparently with the knowledge and consent of the deceased. This is
supported by her school records from grade school up to first year pharmacy. Admittedly, it was the
deceased who reared and spent for the education of the appellant, and therefore she must have
known that the latter was using the family name Blas. If, indeed, the testatrix was not agreeable to
such an arrangement why did she not take steps to correct the same? We can only conclude that
appellant's use of the family name Blas was with the acquiescence of the testatrix. Why should she
change her mind after all the years and speak of appellant in her will as Flora Buendia instead of
Flora Blas?

There was also the coincidence that the three attesting witnesses to the will, all brothers, are
likewise the lawyers of the executrix (who will receive the biggest single share under the will) and
compadres of the assistant executrix, while the notary public is also a compadre of one of the
attesting brothers-lawyers.

Furthermore, the nurse who attended to the deceased on September 22, 1956 — the date when the
will was supposedly typed and signed by that testatrix in her room at the Manila Doctors Hospital —
told the appellant that there was no one inside the testatrix's room when she went to administer
medications to the old woman at the precise time when the attesting witnesses and the notary public
testified they were inside the said room. The nurse admitted this likewise under oath (Tsn., June 10,
1957, p. 23).

But the most important single factor that should engender reasonable doubt as to the physical and
mental capacity of a person to execute a will, was the condition of Maxima Blas as gleaned from the
records of the case. She was an old woman more than 86 years old who suffered from various
ailments like rheumatoid arthritis, catarrh of the eyes, jaundice, cirrhosis of the liver, anemia, edema
of the lower legs and fracture in the vertebrae. From August 1, 1956 to September 23, 1956 she
received seven blood transfusions, as follows: one on August 1; two on September 22 (the alleged
date of the execution of the will), with barely three hours intervening; one each on September 24, 25,
26 and 29, 1956. She was also given dextrose vinoclysis on September 22, because she could not
take food through the mouth; and on September 23, 1956 she started to bleed by mouth, compelling
her doctor to cancel her trip to the United States scheduled for September 25, 1956. Several
documents executed by her before the alleged date of execution of the will, were no longer signed
but merely thumbmarked by her,7 whereas the will appealed to have been signed.
It is difficult for Us to imagine that one situated and equally faced with the above enumerated facts
and circumstances as the appellant was, should keep her peace. She had her doubts, and to resolve
them she had to conduct inquiries and investigations. Her findings all the more strengthened her
belief that there was something untoward about the execution of the will. Thus, in her desire to know
the truth and to protect her rights, she opposed the probate of the will.

After all, had the contest been continued and the will held invalid on any of the grounds provided by
law for the disallowance of a will,8 she would have contributed in no small measure to the cause of
the truth which the courts have been in a position to apply the proper legal provisions which are for
the greater interests of the testatrix — since all of them are ordained to the idea that the truth of her
last thoughts may be duly assured and guaranteed.

Above all, the factor that preponderates in favor of appellant is that, after realizing her mistake in
contesting the will — a mistake committed in good faith because grounded on strong doubts — she
withdrew her opposition and joined the appellee in the latter's petition for the probate of the will. She
must not now be penalized for rectifying her error. After all, the intentions of the testatrix had been
fulfilled, her will had been admitted and allowed probate within a reasonably short period, and the
disposition of her property can now be effected.

It should be pointed out that, contrary to the translation accorded to Paragraph Fourteen of the will,
the testatrix enjoins not a mere contest or opposition to its probate, but a contest or opposition to the
probate of the will and the carrying out of its provisions. This is so because the questioned clause
speaks of "pagpapatibay at pag-bibigay-bisa" instead of "pagpapatibay o pag-bibigay-bisa."9 This
furnishes a significant index into the intention of the testatrix, namely, that she was more concerned
in insuring the carrying out of her testamentary provisions than in precluding any contest or
opposition to it. By the withdrawal of the contest which appellant brought in good faith, no prejudice
has been done into the intention of the testatrix. The dispositions of her will can now be safely
carried out.

The most that can be said, if at all, is that Flora Blas' actuations were also impelled by some desire
to gain. But who among the heirs can assume a posture of innocence and cast the first stone? None
of them can safely claim that he is not thus similarly motivated.

From the foregoing premises it cannot be said that Flora's actuations impaired the true intention of
the testatrix in regard to the "no-contest and forfeiture" clause of the will. Flora's act of withdrawing
her opposition before she had rested her case contributed to the speedy probation of the will. Since
the withdrawal came before Flora had rested her case, it precluded the defeat of the probate upon
the strength of Flora's evidence. Through said withdrawal, Flora conformed to the testatrix's wish
that her dispositions of her properties under the will be carried out. It follows that, taken as a whole,
Flora's actuations subserved rather than violated the testatrix's intention.

There is, therefore, no further need to discuss the second issue on the validity of a "no contest and
forfeiture" clause in this jurisdiction, since, at any rate, said clause was not violated in this case.

Wherefore, the appealed orders dated April 30, 1958 and March 7, 1959 are hereby reversed, and
this case is remanded to the court a quo with the instruction that appellant's devise under the will be
forthwith delivered to her. No costs. So ordered.

Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Makalintal, Zaldivar, Sanchez and Castro, JJ.,
concur.
Regala J., took no part.
RESOLUTION AMENDING DECISION
November 29, 1966

BENGZON, J.P., J.:

Flora Blas de Buenaventura, oppositor-appellant, moved for reconsideration of this Court's decision
herein rendered on September 22, 1966. Against this motion the petitioner-appellee and executrix,
Rosalina Santos, filed an opposition. And appellant filed a reply thereto.

Appellant-movant contends, first, that she is entitled to and should be awarded, not only the devised
fishpond, but all the fruits or rents of said property from the death of the testatrix on October 5, 1956
up to the time said property will be delivered to her. Appellant, it be noted, did not expressly seek
recovery of fruits or rents in her petition for delivery of specific legacy (devise) filed below. She
started to mention also the fruits or rents in her amended motion for reconsideration of the court a
quo's denial of said petition. And, thereafter she has raised the point in her third assignment of error
in the present appeal.

This notwithstanding, We believe that appellant should receive the fruits of the property given to her
in devise. The provisions of law regarding devised proper are emphatic in stating that a devise of
a specific things includes its fruits and income accruing after the testator's death, ordering that these
shall be delivered with the thing devised:

ART. 948. If the legacy or devise is of a specific and determinate thing pertaining to the
testator, the legatee or devisee acquires the ownership thereof upon the death of the
testator, as well as any growing fruits, or unborn offspring of animals, or uncollected income;
but not the income which was due and unpaid before the latter's death.

From the moment of the testator's death, the thing bequeathed shall be at the risk of the
legatee or devisee, who shall, therefore, bear its loss or deterioration, and shall be benefited
by its increase or improvement, without prejudice to the responsibility of the executor or
administrator.

ART. 951. The thing bequeathed shall be delivered with all its accessions and accessories
and in the condition in which it may be upon the death of the testator. (Civil Code)

Furthermore, since fruits or rents are accessions (Arts. 441, 442, Civil Code), strictly speaking, there
was really no need to mention them in the petition or the decision. Article 1166 of the Civil Code
applies: "The obligation to give a determinate thing includes that of delivering all its accessions and
accessories, even though they may not have been mentioned." To remove doubts on the matter,
however, We here expressly state that appellant is also entitled to, and appellee should deliver to
her, the fruits or rents of the devised fishpond accruing after the testatrix's death. The precise
determination of the same, however, should be threshed out in the court below, before which
appellee must render an accounting.

Appellee, in this regard, would bring up in this proceedings and at this very late stage, some new
matters: that allegedly the testatrix owned only 65.38-2/3% of the property devised, so that the fruits
or rents pertaining to appellant should likewise be only 65.38-2/3%. And in support of this, appellee
refers to final decisions of this Court in two other cases, L-14070, "Maria Gervacio Blas, et al. v.
Rosalina Santos" promulgated March 29, 1961, and L-19270, "Manuel Gervacio Blas, et al. v. Hon.
Cecilia Muñoz-Palma, et al.," promulgated March 31, 1962. In said decisions, it is contended that the
rulings are to the effect that the properties therein litigated belonged to Maxima Santos, the testatrix
herein, only to the extent of 65.38-2/3%, the rest being owned by her husband Simeon Blas,
represented by the plaintiffs therein. The property involved here is allegedly one of the properties
litigated therein. The foregoing cannot avail appellee herein. She is not the proper party to raise it,
since she represents the testatrix and not Simeon Blas or his heirs. For her to do so would in effect
be to assert an interest adverse to that of the testatrix, even when those to whom said alleged
interest pertains — Simeon Blas and his heirs — do not advance it.

As to appellee's reiterated contention that appellant had violated the no contest and forfeiture clause
of the will, the same has already been sufficiently discussed and resolved in our decision. As therein
stated, due to appellant's timely withdrawal of her opposition to the probate of the will, it was as if
there had been no opposition by her at all, as far as the purpose underlying the aforestated clause is
concerned.

The next argument is on appellant's claim to interest upon the fruits or rents. The rule is that interest
does not run, unless stipulated, where there is yet no delay (Arts. 1169, 2209, Civil Code). And in
settlement proceedings, there is no delay on the part of the administratrix until after the court orders
her to make delivery of the legacy or devise (Ongpin v. Rivera, 44 Phil. 808). In this case, the court a
quo not having issued such an order, appellee has not incurred in delay and is thus not liable for
interest.

Appellant-movant also prays for moral and exemplary damages and would rest this claim upon fraud
allegedly committed on two different occasions: First, in the preparation of the will; and, second,
during the supposed negotiation for the withdrawal of her opposition preparatory to the delivery of
her devise.

As to the first, appellant would hereby be assailing the very basis of the right she is asserting as
devisee, for if the will was not a voluntary act of the testatrix as she would contend, the devise in
question would suffer the same defect. It should be remembered also that the will has already been
admitted to probate, so that its due execution and authenticity, are already deemed established for
purposes of this proceeding.

As to the second alleged occasion of fraud, We have on record only the parties' allegations and
denials, and the affidavit of the devisee-claimant. Fraud being a serious charge, it is difficult to see
how the same can be sustained on so insufficient an evidence. And moreover, this being a factual
issue, We cannot consider the same, for this appeal is confined to questions purely of law.
Appellant-movant's prayer for moral and exemplary damages, therefore, is hereby denied.

As to attorney's fees, however, this Court, considering all the circumstances; believes it reasonable
and equitable to award under Article 2208, par. 11, of the Civil Code, P5,000 in appellant's favor.

In view of the foregoing, the dispositive portion of the decision herein promulgated on September 22,
1966 is hereby amended to read as follows:

"WHEREFORE, the appealed orders April 30, 1958 and March 7, 1959 are hereby reversed and this
case is remanded to the court a quo, with the instruction that appellant's specific devise under the
will be forthwith delivered to her by appellee executrix, with all the fruits or rents thereof acquired
from the death of the testatrix on October 5, 1956 until its delivery, and for this purpose said appellee
executrix shall render an accounting to the court a quo. Lastly, attorney's fee of P5,000 is hereby
awarded in appellant's favor against appellee. No costs. So ordered.

Concepcion, C.J. Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro,
JJ., concur.