1. G.R. No.

L-33187 March 31, 1980

CORNELIO PAMPLONA alias GEMINIANO PAMPLONA and APOLONIA ONTE, petitioners,

vs.
VIVENCIO MORETO, VICTOR MORETO, ELIGIO MORETO, MARCELO MORETO, PAULINA MORETO,
ROSARIO MORETO, MARTA MORETO, SEVERINA MENDOZA, PABLO MENDOZA, LAZARO MENDOZA,
VICTORIA TUIZA, JOSEFINA MORETO, LEANDRO MORETO and LORENZO MENDOZA, respondents.

E.P. Caguioa for petitioners.

Benjamin C. Yatco for respondents.

GUERRERO, J.:

This is a petition for certiorari by way of appeal from the decision of the Court of Appeals 1 in CA-G.R. No. 35962-R,
entitled "Vivencio Moreto, et al., Plaintiff-Appellees vs. Cornelio Pamplona, et al., Defendants-Appellants," affirming
the decision of the Court of First Instance of Laguna, Branch I at Biñan.

The facts, as stated in the decision appealed from, show that:

Flaviano Moreto and Monica Maniega were husband and wife. During their marriage, they acquired adjacent lots
Nos. 1495, 4545, and 1496 of the Calamba Friar Land Estate, situated in Calamba, Laguna, containing 781-544 and
1,021 square meters respectively and covered by certificates of title issued in the name of "Flaviano Moreto, married
to Monica Maniega."

The spouses Flaviano Moreto and Monica Maniega begot during their marriage six (6) children, namely, Ursulo,
Marta, La Paz, Alipio, Pablo, and Leandro, all surnamed Moreto.

Ursulo Moreto died intestate on May 24, 1959 leaving as his heirs herein plaintiffs Vivencio, Marcelo, Rosario,
Victor, Paulina, Marta and Eligio, all surnamed Moreto.

Marta Moreto died also intestate on April 30, 1938 leaving as her heir plaintiff Victoria Tuiza.

La Paz Moreto died intestate on July 17, 1954 leaving the following heirs, namely, herein plaintiffs Pablo, Severina,
Lazaro, and Lorenzo, all surnamed Mendoza.

Alipio Moreto died intestate on June 30, 1943 leaving as his heir herein plaintiff Josefina Moreto.

Pablo Moreto died intestate on April 25, 1942 leaving no issue and as his heirs his brother plaintiff Leandro Moreto
and the other plaintiffs herein.

On May 6, 1946, Monica Maniega died intestate in Calamba, Laguna.

On July 30, 1952, or more than six (6) years after the death of his wife Monica Maniega, Flaviano Moreto, without
the consent of the heirs of his said deceased wife Monica, and before any liquidation of the conjugal partnership of
Monica and Flaviano could be effected, executed in favor of Geminiano Pamplona, married to defendant Apolonia
Onte, the deed of absolute sale (Exh. "1") covering lot No. 1495 for P900.00. The deed of sale (Exh. "1") contained
a description of lot No. 1495 as having an area of 781 square meters and covered by transfer certificate of title No.
14570 issued in the name of Flaviano Moreto, married to Monica Maniega, although the lot was acquired during
their marriage. As a result of the sale, the said certificate of title was cancelled and a new transfer certificate of title
No. T-5671 was issued in the name of Geminiano Pamplona married to Apolonia Onte (Exh. "A").

After the execution of the above-mentioned deed of sale (Exh. "1"), the spouses Geminiano Pamplona and Apolonia
Onte constructed their house on the eastern part of lot 1496 as Flaviano Moreto, at the time of the sale, pointed to it
as the land which he sold to Geminiano Pamplona. Shortly thereafter, Rafael Pamplona, son of the spouses
Geminiano Pamplona and Apolonia Onte, also built his house within lot 1496 about one meter from its boundary
with the adjoining lot. The vendor Flaviano Moreto and the vendee Geminiano Pamplona thought all the time that
the portion of 781 square meters which was the subject matter of their sale transaction was No. 1495 and so lot No.
1495 appears to be the subject matter in the deed of sale (Exh. "1") although the fact is that the said portion sold
thought of by the parties to be lot No. 1495 is a part of lot No. 1496.

From 1956 to 1960, the spouses Geminiano Pamplona and Apolonio Onte enlarged their house and they even
constructed a piggery corral at the back of their said house about one and one-half meters from the eastern
boundary of lot 1496.

On August 12, 1956, Flaviano Moreto died intestate. In 1961, the plaintiffs demanded on the defendants to vacate
the premises where they had their house and piggery on the ground that Flaviano Moreto had no right to sell the lot
which he sold to Geminiano Pamplona as the same belongs to the conjugal partnership of Flaviano and his
deceased wife and the latter was already dead when the sale was executed without the consent of the plaintiffs who
are the heirs of Monica. The spouses Geminiano Pamplona and Apolonia Onte refused to vacate the premises
occupied by them and hence, this suit was instituted by the heirs of Monica Maniega seeking for the declaration of
the nullity of the deed of sale of July 30, 1952 above-mentioned as regards one-half of the property subject matter of
said deed; to declare the plaintiffs as the rightful owners of the other half of said lot; to allow the plaintiffs to redeem
the one-half portion thereof sold to the defendants. "After payment of the other half of the purchase price"; to order
the defendants to vacate the portions occupied by them; to order the defendants to pay actual and moral damages
and attorney's fees to the plaintiffs; to order the defendants to pay plaintiffs P120.00 a year from August 1958 until
they have vacated the premises occupied by them for the use and occupancy of the same.

The defendants claim that the sale made by Flaviano Moreto in their favor is valid as the lot sold is registered in the
name of Flaviano Moreto and they are purchasers believing in good faith that the vendor was the sole owner of the
lot sold.

After a relocation of lots 1495, 1496 and 4545 made by agreement of the parties, it was found out that there was
mutual error between Flaviano Moreto and the defendants in the execution of the deed of sale because while the
said deed recited that the lot sold is lot No. 1495, the real intention of the parties is that it was a portion consisting of
781 square meters of lot No. 1496 which was the subject matter of their sale transaction.

After trial, the lower court rendered judgment, the dispositive part thereof being as follows:

WHEREFORE, judgment is hereby rendered for the plaintiffs declaring the deed of absolute sale
dated July 30, 1952 pertaining to the eastern portion of Lot 1496 covering an area of 781 square
meters null and void as regards the 390.5 square meters of which plaintiffs are hereby declared the
rightful owners and entitled to its possession.

The sale is ordered valid with respect to the eastern one-half (1/2) of 1781 square meters of Lot
1496 measuring 390.5 square meters of which defendants are declared lawful owners and entitled to
its possession.

After proper survey segregating the eastern one-half portion with an area of 390.5 square meters of
Lot 1496, the defendants shall be entitled to a certificate of title covering said portion and Transfer
Certificate of Title No. 9843 of the office of the Register of Deeds of Laguna shall be cancelled
accordingly and new titles issued to the plaintiffs and to the defendants covering their respective
portions.

Transfer Certificate of Title No. 5671 of the office of the Register of Deeds of Laguna covering Lot
No. 1495 and registered in the name of Cornelio Pamplona, married to Apolonia Onte, is by virtue of
this decision ordered cancelled. The defendants are ordered to surrender to the office of the
Register of Deeds of Laguna the owner's duplicate of Transfer Certificate of Title No. 5671 within
thirty (30) days after this decision shall have become final for cancellation in accordance with this
decision.

Let copy of this decision be furnished the Register of Deeds for the province of Laguna for his
information and guidance.

With costs against the defendants. 2

The defendants-appellants, not being satisfied with said judgment, appealed to the Court of Appeals, which affirmed
the judgment, hence they now come to this Court.

The fundamental and crucial issue in the case at bar is whether under the facts and circumstances duly established
by the evidence, petitioners are entitled to the full ownership of the property in litigation, or only one-half of the
same.

There is no question that when the petitioners purchased the property on July 30, 1952 from Flaviano Moreto for the
price of P900.00, his wife Monica Maniega had already been dead six years before, Monica having died on May 6,
1946. Hence, the conjugal partnership of the spouses Flaviano Moreto and Monica Maniega had already been
dissolved. (Article 175, (1) New Civil Code; Article 1417, Old Civil Code). The records show that the conjugal estate
had not been inventoried, liquidated, settled and divided by the heirs thereto in accordance with law. The necessary
proceedings for the liquidation of the conjugal partnership were not instituted by the heirs either in the testate or
intestate proceedings of the deceased spouse pursuant to Act 3176 amending Section 685 of Act 190. Neither was
there an extra-judicial partition between the surviving spouse and the heirs of the deceased spouse nor was an
ordinary action for partition brought for the purpose. Accordingly, the estate became the property of a community
between the surviving husband, Flaviano Moreto, and his children with the deceased Monica Maniega in the
concept of a co-ownership.

The community property of the marriage, at the dissolution of this bond by the death of one of the
spouses, ceases to belong to the legal partnership and becomes the property of a community, by
 operation of law, between the surviving spouse and the heirs of the deceased spouse, or the
exclusive property of the widower or the widow, it he or she be the heir of the deceased spouse.
Every co-owner shall have full ownership of his part and in the fruits and benefits derived therefrom,
and he therefore may alienate, assign or mortgage it, and even substitute another person in its
enjoyment, unless personal rights are in question. (Marigsa vs. Macabuntoc, 17 Phil. 107)

In Borja vs. Addision, 44 Phil. 895, 906, the Supreme Court said that "(t)here is no reason in law why the heirs of the
deceased wife may not form a partnership with the surviving husband for the management and control of the
community property of the marriage and conceivably such a partnership, or rather community of property, between
the heirs and the surviving husband might be formed without a written agreement." In Prades vs. Tecson, 49 Phil.
230, the Supreme Court held that "(a)lthough, when the wife dies, the surviving husband, as administrator of the
community property, has authority to sell the property with•ut the concurrence of the children of the marriage,
nevertheless this power can be waived in favor of the children, with the result of bringing about a conventional
ownership in common between the father and children as to such property; and any one purchasing with knowledge
of the changed status of the property will acquire only the undivided interest of those members of the family who join
in the act of conveyance.

It is also not disputed that immediately after the execution of the sale in 1952, the vendees constructed their house
on the eastern part of Lot 1496 which the vendor pointed out to them as the area sold, and two weeks thereafter,
Rafael who is a son of the vendees, also built his house within Lot 1496. Subsequently, a cemented piggery coral
was constructed by the vendees at the back of their house about one and one-half meters from the eastern
boundary of Lot 1496. Both vendor and vendees believed all the time that the area of 781 sq. meters subject of the
sale was Lot No. 1495 which according to its title (T.C.T. No. 14570) contains an area of 781 sq. meters so that the
deed of sale between the parties Identified and described the land sold as Lot 1495. But actually, as verified later by
a surveyor upon agreement of the parties during the proceedings of the case below, the area sold was within Lot
1496.

Again, there is no dispute that the houses of the spouses Cornelio Pamplona and Apolonia Onte as well as that of
their son Rafael Pamplona, including the concrete piggery coral adjacent thereto, stood on the land from 1952 up to
the filing of the complaint by the private respondents on July 25, 1961, or a period of over nine (9) years. And during
said period, the private respondents who are the heirs of Monica Maniega as well as of Flaviano Moreto who also
died intestate on August 12, 1956, lived as neighbors to the petitioner-vendees, yet lifted no finger to question the
occupation, possession and ownership of the land purchased by the Pamplonas, so that We are persuaded and
convinced to rule that private respondents are in estoppel by laches to claim half of the property, in dispute as null
and void. Estoppel by laches is a rule of equity which bars a claimant from presenting his claim when, by reason of
abandonment and negligence, he allowed a long time to elapse without presenting the same. (International Banking
Corporation vs. Yared, 59 Phil. 92)

We have ruled that at the time of the sale in 1952, the conjugal partnership was already dissolved six years before
and therefore, the estate became a co-ownership between Flaviano Moreto, the surviving husband, and the heirs of
his deceased wife, Monica Maniega. Article 493 of the New Civil Code is applicable and it provides a follows:

Art. 493. Each co-owner shall have the full ownership of his part and of the fruits and benefits
pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute another
person in its enjoyment, except when personal rights are involve. But the effect of the alienation or
the mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to
him in the division upon the termination of the co-ownership.

We agree with the petitioner that there was a partial partition of the co-ownership when at the time of the sale
Flaviano Moreto pointed out the area and location of the 781 sq. meters sold by him to the petitioners-vendees on
which the latter built their house and also that whereon Rafael, the son of petitioners likewise erected his house and
an adjacent coral for piggery.

Petitioners point to the fact that spouses Flaviano Moreto and Monica Maniega owned three parcels of land
denominated as Lot 1495 having an area of 781 sq. meters, Lot 1496 with an area of 1,021 sq. meters, and Lot
4545 with an area of 544 sq. meters. The three lots have a total area of 2,346 sq. meters. These three parcels of
lots are contiguous with one another as each is bounded on one side by the other, thus: Lot 4545 is bounded on the
northeast by Lot 1495 and on the southeast by Lot 1496. Lot 1495 is bounded on the west by Lot 4545. Lot 1496 is
bounded on the west by Lot 4545. It is therefore, clear that the three lots constitute one big land. They are not
separate properties located in different places but they abut each other. This is not disputed by private respondents.
Hence, at the time of the sale, the co-ownership constituted or covered these three lots adjacent to each other. And
since Flaviano Moreto was entitled to one-half pro-indiviso of the entire land area or 1,173 sq. meters as his share,
he had a perfect legal and lawful right to dispose of 781 sq. meters of his share to the Pamplona spouses. Indeed,
there was still a remainder of some 392 sq. meters belonging to him at the time of the sale.

We reject respondent Court's ruling that the sale was valid as to one-half and invalid as to the other half for the very
simple reason that Flaviano Moreto, the vendor, had the legal right to more than 781 sq. meters of the communal
estate, a title which he could dispose, alienate in favor of the vendees-petitioners. The title may be pro-indiviso or
inchoate but the moment the co-owner as vendor pointed out its location and even indicated the boundaries over
which the fences were to be erectd without objection, protest or complaint by the other co-owners, on the contrary
they acquiesced and tolerated such alienation, occupation and possession, We rule that a factual partition or
termination of the co-ownership, although partial, was created, and barred not only the vendor, Flaviano Moreto, but
also his heirs, the private respondents herein from asserting as against the vendees-petitioners any right or title in
derogation of the deed of sale executed by said vendor Flaiano Moreto.

Equity commands that the private respondents, the successors of both the deceased spouses, Flaviano Moreto and
Monica Maniega be not allowed to impugn the sale executed by Flaviano Moreto who indisputably received the
consideration of P900.00 and which he, including his children, benefitted from the same. Moreover, as the heirs of
both Monica Maniega and Flaviano Moreto, private respondents are duty-bound to comply with the provisions of
Articles 1458 and 1495, Civil Code, which is the obligation of the vendor of the property of delivering and transfering
the ownership of the whole property sold, which is transmitted on his death to his heirs, the herein private
respondents. The articles cited provide, thus:

Art. 1458. By the contract of sale one of the contracting parties obligates himself to transfer the
ownership of and to deliver a determinate thing, and the other part to pay therefore a price certain in
money or its equivalent.

A contract of sale may be absolute or conditionial.

Art. 1495. The vendor is bound to transfer the ownership of and deliver, as well as warrant the thing
which is the object of the sale.

Under Article 776, New Civil Code, the inheritance which private respondents received from their deceased parents
and/or predecessors-in-interest included all the property rights and obligations which were not extinguished by their
parents' death. And under Art. 1311, paragraph 1, New Civil Code, the contract of sale executed by the deceased
Flaviano Moreto took effect between the parties, their assigns and heirs, who are the private respondents herein.
Accordingly, to the private respondents is transmitted the obligation to deliver in full ownership the whole area of 781
sq. meters to the petitioners (which was the original obligation of their predecessor Flaviano Moreto) and not only
one-half thereof. Private respondents must comply with said obligation.

The records reveal that the area of 781 sq. meters sold to and occupied by petitioners for more than 9 years already
as of the filing of the complaint in 1961 had been re-surveyed by private land surveyor Daniel Aranas. Petitioners
are entitled to a segregation of the area from Transfer Certificate of Title No. T-9843 covering Lot 1496 and they are
also entitled to the issuance of a new Transfer Certificate of Title in their name based on the relocation survey.

WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is hereby AFFIRMED with
modification in the sense that the sale made and executed by Flaviano Moreto in favor of the petitioners-vendees is
hereby declared legal and valid in its entirely.

Petitioners are hereby declared owners in full ownership of the 781 sq. meters at the eastern portion of Lot 1496
now occupied by said petitioners and whereon their houses and piggery coral stand.

The Register of Deeds of Laguna is hereby ordered to segregate the area of 781 sq. meters from Certificate of Title
No. 9843 and to issue a new Transfer Certificate of Title to the petitioners covering the segregated area of 781 sq.
meters.

No costs.

SO ORDERED.

2. G.R. No. L-44837 November 23, 1938

SOCORRO LEDESMA and ANA QUITCO LEDESMA, plaintiffs-appellees,

vs.
CONCHITA MCLACHLIN, ET AL., defendants-appellants.

Adriano T. de la Cruz for appellants.

Simeon Bitanga for appellees.

VILLA-REAL, J.:

This case is before us by virtue of an appeal taken by the defendants Conchita McLachlin, Lorenzo Quitco, Jr.,
Sabina Quitco, Rafael Quitco and Marcela Quitco, from the decision of the Court of First Instance of Occidental
Negros, the dispositive part of which reads:
 For the foregoing considerations, the court renders judgment in this case declaring Ana Quitco Ledesma an
acknowledged natural daughter of the deceased Lorenzo M. Quitco, for legal purposes, but absolving the
defendants as to the prayer in the first cause of action that the said Ana Quitco Ledesma be declared
entitled to share in the properties left by the deceased Eusebio Quitco.

As to the second cause of action, the said defendants are ordered to pay to the plaintiff Socorro Ledesma,
jointly and severally, only the sum of one thousand five hundred pesos(P1,500), with legal interest thereon
from the filing of this complaint until fully paid. No pronouncement is made as to the costs. So ordered.

In support of their appeal, the appellants assign the following errors allegedly committed by the trial court in its
aforesaid decision:

1. That the trial court erred in holding, that the action for the recovery of the sum of P1,500, representing the
last installment of the note Exhibit C has not yet prescribed.

2. That the trial court erred in holding that the property inherited by the defendants from their deceased
grandfather by the right of representation is subject to the debts and obligations of their deceased father who
died without any property whatsoever. lawphi1.net

3. That the trial court erred in condemning the defendants to pay jointly and severally the plaintiff Socorro
Ledesma the sum of P1,500.

The only facts to be considered in the determination of the legal questions raised in this appeal are those set out in
the appealed decision, which have been established at the trial, namely:

In the year 1916, the plaintiff Socorro Ledesma lived maritally with Lorenzo M. Quitco, while the latter was
still single, of which relation, lasting until the year 1921, was born a daughter who is the other plaintiff Ana
Quitco Ledesma. In 1921, it seems hat the relation between Socorro Ledesma and Lorenzo M. Quitco came
to an end, but the latter executed a deed (Exhibit A), acknowledging the plaintiff Ana Quitco Ledesma as his
natural daughter and on January 21, 1922, he issued in favor of the plaintiff Socorro Ledesma a promissory
note (Exhibit C), of the following tenor:

P2,000. For value received I promise to pay Miss Socorro Ledesma the sum of two thousand pesos
(P2,000). Philippine currency under the following terms: Two hundred and fifty pesos (P250) to be paid on
the first day of March 1922; another two hundred and fifty pesos (P250)to be paid on the first day
of November 1922; the remaining one thousand and five hundred (P1,500) to be paid two years from
the date of the execution of this note. San Enrique, Occ. Negros, P. I., Jan. 21, 1922.

Subsequently, Lorenzo M. Quitco married the defendant Conchita McLachlin, with whom he had four
children, who are the other defendants. On March 9, 1930, Lorenzo M. Quitco died (Exhibit 5), and, still
later, that is, on December 15, 1932, his father Eusebio Quitco also died, and as the latter left real and
personal properties upon his death, administration proceedings of said properties were instituted in this
court, the said case being known as the "Intestate of the deceased Eusebio Quitco," civil case No. 6153 of
this court.

Upon the institution of the intestate of the deceased Eusebio Quitco and the appointment of the committee
on claims and appraisal, the plaintiff Socorro Ledesma, on August 26, 1935, filed before said committee the
aforequoted promissory note for payment, and the commissioners, upon receipt of said promissory note,
instead of passing upon it, elevated the same to this court en consulta (Exhibit F), and as the Honorable
Jose Lopez Vito, presiding over the First Branch, returned said consulta and refrained from giving his
opinion thereon (Exhibit C), the aforesaid commissioners on claims and appraisal, alleging lack of
jurisdiction to pass upon the claim, denied he same (Exhibit H).

On November 14, 1933 (Exhibit I), the court issued an order of declaration of heirs in the intestate of
the deceased Eusebio Quitco, and as Ana Quitco Ledesma was not included among the declared heirs,
Socorro Ledesma, as mother of Ana Quitco Ledesma, asked for the reconsideration of said order, a petition
which the court denied. From the order denying the said petition no appeal was taken, and in lieu thereof
there was filed the complaint which gives rise to this case.

The first question to be decided in this appeal, raised in the first assignment of alleged error, is whether or not the
action to recover the sum of P1,500, representing the last installment for the payment of the promissory note Exhibit
C, has prescribed.

According to the promissory note Exhibit C, executed by the deceased Lorenzo M. Quitco, on January 21, 1922, the
last installment of P1,500 should be paid two years from the date of the execution of said promissory note, that is,
on January 21, 1924. The complaint in the present case was filed on June 26, 1934, that is, more than ten years
after he expiration of the said period. The fact that the plaintiff Socorro Ledesma filed her claim, on August 26, 1933,
with the committee on claims and appraisal appointed in the intestate of Eusebio Quitco, does not suspend the
running of the prescriptive period of the judicial action for the recovery of said debt, because the claim for the unpaid
balance of the amount of the promissory note should no have been presented in the intestate of Eusebio Quitco, the
said deceased not being the one who executed the same, but in the intestate of Lorenzo M. Quitco, which should
have been instituted by the said Socorro Ledesma as provided in section 642 of the Code of Civil Procedure,
authorizing a creditor to institute said case through the appointment of an administrator for the purpose of collecting
his credit. More than ten years having thus elapsed from the expiration of the period for the payment of said debt of
P1,500, the action for its recovery has prescribed under section 43, No. 1, of the Code of Civil Procedure.

The first assignment of alleged error is, therefore, well-founded.

As to the second assignment of alleged error, consisting in that the trial court erred in holding that the properties
inherited by the defendants from their deceased grandfather by representation are subject to the payment of debts
and obligations of their deceased father, who died without leaving any property, while it is true that under the
provisions of articles 924 to 927 of the Civil Code, a children presents his father or mother who died before him in
the properties of his grandfather or grandmother, this right of representation does not make the said child
answerable for the obligations contracted by his deceased father or mother, because, as may be seen from the
provisions of the Code of Civil Procedure referring to partition of inheritances, the inheritance is received with the
benefit of inventory, that is to say, the heirs only answer with the properties received from their predecessor. The
herein defendants, as heirs of Eusebio Quitco, in representation of their father Lorenzo M. Quitco, are not bound to
pay the indebtedness of their said father from whom they did not inherit anything.

The second assignment of alleged error is also well-founded.

Being a mere sequel of the first two assignments of alleged errors, the third assignment of error is also well-
founded.

For the foregoing considerations, we are of the opinion and so hold: (1) That the filing of a claim before the
committee on claims and appraisal, appointed in the intestate of the father, for a monetary obligation contracted by a
son who died before him, does not suspend the prescriptive period of the judicial action for the recovery of said
indebtedness; (2) that the claim for the payment of an indebtedness contracted by a deceased person cannot be
filed for its collection before the committee on claims and appraisal, appointed in the intestate of his father, and the
propertiesinherited from the latter by the children of said deceased do not answer for the payment of the
indebtedness contracted during the lifetime of said person.

Wherefore, the appealed judgment is reversed, and the defendants are absolved from the complaint, with the costs
to the appellees. So ordered.

Avanceña, C.J., Imperial, Diaz, Laurel and Concepcion, JJ., concur.

3. G.R. No. 113725 June 29, 2000

JOHNNY S. RABADILLA,1 petitioner,

vs.
COURT OF APPEALS AND MARIA MARLENA2 COSCOLUELLA Y BELLEZA VILLACARLOS, respondents.

DECISION

PURISIMA, J.:

This is a petition for review of the decision of the Court of Appeals,3 dated December 23, 1993, in CA-G.R. No. CV-
35555, which set aside the decision of Branch 52 of the Regional Trial Court in Bacolod City, and ordered the
defendants-appellees (including herein petitioner), as heirs of Dr. Jorge Rabadilla, to reconvey title over Lot No.
1392, together with its fruits and interests, to the estate of Aleja Belleza.

The antecedent facts are as follows:

In a Codicil appended to the Last Will and Testament of testatrix Aleja Belleza, Dr. Jorge Rabadilla, predecessor-in-
interest of the herein petitioner, Johnny S. Rabadilla, was instituted as a devisee of 511, 855 square meters of that
parcel of land surveyed as Lot No. 1392 of the Bacolod Cadastre. The said Codicil, which was duly probated and
admitted in Special Proceedings No. 4046 before the then Court of First Instance of Negros Occidental, contained
the following provisions:

"FIRST

I give, leave and bequeath the following property owned by me to Dr. Jorge Rabadilla resident of 141 P. Villanueva,
Pasay City:
 (a) Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10942),
which is registered in my name according to the records of the Register of Deeds of Negros Occidental.

(b) That should Jorge Rabadilla die ahead of me, the aforementioned property and the rights which I shall
set forth hereinbelow, shall be inherited and acknowledged by the children and spouse of Jorge Rabadilla.

xxx

FOURTH

(a)....It is also my command, in this my addition (Codicil), that should I die and Jorge Rabadilla shall have already
received the ownership of the said Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title
No. RT-4002 (10942), and also at the time that the lease of Balbinito G. Guanzon of the said lot shall expire, Jorge
Rabadilla shall have the obligation until he dies, every year to give to Maria Marlina Coscolluela y Belleza, Seventy
(75) (sic) piculs of Export sugar and Twenty Five (25) piculs of Domestic sugar, until the said Maria Marlina
Coscolluela y Belleza dies.

FIFTH

(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392 of the Bacolod Cadastre, covered by
Transfer Certificate of Title No. RT-4002 (10492), shall have the obligation to still give yearly, the sugar as specified
in the Fourth paragraph of his testament, to Maria Marlina Coscolluela y Belleza on the month of December of each
year.

SIXTH

I command, in this my addition (Codicil) that the Lot No. 1392, in the event that the one to whom I have left and
bequeathed, and his heir shall later sell, lease, mortgage this said Lot, the buyer, lessee, mortgagee, shall have also
the obligation to respect and deliver yearly ONE HUNDRED (100) piculs of sugar to Maria Marlina Coscolluela y
Belleza, on each month of December, SEVENTY FIVE (75) piculs of Export and TWENTY FIVE (25) piculs of
Domestic, until Maria Marlina shall die, lastly should the buyer, lessee or the mortgagee of this lot, not have
respected my command in this my addition (Codicil), Maria Marlina Coscolluela y Belleza, shall immediately seize
this Lot No. 1392 from my heir and the latter's heirs, and shall turn it over to my near desendants, (sic) and the latter
shall then have the obligation to give the ONE HUNDRED (100) piculs of sugar until Maria Marlina shall die. I further
command in this my addition (Codicil) that my heir and his heirs of this Lot No. 1392, that they will obey and follow
that should they decide to sell, lease, mortgage, they cannot negotiate with others than my near descendants and
my sister."4

Pursuant to the same Codicil, Lot No. 1392 was transferred to the deceased, Dr. Jorge Rabadilla, and Transfer
Certificate of Title No. 44498 thereto issued in his name.

Dr. Jorge Rabadilla died in 1983 and was survived by his wife Rufina and children Johnny (petitioner), Aurora, Ofelia
and Zenaida, all surnamed Rabadilla.

On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos brought a complaint, docketed as Civil Case
No. 5588, before Branch 52 of the Regional Trial Court in Bacolod City, against the above-mentioned heirs of Dr.
Jorge Rabadilla, to enforce the provisions of subject Codicil. The Complaint alleged that the defendant-heirs violated
the conditions of the Codicil, in that:

1. Lot No. 1392 was mortgaged to the Philippine National Bank and the Republic Planters Bank in disregard
of the testatrix's specific instruction to sell, lease, or mortgage only to the near descendants and sister of the
testatrix.

2. Defendant-heirs failed to comply with their obligation to deliver one hundred (100) piculs of sugar (75
piculs export sugar and 25 piculs domestic sugar) to plaintiff Maria Marlena Coscolluela y Belleza from
sugar crop years 1985 up to the filing of the complaint as mandated by the Codicil, despite repeated
demands for compliance.

3. The banks failed to comply with the 6th paragraph of the Codicil which provided that in case of the sale,
lease, or mortgage of the property, the buyer, lessee, or mortgagee shall likewise have the obligation to
deliver 100 piculs of sugar per crop year to herein private respondent.

The plaintiff then prayed that judgment be rendered ordering defendant-heirs to reconvey/return-Lot No. 1392 to the
surviving heirs of the late Aleja Belleza, the cancellation of TCT No. 44498 in the name of the deceased, Dr. Jorge
Rabadilla, and the issuance of a new certificate of title in the names of the surviving heirs of the late Aleja Belleza.

On February 26, 1990, the defendant-heirs were declared in default but on March 28, 1990 the Order of Default was
lifted, with respect to defendant Johnny S. Rabadilla, who filed his Answer, accordingly.
During the pre-trial, the parties admitted that:

On November 15, 1998, the plaintiff (private respondent) and a certain Alan Azurin, son-in-law of the herein
petitioner who was lessee of the property and acting as attorney-in-fact of defendant-heirs, arrived at an amicable
settlement and entered into a Memorandum of Agreement on the obligation to deliver one hundred piculs of sugar,
to the following effect:

"That for crop year 1988-89, the annuity mentioned in Entry No. 49074 of TCT No. 44489 will be delivered not later
than January of 1989, more specifically, to wit:

75 piculs of 'A' sugar, and 25 piculs of 'B' sugar, or then existing in any of our names, Mary Rose Rabadilla y Azurin
or Alan Azurin, during December of each sugar crop year, in Azucar Sugar Central; and, this is considered
compliance of the annuity as mentioned, and in the same manner will compliance of the annuity be in the next
succeeding crop years.

That the annuity above stated for crop year 1985-86, 1986-87, and 1987-88, will be complied in cash equivalent of
the number of piculs as mentioned therein and which is as herein agreed upon, taking into consideration the
composite price of sugar during each sugar crop year, which is in the total amount of ONE HUNDRED FIVE
THOUSAND PESOS (P105,000.00).

That the above-mentioned amount will be paid or delivered on a staggered cash installment, payable on or before
the end of December of every sugar crop year, to wit:

For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before
December of crop year 1988-89;

For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before
December of crop year 1989-90;

For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before
December of crop year 1990-91; and

For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before
December of crop year 1991-92."5

However, there was no compliance with the aforesaid Memorandum of Agreement except for a partial delivery of
50.80 piculs of sugar corresponding to sugar crop year 1988 -1989.

On July 22, 1991, the Regional Trial Court came out with a decision, dismissing the complaint and disposing as
follows:

"WHEREFORE, in the light of the aforegoing findings, the Court finds that the action is prematurely filed as no cause
of action against the defendants has as yet arose in favor of plaintiff. While there maybe the non-performance of the
command as mandated exaction from them simply because they are the children of Jorge Rabadilla, the title
holder/owner of the lot in question, does not warrant the filing of the present complaint. The remedy at bar must fall.
Incidentally, being in the category as creditor of the left estate, it is opined that plaintiff may initiate the intestate
proceedings, if only to establish the heirs of Jorge Rabadilla and in order to give full meaning and semblance to her
claim under the Codicil.

In the light of the aforegoing findings, the Complaint being prematurely filed is DISMISSED without prejudice.

SO ORDERED."6

On appeal by plaintiff, the First Division of the Court of Appeals reversed the decision of the trial court; ratiocinating
and ordering thus:

"Therefore, the evidence on record having established plaintiff-appellant's right to receive 100 piculs of sugar
annually out of the produce of Lot No. 1392; defendants-appellee's obligation under Aleja Belleza's codicil, as heirs
of the modal heir, Jorge Rabadilla, to deliver such amount of sugar to plaintiff-appellant; defendants-appellee's
admitted non-compliance with said obligation since 1985; and, the punitive consequences enjoined by both the
codicil and the Civil Code, of seizure of Lot No. 1392 and its reversion to the estate of Aleja Belleza in case of such
non-compliance, this Court deems it proper to order the reconveyance of title over Lot No. 1392 from the estates of
Jorge Rabadilla to the estate of Aleja Belleza. However, plaintiff-appellant must institute separate proceedings to re-
open Aleja Belleza's estate, secure the appointment of an administrator, and distribute Lot No. 1392 to Aleja
Belleza's legal heirs in order to enforce her right, reserved to her by the codicil, to receive her legacy of 100 piculs of
sugar per year out of the produce of Lot No. 1392 until she dies.
Accordingly, the decision appealed from is SET ASIDE and another one entered ordering defendants-appellees, as
heirs of Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its fruits and interests, to the estate of
Aleja Belleza.

SO ORDERED."7

Dissatisfied with the aforesaid disposition by the Court of Appeals, petitioner found his way to this Court via the
present petition, contending that the Court of Appeals erred in ordering the reversion of Lot 1392 to the estate of the
testatrix Aleja Belleza on the basis of paragraph 6 of the Codicil, and in ruling that the testamentary institution of Dr.
Jorge Rabadilla is a modal institution within the purview of Article 882 of the New Civil Code.

The petition is not impressed with merit.

Petitioner contends that the Court of Appeals erred in resolving the appeal in accordance with Article 882 of the New
Civil Code on modal institutions and in deviating from the sole issue raised which is the absence or prematurity of
the cause of action. Petitioner maintains that Article 882 does not find application as there was no modal institution
and the testatrix intended a mere simple substitution - i.e. the instituted heir, Dr. Jorge Rabadilla, was to be
substituted by the testatrix's "near descendants" should the obligation to deliver the fruits to herein private
respondent be not complied with. And since the testatrix died single and without issue, there can be no valid
substitution and such testamentary provision cannot be given any effect.

The petitioner theorizes further that there can be no valid substitution for the reason that the substituted heirs are
not definite, as the substituted heirs are merely referred to as "near descendants" without a definite identity or
reference as to who are the "near descendants" and therefore, under Articles 8438 and 8459 of the New Civil Code,
the substitution should be deemed as not written.

The contentions of petitioner are untenable. Contrary to his supposition that the Court of Appeals deviated from the
issue posed before it, which was the propriety of the dismissal of the complaint on the ground of prematurity of
cause of action, there was no such deviation. The Court of Appeals found that the private respondent had a cause
of action against the petitioner. The disquisition made on modal institution was, precisely, to stress that the private
respondent had a legally demandable right against the petitioner pursuant to subject Codicil; on which issue the
Court of Appeals ruled in accordance with law.

It is a general rule under the law on succession that successional rights are transmitted from the moment of death of
the decedent10 and compulsory heirs are called to succeed by operation of law. The legitimate children and
descendants, in relation to their legitimate parents, and the widow or widower, are compulsory heirs.11 Thus, the
petitioner, his mother and sisters, as compulsory heirs of the instituted heir, Dr. Jorge Rabadilla, succeeded the
latter by operation of law, without need of further proceedings, and the successional rights were transmitted to them
from the moment of death of the decedent, Dr. Jorge Rabadilla.

Under Article 776 of the New Civil Code, inheritance includes all the property, rights and obligations of a person, not
extinguished by his death. Conformably, whatever rights Dr. Jorge Rabadilla had by virtue of subject Codicil were
transmitted to his forced heirs, at the time of his death. And since obligations not extinguished by death also form
part of the estate of the decedent; corollarily, the obligations imposed by the Codicil on the deceased Dr. Jorge
Rabadilla, were likewise transmitted to his compulsory heirs upon his death.

In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge Rabadilla, subject to the condition that
the usufruct thereof would be delivered to the herein private respondent every year. Upon the death of Dr. Jorge
Rabadilla, his compulsory heirs succeeded to his rights and title over the said property, and they also assumed his
(decedent's) obligation to deliver the fruits of the lot involved to herein private respondent. Such obligation of the
instituted heir reciprocally corresponds to the right of private respondent over the usufruct, the fulfillment or
performance of which is now being demanded by the latter through the institution of the case at bar. Therefore,
private respondent has a cause of action against petitioner and the trial court erred in dismissing the complaint
below.

Petitioner also theorizes that Article 882 of the New Civil Code on modal institutions is not applicable because what
the testatrix intended was a substitution - Dr. Jorge Rabadilla was to be substituted by the testatrix's near
descendants should there be noncompliance with the obligation to deliver the piculs of sugar to private respondent.

Again, the contention is without merit.

Substitution is the designation by the testator of a person or persons to take the place of the heir or heirs first
instituted. Under substitutions in general, the testator may either (1) provide for the designation of another heir to
whom the property shall pass in case the original heir should die before him/her, renounce the inheritance or be
incapacitated to inherit, as in a simple substitution,12 or (2) leave his/her property to one person with the express
charge that it be transmitted subsequently to another or others, as in a fideicommissary substitution.13 The Codicil
sued upon contemplates neither of the two.
In simple substitutions, the second heir takes the inheritance in default of the first heir by reason of incapacity,
predecease or renunciation.14 In the case under consideration, the provisions of subject Codicil do not provide that
should Dr. Jorge Rabadilla default due to predecease, incapacity or renunciation, the testatrix's near descendants
would substitute him. What the Codicil provides is that, should Dr. Jorge Rabadilla or his heirs not fulfill the
conditions imposed in the Codicil, the property referred to shall be seized and turned over to the testatrix's near
descendants.

Neither is there a fideicommissary substitution here and on this point, petitioner is correct. In a fideicommissary
substitution, the first heir is strictly mandated to preserve the property and to transmit the same later to the second
heir.15 In the case under consideration, the instituted heir is in fact allowed under the Codicil to alienate the property
provided the negotiation is with the near descendants or the sister of the testatrix. Thus, a very important element of
a fideicommissary substitution is lacking; the obligation clearly imposing upon the first heir the preservation of the
property and its transmission to the second heir. "Without this obligation to preserve clearly imposed by the testator
in his will, there is no fideicommissary substitution."16 Also, the near descendants' right to inherit from the testatrix is
not definite. The property will only pass to them should Dr. Jorge Rabadilla or his heirs not fulfill the obligation to
deliver part of the usufruct to private respondent.

Another important element of a fideicommissary substitution is also missing here. Under Article 863, the second heir
or the fideicommissary to whom the property is transmitted must not be beyond one degree from the first heir or the
fiduciary. A fideicommissary substitution is therefore, void if the first heir is not related by first degree to the second
heir.17 In the case under scrutiny, the near descendants are not at all related to the instituted heir, Dr. Jorge
Rabadilla.

The Court of Appeals erred not in ruling that the institution of Dr. Jorge Rabadilla under subject Codicil is in the
nature of a modal institution and therefore, Article 882 of the New Civil Code is the provision of law in point. Articles
882 and 883 of the New Civil Code provide:

Art. 882. The statement of the object of the institution or the application of the property left by the testator, or the
charge imposed on him, shall not be considered as a condition unless it appears that such was his intention.

That which has been left in this manner may be claimed at once provided that the instituted heir or his heirs give
security for compliance with the wishes of the testator and for the return of anything he or they may receive, together
with its fruits and interests, if he or they should disregard this obligation.

Art. 883. When without the fault of the heir, an institution referred to in the preceding article cannot take effect in the
exact manner stated by the testator, it shall be complied with in a manner most analogous to and in conformity with
his wishes.

The institution of an heir in the manner prescribed in Article 882 is what is known in the law of succession as
an institucion sub modo or a modal institution. In a modal institution, the testator states (1) the object of the
institution, (2) the purpose or application of the property left by the testator, or (3) the charge imposed by the testator
upon the heir.18 A "mode" imposes an obligation upon the heir or legatee but it does not affect the efficacy of his
rights to the succession.19 On the other hand, in a conditional testamentary disposition, the condition must happen or
be fulfilled in order for the heir to be entitled to succeed the testator. The condition suspends but does not obligate;
and the mode obligates but does not suspend.20 To some extent, it is similar to a resolutory condition.21

From the provisions of the Codicil litigated upon, it can be gleaned unerringly that the testatrix intended that subject
property be inherited by Dr. Jorge Rabadilla. It is likewise clearly worded that the testatrix imposed an obligation on
the said instituted heir and his successors-in-interest to deliver one hundred piculs of sugar to the herein private
respondent, Marlena Coscolluela Belleza, during the lifetime of the latter. However, the testatrix did not make Dr.
Jorge Rabadilla's inheritance and the effectivity of his institution as a devisee, dependent on the performance of the
said obligation. It is clear, though, that should the obligation be not complied with, the property shall be turned over
to the testatrix's near descendants. The manner of institution of Dr. Jorge Rabadilla under subject Codicil is
evidently modal in nature because it imposes a charge upon the instituted heir without, however, affecting the
efficacy of such institution.

Then too, since testamentary dispositions are generally acts of liberality, an obligation imposed upon the heir should
not be considered a condition unless it clearly appears from the Will itself that such was the intention of the testator.
In case of doubt, the institution should be considered as modal and not conditional.22

Neither is there tenability in the other contention of petitioner that the private respondent has only a right of usufruct
but not the right to seize the property itself from the instituted heir because the right to seize was expressly limited to
violations by the buyer, lessee or mortgagee.

In the interpretation of Wills, when an uncertainty arises on the face of the Will, as to the application of any of its
provisions, the testator's intention is to be ascertained from the words of the Will, taking into consideration the
circumstances under which it was made.23 Such construction as will sustain and uphold the Will in all its parts must
be adopted.24
Subject Codicil provides that the instituted heir is under obligation to deliver One Hundred (100) piculs of sugar
yearly to Marlena Belleza Coscuella. Such obligation is imposed on the instituted heir, Dr. Jorge Rabadilla, his heirs,
and their buyer, lessee, or mortgagee should they sell, lease, mortgage or otherwise negotiate the property
involved. The Codicil further provides that in the event that the obligation to deliver the sugar is not respected,
Marlena Belleza Coscuella shall seize the property and turn it over to the testatrix's near descendants. The non-
performance of the said obligation is thus with the sanction of seizure of the property and reversion thereof to the
testatrix's near descendants. Since the said obligation is clearly imposed by the testatrix, not only on the instituted
heir but also on his successors-in-interest, the sanction imposed by the testatrix in case of non-fulfillment of said
obligation should equally apply to the instituted heir and his successors-in-interest.

Similarly unsustainable is petitioner's submission that by virtue of the amicable settlement, the said obligation
imposed by the Codicil has been assumed by the lessee, and whatever obligation petitioner had become the
obligation of the lessee; that petitioner is deemed to have made a substantial and constructive compliance of his
obligation through the consummated settlement between the lessee and the private respondent, and having
consummated a settlement with the petitioner, the recourse of the private respondent is the fulfillment of the
obligation under the amicable settlement and not the seizure of subject property.

Suffice it to state that a Will is a personal, solemn, revocable and free act by which a person disposes of his
property, to take effect after his death.25 Since the Will expresses the manner in which a person intends how his
properties be disposed, the wishes and desires of the testator must be strictly followed. Thus, a Will cannot be the
subject of a compromise agreement which would thereby defeat the very purpose of making a Will.

WHEREFORE, the petition is hereby DISMISSED and the decision of the Court of Appeals, dated December 23,
1993, in CA-G.R. No. CV-35555 AFFIRMED. No pronouncement as to costs

SO ORDERED.

4. G.R. No. 92436 July 26, 1991

MARIA VDA. DE REYES, EFREN REYES, ELVIRA REYES-TIMBOL, ERLINDA REYES-VALERIO, ERNESTO
REYES, ELIZABETH REYES, ALEX, RAFAEL II, EMELINA and EVELYN, all surnamed REYES, represented by
their mother, MARIA VDA. DE REYES, petitioners,
vs.
THE COURT OF APPEALS AND SPOUSES DALMACIO GARDIOLA and ROSARIO MARTILLANO respondents.

De Lara, De Lunas & Rosales for petitioners.

Santos, Pilapil & Associates for private respondents.

DAVIDE, JR., J.:

Assailed before Us in this appeal by certiorari under Rule 45 of the Rules of Court is the decision of the respondent
Court of Appeals in C.A.-G.R. CV No. 11934, promulgated on 20 October 1989,1 reversing the decision of 1 October
1986 of Branch 21 (Imus, Cavite) of the Regional Trial Court of the Fourth Judicial Region in Civil Case No. RTC-
BCV-83-17 entitled Maria vda. de Reyes, et al. vs. Spouses Dalmacio Gardiola and Rosario Martillano, and
Spouses Ricardo M. Gardiola and Emelita Gardiola,2 and the resolution of 1 March 1990 denying the petitioner's
motion for reconsideration.

As culled from both decisions and the pleadings of the parties, the following facts have been preponderantly
established:

During his lifetime, one Gavino Reyes owned a parcel of land of approximately 70 hectares, more or less, located at
Sangayad, Ulong-Tubig, Carmona, Cavite. He sought to bring said land under the operation of the Torrens System
of registration of property. Unfortunately, he died in 1921 without the title having been issued to him. The application
was prosecuted by his son, Marcelo Reyes, who was the administrator of his property.

In 1936 the above property was surveyed and subdivided by Gavino's heirs (Exh. "6"). In the subdivision plan, each
resultant lot was earmarked, indicated for and assigned to a specific heir. It appears therein that two lots, one of
which is Lot No. I A-14 (Exh. "6-A"), were allotted to Rafael Reyes, Sr., one of Gavino's children. Per testimony of
Juan Poblete, the children thereafter secured tax declarations for their respective shares.

In 1941, or about twenty (20) years after the death of Gavino, the original certificate of title for the whole property —
OCT No. 255 — was issued. It was, however, kept by Juan Poblete, son-in-law of Marcelo Reyes, who was by then
already deceased. The heirs of Gavino were not aware of this fact.
On 3 December 1943, Rafael Reyes, Sr. sold a parcel of land with an area of 23,431 square meters, more or less,
to private respondent Dalmacio Gardiola (Exh. "5"). According to the vendee, this parcel corresponds to Lot No. 1-A-
14 of the subdivision plan aforestated. The deed of sale, however, did not specifically mention Lot No. 1-A-14. The
vendee immediately took possession of the property and started paying the land taxes therein.

In 1945 or thereabouts, Juan Poblete "revalidated" the original Certificate of Title. As reconstituted, the new title
is OCT (0-4358) RO-255 (Exhs. "4" to "4-A").

On 21 October 1967, when the heirs of Gavino Reyes executed a Deed of Extrajudicial Settlement of Estate (Exh.
"D") based on the aforestated subdivision plan (Exh. "6"), the lot that was intended for Rafael Reyes, Sr., who was
already deceased, was instead adjudicated to his only son and heir, Rafael Reyes, Jr. (the predecessor-in-interest
of the petitioners herein). Private respondent Rosario Martillano signed the deed in representation of her mother,
Marta Reyes, one of the children of Gavino Reyes.

As a result of the Extrajudicial Settlement, OCT RO-255 was cancelled and in lieu thereof, several transfer
certificates of title covering the subdivided lots were issued in the names of the respective adjudicatees. One of
them is TCT No. 27257 in the name of Rafael Reyes, Jr. covering Lot No. 1-A-14. The Transfer Certificates of Title
were, however, kept by one Candido Hebron. On 10 January 1969, some of the heirs of Gavino Reyes filed a case
of Annulment of Partition and Recovery of Possession before the Court of First Instance of Cavite City, which was
docketed therein as Civil Case No. 1267. One of the defendants in said case is herein private respondent Rosario
Martillano. The case was dismissed on 18 September 1969, but Candido Hebron was ordered by the trial court to
deliver to the heirs concerned all the transfer certificates of title in his possession.3

After obtaining the Transfer Certificate of Title for Lot No. 1-A-14 from Hebron, pursuant to the aforesaid order in
Civil Case No. 1267, petitioners herein, as successors-in-interest of Rafael Reyes, Jr., filed on 14 March 1983 with
the Regional Trial Court the above-mentioned Civil Case No. RTC-BCV-83-17 against private respondents
(defendants therein) for recovery of possession or, in the alternative, for indemnification, accounting and damages.
They allege therein that after "having definitely discovered that they are the lawful owners of the property," (Lot No.
1-A-14), they, "including Rafael Reyes, Jr., during his lifetime, made repeated demands to (sic) defendants to
surrender the possession of and vacate the parcel of land belonging to the former, but defendants refused to vacate
and surrender the possession of the said land to herein plaintiffs;" the last of the demands was allegedly made on 8
October 1982. They further allege that they have been deprived by said defendants of the rightful possession and
enjoyment of the property since September 1969 — which coincides with the date of the order in Civil Case No.
1267.4

In their answer, private respondents deny the material averments in the complaint and assert that they are the
owners of the lot in question, having bought the same from Rafael Reyes, Sr., that the issuance of TCT No. 27257 is
null and void, for such sale was known to Rafael Reyes, Jr.; that they have been in possession of the property and
have been paying the land taxes thereon; and that petitioners are barred by prescription and/or laches.5

Petitioners amended their complaint on 21 March 1985 to implead as additional defendants the spouses Ricardo M.
Gardiola and Emerita Gardiola, on the basis of the following claims:

xxx xxx xxx

9. Meanwhile, during the presentation of the defendants spouses Dalmacio Gardiola and Rosario
Martillano's evidence the former testified that they mortgaged the subject land to the Rural Bank of Carmona
Inc. For their failure to redeem the mortgage the same was foreclosed by the bank.

10. However, within the period of one(1) year from such foreclosure the questioned land was redeemed by
the original defendants' son in the person of Ricardo M. Gardiola, who was knowledgeable/aware of the
pendency of the above captioned case. The corresponding redemption was effected through a deed of
conveyance, . . . .6

The prayer of the amended complaint now contains the alternative relief for indemnification for the reasonable value
of the property "in the event restitution of the property is no longer possible."7

In its decision of 1 October 1986,8 the trial court concluded that petitioners' "title over the subject property is valid
and regular and thus they are entitled to its possession and enjoyment," and accordingly decided thus:

WHEREFORE, the defendants or anyone acting for and in their behalf are hereby ordered to relinguish
possession or vacate the property in question which is covered by Transfer Certificate of Title No. T-27257
in favor of the plaintiffs.

All other claims and/or counterclaims of the parties relative to this case are dismissed for lack of proper
substantiation.

The conclusion of the trial court is based on its finding that (a) there is no evidence that the heirs of Gavino Reyes
entered into any written agreement of partition in 1936 based on the subdivision plan; (b) there is no identity
between Lot No. 1-14-A and the land sold to private respondents by Rafael Reyes, Sr., or otherwise stated, the
description of the latter as indicated in the deed of sale (Exh. "5") does not tally with the description of the former;
and (c) moreover:

Granting, arguendo, that the sale made by Rafael Reyes, Sr. to the defendants covered the land in question
— Lot No. 1-A-14 — and that Transfer Certificate of Title No. T-27257 was obtained by means of fraud, the
claim of the defendants over the said property is already barred. Action for reconveyance prescribes in four
(4) years from the discovery thereof. If there was fraud, the defendant could have discovered the same
in 1967 when the partition was made in as much as defendant Rosario Martillano was a party to that
partition. Let us grant further that the issuance of Transfer Certificate of Title No. T-27257 to Rafael Reyes,
Jr. created a constructive or implied trust in favor of the defendants, again, the claim of the defendants is
also barred. From 1967 to the filing of their answer (let us consider this as an action for reconveyance) to
this case sometime in July, 1983, a period of about sixteen (16) years had already elapsed. Prescriptibility of
an action for reconveyance based on implied or constructive trust is ten (10) years.

The trial court further held that the continued possession by private respondents, which it found to have started in
1943, did not ripen into ownership because at that time, the property was already registered, hence it cannot be
acquired by prescription or adverse possession.9

Private respondents appealed the said decision to the Court of Appeals which docketed the appeal as C.A.-G.R. CV
No. 11934. In its decision of 20 October 1989, the respondent Court of Appeals formulated the issues before it as
follows:

Whether or not the lower court erred in declaring that the property of the late Gavino Reyes consisting of 70
hectares was partitioned only in 1967 by his grandchildren after discovery of the existence of OCT No. 255
and that no actual partition was made in 1936 by the decedent's children.

II

Whether or not the lower court erred in concluding that the parcel of land sold by the appellees'
predecessor-in-interest, the late Rafael Reyes, Sr. to appellant Dalmacio Gardiola was not the same parcel
of land under litigation.10

and resolved such issues, thus:

On the first issue, We believe that the lower court committed a reversible error when it declared that the
landed estate of the late Gavino Reyes was partitioned only in 1967 by the latter's grandchildren; and that no
actual partition was made in 1936 by the decedents' (sic) children. The evidence on record bears out the
existence of a subdivision plan (Exh. 6) which was not controverted nor denied by the appellees. In like
manner, the lower court itself recognized the fact that the property of the late Gavino Reyes consisting of 70
hectares was surveyed and subdivided in 1936 as evidenced by the said subdivision plan (Exh. 6). With the
existence of a subdivision plan, and from the uncontroverted testimony of appellants' witness, We can only
infer that at least an oral partition, which under the law is valid and binding, was entered into by the heirs of
Gavino Reyes regarding his properties in 1936. As held in a long line of decisions, extrajudicial partition can
be done orally, and the same would be valid if freely entered into (Belen v. Belen, 49 O.G. 997, March
1953). The reason for this is because a partition is not exactly a conveyance for the reason that it does not
involve transfer of property from one to the other but rather a confirmation by them of their ownership of the
property. It must also be remembered that when Gavino Reyes died on March 7, 1921, his property was
admittedly not yet covered by a torrens title, as it was only in 1941 when said properties were brought into
the application of the torrens system. With this factual milieu, it can also be concluded that his heirs have
indeed settled, subdivided and partitioned Gavino Reyes' landed estate without formal requirements of Rule
74 of the Rules of Court when a parcel of land is covered by a torrens title. As told earlier, the Subdivision
Plan (Exh. 6) undisputedly showed on its face that the 70 hectares of land belonging to the late Gavino
Reyes was subdivided and partitioned by his children in 1936. On this score, the partition of the said
property even without the formal requirements under the rule is valid as held in the case of Hernandez vs.
Andal, 78 Phil. 176, which states:

xxx xxx xxx

Moreover, in the Deed of Sale dated December 3, 1943 (Exh. 5) executed by Rafael Reyes, Sr. in favor of
appellant Dalmacio Gardiola, the land sold therein was described as "na aking minana sa aking ama." This
alone would confirm the contention of the appellants that there was already an actual partition (at least an
oral partition) of the property of Gavino Reyes in 1936. As aforestated, the presence of the Subdivision Plan
(Exh. 6) is an (sic) evidence of such partition which appellees failed to controvert not to mention the fact that
the lower court itself recognized the existence of said plan, in the same manner that it concluded that the
property was already surveyed and actually subdivided in 1936 (page 3, pars. 3 and 4, Decision).
 From the foregoing considerations it is evident that the Deed of Extrajudicial Settlement of Estate (Exh. D)
executed by the grandchildren of the late Gavino Reyes in 1967 is of no moment considering that the
property subject of the partition in the deed was already partitioned in 1936 by the children of Gavino Reyes.
It is for this reason that the lots supposedly inherited by the grandchildren named in the deed of 1967 were
the same lots inherited and given to their respective fathers or mothers in 1936 while the land was not yet
covered by the torrens system. Hence, in the case of Rafael Reyes, Sr., the land inherited by him was two
(2) parcels of land known as Lots Nos. 1-A-3 and 1-A-14 described in the Subdivision plan of 1936 (Exh. 6),
which were the same parcels of land allegedly inherited by Rafael Reyes, Jr. from Gavino Reyes in
representation of his father, pursuant to the Deed of Extrajudicial Settlement of Estate for which TCT No.
27257 was issued.

Coming to the second issue, the lower court likewise erred when it concluded that the parcel of land sold by
appellee's predecessor-in-interest to appellant Dalmacio Gardiola was not the same parcel of land under
litigation. It must be pointed out that the identity of the parcel of land which the appellees sought to recover
from the appellants was never an issue in the lower court, because the litigants had already conceded that
the parcel identified as Lot No. 1-A-14 in TCT No. 27257 was the same parcel of land identified as Cadastral
Lot No. 1228 and 1235 described in Tax Declaration No. 4766. Despite this admission, however, the lower
court declared that "as described in the deed of sale (Exh. 5), the land's description does not tally with the
description of Lot No. 1-A-14, the land in litigation." As correctly pointed out by the appellants however, the
discrepancy in the description was due to the fact that the description of the land sold in the Deed of Sale
was expressed in layman's language whereas the description of Lot No. 1-A-14 in TCT No. 27257 was done
in technical terms. This was so because, when Rafael Reyes, Sr. sold the property in dispute to appellant
Dalmacio Gardiola on December 3, 1943, the only evidence of title to the land then available in so far as
Rafael Reyes, Sr. was concerned was Tax Declaration No. 4766, because at that time, neither he nor
appellant Dalmacio Gardiola was aware of the existence of OCT No. 255 as in fact TCT No. 27257 was
issued only in 1967. Consequently, the land subject of the Deed of Sale was described by the vendor in the
manner as described in Tax Declaration No. 4766. However, the description of the land appearing in the
Deed of Sale (Exh. 5) was exactly the same land identified as Lot No. 1-A-14 in the Subdivision Plan (Exh.
6) of 1936. Accordingly, the assumption of the lower court that "if the land sold by Rafael Reyes, Sr. was the
one now in litigation, he could have easily indicated Lot No. 1-A-14" is bereft of merit under the foregoing
circumstances. Interestingly enough, the appellees never denied the identity of the subject lot during the
hearing at the lower court. What they were denying only was the sale made by Rafael Reyes, Sr. to
appellant Dalmacio Gardiola which does not hold true because of the document denominated as Deed of
Sale (Exh. 5).11

It concluded that the trial court erred when it ordered the private respondents or anyone acting in their behalf to
relinquish the possession or vacate the property in question. It thus decreed:

WHEREFORE, the appealed Judgment is ordered REVERSED and SET ASIDE and a new one is rendered
declaring appellants to be the lawful owners of the lot identified as Lot No. 1-A-14 in TCT No. 27257. No
costs.12

Their motion to reconsider the above decision having been denied by the Court of Appeals in its resolution of 1
March 1990,13 petitioners filed the instant petition on 6 April 1990 after having obtained an extension of time within
which to file it.

The petition does not implead original new defendants Ricardo Gardiola and Emelita Gardiola.

As ground for their plea for the review of the decision of the Court of Appeals, petitioners allege that said court has
decided questions of substance in a way not in accord with law or applicable jurisprudence when it held that "the
deed of extrajudicial settlement of estate (Exh. "D") executed by the grandchildren of the late Gavino Reyes in 1967
is of no moment considering that the property subject of the partition was already partitioned in 1936 by the children
of Gavino Reyes." In support thereof, they claim that (a) TCT No. 27257 covers two parcels of land; the lot
described in paragraph 1 thereof is owned by petitioners and that ownership was confirmed by this Court in G.R.
No. 79882, hence, the Court of Appeals should have affirmed the decision of the trial court; (b) private respondent
Rosario Martillano was a party to the extrajudicial settlement of estate which was duly registered in the Registry of
Deeds in 1967; said registration is the operative act that gives validity to the transfer or creates a lien upon the land
and also constituted constructive notice to the whole world. The court cannot disregard the binding effect thereof
Finally, the pronouncement of the Court of Appeals that private respondents are the lawful owners of the lot in
question "militates against the indefeasible and incontrovertible character of the torrens title,"14 and allows
reconveyance which is not tenable since the action therefor had already prescribed, as stated in the decision of the
trial court.

In the resolution of 7 May 1990, We required respondents to comment on the petition. But even before it could do
so, petitioner, without obtaining prior leave of the Court, filed on 29 May 1990 a so-called Supplemental Arguments
in Support of The Petition For Review On certiorari15 wherein they assert, among others, that: (a) the findings of facts
of respondent Court are contrary to those of the trial court and appear to be contradicted by the evidence on record
thus calling for the review by this Court;16 (b) it also committed misapprehension of the facts in this case and its
findings are based on speculation, conjecture and surmises; (c) private respondents' attack on petitioners' title is a
collateral attack which is not allowed; even if it is allowed, the same had already prescribed and is now barred.
It was only on 15 June 1990 that private respondents filed their Comment.17 We required petitioners to reply thereto,
which they complied with on 8 August 1990.18 A rejoinder was filed by private respondents on 29 August 1990.

We gave due course to the petition on 19 September 1990 and required the parties to submit simultaneously their
respective memoranda which they complied with.

Attached as Annex "A" to private respondent's Memorandum, which was filed on 10 December 1990, is the
Resolution of this Court (Third Division) of 20 August 1990 in G.R. No. 92811 entitled Spouses Artemio Durumpili
and Angustia Reyes vs. The Court of Appeals and Spouses Dalmacio Gardiola and Rosario Martillano, which also
involves the property of Gavino Reyes, the partition thereof among his children in 1936, and the extrajudicial
settlement in 1967.

In said resolution, this Court held:

. . . The partition made in 1936, although oral, was valid. The requirement in Article 1358 of the Civil Code
that acts which have for their object the creation, transmission, modification or extinguishment of real rights
over immovable property must appear in a public instrument is only for convenience and not for validity or
enforceability as between the parties themselves. [Thunga Hui vs. Que Bentec, 2 Phil. 561 (1903)] The
subsequent execution by the heirs of the Extrajudicial Partition in 1967 did not alter the oral partition as in
fact the share pertaining to Angustia Reyes corresponded to that previously assigned to her father.
Considering that Angel Reyes sold this property to Basilio de Ocampo who, in turn, sold the same to
respondents, we agree with the Court of Appeals that the latter lawfully acquired the property and are
entitled to ownership and possession thereof.

In answer to the charge of private respondents that petitioners deliberately failed to cite this resolution, the latter, in
their reply-memorandum dated 15 March 1991 and filed three days thereafter, allege:

Our failure to mention the aforementioned resolution before this Honorable Court is not deliberate nor with
malice aforethought. The reason is that to date, we have not yet received any resolution to our Motion For
Leave of Court To Refer Case To The Honorable Supreme Court En Banc. Moreover, we honestly feel that
the resolution that will be issued therein will not be applicable to the case before this Honorable Court's
Second Division. It should be mentioned that in the Durumpili case before the Third Division, the Court of
Appeals relied on the alleged confirmation of the sale executed by Angustia Reyes, while in the Reyes case
before this Second Division, there was no sale that was executed by the petitioners Reyes' predecessor-in-
interest, Rafael Reyes, Jr.

The foregoing claim is not supported by the rollo of G.R. No. 92811, which reveals the following: (a) On 18
September 1990, petitioners therein, represented by De Lara, De Lunas and Rosales, who are the lawyers of
petitioners in the instant case, filed a motion for the reconsideration of the resolution of 20 August 1990.19 b) This
motion was denied in the resolution of 1 October 1990.20 c) On 17 November 1990, petitioners therein, through the
same lawyers, filed a Motion For Leave Of Court To Refer Case To The Honorable Supreme Court En Banc And/Or
Motion For Reconsideration21 wherein they specifically admit that said case and the instant petition have "identity
and/or similarity of the parties, the facts, the issues raised," even going to the extent of "graphically" illustrating
where such similarities lie.22 d) This motion was denied in the resolution of 28 November 1990. Copy thereof was
furnished the attorneys for petitioners.23 e) Entry of judgment had already been made therein and a copy thereof was
sent to petitioner's counsel per Letter of Transmittal of the Deputy Court and Chief of the Judicial Records Office
dated 20 December 1990.

What comes out prominently from the disquisitions of the parties is this simple issue: whether or not respondent
Court of Appeals committed any reversible error in setting aside the decision of the trial court.

We find none. The reversal of the trial court's decision is inevitable and unavoidable because the legal and factual
conclusions made by the trial court are unfounded and clearly erroneous. The Court of Appeals was not bound to
agree to such conclusions. The trial court erred in holding that: (a) there was no partition among the children of
Gavino Reyes in 1936 since there is no written evidence in support thereof; yet, it admits that there was a survey
and subdivision of the property and the adjudication of specific subdivision lots to each of the children of Gavino; (b)
the land sold by Rafael Reyes, Sr. to private respondents is not identical to Lot No. 1-A-14, the lot specified for and
adjudicated to Rafael Reyes, Jr. in the partition agreement; and (c) if the land sold by Rafael Reyes, Sr. to private
respondent Dalmacio Gardiola is indeed Lot No. 1-A-14 and that TCT No. T-27257 was obtained through fraud, the
remedy open to the vendee was an action for reconveyance, which should have been brought within four (4) years
from the discovery thereof in 1967 when the Extrajudicial Settlement was executed since private respondent
Rosario Martillano, wife of Dalmacio, was a party thereto.

The Court of Appeals correctly held that the partition made by the children of Gavino Reyes in 1936, although oral,
was valid and binding. There is no law that requires partition among heirs to be in writing to be valid.24 In Hernandez
vs. Andal, supra, this Court, interpreting Section 1 of Rule 74 of the Rules of Court, held that the requirement that a
partition be put in a public document and registered has for its purpose the protection of creditors and at the same
time the protection of the heirs themselves against tardy claims. The object of registration is to serve as constructive
notice to others. It follows then that the intrinsic validity of partition not executed with the prescribed formalities does
not come into play when there are no creditors or the rights of creditors are not affected. Where no such rights are
involved, it is competent for the heirs of an estate to enter into an agreement for distribution in a manner and upon a
plan different from those provided by law. There is nothing in said section from which it can be inferred that a writing
or other formality is an essential requisite to the validity of the partition. Accordingly, an oral partition is valid.

Barcelona, et al. vs. Barcelona, et al., supra, provides the reason why oral partition is valid and why it is not covered
by the Statute of Frauds: partition among heirs or renunciation of an inheritance by some of them is not exactly a
conveyance of real property for the reason that it does not involve transfer of property from one to the other, but
rather a confirmation or ratification of title or right of property by the heir renouncing in favor of another heir
accepting and receiving the inheritance.

Additionally, the validity of such oral partition in 1936 has been expressly sustained by this Court in the Resolution of
20 August 1990 in G.R. No. 92811.25

But even if We are to assume arguendo that the oral partition executed in 1936 was not valid for some reason or
another, We would still arrive at the same conclusion for upon the death of Gavino Reyes in 1921, his heirs
automatically became co-owners of his 70-hectare parcel of land. The rights to the succession are transmitted from
the moment of death of the decedent.26 The estate of the decedent would then be held in co-ownership by the heirs.
The co-heir or co-owner may validly dispose of his share or interest in the property subject to the condition that the
portion disposed of is eventually allotted to him in the division upon termination of the co-ownership. Article 493 of
the Civil Code provides:

Each co-owner shall have the full ownership of his part and the fruits and benefits pertaining thereto, and he
may even substitute another person in its enjoyment, except when personal rights are involved. But the
effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which
may be allotted to him in the division upon the termination of the co-ownership.

In Ramirez vs. Bautista,27 this Court held that every co-heir has the absolute ownership of his share in the
community property and may alienate, assign, or mortgage the same, except as to purely personal rights, but the
effect of any such transfer is limited to the portion which may be awarded to him upon the partition of the property.

In the case at bar, the lot sold by Rafael Reyes, Sr. to private respondent Dalmacio Gardiola is his share in the
estate of his deceased father, Gavino Reyes. It is the same property which was eventually adjudicated to his son
and heir, Rafael Reyes, Jr., represented in turn by his heirs-petitioners herein-in the extrajudicial settlement of 1967.

In respect to the issue as to whether the property sold by Rafael Reyes, Sr. is identical to Lot No. 1-14-A, the trial
court based its conclusion that it is not, on his observation that the description of the former does not tally with that
of the latter, moreover, if Rafael did intend to sell Lot No. 1-14-A, he should have specifically stated it in the deed
since at that time, the property had already been partitioned and said lot was adjudicated to him. In addition to the
contrary findings and conclusion of the respondent Court on this issue to which We fully agree, it is to be stressed
that Rafael had this property declared for taxation purposes and the tax declaration issued was made the basis for
the description of the property in the deed of sale. Upon the execution of the deed of sale, vendee — herein private
respondent Dalmacio Gardiola — immediately took possession of the property. This is the very same property which
is the subject matter of this case and which petitioners seek to recover from the private respondents. The main
evidence adduced for their claim of ownership and possession over it is TCT No. T-27257, the certificate of title
covering Lot No. 1-14-A. They therefore admit and concede that the property claimed by private respondent, which
was acquired by sale from Rafael Reyes, Sr., is none other than Lot No. 1-14-A.

The participation of private respondent Rosario Gardiola in the Extrajudicial Settlement did not place private
respondents in estoppel to question the issuance of TCT No. T-27257. As correctly maintained by private
respondents, she signed it in representation of her deceased mother, Marta Reyes, a daughter and an heir of
Gavino Reyes. She did not sign for and in behalf of her husband, Dalmacio Gardiola, vendee of the share of Rafael
Reyes, Sr.

The same did not operate to divest the vendee of the share of Rafael Reyes, Sr. in the estate of Gavino. Petitioners,
1âwphi1

as mere successors-in-interest of Rafael Reyes, Jr., son of Rafael Reyes, Sr., can only acquire that which Rafael,
Jr. could transmit to them upon his death. The latter never became the owner of Lot No. 1-A-14 because it was sold
by his father in 1943. The issuance of TCT No. T-27257 in the name of Rafael Reyes, Jr., in so far as Lot No. 1-14-
A is concerned, was clearly erroneous because he never became its owner. An extrajudicial settlement does not
create a light in favor of an heir. As this Court stated in the Barcelona case,28 it is but a confirmation or ratification of
title or right to property. Thus, since he never had any title or right to Lot No. 1-14-A, the mere execution of the
settlement did not improve his condition, and the subsequent registration of the deed did not create any right or vest
any title over the property in favor of the petitioners as heirs of Rafael Reyes, Jr. The latter cannot give them what
he never had before. Nemo dare potest quod non habet.

There is one more point that should be stressed here. Petitioners' immediate predecessor-in-interest, Rafael Reyes,
Jr., never took any action against private respondents from the time his father sold the lot to the latter. Neither did
petitioners bring any action to recover from private respondents the ownership and possession of the lot from the
time Rafael Reyes, Jr. died. As categorically admitted by petitioners in their complaint and amended complaint, it
was only in or about September 1969 when, after the delivery of TCT No. 27257 by Candido Hebron to them, that
they definitely discovered that they were the owners of the property in question. And yet, despite full knowledge that
private respondents were in actual physical possession of the property, it was only about thirteen and one-half (13
1/2) years later that they decided to file an action for recovery of possession. As stated earlier, the original complaint
was filed in the trial court on 14 March 1983. There was then absolutely no basis for the trial court to place the
burden on private respondents to bring an action for reconveyance within four (4) years from their discovery of the
issuance of the transfer certificate of title in the name of Rafael Reyes, Jr.

The instant petition then is without merit.

WHEREFORE, judgment is hereby rendered DENYING the petition with costs against petitioners.

SO ORDERED.

5. G.R. No. 126950 July 2, 1999

NELSON NUFABLE, SILMOR NUFABLE and AQUILINA NUFABLE, petitioners,

vs.
GENEROSA NUFABLE, VILFOR NUFABLE, MARCELO NUFABLE, and the COURT OF APPEALS,respondents.

GONZAGA-REYES, J.:

This petition for review on certiorari seeks to reverse and set aside the Decision dated November 25, 1995 of the
Fifth Division1 of the Court of Appeals for allegedly being contrary to law.

The following facts as found by the Court of Appeals are undisputed:

Edras Nufable owned at Poblacion, Manjuyod, Negros Oriental, consisting of 948 square meters,
more or less. He died on August 9, 1965 and was survived by his children, namely: Angel Custodio,
Generosa, Vilfor and Marcelo, all surnamed Nufable. Upon petition for probate filed by said heirs and
after due publication and hearing, the then Court of First Instance of Negros Oriental (Branch II)
issued an Order dated March 30, 1966 admitting to probate the last will and testament executed by
the deceased Edras Nufable (Exhs. B, C and C-1).

On June 6, 1966 the same court issued an Order approving the Settlement of Estate submitted by
the heirs of the late ESdras Nufable, portions of which read:

KNOW ALL MEN BY THESE PRESENTS:

We, ANGEL CUSTODIO NUFABLE, GENEROSA NUFABLE, VILFOR NUFABLE

and MARCELO NUFABLE, all of legal ages (sic), Filipinos, and with residence and
postal address at Manjuyod, Negros Oriental, Philippines,

— HEREBY DECLARE AND MAKE MANIFEST —

1. That on August 9, 1965, Rev. Fr. Esdras Nufable died leaving (a) Last Will and
Testament (marked Exh. G) disposing (of) his properties or estate in favor of his four
legitimate children, namely: Angel Custodio Nufable, Generosa Nufable, Vilfor
Nufable and Marcelo Nufable;

2. That on March 30, 1966 the said Last Will and Testament was probated by the
Honorable Court, Court of First Instance of Negros Oriental, and is embodied in the
same order appointing an Administratrix, Generosa Nufable, but to qualify only if she
put up a necessary bond of P1,000.00;

3. That herein legitimate children prefer not to appoint an Administratrix, as agreed

upon (by) all the heirs, because they have no objection as to the manner of
disposition of their share made by the testator, the expenses of the proceedings and
that they have already taken possession of their respective shares in accordance
with the will;

4. That the herein heirs agreed, as they hereby agree to settle the estate in
accordance with the terms and condition of the will in the following manner, to wit:
 a) That the parcel of land situated in Poblacion Manjuyod, Negros Oriental remains
undivided for community ownership but respecting conditions imposed therein (sic) in
the will;

xxx xxx xxx

(Exhs. "E" and "E-1")

Two months earlier, or on March 15, 1966, spouses Angel Custodio and Aquilina Nufable mortgaged
the entire property located at Manjuyod to the Development Bank of the Philippines [DBP] (Pre-trial
Order, dated January 7, 1992, p. 103, Original Records). Said mortgagors became delinquent for
which reason the mortgaged property was foreclosed by DBP on February 26, 1973 (id.).

On January 11, 1980, Nelson Nufable, the son of Angel Custodio Nufable (who died on August 29,
1978 [TSN, Testimony of Nelson Nufable, Hearing of August 18, 1992, p. 17]), purchased said
property from DBP (Exh. "1").

Generosa, Vilfor and Marcelo, all surnamed Nufable filed with the lower court a complaint dated July
25, 1985 "To Annul Fraudulent Transactions, to Quiet Title and To Recover Damages' against
Nelson Nufable, and wife, Silmor Nufable and his mother Aquilina Nufable. Plaintiffs pray:

WHEREFORE, plaintiffs pray this Honorable Court that after trial judgment be
rendered ordering:

(a) That the said Deed of Sale (Annex "C") executed by the Development Bank of the
Philippines in favor of the defendants be declared null and void as far as the three
fourths (3/4) rights which belongs (sic) to the plaintiffs are concerned;

(b) That the said three fourths (3/4) rights over the above parcel in question be
declared as belonging to the plaintiffs at one fourth right to each of them;

(c) To order the defendants to pay jointly and severally to the plaintiffs by way of
actual and moral damages the amount of P10,000.00 and another P5,000.00 as
Attorney's fees, and to pay the costs.

(d) Plus any other amount which this Court may deem just and equitable. (p. 6,
Original Records)

In their Answer, defendants contend:

4. Paragraph 4 is denied, the truth being that the late Angel Nufable was the
exclusive owner of said property, that as such owner he mortgaged the same to the
Development Bank of the Philippines on March 15, 1966, that said mortgage was
foreclosed and the DBP became the successful bidder at the auction sale, that
ownership was consolidated in the name of the DBP, and that defendant Nelson
Nufable bought said property from the DBP thereafter. During this period, the
plaintiffs never questioned the transactions which were public, never filed any third
party claim nor attempted to redeem said property as redemptioners, and that said
Deed of Sale, Annex "B" to the complaint, is fictitious, not being supported by any
consideration; (pp. 20-21, id.)

The Deed of Sale (Annex "B"), referred to by the parties is a notarized Deed of Sale, dated July 12,
1966 (marked as Exhibit "H") by virtue of which, spouses Angel and Aquilina Nufable, as vendors,
sold 3/4 portion of the subject property to herein plaintiffs for and in consideration of P1,000.00 (Exh.
"5").2

On November 29, 1995, the Court of Appeals rendered judgment, the dispositive portion3 of which reads:

WHEREFORE, the appealed decision of the lower court is REVERSED and SET ASIDE. A new
judgment is hereby entered declaring plaintiffs-appellants as the rightful co-owners of the subject
property and entitled to possession of 3/4 southern portion thereof; and defendant-appellee Nelson
Nufable to 1/4 portion.

No award on damages.

No costs.
Defendants-appellees' Motion for Reconsideration was denied for lack of merit in the Resolution of the Court of
Appeals4 dated October 2, 1996.

Hence, the present petition. Petitioners raise the following grounds for the petition:

1. Honorable Court of Appeals erred in considering as controlling the probate of the Last Will and
Testament of Esdras Nufable, the probate thereof not being an issue in this case;

2. The Honorable Court of Appeals erred in not considering the fact that the Development Bank of
the Philippines became absolute, exclusive, legal and rightful owner of the land in question, from
whom petitioner Nelson Nufable acquired the same by purchase and that, therefore, no award can
be made in favor of private respondent unless and until the Development Bank of the Philippines'
title thereto is first declared null and void by the court.

The Court of Appeals, in its decision, stated that the trial court failed to take into consideration the probated will of
the late Esdras Nufable bequeathing the subject property to all his four children.5 In the present petition, petitioner
present the issue of whether or not the Last Will and Testament of Esdras Nufable and its subsequent probate are
pertinent and material to the question of the right of ownership of petitioner Nelson Nufable who purchased the land
in question from, and as acquired property of, the Development Bank of the Philippines (DBP, for short). They
contend that the probate of the Last Will Testament and of Esdras Nufable did not determine the ownership of the
land in question as against third parties. 1âwphi1.nêt

As a general rule, courts in probate proceedings are limited only to passing upon the extrinsic validity of the will
sought to be probated, the due execution thereof, the testator's testamentary capacity and the compliance with the
requisites or solemnities prescribes by law. Said court at this stage of the proceedings is not called to rule on the
rule on the intrinsic validity or efficacy of the will.6 The question of the intrinsic validity of a will normally comes only
after the court has declared that the will has been duly authenticated.

The records show that upon petition for probate filed by the heirs of the late Esdras Nufable, an Order dated March
30, 1966 was issued by then Court of First Instance of Negros Oriental, Branch II, admitting to probate the last will
and testament executed by the decedent.7 Thereafter, on June 6, 1966, the same court approved the Settlement of
Estate submitted by the heirs of the late Esdras Nufable wherein they agreed "(T)hat the parcel land situated in
Poblacion Manjuyod, Negros Oriental remains undivided for community ownership but respecting conditions
imposed therein (sic) in the will."8 In paragraph 3 thereof, they stated that "they have no objection as to the manner
of disposition of their share made by the testator, the expenses of the proceeding and that they have already taken
possession of their respective shares in accordance with the will." Verily, it was the heirs of the late Esdras Nufable
who agreed among themselves on the disposition of their shares. The probate court simply approved the agreement
among the heirs which approval was necessary for the validity of any disposition of the decedent's estate.9

It should likewise be noted that the late Esdras Nufable died on August 9, 1965. When the entire property located at
Manjuyod was mortgaged on March 15, 1966 by his son Angel Custodio with DBP, the other heirs of Esdras —
namely: Generosa, Vilfor and Marcelo — had already acquired successional rights over the said property. This is so
because of the principle contained in Article 777 of the Civil Code to the effect that the rights to the succession are
transmitted from the moment of death of the decedent. Accordingly, for the purpose of transmission of rights, it does
not matter whether the Last Will and Testament of the late Esdras Nufable was admitted on March 30, 1966 or
thereafter or that the Settlement of Estate was approved on June 6, 1966 or months later. It is to be noted that the
probated will of the late Esdras Nufable specifically referred to the subject property in stating that "the land situated
in the Poblacion, Manjuyod, Negros Oriental, should not be divided because this must remain in common for them,
but it is necessary to allow anyone of them brothers and sisters to construct a house therein."10 It was therefor the
will of the decedent that the subject property should undivided, although the restriction should not exceed twenty
(20) years pursuant to Article 870 11 of the Civil Code.

Thus, when Angel Nufable and his spouses mortgaged the subject property to DBP on March 15, 1966, they had no
right to mortgage the entire property. Angel's right over the subject property was limited only to 1/4 pro
indivisoshare. As co-owner of the subject property, Angel's right to sell, assign or mortgage is limited to that portion
that may be allotted to him upon termination of the co-ownership. Well-entrenched is the rule that a co-owner can
only alienate his pro indiviso share in the co-owned property. 12

The Court of Appeals did not err in ruling that Angel Custodio Nufable "had no right to mortgage the subject property
in its entirety. His right to encumber said property was limited only to 1/4 pro indiviso share of the property in
question." 13 Article 493 of the Civil Code spells out the rights or co-owners over a co-owned property. Pursuant to
said Article, a co-owner shall have full ownership of his part and of the fruits and benefits pertaining thereto. He has
the right to alienate, assign or mortgage it, and even substitute another person in its enjoyment. As a mere part
owner, he cannot alienate the shares of the other co-owners. The prohibition is premised on the elementary rule that
"no one can give what he does not have." 14

Moreover, respondents stipulated that they were not aware of the mortgage by petitioners of the subject
property. 15This being the case, a co-owner does not lose his part ownership of a co-owned property when his share
is mortgaged by another co-owner without the former's knowledge and consent 16 as in the case at bar. It has
likewise been ruled that the mortgage of the inherited property is not binding against co-heirs who never
benefitted. 17

Furthermore, the Deed of Sale dated June 17, 1966 marked as Exhibit "H" executed by spouses Angel and Aquilina
Nufable in favor of respondents Generosa, Vilfor and Marcelo wherein the former sold, ceded and transferred back
to the latter the 3/4 portion of the subject property bolsters respondents' claim that there was co-ownership.
Petitioner Nelson himself claimed that he was aware of the aforesaid Deed of Sale. 18

Anent the second ground of the petition, petitioners allege that the Development Bank of the Philippines acquired
ownership of the land in question through foreclosure, purchase and consolidation of ownership. Petitioners argue
that if petitioner Nelson Nufable had not bought said land from the DBP, private respondents, in order to acquire
said property, must sue said bank for the recovery thereof, and in so doing, must allege grounds for the annulment
of documents evidencing the bank's ownership thereof. Petitioners contend that since petitioner Nelson Nufable
simply bought the whole land from the bank, they cannot be deprived of the ownership of 3/4 without making any
pronouncement as to the legality or illegality of the bank's ownership of said land. It is argued that there was no
evidence to warrant declaration of nullity of the bank's acquisition of said land; and that neither was there a finding
by the court that the bank illegally acquired the said property.

As adverted to above, when the subject property was mortgaged by Angel Custodio, he had no right to mortgage
the entire property but only with respect to his 1/4 pro indiviso share as the property was subject to the successional
rights of the other heirs of the late Esdras. Moreover, in case of foreclosure; a sale would result in the transmission
of title to the buyer which is feasible only if the seller can be in a position to convey ownership of the things
sold. 19And in one case, 20 it was held that a foreclosure would be ineffective unless the mortgagor has title to the
property to be foreclosed. Therefore, as regards the remaining 3/4 pro indiviso share, the same was held in trust for
the party rightfully entitled thereto, 21 who are the private respondents herein.

Pursuant to Article 1451 of the Civil Code, when land passes by succession to any person and he causes the legal
title to be put in the name of another, a trust is established by implication of law for the benefit of the true owner.
Likewise, under Article 1456 of the same Code, if property is acquired through mistake or fraud, the person
obtaining it is, by force of law, considered a trustee of an implied trust for the benefit of the person from whom the
property comes. In the case of Noel vs. Court of Appeals, 22 this Court held that "a buyer of a parcel of land at a
public auction to satisfy a judgment against a widow acquired only one-half interest on the land corresponding to the
share of the widow and the other half belonging to the heirs of her husband became impressed with a constructive
trust in behalf of said heirs."

Neither does the fact that DBP succeeded in consolidating ownership over the subject property in its name
terminate the existing co-ownership. Registration of property is not a means of acquiring ownership. 23 When the
subject property was sold to and consolidated in the name of DBP, it being the winning bidder in the public auction,
DBP merely held the 3/4 portion in trust for the private respondents. When petitioner Nelson purchased the said
property, he merely stepped into the shoes of DBP and acquired whatever rights and obligations appertain thereto.

This brings us to the issue of whether or not the DBP should have been impleaded as party-defendant in the case at
bar. Petitioners contend that DBP was never impleaded and that due process requires that DBP be impleaded so
that it can defend its sale to petitioner Nelson Nufable; and that it was the duty of private respondents, and not of
petitioner Nelson, to implead the bank and ask for the annulment of documents evidencing the bank's ownership of
the disputed land.

In the Rejoinder to the Reply, private respondents that the non-inclusion of DBP as a "necessary party" was not
questioned by petitioners from the time the Complaint was filed until the case was "finished." It was only after the
adverse decision by the respondent Court of Appeals that petitioners raised the issue.

At the outset, it should be stated petitioners never raised this issue in their Answers and pursuant to Section 2, Rule
9 of the Rules of Court, defenses and objections not pleaded either in a motion to dismiss or in the answer are
deemed waived.

Nonetheless, the rule is that indispensable parties, i.e., parties in interest without whom no final determination can
be had of an action, shall be joined either as plaintiffs or defendants; the inclusion as a party, i.e., persons who are
not indispensable but ought to be parties if complete relief is to be accorded as between those already parties, the
court may, in its discretion, proceed in the action without making such persons parties, and the judgment rendered
therein shall be without prejudice to the rights of such persons. 25 Proper parties, therefore, have been described as
parties whose presence in necessary in order to adjudicate the whole controversy, but whose interests are so far
separable that a final decree can be made in their absence without affecting them. 26 Any claim against a party may
be severed and proceeded with separately. 27

The pivotal issue to be determined is whether DBP is an indispensable party in this case.

Private respondents do not question the legality of the foreclosure of the mortgaged property and the subsequent
sale of the same to DBP. The subject property was already purchased by petitioner Nelson from DBP and latter, by
such sale, transferred its rights and obligations to the former. Clearly, petitioners' interest in the controversy is
distinct and separable from the interest of DBP and a final determination can be had of the action despite the non-
inclusion of DBP as party-defendant. Hence, DBP, not being an indispensable party, did not have to be impleaded in
this case.

WHEREFORE, there being no reversible error in the decision appealed from, the petition for review on certiorari is
hereby DENIED. 1âwphi 1.nêt

SO ORDERED.

6. G.R. No. L-60174 February 16, 1983

EDUARDO FELIPE, HERMOGENA V. FELIPE AND VICENTE V. FELIPE, petitioners,

vs.
HEIRS OF MAXIMO ALDON, NAMELY: GIMENA ALMOSARA, SOFIA ALDON, SALVADOR ALDON, AND THE
HONORABLE COURT OF APPEALS, respondents.

Romulo D. San Juan for petitioner.

Gerundino Castillejo for private respondent.

ABAD SANTOS, J.:

Maximo Aldon married Gimena Almosara in 1936. The spouses bought several pieces of land sometime between
1948 and 1950. In 1960-62, the lands were divided into three lots, 1370, 1371 and 1415 of the San Jacinto Public
Land Subdivision, San Jacinto, Masbate.

In 1951, Gimena Almosara sold the lots to the spouses Eduardo Felipe and Hermogena V. Felipe. The sale was
made without the consent of her husband, Maximo.

On April 26, 1976, the heirs of Maximo Aldon, namely his widow Gimena and their children Sofia and Salvador
Aldon, filed a complaint in the Court of First Instance of Masbate against the Felipes. The complaint which was
docketed as Civil Case No. 2372 alleged that the plaintiffs were the owners of Lots 1370, 1371 and 1415; that they
had orally mortgaged the same to the defendants; and an offer to redeem the mortgage had been refused so they
filed the complaint in order to recover the three parcels of land.

The defendants asserted that they had acquired the lots from the plaintiffs by purchase and subsequent delivery to
them. The trial court sustained the claim of the defendants and rendered the following judgment:

a. declaring the defendants to be the lawful owners of the property subject of the present litigation;

b. declaring the complaint in the present action to be without merit and is therefore hereby ordered
dismissed;

c. ordering the plaintiffs to pay to the defendants the amount of P2,000.00 as reasonable attorney's
fees and to pay the costs of the suit.

The plaintiffs appealed the decision to the Court of Appeals which rendered the following judgment:

PREMISES CONSIDERED, the decision appealed from is hereby REVERSED and SET ASIDE, and
a new one is hereby RENDERED, ordering the defendants-appellees to surrender the lots in
question as well as the plaintiffs'-appellants' muniments of title thereof to said plaintiffs-appellants, to
make an accounting of the produce derived from the lands including expenses incurred since 1951,
and to solidarity turn over to the plaintiffs-appellants the NET monetary value of the profits, after
deducting the sum of P1,800.00. No attorney's fees nor moral damages are awarded for lack of any
legal justification therefor. No. costs.

The ratio of the judgment is stated in the following paragraphs of the decision penned by Justice Edgardo L. Paras
with the concurrence of Justices Venicio Escolin and Mariano A. Zosa:

One of the principal issues in the case involves the nature of the aforementioned conveyance or
transaction, with appellants claiming the same to be an oral contract of mortgage or antichresis, the
redemption of which could be done anytime upon repayment of the P1,800.00 involved (incidentally
the only thing written about the transaction is the aforementioned receipt re the P1,800). Upon the
other hand, appellees claim that the transaction was one of sale, accordingly, redemption was
 improper. The appellees claim that plaintiffs never conveyed the property because of a loan or
mortgage or antichresis and that what really transpired was the execution of a contract of sale thru a
private document designated as a 'Deed of Purchase and Sale' (Exhibit 1), the execution having
been made by Gimena Almosara in favor of appellee Hermogena V. Felipe.

After a study of this case, we have come to the conclusion that the appellants are entitled to recover
the ownership of the lots in question. We so hold because although Exh. 1 concerning the sale made
in 1951 of the disputed lots is, in Our opinion, not a forgery the fact is that the sale made by Gimena
Almosara is invalid, having been executed without the needed consent of her husband, the lots
being conjugal. Appellees' argument that this was an issue not raised in the pleadings is baseless,
considering the fact that the complaint alleges that the parcels 'were purchased by plaintiff Gimena
Almosara and her late husband Maximo Aldon' (the lots having been purchased during the existence
of the marriage, the same are presumed conjugal) and inferentially, by force of law, could not, be
disposed of by a wife without her husband's consent.

The defendants are now the appellants in this petition for review. They invoke several grounds in seeking the
reversal of the decision of the Court of Appeals. One of the grounds is factual in nature; petitioners claim that
"respondent Court of Appeals has found as a fact that the 'Deed of Purchase and Sale' executed by respondent
Gimena Almosara is not a forgery and therefore its authenticity and due execution is already beyond question." We
cannot consider this ground because as a rule only questions of law are reviewed in proceedings under Rule 45 of
the Rules of Court subject to well-defined exceptions not present in the instant case.

The legal ground which deserves attention is the legal effect of a sale of lands belonging to the conjugal partnership
made by the wife without the consent of the husband.

It is useful at this point to re-state some elementary rules: The husband is the administrator of the conjugal
partnership. (Art. 165, Civil Code.) Subject to certain exceptions, the husband cannot alienate or encumber any real
property of the conjugal partnership without the wife's consent. (Art. 166, Idem.) And the wife cannot bind the
conjugal partnership without the husband's consent, except in cases provided by law. (Art. 172, Idem.)

In the instant case, Gimena, the wife, sold lands belonging to the conjugal partnership without the consent of the
husband and the sale is not covered by the phrase "except in cases provided by law." The Court of Appeals
described the sale as "invalid" - a term which is imprecise when used in relation to contracts because the Civil Code
uses specific names in designating defective contracts, namely: rescissible (Arts. 1380 et seq.), voidable (Arts. 1390
et seq.), unenforceable (Arts. 1403, et seq.), and void or inexistent (Arts. 1409 et seq.)

The sale made by Gimena is certainly a defective contract but of what category? The answer: it is a voidable
contract.

According to Art. 1390 of the Civil Code, among the voidable contracts are "[T]hose where one of the parties is
incapable of giving consent to the contract." (Par. 1.) In the instant case-Gimena had no capacity to give consent to
the contract of sale. The capacity to give consent belonged not even to the husband alone but to both spouses.

The view that the contract made by Gimena is a voidable contract is supported by the legal provision that contracts
entered by the husband without the consent of the wife when such consent is required, are annullable at her
instance during the marriage and within ten years from the transaction questioned. (Art. 173, Civil Code.)

Gimena's contract is not rescissible for in such contract all the essential elements are untainted but Gimena's
consent was tainted. Neither can the contract be classified as unenforceable because it does not fit any of those
described in Art. 1403 of the Civil Code. And finally, the contract cannot be void or inexistent because it is not one of
those mentioned in Art. 1409 of the Civil Code. By process of elimination, it must perforce be a voidable contract.

The voidable contract of Gimena was subject to annulment by her husband only during the marriage because he
was the victim who had an interest in the contract. Gimena, who was the party responsible for the defect, could not
ask for its annulment. Their children could not likewise seek the annulment of the contract while the marriage
subsisted because they merely had an inchoate right to the lands sold.

The termination of the marriage and the dissolution of the conjugal partnership by the death of Maximo Aldon did not
improve the situation of Gimena. What she could not do during the marriage, she could not do thereafter.

The case of Sofia and Salvador Aldon is different. After the death of Maximo they acquired the right to question the
defective contract insofar as it deprived them of their hereditary rights in their father's share in the lands. The father's
share is one-half (1/2) of the lands and their share is two-thirds (2/3) thereof, one-third (1/3) pertaining to the widow.

The petitioners have been in possession of the lands since 1951. It was only in 1976 when the respondents filed
action to recover the lands. In the meantime, Maximo Aldon died.

Two questions come to mind, namely: (1) Have the petitioners acquired the lands by acquisitive prescription? (2) Is
the right of action of Sofia and Salvador Aldon barred by the statute of limitations?
Anent the first question, We quote with approval the following statement of the Court of Appeals:

We would like to state further that appellees [petitioners herein] could not have acquired ownership
of the lots by prescription in view of what we regard as their bad faith. This bad faith is revealed by
testimony to the effect that defendant-appellee Vicente V. Felipe (son of appellees Eduardo Felipe
and Hermogena V. Felipe) attempted in December 1970 to have Gimena Almosara sign a ready-
made document purporting to self the disputed lots to the appellees. This actuation clearly indicated
that the appellees knew the lots did not still belong to them, otherwise, why were they interested in a
document of sale in their favor? Again why did Vicente V. Felipe tell Gimena that the purpose of the
document was to obtain Gimena's consent to the construction of an irrigation pump on the lots in
question? The only possible reason for purporting to obtain such consent is that the appellees knew
the lots were not theirs. Why was there an attempted improvement (the irrigation tank) only in 1970?
Why was the declaration of property made only in 1974? Why were no attempts made to obtain the
husband's signature, despite the fact that Gimena and Hermogena were close relatives? An these
indicate the bad faith of the appellees. Now then, even if we were to consider appellees' possession
in bad faith as a possession in the concept of owners, this possession at the earliest started in 1951,
hence the period for extraordinary prescription (30 years) had not yet lapsed when the present
action was instituted on April 26, 1976.

As to the second question, the children's cause of action accrued from the death of their father in 1959 and they had
thirty (30) years to institute it (Art. 1141, Civil Code.) They filed action in 1976 which is well within the period.

WHEREFORE, the decision of the Court of Appeals is hereby modified. Judgment is entered awarding to Sofia and
Salvador Aldon their shares of the lands as stated in the body of this decision; and the petitioners as possessors in
bad faith shall make an accounting of the fruits corresponding to the share aforementioned from 1959 and solidarity
pay their value to Sofia and Salvador Aldon; costs against the petitioners.

SO ORDERED.

Concepcion Jr., Guerrero and De Castro, JJ., concur.

Makasiar, (Chairman), J., In the result.

Escolin J., took no part.

7. G.R. No. 109979 March 11, 1999

RICARDO C. SILVERIO, SR., petitioner,

vs.
COURT OF APPEALS, SPECIAL SEVENTH DIVISION, HON. FRANCISCO X. VELEZ, Presiding Judge, RTC,
Makati, Branch 57 and EDGARDO S. SILVERIO, respondents.

PURISIMA, J.:

At bar is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking the reversal of the
Decision 1 of the Court of Appeals (Special Seventh Division) 2 dated January 20, 1993 in CA GR SP No. 29038.

On October 7, 1987, Beatriz Silverio died without leaving any will in the Municipality of Makati, Metro Manila, she
was survived by the legal heirs, namely:

NAMES RELATION

1. Ricardo Silverio Husband

2. Edmundo Silverio Son

3. Edgardo Silverio Son

4. Ricardo Silverio, Jr. Son

5. Nelia Silverio Daughter

6. Ligaya S. dela Merced Daughter 3

On November 12, 1990, or more than three (3) years from the death of the deceased, Edgardo Silverio filed a
Petition for Letters of Administration with Branch 57, of the Regional Trial Court in Makati City. On November 28,
1990, he filed an Urgent Petition for Appointment of Special Administrator, alleging that during her marriage with
Ricardo Silverio, the deceased acquired real and personal properties in the Philippines and outside the country, the
character, identity and aggregate value of which are still undetermined and not known to petitioner except the
personal properties estimated to be worth P1,000,000.00; that during the lifetime of the late Beatriz Silverio, the
surviving spouse has not made any settlement, judicial or extrajudicial, of the properties of the deceased; that their
surviving son, Ricardo Silverio, Jr., has taken control and management of the properties left by the deceased for his
own benefit and advantage; that petitioner, one of the legal heirs of the deceased, is competent and willing to act as
administrator.

On December 4, 1990, the respondent judge issued an Order to the following effect:

WHEREFORE, notice is hereby given that said Petition is set for hearing on January 24, 1991 at
8:30 o'clock in the morning, at which date and time, all interested parties are hereby cited to appear
and show cause if any they have, why said Petition should not be granted.

Let this Order be published at the expense of the Petitioner, once a week for three (3) consecutive
weeks in a newspaper of general circulation, the publication of which is to be assigned to the
newspaper chosen after the raffle conducted by the Executive Judge of this Court.

Likewise, let this Order and the Petition be posted at least two (2) weeks before hearing by the
Branch Sheriff at petitioner's expense in the Bulletin Board of the Clerk of Court of Makati, Metro
Manila, Municipal Building and Public Market of Makati, Metro Manila.

Let copies of this Order be sent by registered mail to all the surviving heirs of the late BEATRIZ
SILVERIO mentioned above. 4

On December 17, 1990, respondent Judge Francisco X. Velez of Branch 57, Regional Trial Court, Makati City,
issued the following Order appointing Edgardo Silverio as Special Administrator.

WHEREFORE, EDGARDO SILVERIO is hereby appointed as Special Administrator pending

appointment of a Regular Administrator and the Branch Clerk of this Court is hereby commissioned
to administer the oath of EDGARDO SILVERIO. 5

On January 24, 1991, Ricardo Silverio, Sr. interposed his Opposition to the Petition for Letters of Administration.

On February 21, 1997, the private respondent testified or his behalf and was cross-examined on October 7, 1991.

The reception of evidence for petitioner was scheduled on October 25 and 28, 1991. However, on October 22, 1991,
the petitioner filed an Urgent Motion to Transfer the Hearing to any day during the last week of November or first
week of December 1991 because he had a settlement conference in the case against Land Use Development
Corporation at Department 8 of the Superior Court of Contra Cost Country at 725, Court Street, Martinez, California,
in Case No. C-105-025, entitled Silicor USA, Inc. vs. Kraft Developers, Incorporated, et al.

On October 28, 1991, the trial judge declared that the failure of petitioner to appear and adduce evidence on his
behalf amounted to a waiver of his right to present evidence; ratiocinating, thus:

When this case was called for hearing today for the start of the reception of the evidence for the
Oppositor, Ricardo Silverio, Sr., counsel for the said Oppositor instead invited the attention of this
Court to this URGENT, MOTION FOR TRANSFER OF HEARING dated October 21, 1991 and
pointed out to this Court that the said motion was also intended to postpone the hearing set for
today. For his part, petitioner's counsel thereupon reiterated his vehement objection to another
postponement, pointing out that eventhough the said oppositor filed his OPPOSITION herein as
early as January 1991, yet the said Oppositor never has appeared personally nor exerted any effort
to prosecute his Opposition and has instead, employed all means to postpone or otherwise defer the
reception of his evidence, even after the herein petitioner had been designated by this Court as
Special Administrator (see our Order of December 17, 1990). Petition's counsel also pointed out that
the opposing counsel is aware that he resides in Sydney, Australia and incurs substantial expenses
everytime he comes to the Philippines for the hearing of this case, and then only to be faced by a
postponement sought each time by the oppositor's counsel.

This Court recalls the setting of this case on October 25 and 28, 1991 were fixed after the
oppositor's counsel assured this Court that the oppositor would return from the United States for this
purpose. Yet again, we are now confronted with another effort of the oppositor to postpone the
hearing of this case, despite the petitioner's own open court motion to consider the oppositor as
having waived his right to adduce evidence in support of his petition. Since there is no indication
whatever that the oppositor is serious in his opposition, other than the assurances of his counsel
which have all turned out to be false inasmuch as the oppositor has never appeared as promised
 since January of this year, thereby resulting in the undue delay bereft of any progress in this present
case, the court hereby to consider the failure of the Oppositor Ricardo Silverio, Sr. to appear or
present evidence in his behalf as a waiver of his right to present evidence in support of his
opposition. 6

On October 29, 1991, the respondent judge appointed the private respondent as regular administrator in an Order
stating:

WHEREFORE, EDGARDO SILVEREO is hereby appointed as regular ADMINISTRATOR of the

Intestate Estate of the late Beatriz Silverio to serve with a P200,000.00 bond. He is hereby required
to take possession and management of all the real and personal estate of the deceased and shall
return to this Court a true inventory and appraisal of all the properties of the deceased which shall
come into his possession and knowledge within three (3) months from date thereof. 7

xxx xxx xxx

On November 19, 1991, the Oppositor presented an Omnibus Motion to transfer the hearing set on June 4, 1992 on
the ground that oppositor movant was preoccupied with a) post-election matters and b) preparation for his
assumption of office as Congressman for the Third District of Bulacan, but the said motion was denied on June 4,
1992, respondent Judge ruling, as follows:

In response thereto, the petitioner's counsel registered his vehement objections to the
postponement, first upon the ground that the excuse given in the said motion is not a valid ground
for the cancellation of hearing. Furthermore, according to petitioner's counsel, the hearing today was
set as a result of a joint agreement of the contending counsels arrived in open Court during the last
hearing on Feb. 5, 1991 and that said petitioner's counsel was not given ample time to react thereto
because the said motion was filed only last June 1, 1992 and the said petitioner's counsel has not
even received yet a copy thereof. Moreover, petitioner's counsel likewise recalled to the Court that
he agreed to postpone his cross-examination of the Oppositor during the last hearing of this case
upon the declared agreement for its resumption set for today. Lastly, petitioner's counsel complains
that both the respondent and his counsel are aware of the fact that petitioner's counsel is domiciled
in Sydney, Australia and it has cost a lot of time, effort and money for the said petitioner's counsel to
travel to the Philippines in order to be present in court today, and only to find out that both Oppositor
and his counsel have not appeared. As correctly concluded by the petitioner's counsel, the Oppositor
and his counsel have no legal ground to presume that their motion for transfer of hearing will be
approved by this Court. 8

So also, on August 17, 1992, the respondent judge denied the Motion for Reconsideration filed by the petitioner on
June 29, 1992.

On September 23, 1992, Ricardo C. Silverio Sr. filed a Petition for Certiorari with Prayer for a Writ of Preliminary
Injunction, Prohibition and/or Restraining Order with the Court of Appeals docketed as CA GR SP No. 29038,
seeking to annul and set aside the following orders of the respondent judge, to wit:

a) Order dated December 17, 1990 appointing

Private Respondent as Special Administrator;

b) Order dated October 28, 1991;

c) Order dated October 29, 1991 appointing Private Respondent as

Regular Administrator;

d) Order dated June 4, 1992;

e) Order dated August 17, 1992. 9

On January 20, 1993, the respondent court dismissed for lack of merit the petition for certiorari, pursuant to Section
2(c), Rule 6 of the Revised Internal of the Court of Appeals, ratiocinating thus:

First of all, with respect to respondent Judge Benito of Branch 152, RTC of Makati, there is no
showing that said respondent has acted with grave abuse of discretion, amounting to lack or in
excess of jurisdiction in Civil Case No. 11-9146. When private respondent filed the said civil case, he
had been appointed as special administrator by respondent Judge Velez of Branch 57 of the same
court in Sp. Proc M-2629. . . .

Secondly, petitioner is estopped by laches from questioning the validity of the Order December 17,
1990 appointing private respondent as special administrator considering that he participated in the
subsequent proceedings without assailing said order in due time.
 xxx xxx xxx

. . . The petition failed to show that respondent Judge was whimsical or capricious in issuing said
orders. It is evident from said orders that the herein petitioner has not been true to his assurance that
he will be present the next hearing agreed upon by the parties. . . .

xxx xxx xxx

The rule is clear and unequivocal. It does not provide that the surviving spouse takes precedence
exclusive of and over all other heirs of the deceased in the appointment of the administrator. . . .

Lastly, . . . If at all an error is committed by respondent Judge Velez, it is an error of judgment that is
correctible only by appeal. Errors of judgment are not within the province of a special civil action
for certiorari (Purefoods Corp vs. NLRC 171 SCRA 475) Petitioner made mention of an appeal
brought by him to this Court but a verification from the Judicial Records Division does not show that
an appeal from the orders appointing private respondent as regular and denying petitioner's motion
for reconsideration has been perfected. . . . 10

On April 27, 1993, respondent court denied the motion for reconsideration of its Decision dated February 8, 1993.

Undaunted, petitioner found his way to this Court via the present petition for review on certiorari, contending that:

RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION IN HOLDING THAT

PETITIONER WAS NOT DENIED DUE PROCESS OF LAW.

II

RESPONDENT COURT ERRED IN ITS INTERPRETATION THAT SECTION 6, RULE 78 11 OF THE

REVISED RULES OF COURT DOES NOT PROVIDE FOR AN ORDER OF PREFERENCE IN THE
APPOINTMENT OF THE ADMINISTRATOR.

III

RESPONDENT COURT ERRED IN NOT RULING THAT PRIVATE RESPONDENT HAS NOT
SATISFACTORY ESTABLISHED BY AT LEAST AN IOTA OF PROOF THAT HE IS QUALIFIED
AND COMPETENT TO ACT AS ADMINISTRATOR. 12

On July 26, 1993, the private respondent sent in a Comment, stating as follows:

Another cognate reason that militates against the appointment of petitioner as administrator, is his
utter failure to show that he is a fit and proper person to discharge the duties of an administrator. The
conduct of the petitioner in relation to the management of the assets of the conjugal partnership
between petitioner and the deceased spouse betrays his moral fitness to act as administrator of the
intestate estate of the decedent. Petitioner was not only cheating on his wife by maintaining illicit
relationship with another woman. He was also at the same time systematically stripping assets of
their conjugal partnership then under his administration.

During the period covering June, 1965, June 1971 and February, 1974 the petitioner, acting in his
capacity as administrator/trustee of the conjugal partnership between him and his wife Beatriz S.
Silverio, and using funds of said conjugal partnership, purchased three (3) properties situated at
North Forbes, Makati, Metro Manila, Old Forbes, Makati, Metro Manila, and Bel Air, Makati, Metro
Manila. In breach of his fiduciary duty as administrator of the said conjugal partnership, and without
the knowledge and consent of his wife Beatriz, petitioner fraudulently and surreptitiously caused the
said properties to be registered in the names of three (3) illegitimate children with his mistress
Carmen Zuniga, in order to place said properties beyond the reach of his lawful wife Beatriz Silverio.

To deprive further his legitimate wife of her lawful share in, the conjugal assets, petitioner removed
assets of the conjugal partnership from the Philippines and invested them in California, U.S.A. under
either his name and/or corporation, to the exclusion of his legal wife. Thus, having stripped the
conjugal partnership of assets, no reasonable mind can perceive the petitioner, as administrator,
bringing suit against himself for the recovery of those assets of the conjugal partnership, which he
had fraudulently removed and concealed for his own benefit and advantage.

In the meantime, private respondent, as administrator, had already succeeded in identifying four (4)
valuable real properties belonging to the conjugal partnership of petitioner and the deceased Beatriz
S. Silverio. Suits have been commenced for the recovery of said properties from the present
 registered owners holding the same for petitioner. . . . Amended Complaint filed by the private
respondent, as administrator of the intestate estate of the late Beatriz S. Silverio, against petitioner
Ricardo C. Silverio, Sr. and his alter ego Pilipinas Development Corporation, docketed as Civil Case
No. 91-1146 RTC Makati. . . . Amended Complaint-in-intervention filed by the private respondent
herein, as administrator, against petitioner Ricardo C. Silverio, Sr. and his three (3) illegitimate
children with Carmen Zuniga, docketed as Civil Case No. 17467, RTC Makati, for the recovery of
three (3) valuable real properties placed by petitioner in the names of his illegitimate children.

xxx xxx xxx

Aside from the conflict of interest, the moral reputation and integrity of petitioner is dubious- if not
totally wanting, as evidenced by the news item in the Philippine Daily Inquirer last April 23, 1991,
which reported that the Supreme Court upheld action taken by a Cebu Judge to cancel the bailbond
of businessman Ricardo C. Silverio, Sr., who had allegedly delayed the resolution of tax evasion
charges filed against him. . . .

xxx xxx xxx

In sheer desperation to oust private respondent as administrator of the intestate estate of the late
Beatriz S. Silverio, petitioner's counsel, with a measure of haughtiness unworthy of his professional
calling, embarked in character assassination by wilfully (sic) and unlawfully labeling the private
respondent as a greedy and avaricious person, and fabricating an alleged unholy alliance among the
private respondent, Biomega Corporation, and creditors of petitioners and Delta Motor Corporation.
Petitioner meticulously alleges that "respondent through Biomega Corporation with offices at No. 384
E. Rodriguez Avenue, Cubao, Quezon City, offered their services to collect whatever claims Toyota
Motor Corporation has with Delta Motor Corporation and advised Toyota Motor Corporation that they
had definite information concerning assets pertaining to Delta Motor Corporation and the petitioner,
both in the Philippines and overseas that are held in the names of third parties."

xxx xxx xxx

In resorting to character assassination, the motive of petitioner is highly suspicious. Firstly, private
respondent was never a subscriber, director, or officer of any entity known as Biomega Corporation;
secondly, verification with the Securities and Exchange Commission discloses that Biomega
Corporation is non-existent; thirdly, it is unthinkable that a letter supposedly addressed to a certain
Masao Mitake, President of Toyota Motor Philippines, Inc., would be sent to Atty. Marcelo P.
Villanueva; and lastly, the interest of Delta Motor Corporation is totally separate and distinct from that
of the intestate estate of the late Beatriz S. Silverio, so much so that even granting for argument's
sake that private respondent proposes to act in behalf of Toyota Motor Corporation to recover its
claims against Delta Motor Corporation, such actuation has no bearing or relevance to the
administration of the intestate estate of the late Beatriz S. Silverio. . . . 13

On August 18, 1993, Ricardo C. Silverio, Sr. filed a Reply alleging, among others:

Private respondent attached in his Comment a news clipping from the Philippine Daily Inquirer dated
April 23, 1991 . . . wherein it was reported that "In a decision the tribunal upheld the action taken by
a Cebu Judge to cancel the bail bond of businessman Ricardo Silverio, Sr., who had allegedly
delayed the resolution of the tax evasion charges filed against him during the Marcos regime due to
frequent trips abroad". Private respondent has been capitalizing on this alleged "tax evasion
charges". The case referred to is Crim. Case No. CBU-6304 entitled "People of the Phils. vs. Ricardo
C. Silverio, Sr., et al" for violation of Securities Act and not for tax evasion. Petitioner in the said case
was charged together with some officers of Philippine Underwriters and Finance Corporation in his
capacity as Chairman of the Board of the defunct financing company. The case is still pending in the
sala of Judge Ramon Gaviola of Cebu where Petitioner herein has filed a Demurrer to the Evidence.
Petitioner has since then been given clearance to travel.

xxx xxx xxx

Private Respondent does not have the business acumen that his stepfather has. It is of public
knowledge that Petitioner has built a business empire from car assembly to appliance manufacturing
banking and finance, to shipping and mining and real estate.

Private respondent endeavored to show conflict of interest which are merely gratuitous allegations.

xxx xxx xxx 14

On September 7, 1993, the petitioner presented a Supplemental Reply to the Comment. Attached thereto was the
Information in Criminal Case No. CBU-6394, entitled: "People of the Philippines vs. Ricardo Silverio, Sr., Hermilo
Rodis, Sr., Edgar Quinto, Ruben Rodis, Jose A.M. Flores and Douglas San Diego; "For Violation of Section 20(4) of
the Revised Securities Act".

In his Rejoinder dated October 13, 1993, private respondent asserted that:

In the t instant case, petitioner gratuitously concludes that he can no longer avail of the remedy
provided for by Section 2, Rule 82 of the Rules of Court "because the appeal had been perfected
and respondent Judge has lost jurisdiction over the case.

With respect, it is submitted that such conclusion is unwarranted and completely erroneous. The
mere perfection of an appeal from an Order appointing a regular administrator does not deprive the
intestate court of jurisdiction to entertain application for removal of an administrator pursuant to
Section 2, Rule 82 of the Rules of Court. An appeal from said Order does not stay the
implementation thereof, especially where administrator appointed has taken his oath and
commenced to discharge the duties of his office as such. Hence, the original record of the case
remains with the intestate court, so that the intestate court may deal with other matters related to the
administration of the estate of the deceased.

xxx xxx xxx

In any event, there is nothing on record to show that petitioner was indeed preoccupied with his
alleged legal struggle in the U.S. over the administration of the estate of the deceased in the United
States. Besides, the existence of any legal contest between petitioner and his son, Ricardo S.
Silverio, Jr., in the United States, is not a legal impediment to the filing of the proper petition for
letters of administration over the estate of the deceased spouse in the proper courts of the
Philippines.

Anent the allegation that private respondent has not presented up to now any evidence that
petitioner was not only cheating on his wife by maintaining illicit marital relationship with another
woman, and systematically stripping assets of their conjugal partnership then under administration,
the Court may please take judicial notice that in Civil Case No. 17467 of the Regional Trial Court,
Makati, Metro Manila, entitled "Edgardo S. Silverio, as special administrator of the intestate estate of
the late BEATRIZ S. SILVERIO vs. Maria Rowena Z. Silverio De Los Reyes, Ricardo C.
Silverio, Sr., et al., petitioner candidly admitted that during the lifetime of his legal wife Beatriz
Silverio, he was cohabiting with a certain Carmen Zuniga with whom he has three (3) children,
namely, Maria Rowena Z. Silverio, Maria Roxanne Z. Silverio, and Ricardo Z. Silverio III. Petitioner
also admitted in said civil case that he purchased three (3) valuable real properties in Cambridge
Circle, North Forbes, Intsia Street, Old Forbes, and Taurus Street, Bel Air, all in Makati, Metro
Manila, and placed said properties in the names of his three (3) illegitimate children.

. . . Be that as it may, is (sic) a person charged of violation of the Securities Act morally forthright and
honest? The Court may please take judicial notice that many investors of Philfinance, Inc., a
corporation of which petitioner is either a stockholders, (sic) directors, (sic) and/or officers, (sic) lost
their lifesavings as a result of the serious breach of the Securities Act by the officers of said
corporation.

. . . But this imaginary business acumen of the petitioner is not enough to warrant his appointment as
administrator of the estate of his deceased spouse, for it is also of public knowledge that petitioner
built his business empire during the time his crony, Ferdinand Marcos, was President of the
Philippines. As well, it is also of public knowledge that petitioner succeeded in managing his
companies into bankruptcy, so much so that none of the alleged businesses built by petitioner is
presently operating.

xxx xxx xxx

More significantly, the private respondent has demonstrated his competence and fitness as
administrator of the intestate estate of the late Beatriz Silverio. Just recently, the private respondent
has obtained a judgment in Civil Case No. 1746 of the Regional Trial Court, Makati, Metro Manila,
entitled "Edgardo S. Silverio, etc. vs Ricardo C. Silverio, Sr., et al.," whereby the defendants were
ordered to reconvey the three (3) real properties placed by petitioner in the names of his illegitimate
children to the conjugal partnership of petitioner and the late Betriz S. Silverio. Petitioner received a
copy of said decision, through the counsel, on 31 August 1993, and no appeal has been taken
therefrom by petitioner notwithstanding the lapse of the period for perfecting an appeal. . . .

. . . there are indications that the letters addressed to Mr. Masao Mitake and Toyota Motor
Corporation, Tokyo, Japan, are fabricated, particularly the transmission thereof to petitioners
counsel. The Honorable Court may please take note that it takes the fastest facsimile machine
(GROUP III) at least one (1) minute to transmit one (1) page of a document. Yet, as indicated in the
notation on each of the letters allegedly received by petitioner's counsel, each letter bears the
 notation "10/03/91 at 14.24" indicating that all the three letters were sent at 14:25 or 2:25 pm, which
is physically impossible. 15

On November 4, 1993, the petitioner filed a Respectful Manifestation as regards the order of acquittal in Crim. Case
No. CBU-6304 for violation of the Securities Act and not for tax evasion issued by Hon. Judge Benigno Gaviola of
Branch 9, Regional Trial Court, Cebu City. 16

On June 28, 1996, petitioner filed a Respectful Urgent Manifestation and Motion for the Issuance of a Temporary
Restraining Order and/or Early Resolution, alleging:

4. That on April 22, 1996, Petitioner received through the undersigned counsel a "Petition To Allow
Claim Against the Estate and For Annotation of Attorney's Lien filed by Atty. Cesar P. Uy, counsel of
Private Respondent Edgardo S. Silverio. In this Petition, Counsel of Private Respondent Edgardo S.
Silverio claims that he is entitled to Thirty three and one-third (33 1/3%) percent of the fair market
value of the properties he allegedly recovered for the estate of Beatriz S. Silverio as Intervenor in
Civil Case No. 17467 of the Regional Trial Court, Makati, Branch 143 as his attorney's fees as
counsel of the "Administrator" Edgardo S. Silverio. Atty. Uy estimated that the said properties have a
total value of P450,000,000.00, more or less. Not only did Atty. Uy claim that Edgardo S. Silverio is
the "Administrator" but he also peremptorily changed the caption of the case in Branch 57, RTC,
Makati from "Edgardo S. Silverio, Petitioner" to "Edgardo S. Silverio, Administrator". . . .

. . . It is the respectful submission of the Petitioner herein that Respondent Judge Francisco X.
Velez, whose Orders are being subject of review should wait for the Decision/Resolution of this
Honorable Supreme Court. . . .

xxx xxx xxx

8. . . . despite Petitioner's plea that Respondent Judge should wait for the resolution/decision of this
Honorable Supreme Court as a matter of judicial courtesy and respect to this Honorable Supreme
Court and not to pre-empt the decision that might be rendered by this Honorable Supreme Court in
the above-entitled case, Respondent Judge appears to have shown undue interest in the case, bias
and partiality towards. Private Respondent Edgardo S. Silverio and his counsel Atty. Cesar P. Uy.

xxx xxx xxx

10. That on the same date, June 21, 1996, Petitioner herein filed a "Motion To Inhibit" addressed to
Respondent Judge for him to voluntarily inhibit himself from hearing the "PETITION TO ALLOW
CLAIM AGAINST THE ESTATE AND FOR ANNOTATION OF ATTORNEY'S LIEN" and for
presiding in the SUBSEQUENT HEARINGS for the settlement of the INTESTATE ESTATE OF THE
LATE BEATRIZ S. SILVERIO and that the case before Respondent Judge be re-raffled for
assignment to another branch of the Regional Trial Court, Makati City, in order to avoid any
suspicion of bias, partiality and/or prejudice and in the interest of substantial justice. . . . 17

On July 10, 1996, Edgardo S. Silverio filed his Comment the said motion for the issuance of a temporary retraining
order, theorizing that the relief sought by the petitioner should be threshed out in a separate proceeding instead of
cluttering the records of this case. He added that according to Section 1(e), Rule 109 of the Revised Rules of Court
which provides that "no appeal shall be allowed from the appointment of a special administrator", the Order
appointing a special administrator of a decedent could not be stayed by a special civil action of certiorari,
considering that such order is usually issued as dictated by the urgent need of an administrator to preserve the
estate of the deceased person.

Anent Petitioner's Motion for Inhibition, private respondent placing reliance on Sections 4 and 5 of Rule 15 of the
Revised Rules of Court and Philippine Virginia Tobacco Administration vs. De los Angeles, G.R. No 27829, August
19, 1988, and Sembrano vs. Ramirez, G.R. No. L-45447, September 28, 1988; maintains that the same must be
denied since it did not contain a notice of hearing and was addressed to the Branch Clerk of Court and not to the
parties.

The allegation of bias or partiality without a recitation of facts constituting the alleged bias or partiality is insufficient
to disqualify a judge or deny him the authority to proceed with the case and it carries with it the insidious insinuation
of malice on the part of the respondent judge, highly offensive, disparaging, and clear insult to the judicial officer
without justifiable cause.

Meanwhile, on July 17, 1996, Edmundo S. Silverio, one of the heirs, presented a Manifestation and Motion,
contesting the appointment of Edgardo S. Silverio as regular administrator without his knowledge and consent and
questioning why publication was resorted to instead of personal notice for him to timely object to the said
appointment.
On August 19, 1996, Ricardo C. Silverio filed a Supplemental to Respectful Urgent Manifestation and Motion for the
Issuance of the Temporary Restraining Order and/or Early Resolution, which is the subject of the Order of the
respondent judge, dated July 31, 1996, which reads:

Accordingly, the Court hereby:

(1) approves the Agreement for Attorney's Contingent Fee and allows the herein movant the
corresponding claim against the estate of the deceased Beatriz S. Silverio equivalent to 33 1/3
percent of the fair market value of all the properties recovered by the said petitioner's counsel
including the properties recovered in CV 17467 which originated from Br. 143 of the Regional Trial
Court of Makati;

(2) directs the Register of Deeds of Makati City to annotate forthwith in the proper books of his office
and in the original copies of TCT Nos. (147129) 137156, (436570) 137155 and (36986) 337033 or
any other transfer certificate of titles issued in lieu thereof the movant's claim of attorney's fees
equivalent to 33 1/3 percent of all recovery for the estate of the late Beatriz S. Silverio; and

(3) authorizing and ordering the Administrator to sell any and/or all of the aforesaid real properties for
such amount or amounts approximating their fair market value and to pay out from the proceeds of
such sale the corresponding attorney's fees of petitioner's counsel Atty. Cesar P. Uy equivalent to 33
1/3 percent of the fair market value of the fair market of the aforementioned three properties
recovered by said petitioner's counsel for the benefit of the intestate estate of Beatriz S. Silverio. 18

On October 10, 1996, Ricardo C. Silverio filed a Reply alleging that:

In the aforesaid Order dated July 31, 1996, respondent Judge Francisco X. Velez approved the
Agreement for Attorney's Contingent Fee which was allegedly entered into by Atty. Cesar P. Uy with
private respondent on January 21, 1991 for his approval. This alleged agreement was not previously
submitted to respondent Judge immediately after January 21, 1991 for his approval. Neither were
the heirs specially the petitioner herein informed of the unconscionable agreement which will give to
Atty. Cesar P. Uy 33 1/3 percent of the estate to the prejudice of the heirs. For the subject
properties, which according to Atty. Cesar P. Uy is estimated to have a fair market value of
P450,000,000.00, the latter claims that he is entitled to 33 1/3 percent or P150,000,000.00, much
bigger than the share of the petitioner who is a partner in the conjugal properties and an heir expects
to get. . . .

Even assuming arguendo that the appointment of Edgardo Silverio as a special administrator was
valid and that his act of retaining Atty. Cesar P. Uy as counsel for the subject estate for a contingent
fee of 33-1/3 % of any recovery was also valid, the Order of July 31, 1996 nevertheless erred in
awarding to Atty. Cesar P. Uy a 33-1/3 % interest in the three Makati real properties. The reason is
that Atty. Uy was retained only as counsel for the subject estate and not for herein petitioner.

Petitioner herein was already represented by the law firm of Quisumbing Torres and Evangelista in
Civil case No. 17467 where the three Makati properties were recovered. The said law firm was also
representing the original plaintiff Nelia Silverio Dee. Nelia Silverio Dee who was the first to prosecute
the cause of action to declare the defendants holding title to the Makati properties in trust for the
conjugal partnership, and for reconveyance thereof to the conjugal partnership. . . .

xxx xxx xxx

Respondent judge has no power of authorize, the private respondent Edgardo S. Silverio to sell the
conjugal partnership properties and even real properties of the estate to pay the attorney's fees of
Atty. Cesar P. Uy. The Special Administrator may only sell properties which are perishable and
personal properties not real properties in pursuance of his responsibility to preserve the estate and it
is for the best interest of the estate.

A special administrator may be allowed to sell the properties of the estate if the purpose is to
preserve the properties and its value but not payment of debts. (Public Administrator vs. Burdell, 4
Brad, Surr. (N.Y.) 252). The order of respondent judge authorizing private respondent to sell the
subject properties or any portion thereof to pay to pay (sic) alleged attorney's fees of Atty. Cesar P.
Uy in the estimated amount of P150,000,000.00 is definitely a grave abuse of judicial discretion
amounting to lack of jurisdiction. This is not preservation but dissipation of the estate.

xxx xxx xxx

The properties which form part of the conjugal assets and the estate were accumulated through the
efforts of petitioner and private respondent must not be allowed to dilute the same to his advantage
and to the detriment of the other heirs and therefore must be stopped. The interest of the private
 respondent in the estate is only 1/8 as against petitioner herein and the other heirs supporting
petitioner which is 7/8. Respondent Judge did not consider these facts in all his actuations.

xxx xxx xxx

. . . and that the motion is not a contentious and litigious pleading. 19

The petition is devoid of merit.

To begin with, petitioner contends that he was denied due process of law when the respondent judge considered his
failure to be present on October 28 and 29, 1991 and adduce evidence on his behalf as a waiver of his right.

After a careful study, the Court is of the view, and so holds, that contrary to petitioner's contention, the respondent
judge did not err in so ruling, as it is evident from the Decision of the respondent court that the petitioner was not
sincere in his own motion made in open court to attend the scheduled hearings for the reception of evidence.

Well settled to the point of being elementary is the doctrine that the findings by the trial courts are binding on
appellate courts and will not be disturbed on appeal. After a thorough review and examination of the evidence on
hand, we discern no ground or basis for disregarding the findings and conclusion arrived at by the respondent judge.

xxx xxx xxx

Factual findings of the trial court shall not be disturbed on appeal unless the trial court has
overlooked or ignored some fact or circumstance of sufficient weight or significance which, if
considered, would alter the situation. . . . (The Heirs of Felicidad Canque, et al. v. Court of
Appeals, et al., 275 SCRA 741)

. . . applicable here, is the hornbook precept that factual findings of the trial court, specially when
affirmed by the Court of Appeals, are deemed final and conclusive by this Court when supported by
substantial evidence. (Ugddan v. Court of Appeals, et al., 275 SCRA 35). . .

Factual findings of the Court of Appeals are final and may not be reviewed on appeal by the
Supreme Court except when the lower court and the Court of Appeals arrived at diverse factual
findings. (Yobido et al v. Court of Appeals et al., 281 SCRA 1)

. . . Where the factual findings of both the trial court and the Court of Appeals coincide, the same are
binding on the Supreme Court. . . . (National Steel Corporation v. Court of Appeals, et al., 283 SCRA
45)

With respect to the contention that petitioner was denied due process, the same is also untenable, it appearing from
the records of the case that petitioner was amply given the opportunity to present his evidence, which he, however,
waived. In a long line of decisions, this Court ruled that:

xxx xxx xxx

The essence of due process is to be found in the reasonable opportunity to be heard and submit any
evidence one may have in support of one's defense. (Salonga v. Court of Appeals, 269 SCRA 534,
PMI Colleges v. National Labor Relations Commission, 277 SCRA 462)

What is repugnant to due process is the denial of the opportunity to be heard. (Garment and Textile
Export Board v. Court of Appeals, 268 SCRA 258)

There is no denial of due process where a party was given an opportunity to be heard. (Gutierrez v.
Commission on Elections, 270 SCRA 413)

The essence of due process is simply an opportunity to be heard and not that an actual hearing
should always and indispensably be held. (Conti v. Labor Relations Commission, 271 SCRA 114)

The essence of due process is simply an opportunity to be heard. Ysmael v. Court of Appeals, 273
SCRA 165 and Carvajal v. Court of Appeals, 280 SCRA 351)

A formal type or trial-type hearing is not at all times and in all instances essential to due process the
requirements of which are satisfied where the parties are afforded fair and reasonable opportunity to
explain their side of the controversy. (Taberrah v. National Labor Relations Commission, 276 SCRA
431)

For as long as the parties are given the opportunity to be heard before judgment is rendered, the
demands of due process are sufficiently met. (Bangalisan v. Court of Appeals, 276 SCRA 619)
 As long as the party was given an opportunity to defend her interests in due course, she cannot be
said to have been denied due process of law, for this opportunity to be heard is the very essence of
due process. (Legarda v. Court of Appeals, 280 SCRA 642)

Anent the issue concerning the interpretation of Section 6, Rule 78 of the Revised Rules of Court, we are of the
view, and so hold, that the order of preference in the appointment of an administrator depends on the attendant
facts and circumstances. In the case under consideration, the appointment of Edgardo S. Silverio as administrator is
proper.

Although in the case of Intestate Estate of the deceased Geronima Uy Coque. Juan Navas L. Sioca vs. Jose Garcia,
44 Phil 711[1923], this Court held that:

A probate court cannot arbitrarily disregard the preferential rights of the surviving spouse to the
administration of the estate of a deceased person; but if the person enjoying such preferential rights
is unsuitable the court may appoint another person.

In the same case, the court disregarded the order of preference ratiocinating, thus:

. . . The determination of a person's suitability for the office of administrator rests, to a great extent,
in the sound judgment of the court exercising the power of appointment and such judgment will not
be interfered with on appeal unless it appears affirmatively that the court below was in error.

. . . Unsuitableness for appointment as administrator may consist in adverse interest of some kind or
hostility to those immediately interested in the estate. . . .

In the case of Esler vs. Tad-y, 46 Phil 854, this Court answered in the affirmative the query whether the probate
court, in the exercise of its discretion, may disregard the order of preference to the administration, set forth in the
Rules of Court.

The deceased left a widow and a minor child. A person named as executor in a will which was not
probated because not executed according to law was appointed administrator. The widow appealed
on the ground that such administrator should not have been appointed without her consent. HELD: If
the administrator was appointed by the trial court for the estate in accordance with Rule 79, section 6
of the Rules of Court, the trial court had discretion to issue the letters of administration to any of the
persons mentioned in said section, and unless there has been an abuse of discretion, which does
not appear to have been committed in the present case, appointment shall not be revoked on
appeal. 20

So, also, in the case of Villamor vs. Court of Appeals, 162 SCRA 578, 579, this Court held that:

We do not consider as "intriguing" the observation of the lower court and concurred in by the Court
of Appeals that in both Special Proceedings in question, the administrators appointed were complete
strangers to the decedents. There is nothing repulsive in this nor is this an indicium of fraud and
collusion as found by the courts. Section 642 of the Code of Civil Procedure enumerates the persons
who can act as executors and administrators. It provides that in case the persons who have the
preferential right to be appointed are not competent or are unwilling to serve, administration may be
granted to such other person as the court may appoint.

And in the case of En el intestado del finado BERNABE BUSTAMANTE. RUFINA AREVALO contra JOSE
BUSTAMANTE, ET AL., 69 Phil 656, [1940], the Court said:

No es ciertamente destitucion la cue le hizo cesar en el cargo al apelante, porque destitucion

supone siempre correccion o castigo, sino revocacion de la orden en virtud de la cual fue nombrado
Administrador judicical, por causa de incapacidad. Es que en esta jurisdiccion, como ya se ha
resuelto,el tener interes adverso a los de una Testamentaria o un Intestado, o a los de aquellos que
estan interesados en ellos, es motivo suficiente de incapacidad para ser nombrado Administrador
judicial de cualquiera de los mismos. . . .

The appointment of a special administrator in a probate case lies in the sound discretion of the court,
and he may be removed without reference to section 653 of the Code of Civil Procedure. (De Gala v.
Gonzales and Ona, 53 Phil 104 [1929])

We discern no ground to disregard the finding of the respondent judge and the respondent court on the competence
of the decedent's son, Edgardo S. Silverio, to act as administrator. His appointment as special, and later, as the
regular administrator is sanctioned by law.

Petitioner's Respectful Urgent Manifestation and Motion for the Issuance of a Temporary Restraining Order and/or
Early Resolution on the Petition to Allow Claim against the Estate and for the Annotation of Attorney's Lien filed by
counsel for private respondent, which was favorably acted upon by the respondent court, is impressed with merit.
The respondent court is not vested with the power to order the special administrator to sell real properties of the
estate pending determination of the validity of the regular administrator's appointment, pursuant to Section 2, Rule
80 of the Revised Rules of Court, which provides:

Powers and duties of special administrator. Such special administrator shall take possession and
charge of the goods, chattels, rights, credits, and estate of the deceased and preserve the same for
the executor or administrator afterwards appointed, and for that purpose may commence and
maintain suits as administrator. He may sell only such perishable and other property as the court
orders sold. A special administrator shall not be liable to pay any debt of the deceased unless so
ordered by the court.

In the case of Testamentary Proceedings, Estate of the Deceased Juan Pimentel. Tecla Arganda v. Velez et al., Vol.
XXXV, No. 134 O. G. 2429, the Court found, that:

Under the title "Sale of Estate" in Chapter XXXVI of the Code of the Civil Procedure, and the
provisions which it comprises, from Section 714 to 724, the Code treats of and designates the
powers of the Court of First Instance in testamentary and intestate proceedings, in connection with
the sale of property belonging to the Estate. By virtue of the authority conferred by sections 714 to
724, the court may grant permission or authority for the sale of said property upon previous petition
of the executor or administrator, provided the legal requirements are complied with, and the grounds
required by the law in each case provided for in the above-mentioned sections are shown. The
executor or administrator must comply with the rules established by section 722 of the Code. Of
course in exercising its powers, when the court is convinced that a sufficient valid reason exists, it
may order the executor or administrator to request permission or authority to sell property; but it
cannot directly order its sale, because that would be neglecting to comply with the rules which must
be observed before granting the said permission or authority. Section 722 requires that satisfactory
proof be adduced and that the rules established in the first paragraphs be complied with, before
granting the permission or authority to the executor or administrator. (Baun v. Heirs of Baun, 53 Phil.,
654)

With the exception of the case provided for in section 717 regarding the sale of the entire personality
or part thereof for the purpose of preserving the other property of the deceased, and of that provided
for in section 720 with reference to the sale of realty acquired by the executor or administrator by
virtue of the execution of a judgment or the foreclosure of a mortgage the legal provisions above
referred to, only recognize as a ground for the court to authorize the sale of the estate of a deceased
person subject to administration, the application of its proceeds to the payment of the debts or
expenses of administration or the settlement of any legacy (secs. 714, 715, 716, 717, 718, 719 and
721).

As a rule and as a matter of courtesy and respect, the respondent court has to wait for the Decision of this Court
before ruling on the matter of the claim for agreed contingent attorney's fees by Atty. Cesar P. Uy, amounting to
thirty three and one third (33 1/3 %) per cent of the fair market value of the recovered properties. However, the issue
has become moot and academic in light of the finding by this Court that Edgardo Silverio has been duly appointed
as regular administrator.

As regards the Motion to Inhibit the respondent judge, respondent Judge Francisco X. Velez may voluntarily inhibit
himself pursuant to Section 1(2), Rule 137 of the Revised Rules of Court 21 and in line with the following ruling of this
court:

. . . no judge should not handle a case in which he might be perceived, rightly or wrongly, to be
susceptible to bias and partiality. His judgment must not be tainted by even the slightest suspicion of
improbity or preconceived interest. The rule is aimed at preserving at all times the faith and
confidence in courts of justice by any party to the litigation. . . . (Urbanes, Jr. v. Court of Appeals, 236
SCRA 72, 77)

However, this is not the attendant circumstance in this case. Petitioner's mere allegation of partiality and
bias without the supporting facts is insufficient for the respondent judge to be required to decline from
presiding over the subsequent proceedings. We are of the view that it does not constitute "just and valid
reason".

WHEREFORE, the Petition is partly granted and the Decision of the Court of Appeals AFFIRMED except the Order
of Judge Francisco X. Velez, dated July 31, 1996, approving the Petition to Allow Claim for the Estate and for
Annotation of Attorney's Lien which is SET ASIDE. No pronouncement as to costs.

SO ORDERED.
 8. G.R. No. L-11156 February 23, 1961

PURA CARREON, ET AL., plaintiffs-appellants,

vs.
RUFO AGCAOILI and LOURDES SANTIAGO, defendants- appellees.

Domingo R. Maddumba for plaintiffs-appellants.

Meris, Moya, Revilla & Gaffud for defendant-appellee.
Nillo and Tiburcio for the other defendant-appellee.

BAUTISTA ANGELO, J.:

During the marriage of Bonifacio Carreon and Celerina Dauag the registered land subject of this case was acquired.
After the death of Carreon, his widow Celerina executed on September 24, 1946, an affidavit adjudicating to herself
alone the said land. She declared in said document that she was the only heiress of her husband. The original
certificate of title covering the land was cancelled and a transfer certificate was issued in her name. There was
however annotated on her certificate a lien to the effect that her title was subject to Section 4 of Rule 74 of the Rules
of Court.

On September 25, 1946, she borrowed P1,200.00 from the Philippine National Bank guaranteed by a mortgage on
one-half of the land. A memorandum of the mortgage was annotated on her transfer certificate. After the maturity of
the loan, she requested a certain Mr. Pintang to look for a buyer of the land for P3,000.00. One by the name of Rufo
Agcaoili was found. The latter made an advance payment of Pl,500.00 and the balance was paid in full on October
13, 1947. The loan from the bank was paid, the mortgage was released and the deed of absolute sale executed in
his favor was registered.1 A new transfer certificate of title was issued in the name of Agcaoili.

On February 19, 1955, the children of Celerina with the deceased husband filed a complaint against the spouses
Agcaoili seeking to have the deed of sale executed by their mother declared as one of mortgage and to recover one
half pro-indiviso of the land described in the complaint. Simultaneous with the filing of said complaint, Celerina filed
an action for intervention which was dismissed by the trial court.

Defendants filed a motion for summary judgment upon the plea that the main averments of the complaint even if
admitted do not constitute a cause of action and supported their plea with certain documentary evidence. Plaintiffs
filed an opposition on the ground that there was a genuine issue which could not be determined unless a trial is had.
The trial court, however, allowed the parties to submit evidence in support of their contentions and after a careful
analysis thereof found for defendants holding that plaintiffs, claim has no legal basis.

As may be gleaned from the appellants' assignments of error, the present appeal is predicated on the arguments
that appellees were buyers in bad faith; that there existed a trust relationship between them and appellants, and that
such being the case, the action against appellees is imprescriptible.

There is no clear proof that when Rufo Agcaoili bought the land he knew of any flaw in the title of Celerina Dauag.
The mere fact that he was a townmate of Celerina is not sufficient basis to conclude that he knew that she had
children by her first husband. It has been shown that since 1920 Rufo Agcaoili has been an enlisted man in the
Philippine constabulary and seldom come home to visit his relatives. A man of such a situation cannot be expected
to know the relatives and children of his vendor even if they are townmates,. Fraud cannot be presumed. It must be
established by clear and sufficient evidence. Here every indication is that Agcaoili bought the land in all good faith
oblivious of the source of its acquisition.

If fraud had been committed such was perpetrated by Celerina, appellants' mother. By her action she induced
Agcaoili to believe that she was the absolute owner of the land which bore a torrens title. In dealing with it he merely
relied on such title. He was not required to do more. He is only charged with notice of the burdens which are noted
on the face of said title. So, after he bought the land and a new title was issued in his name, he became a purchaser
thereof for value and a holder of a good and valid title.2

On the transfer certificate of title issued to Agcaoili there was annotated a statement that it was subject to Section 4,
Rule 74 of the Rules of Court. This was an annotation carried over from Celerina's transfer certificate. Section 4,
Rule 74, provides the following:

SEC. 4. Liability of distributees and estate. — If it shall appear at any time within two years after the
settlement and distribution of an estate in accordance with the provisions of either of the first two sections of
this rule, that an heir or other person has been unduly deprived of his lawful participation in the estate, such
heir or such other person may compel the settlement of the estate in the courts in the manner hereinafter
provided for the purpose of satisfying such lawful participation. And if within the same time of two years, it
shall appear that there are debts outstanding against the estate which have not been paid, or that an heir or
other person has been unduly deprived of his lawful participation payable in money, the court having
jurisdiction of the estate may, by order for that purpose, after hearing, settle the amount of such debts or
lawful participation and order how much and in what manner each distributee shall contribute in the payment
thereof, and may issue execution, if circumstances require, against the bond provided in the preceding
 section or against the real estate belonging to the deceased, or both. Such bond and such real estate shall
remain charged with a liability to creditors, heirs, or other persons for the full period of two years after such
distribution, notwithstanding any transfers of the real estate that may have been made.

The above lien is effective only for a period of two years. From September 28, 1946, when a transfer certificate of
title was issued to Celerina, to September 8, 1949 when the deed of sale in favor of Agcaoili was issued and
registered, more than two years had elapsed We sustain the lower court's opinion that thenceforth the right to have
such lien cancelled became vested on appellee Agcaoili and that the same had become functus oficio.3 And there
being no fraud in the transaction on the part of appellee, nor proof that he knew of any legal infirmity in the title of his
vendor, we find no reason to apply the proposition that he is deemed to be holding the land in trust for the children
of Celerina Dauag.

WHEREFORE, the decision appealed from is affirmed, without pronouncement as to costs.

Bengzon, Padilla, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes and Dizon, JJ., concur.

9. G.R. No. 112193 March 13, 1996

JOSE E. ARUEGO, JR., SIMEONA SAN JUAN ARUEGO, MA. IMMACULADA T. ALANON, ROBERTO A.
TORRES, CRISTINA A. TORRES, JUSTO JOSE TORRES and AGUSTIN TORRES, petitioners,
vs.
THE HON. COURT OF APPEALS, THIRTEENTH DIVISION and ANTONIA ARUEGO, respondents.

HERMOSISIMA, JR., J.:p

On March 7, 1983, a Complaint1 for Compulsory Recognition and Enforcement of Successional Rights was filed before Branch 30 of the Regional Trial Court of
Manila by the minors, private respondent Antonia F. Aruego and her alleged sister Evelyn F. Aruego, represented by their mother and natural guardian, Luz M.
Fabian. Named defendants therein were Jose E. Aruego, Jr. and the five (5) minor children of the deceased Gloria A. Torres, represented by their father and
natural guardian, Justo P. Torres, Jr., now the petitioners herein.

In essence, the complaint avers that the late Jose M. Aruego, Sr., a married man, had an amorous relationship with
Luz M. Fabian sometime in 1959 until his death on March 30, 1982. Out of this relationship were born Antonia F.
Aruego and Evelyn F. Aruego on October 5, 1962 and September 3, 1963, respectively. The complaint prayed for
an Order praying that herein private respondent and Evelyn be declared the illegitimate children of the deceased
Jose M. Aruego, Sr.; that herein petitioners be compelled to recognize and acknowledge them as the compulsory
heirs of the deceased Jose M. Aruego; that their share and participation in the estate of their deceased father be
determined and ordered delivered to them.

The main basis of the action for compulsory recognition is their alleged "open and continuous possession of the
status of illegitimate children" as stated in paragraphs 6 and 7 of the Complaint, to wit:

6. The plaintiffs' father, Jose M. Aruego, acknowledged and recognized the herein plaintiffs as his
children verbally among plaintiffs' and their mother's family friends, as well as by myriad different
paternal ways, including but not limited to the following:

(a) Regular support and educational expenses;

(b) Allowance to use his surname;

(c) Payment of maternal bills;

(d) Payment of baptismal expenses and attendance therein;

(e) Taking them to restaurants and department stores on occasions of family rejoicing;

(f) Attendance to school problems of plaintiffs;

(g) Calling and allowing plaintiffs to his office every now and then;

(h) Introducing them as such children to family friends.

7. The plaintiffs are thus, in continuous possession of the status of (illegitimate) children of the
deceased Jose M. Aruego who showered them, with the continuous and clear manifestations of
paternal care and affection as above outlined.2
Petitioners denied all these allegations.

After trial, the lower court rendered judgment, dated June 15, 1992, the dispositive portion of which reads:

WHEREFORE, judgment is rendered —

1. Declaring Antonia Aruego as illegitimate daughter of Jose Aruego and Luz Fabian;

2. Evelyn Fabian is not an illegitimate daughter of Jose Aruego with Luz Fabian;

3. Declaring that the estate of deceased Jose Aruego are the following:

xxx xxx xxx

4. Antonia Aruego is entitled to a share equal to 1/2 portion of share of the legitimate children of
Jose Aruego;

5. Defendants are hereby ordered to recognize Antonia Aruego as the illegitimate daughter of Jose
Aruego with Luz Fabian;

6. Defendants are hereby ordered to deliver to Antonia Aruego (her) share in the estate of Jose
Aruego, Sr.;

7. Defendants to play (sic) plaintiffs (Antonia Aruego) counsel the sum of P10,000.00 as atty's fee;

8. Cost against the defendants.3

Herein petitioners filed a Motion for Partial Reconsideration of the decision alleging loss of jurisdiction on the part of
the trial court over the complaint by virtue of the passage of Executive Order No. 209 (as amended by Executive
Order No. 227), otherwise known as the Family Code of the Philippines which took effect on August 3, 1988. This
motion was denied by the lower court in the Order, dated January 14, 1993.

Petitioners interposed an appeal but the lower court refused to give it due course on the ground that it was filed out
of time.

A Petition for Prohibition and Certiorari with prayer for a Writ of Preliminary Injunction was filed by herein petitioners
before respondent Court of Appeals, the petition was dismissed for lack of merit in a decision promulgated on
August 31, 1993. A Motion for Reconsideration when filed was denied by the respondent court in a minute
resolution, dated October 13, 1993.

Hence, this Petition for Review on Certiorari under Rule 45 alleging the following grounds:

RESPONDENT COURT HAD DECIDED A QUESTION OF SUBSTANCE IN A WAY NOT IN

ACCORD WITH THE LAW AND IS DIRECTLY CONTRADICTORY TO THE APPLICABLE
DECISION ALREADY ISSUED BY THIS HONORABLE COURT.

RESPONDENT COURT ERRED IN HOLDING THAT THE PETITION FILED BY PETITIONERS

BEFORE IT DOES NOT INVOLVE A QUESTION OF JURISDICTION.

RESPONDENT COURT HAD CLEARLY ERRED IN RULING THAT THERE IS NO PERCEPTIBLE

DIFFERENCE BETWEEN THE CIVIL CODE PROVISION AND THOSE OF THE FAMILY CODE
ANENT THE TIME AN ACTION FOR COMPULSORY RECOGNITION MAY BE MADE AND THAT
THERE IS NO DIFFERENCE UNDER THE CIVIL CODE FROM THAT OF THE FAMILY CODE
CONCERNING THE REQUIREMENT THAT AN ACTION FOR COMPULSORY RECOGNITION ON
THE GROUND OF CONTINUOUS POSSESSION OF THE STATUS OF AN ILLEGITIMATE CHILD
SHOULD BE FILED DURING THE LIFETIME OF THE PUTATIVE PARENT, IN UTTER
DISREGARD OF THE RULING OF THIS HONORABLE COURT IN THE UYGUANGCO CASE
THAT THE CIVIL CODE PROVISION HAD BEEN SUPERSEDED OR AT LEAST MODIFIED BY
THE CORRESPONDING ARTICLES IN THE FAMILY CODE.

D
 RESPONDENT COURT ERRED IN DISMISSING PETITIONERS' PETITION FOR PROHIBITION
AND IN HOLDING THAT PETITIONERS REMEDY IS THAT OF AN APPEAL WHICH ALLEGEDLY
HAD ALREADY BEEN LOST.4

Private respondent's action for compulsory recognition as an illegitimate child was brought under Book I, Title VIII of
the Civil Code on PERSONS, specifically Article 285 thereof, which state the manner by which illegitimate children
may prove their filiation, to wit:

Art. 285. The action for the recognition of natural children may be brought only during the lifetime of
the presumed parents, except in the following cases:

(1) If the father or mother died during the minority of the child, in which case the latter may file the
action before the expiration of four years from the attainment of his majority; . . . .

Petitioners, on the other hand, submit that with the advent of the New Family Code on August 3, 1988, the
trial court lost jurisdiction over the complaint of private respondent on the ground of prescription, considering
that under Article 175, paragraph 2, in relation to Article 172 of the New Family Code, it is provided that an
action for compulsory recognition of illegitimate filiation, if based on the "open and continuous possession of
the status of an illegitimate child," must be brought during the lifetime of the alleged parent without any
exception, otherwise the action will be barred by prescription.

The law cited reads:

Art. 172. The filiation of legitimate children is established by any of the following:

(1) The record of birth appearing in the civil register or a final judgment; or

(2) An admission of legitimate filiation in a public document or a private handwritten instrument and
signed by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

(1) The open and continuous possession of the status of a legitimate child; or

(2) Any other means allowed by the Rules of Court and special laws.

Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the
same evidence as legitimate children.

The action must be brought within the same period specified in Article 173 [during the lifetime of the
child], except when the action is based on the second paragraph of Article 172, in which case the
action may be brought during the lifetime of the alleged parent.

In the case at bench, petitioners point out that, since the complaint of private respondent and her alleged
sister was filed on March 7, 1983, or almost one (1) year after the death of their presumed father on March
30, 1982, the action has clearly prescribed under the new rule as provided in the Family Code. Petitioners,
further, maintain that even if the action was filed prior to the effectivity of the Family Code, this new law must
be applied to the instant case pursuant to Article 256 of the Family Code which provides:

This Code shall, have retroactive effect insofar as it does not prejudice or impair vested of acquired
rights in accordance with the Civil Code or other laws.

The basic question that must be resolved in this case, therefore, appears to be:

Should the provisions of the Family Code be applied in the instant case? As a corollary Will the application of the
Family Code in this case prejudice or impair any vested right of the private respondent such that it should not be
given retroactive effect in this particular case?

The phrase "vested or acquired rights" under Article 256, is not defined by the Family Code. "The Committee did not
define what is meant by a 'vested or acquired right,' thus leaving it to the courts to determine what it means as each
particular issue is submitted to them. It is difficult to provide the answer for each and every question that may arise
in the future."5

In Tayag vs. Court of Appeals,6 a case which involves a similar complaint denominated as "Claim for Inheritance"
but treated by this court as one to compel recognition as an illegitimate child brought prior to the effectivity of the
Family Code by the mother of the minor child, and based also on the "open and continuous possession of the status
of an illegitimate child," we had occasion to rule that:
 Under the circumstances obtaining in the case at bar, we hold that the right of action of the minor
child has been vested by the filing of the complaint in court under the regime of the Civil Code and
prior to the effectivity of the Family Code. We herein adopt our ruling in the recent case of Republic
of the Philippines vs. Court of Appeals, et. al. 7 where we held that the fact of filing of the petition
already vested in the petitioner her right to file it and to have the same proceed to final adjudication
in accordance with the law in force at the time, and such right can no longer be prejudiced or
impaired by the enactment of a new law.

xxx xxx xxx

Accordingly, Article 175 of the Family Code finds no proper application to the instant case since it will
ineluctably affect adversely a right of private respondent and, consequentially, of the minor child she
represents, both of which have been vested with the filing of the complaint in court. The trial court is,
therefore, correct in applying the provisions of Article 285 of the Civil Code and in holding that private
respondent's cause of action has not yet prescribed.

Tayag applies four-square with the case at bench. The action brought by private respondent Antonia Aruego for
compulsory recognition and enforcement of successional rights which was filed prior to the advent of the Family
Code, must be governed by Article 285 of the Civil Code and not by Article 175, paragraph 2 of the Family Code.
The present law cannot be given retroactive effect insofar as the instant case is concerned, as its application will
prejudice the vested right of private respondent to have her case decided under Article 285 of the Civil Code. The
right was vested to her by the fact that she filed her action under the regime of the Civil Code. Prescinding from this,
the conclusion then ought to be that the action was not yet barred, notwithstanding the fact that it was brought when
the putative father was already deceased, since private respondent was then still a minor when it was filed, an
exception to the general rule provided under Article 285 of the Civil Code. Hence, the trial court, which acquired
jurisdiction over the case by the filing of the complaint, never lost jurisdiction over the same despite the passage of
E.O. No. 209, also known as the Family Code of the Philippines.

Our ruling herein reinforces the principle that the jurisdiction of a court, whether in criminal or civil cases, once
attached cannot be ousted by subsequent happenings or events, although of a character which would have
prevented jurisdiction from attaching in the first instance, and it retains jurisdiction until it finally disposes of the
case. 8

WHEREFORE, the petition is DENIED and the decision of the Court of Appeals dated August 31, 1993 and its
Resolution dated October 13, 1993 are hereby AFFIRMED.

SO ORDERED.

Padilla, Bellosillo and Kapunan, JJ., concur.

10. G.R. No. 118114 December 7, 1995

TEODORO ACAP, petitioner,

vs.
COURT OF APPEALS and EDY DE LOS REYES, respondents.

PADILLA, J.:

This is a petition for review on certiorari of the decision1 of the Court of Appeals, 2nd Division, in CA-G.R. No. 36177,
which affirmed the decision2 of the Regional Trial Court of Himamaylan, Negros Occidental holding that private
respondent Edy de los Reyes had acquired ownership of Lot No. 1130 of the Cadastral Survey of Hinigaran, Negros
Occidental based on a document entitled "Declaration of Heirship and Waiver of Rights", and ordering the
dispossession of petitioner as leasehold tenant of the land for failure to pay rentals.

The facts of the case are as follows:

The title to Lot No. 1130 of the Cadastral Survey of Hinigaran, Negros Occidental was evidenced by OCT No. R-
12179. The lot has an area of 13,720 sq. meters. The title was issued and is registered in the name of spouses
Santiago Vasquez and Lorenza Oruma. After both spouses died, their only son Felixberto inherited the lot. In 1975,
Felixberto executed a duly notarized document entitled "Declaration of Heirship and Deed of Absolute Sale" in favor
of Cosme Pido.

The evidence before the court a quo established that since 1960, petitioner Teodoro Acap had been the tenant of a
portion of the said land, covering an area of nine thousand five hundred (9,500) meters. When ownership was
transferred in 1975 by Felixberto to Cosme Pido, Acap continued to be the registered tenant thereof and religiously
paid his leasehold rentals to Pido and thereafter, upon Pido's death, to his widow Laurenciana.
The controversy began when Pido died intestate and on 27 November 1981, his surviving heirs executed a
notarized document denominated as "Declaration of Heirship and Waiver of Rights of Lot No. 1130 Hinigaran
Cadastre," wherein they declared; to quote its pertinent portions, that:

. . . Cosme Pido died in the Municipality of Hinigaran, Negros Occidental, he died intestate and
without any known debts and obligations which the said parcel of land is (sic) held liable.

That Cosme Pido was survived by his/her legitimate heirs, namely: LAURENCIANA PIDO, wife,
ELY, ERVIN, ELMER, and ELECHOR all surnamed PIDO; children;

That invoking the provision of Section 1, Rule 74 of the Rules of Court, the above-mentioned heirs
do hereby declare unto [sic] ourselves the only heirs of the late Cosme Pido and that we hereby
adjudicate unto ourselves the above-mentioned parcel of land in equal shares.

Now, therefore, We LAURENCIANA3 , ELY, ELMER, ERVIN and ELECHOR all surnamed PIDO, do
hereby waive, quitclaim all our rights, interests and participation over the said parcel of land in favor
of EDY DE LOS REYES, of legal age, (f)ilipino, married to VIRGINIA DE LOS REYES, and resident
of Hinigaran, Negros Occidental, Philippines. . . .4 (Emphasis supplied)

The document was signed by all of Pido's heirs. Private respondent Edy de los Reyes did not sign said document.

It will be noted that at the time of Cosme Pido's death, title to the property continued to be registered in the name of
the Vasquez spouses. Upon obtaining the Declaration of Heirship with Waiver of Rights in his favor, private
respondent Edy de los Reyes filed the same with the Registry of Deeds as part of a notice of an adverse
claimagainst the original certificate of title.

Thereafter, private respondent sought for petitioner (Acap) to personally inform him that he (Edy) had become the
new owner of the land and that the lease rentals thereon should be paid to him. Private respondent further alleged
that he and petitioner entered into an oral lease agreement wherein petitioner agreed to pay ten (10) cavans of
palay per annum as lease rental. In 1982, petitioner allegedly complied with said obligation. In 1983, however,
petitioner refused to pay any further lease rentals on the land, prompting private respondent to seek the assistance
of the then Ministry of Agrarian Reform (MAR) in Hinigaran, Negros Occidental. The MAR invited petitioner to a
conference scheduled on 13 October 1983. Petitioner did not attend the conference but sent his wife instead to the
conference. During the meeting, an officer of the Ministry informed Acap's wife about private respondent's
ownership of the said land but she stated that she and her husband (Teodoro) did not recognize private
respondent's claim of ownership over the land.

On 28 April 1988, after the lapse of four (4) years, private respondent filed a complaint for recovery of possession
and damages against petitioner, alleging in the main that as his leasehold tenant, petitioner refused and failed to
pay the agreed annual rental of ten (10) cavans of palay despite repeated demands.

During the trial before the court a quo, petitioner reiterated his refusal to recognize private respondent's ownership
over the subject land. He averred that he continues to recognize Cosme Pido as the owner of the said land, and
having been a registered tenant therein since 1960, he never reneged on his rental obligations. When Pido died, he
continued to pay rentals to Pido's widow. When the latter left for abroad, she instructed him to stay in the
landholding and to pay the accumulated rentals upon her demand or return from abroad.

Petitioner further claimed before the trial court that he had no knowledge about any transfer or sale of the lot to
private respondent in 1981 and even the following year after Laurenciana's departure for abroad. He denied having
entered into a verbal lease tenancy contract with private respondent and that assuming that the said lot was indeed
sold to private respondent without his knowledge, R.A. 3844, as amended, grants him the right to redeem the same
at a reasonable price. Petitioner also bewailed private respondent's ejectment action as a violation of his right to
security of tenure under P.D. 27.

On 20 August 1991, the lower court rendered a decision in favor of private respondent, the dispositive part of which
reads:

WHEREFORE, premises considered, the Court renders judgment in favor of the plaintiff, Edy de los
Reyes, and against the defendant, Teodoro Acap, ordering the following, to wit:

1. Declaring forfeiture of defendant's preferred right to issuance of a Certificate of Land Transfer

under Presidential Decree No. 27 and his farmholdings;

2. Ordering the defendant Teodoro Acap to deliver possession of said farm to plaintiff, and;

3. Ordering the defendant to pay P5,000.00 as attorney's fees, the sum of P1,000.00 as expenses of
litigation and the amount of P10,000.00 as actual damages.5
In arriving at the above-mentioned judgment, the trial court stated that the evidence had established that the subject
land was "sold" by the heirs of Cosme Pido to private respondent. This is clear from the following disquisitions
contained in the trial court's six (6) page decision:

There is no doubt that defendant is a registered tenant of Cosme Pido. However, when the latter
died their tenancy relations changed since ownership of said land was passed on to his heirs who,
by executing a Deed of Sale, which defendant admitted in his affidavit, likewise passed on their
ownership of Lot 1130 to herein plaintiff (private respondent). As owner hereof, plaintiff has the right
to demand payment of rental and the tenant is obligated to pay rentals due from the time demand is
made. . . .6

xxx xxx xxx

Certainly, the sale of the Pido family of Lot 1130 to herein plaintiff does not of itself extinguish the
relationship. There was only a change of the personality of the lessor in the person of herein plaintiff
Edy de los Reyes who being the purchaser or transferee, assumes the rights and obligations of the
former landowner to the tenant Teodoro Acap, herein defendant.7

Aggrieved, petitioner appealed to the Court of Appeals, imputing error to the lower court when it ruled that private
respondent acquired ownership of Lot No. 1130 and that he, as tenant, should pay rentals to private respondent and
that failing to pay the same from 1983 to 1987, his right to a certificate of land transfer under P.D. 27 was deemed
forfeited.

The Court of Appeals brushed aside petitioner's argument that the Declaration of Heirship and Waiver of Rights
(Exhibit "D"), the document relied upon by private respondent to prove his ownership to the lot, was excluded by the
lower court in its order dated 27 August 1990. The order indeed noted that the document was not identified by
Cosme Pido's heirs and was not registered with the Registry of Deeds of Negros Occidental. According to
respondent court, however, since the Declaration of Heirship and Waiver of Rights appears to have been duly
notarized, no further proof of its due execution was necessary. Like the trial court, respondent court was also
convinced that the said document stands as prima facie proof of appellee's (private respondent's) ownership of the
land in dispute.

With respect to its non-registration, respondent court noted that petitioner had actual knowledge of the
subject saleof the land in dispute to private respondent because as early as 1983, he (petitioner) already knew of
private respondent's claim over the said land but which he thereafter denied, and that in 1982, he (petitioner)
actually paid rent to private respondent. Otherwise stated, respondent court considered this fact of rental payment in
1982 as estoppel on petitioner's part to thereafter refute private respondent's claim of ownership over the said land.
Under these circumstances, respondent court ruled that indeed there was deliberate refusal by petitioner to pay rent
for a continued period of five years that merited forfeiture of his otherwise preferred right to the issuance of a
certificate of land transfer.

In the present petition, petitioner impugns the decision of the Court of Appeals as not in accord with the law and
evidence when it rules that private respondent acquired ownership of Lot No. 1130 through the aforementioned
Declaration of Heirship and Waiver of Rights.

Hence, the issues to be resolved presently are the following:

1. WHETHER OR NOT THE SUBJECT DECLARATION OF HEIRSHIP AND WAIVER OF RIGHTS

IS A RECOGNIZED MODE OF ACQUIRING OWNERSHIP BY PRIVATE RESPONDENT OVER
THE LOT IN QUESTION.

2. WHETHER OR NOT THE SAID DOCUMENT CAN BE CONSIDERED A DEED OF SALE IN

FAVOR OF PRIVATE RESPONDENT OF THE LOT IN QUESTION.

Petitioner argues that the Regional Trial Court, in its order dated 7 August 1990, explicitly excluded the document
marked as Exhibit "D" (Declaration of Heirship, etc.) as private respondent's evidence because it was not registered
with the Registry of Deeds and was not identified by anyone of the heirs of Cosme Pido. The Court of Appeals,
however, held the same to be admissible, it being a notarized document, hence, a prima facie proof of private
respondents' ownership of the lot to which it refers.

Petitioner points out that the Declaration of Heirship and Waiver of Rights is not one of the recognized modes of
acquiring ownership under Article 712 of the Civil Code. Neither can the same be considered a deed of sale so as to
transfer ownership of the land to private respondent because no consideration is stated in the contract (assuming it
is a contract or deed of sale).

Private respondent defends the decision of respondent Court of Appeals as in accord with the evidence and the law.
He posits that while it may indeed be true that the trial court excluded his Exhibit "D" which is the Declaration of
Heirship and Waiver of Rights as part of his evidence, the trial court declared him nonetheless owner of the subject
lot based on other evidence adduced during the trial, namely, the notice of adverse claim (Exhibit "E") duly
registered by him with the Registry of Deeds, which contains the questioned Declaration of Heirship and Waiver of
Rights as an integral part thereof.

We find the petition impressed with merit.

In the first place, an asserted right or claim to ownership or a real right over a thing arising from a juridical act,
however justified, is not per se sufficient to give rise to ownership over the res. That right or title must be completed
by fulfilling certain conditions imposed by law. Hence, ownership and real rights are acquired only pursuant to a
legal mode or process. While title is the juridical justification, mode is the actual process of acquisition or transfer of
ownership over a thing in question.8

Under Article 712 of the Civil Code, the modes of acquiring ownership are generally classified into two (2) classes,
namely, the original mode (i.e., through occupation, acquisitive prescription, law or intellectual creation) and
the derivative mode (i.e., through succession mortis causa or tradition as a result of certain contracts, such as sale,
barter, donation, assignment or mutuum).

In the case at bench, the trial court was obviously confused as to the nature and effect of the Declaration of Heirship
and Waiver of Rights, equating the same with a contract (deed) of sale. They are not the same.

In a Contract of Sale, one of the contracting parties obligates himself to transfer the ownership of and to deliver a
determinate thing, and the other party to pay a price certain in money or its equivalent.9

Upon the other hand, a declaration of heirship and waiver of rights operates as a public instrument when filed with
the Registry of Deeds whereby the intestate heirs adjudicate and divide the estate left by the decedent among
themselves as they see fit. It is in effect an extrajudicial settlement between the heirs under Rule 74 of the Rules of
Court.10

Hence, there is a marked difference between a sale of hereditary rights and a waiver of hereditary rights. The first
presumes the existence of a contract or deed of sale between the parties.11 The second is, technically speaking, a
mode of extinction of ownership where there is an abdication or intentional relinquishment of a known right with
knowledge of its existence and intention to relinquish it, in favor of other persons who are co-heirs in the
succession.12 Private respondent, being then a stranger to the succession of Cosme Pido, cannot conclusively claim
ownership over the subject lot on the sole basis of the waiver document which neither recites the elements of either
a sale,13 or a donation,14 or any other derivative mode of acquiring ownership.

Quite surprisingly, both the trial court and public respondent Court of Appeals concluded that a "sale" transpired
between Cosme Pido's heirs and private respondent and that petitioner acquired actual knowledge of said sale
when he was summoned by the Ministry of Agrarian Reform to discuss private respondent's claim over the lot in
question. This conclusion has no basis both in fact and in law.

On record, Exhibit "D", which is the "Declaration of Heirship and Waiver of Rights" was excluded by the trial court in
its order dated 27 August 1990 because the document was neither registered with the Registry of Deeds nor
identified by the heirs of Cosme Pido. There is no showing that private respondent had the same document attached
to or made part of the record. What the trial court admitted was Annex "E", a notice of adverse claim filed with the
Registry of Deeds which contained the Declaration of Heirship with Waiver of rights and was annotated at the back
of the Original Certificate of Title to the land in question.

A notice of adverse claim, by its nature, does not however prove private respondent's ownership over the tenanted
lot. "A notice of adverse claim is nothing but a notice of a claim adverse to the registered owner, the validity of which
is yet to be established in court at some future date, and is no better than a notice of lis pendens which is a notice of
a case already pending in court."15

It is to be noted that while the existence of said adverse claim was duly proven, there is no evidence whatsoever
that a deed of sale was executed between Cosme Pido's heirs and private respondent transferring the rights of
Pido's heirs to the land in favor of private respondent. Private respondent's right or interest therefore in the tenanted
lot remains an adverse claim which cannot by itself be sufficient to cancel the OCT to the land and title the same in
private respondent's name.

Consequently, while the transaction between Pido's heirs and private respondent may be binding on both
parties, the right of petitioner as a registered tenant to the land cannot be perfunctorily forfeited on a mere
allegation of private respondent's ownership without the corresponding proof thereof.

Petitioner had been a registered tenant in the subject land since 1960 and religiously paid lease rentals thereon. In
his mind, he continued to be the registered tenant of Cosme Pido and his family (after Pido's death), even if in 1982,
private respondent allegedly informed petitioner that he had become the new owner of the land.

Under the circumstances, petitioner may have, in good faith, assumed such statement of private respondent to be
true and may have in fact delivered 10 cavans of palay as annual rental for 1982 to private respondent. But in 1983,
it is clear that petitioner had misgivings over private respondent's claim of ownership over the said land because in
the October 1983 MAR conference, his wife Laurenciana categorically denied all of private respondent's allegations.
In fact, petitioner even secured a certificate from the MAR dated 9 May 1988 to the effect that he continued to be the
registered tenant of Cosme Pido and not of private respondent. The reason is that private respondent never
registered the Declaration of Heirship with Waiver of Rights with the Registry of Deeds or with the MAR. Instead, he
(private respondent) sought to do indirectly what could not be done directly, i.e., file a notice of adverse claim on the
said lot to establish ownership thereover.

It stands to reason, therefore, to hold that there was no unjustified or deliberate refusal by petitioner to pay the lease
rentals or amortizations to the landowner/agricultural lessor which, in this case, private respondent failed to establish
in his favor by clear and convincing evidence.16

Consequently, the sanction of forfeiture of his preferred right to be issued a Certificate of Land Transfer under P.D.
27 and to the possession of his farmholdings should not be applied against petitioners, since private respondent has
not established a cause of action for recovery of possession against petitioner.

WHEREFORE, premises considered, the Court hereby GRANTS the petition and the decision of the Court of
Appeals dated 1 May 1994 which affirmed the decision of the RTC of Himamaylan, Negros Occidental dated 20
August 1991 is hereby SET ASIDE. The private respondent's complaint for recovery of possession and damages
against petitioner Acap is hereby DISMISSED for failure to properly state a cause of action, without prejudice to
private respondent taking the proper legal steps to establish the legal mode by which he claims to have acquired
ownership of the land in question.

SO ORDERED.

Davide, Jr., Bellosillo, Kapunan and Hermosisima, Jr., JJ., concur.

11. 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.

12. G.R. No. 123486 August 12, 1999

EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, petitioners,

vs.
EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and UEFEMIA PATIGAS, respondents.

PARDO, J.:

Before us is a petition for review on certiorari of the decision of the Court of Appeals1 and its resolution denying
reconsideration, ruling:

Upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde Ramonal Binanay, the
authenticity of testators holographic will has been established and the handwriting and signature therein
(exhibit S) are hers, enough to probate said will. Reversal of the judgment appealed from and the probate of
the holographic will in question be called for. The rule is that after plaintiff has completed presentation of his
evidence and the defendant files a motion for judgment on demurrer to evidence on the ground that upon
the facts and the law plaintiff has shown no right to relief, if the motion is granted and the order to dismissal
 is reversed on appeal, the movant loses his right to present evidence in his behalf (Sec, 1 Rule 35 Revised
Rules of Court). Judgment may, therefore, be rendered for appellant in the instant case.

Wherefore, the order appealed from is REVERSED and judgment rendered allowing the probate of the
holographic will of the testator Matilde Seño Vda. de Ramonal.2

The facts are as follows:

On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas, devisees and legatees of the
holographic will of the deceased Matilde Seño Vda. de Ramonal, filed with the Regional Trial Court, Misamis
Oriental, Branch 18, a petition3 for probate of the holographic will of the deceased, who died on January 16, 1990.

In the petition, respondents claimed that the deceased Matilde Seño Vda. de Ramonal, was of sound and disposing
mind when she executed the will on August 30, 1978, that there was no fraud, undue influence, and duress
employed in the person of the testator, and will was written voluntarily.

The assessed value of the decedent's property, including all real and personal property was about P400,000.00, at
the time of her death.4

On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an opposition5 to the petition for probate,
alleging that the holographic will was a forgery and that the same is even illegible. This gives an impression that a
"third hand" of an interested party other than the "true hand" of Matilde Seño Vda. de Ramonal executed the
holographic will.

Petitioners argued that the repeated dates incorporated or appearing on will after every disposition is out of the
ordinary. If the deceased was the one who executed the will, and was not forced, the dates and the signature should
appear at the bottom after the dispositions, as regularly done and not after every disposition. And assuming that the
holographic will is in the handwriting of the deceased, it was procured by undue and improper pressure and
influence on the part of the beneficiaries, or through fraud and trickery.
1âw phi 1.nêt

Respondents presented six (6) witnesses and various documentary evidence. Petitioners instead of presenting their
evidence, filed a demurrer6 to evidence, claiming that respondents failed to establish sufficient factual and legal
basis for the probate of the holographic will of the deceased Matilde Seño Vda. de Ramonal.

On November 26, 1990, the lower Court issued an order, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing consideration, the Demurrer to Evidence having being well taken,
same is granted, and the petition for probate of the document (Exhibit "S") on the purported Holographic Will
of the late Matilde Seño Vda. de Ramonal, is denied for insufficiency of evidence and lack of merits.7

On December 12, 1990, respondents filed a notice of appeal,8 and in support of their appeal, the respondents once
again reiterated the testimony of the following witnesses, namely: (1) Augusto Neri; (2) Generosa Senon; (3) Matilde
Ramonal Binanay; (4) Teresita Vedad; (5) Fiscal Rodolfo Waga; and (6) Evangeline Calugay.

To have a clear understanding of the testimonies of the witnesses, we recite an account of their testimonies.

Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental, where the special proceedings for the
probate of the holographic will of the deceased was filed. He produced and identified the records of the case. The
documents presented bear the signature of the deceased, Matilde Seño Vda. de Ramonal, for the purpose of laying
the basis for comparison of the handwriting of the testatrix, with the writing treated or admitted as genuine by the
party against whom the evidence is offered.

Generosa Senon, election registrar of Cagayan de Oro, was presented to produced and identify the voter's affidavit
of the decedent. However, the voters' affidavit was not produced for the same was already destroyed and no longer
available.

Matilde Ramonal Binanay, testified that the deceased Matilde Seño Vda. de Ramonal was her aunt, and that after
the death of Matilde's husband, the latter lived with her in her parent's house for eleven (11) years from 1958 to
1969. During those eleven (11) years of close association the deceased, she acquired familiarity with her signature
and handwriting as she used to accompany her (deceased Matilde Seño Vda. de Ramonal) in collecting rentals from
her various tenants of commercial buildings, and deceased always issued receipts. In addition to this, she (witness
Matilde Binanay) assisted the deceased in posting the records of the accounts, and carried personal letters of the
deceased to her creditors.

Matilde Ramonal Binanay further testified that at the time of the death of Matilde Vda. de Ramonal, she left a
holographic will dated August 30, 1978, which was personally and entirely written, dated and signed, by the
deceased and that all the dispositions therein, the dates, and the signatures in said will, were that of the deceased.
Fiscal Rodolfo Waga testified that before he was appointed City Fiscal of Cagayan de Oro, he was a practicing
lawyer, and handled all the pleadings and documents signed by the deceased in connection with the proceedings of
her late husband, as a result of which he is familiar with the handwriting of the latter. He testified that the signature
appearing in the holographic will was similar to that of the deceased, Matilde Seño Vda. de Ramonal, but he can not
be sure.

The fifth witness presented was Mrs. Teresita Vedad, an employee of the Department of Environment and Natural
Resources, Region 10. She testified that she processed the application of the deceased for pasture permit and was
familiar with the signature of the deceased, since the signed documents in her presence, when the latter was
applying for pasture permit.

Finally, Evangeline Calugay, one of the respondents, testified that she had lived with the deceased since birth, and
was in fact adopted by the latter. That after a long period of time she became familiar with the signature of the
deceased. She testified that the signature appearing in the holographic will is the true and genuine signature of
Matilde Seño Vda. de Ramonal.

The holographic will which was written in Visayan, is translated in English as follows:

Instruction

August 30, 1978

1. My share at Cogon, Raminal Street, for Evangeline Calugay.

(Sgd) Matilde Vda de Ramonal

August 30, 1978

2. Josefina Salcedo must be given 1,500 square meters at Pinikan Street.

(Sgd) Matilde Vda de Ramonal

August 30, 1978

3. My jewelry's shall be divided among:

1. Eufemia Patigas

2. Josefina Salcedo

3. Evangeline Calugay

(Sgd) Matilde Vda de Ramonal

August 30, 1978

4. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline R. Calugay

(Sgd) Matilde Vda de Ramonal

August 30, 1978

5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of Evangeline R. Calugay, Helen
must continue with the Sta. Cruz, once I am no longer around.

(Sgd) Matilde Vda de Ramonal

August 30, 1978

6. Bury me where my husband Justo is ever buried.

(Sgd) Matilde Vda de Ramonal

August 30, 1978

Gene and Manuel:

 Follow my instruction in order that I will rest peacefully.

Mama

Matilde Vda de Ramonal

On October 9, 1995, the Court of Appeals, rendered decision9 ruling that the appeal was meritorious. Citing the
decision in the case of Azaola vs. Singson, 109 Phil. 102, penned by Mr. Justice J. B. L. Reyes, a recognized
authority in civil law, the Court of Appeals held:

. . . even if the genuineness of the holographic will were contested, we are of the opinion that Article 811 of
our present civil code can not be interpreted as to require the compulsory presentation of three witnesses to
identify the handwriting of the testator, under penalty of having the probate denied. Since no witness may
have been present at the execution of the holographic will, none being required by law (art. 810, new civil
code), it becomes obvious that the existence of witnesses possessing the requisite qualifications is a matter
beyond the control of the proponent. For it is not merely a question of finding and producing any three
witnesses; they must be witnesses "who know the handwriting and signature of the testator" and who can
declare (truthfully, of course, even if the law does not express) "that the will and the signature are in the
handwriting of the testator." There may be no available witness acquainted with the testator's hand; or even
if so familiarized, the witness maybe unwilling to give a positive opinion. Compliance with the rule of
paragraph 1 of article 811 may thus become an impossibility. That is evidently the reason why the second
paragraph of article 811 prescribes that —

in the absence of any competent witness referred to in the preceding paragraph, and if the court deems it
necessary, expert testimony may be resorted to.

As can be see, the law foresees, the possibility that no qualified witness ma be found (or what amounts to
the same thing, that no competent witness may be willing to testify to the authenticity of the will), and
provides for resort to expert evidence to supply the deficiency.

It may be true that the rule of this article (requiring that three witnesses be presented if the will is contested
and only one if no contest is had) was derived from the rule established for ordinary testaments (CF Cabang
vs. Delfianado, 45 PHIL 291; Tolentino v. Francisco, 57 PHIL 742). But it can not be ignored that the
requirement can be considered mandatory only in case of ordinary testaments, precisely because the
presence of at least three witnesses at the execution of ordinary wills is made by law essential to their
validity (Art. 805). Where the will is holographic, no witness need be present (art. 10), and the rule requiring
production of three witnesses must be deemed merely permissive if absurd results are to be avoided.

Again, under Art. 811, the resort to expert evidence is conditioned by the words "if the court deem it
necessary", which reveal that what the law deems essential is that the court should be convinced of the will's
authenticity. Where the prescribed number of witnesses is produced and the court is convinced by their
testimony that the will is genuine, it may consider it unnecessary to call for expert evidence. On the other
hand, if no competent witness is available, or none of those produced is convincing, the court may still, and
in fact it should resort to handwriting experts. The duty of the court, in fine, is to exhaust all available lines of
inquiry, for the state is as much interested as the proponent that the true intention of the testator be carried
into effect.

Paraphrasing Azaola vs. Singson, even if the genuineness of the holographic will were contested, Article
811 of the civil code cannot be interpreted as to require the compulsory presentation of three witnesses to
identify the handwriting of the testator, under penalty of the having the probate denied. No witness need be
present in the execution of the holographic will. And the rule requiring the production of three witnesses is
merely permissive. What the law deems essential is that the court is convinced of the authenticity of the will.
Its duty is to exhaust all available lines of inquiry, for the state is as much interested in the proponent that the
true intention of the testator be carried into effect. And because the law leaves it to the trial court to decide if
experts are still needed, no unfavorable inference can be drawn from a party's failure to offer expert
evidence, until and unless the court expresses dissatisfaction with the testimony of the lay witnesses.10

According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal Binanay and other witnesses definitely
and in no uncertain terms testified that the handwriting and signature in the holographic will were those of the
testator herself.

Thus, upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde Ramonal Binanay, the
Court of Appeals sustained the authenticity of the holographic will and the handwriting and signature therein, and
allowed the will to probate.

Hence, this petition.

The petitioners raise the following issues:

 (1) Whether or not the ruling of the case of Azaola vs. Singson, 109 Phil. 102, relied upon by the respondent
Court of Appeals, was applicable to the case.

(2) Whether or not the Court of Appeals erred in holding that private respondents had been able to present
credible evidence to that the date, text, and signature on the holographic will written entirely in the hand of
the testatrix.

(3) Whether or not the Court of Appeals erred in not analyzing the signatures in the holographic will of
Matilde Seño Vda. de Ramonal.

In this petition, the petitioners ask whether the provisions of Article 811 of the Civil Code are permissive or
mandatory. The article provides, as a requirement for the probate of a contested holographic will, that at least three
witnesses explicitly declare that the signature in the will is the genuine signature of the testator.
1âwphi 1.nêt

We are convinced, based on the language used, that Article 811 of the Civil Code is mandatory. The word "shall"
connotes a mandatory order. We have ruled that "shall" in a statute commonly denotes an imperative obligation and
is inconsistent with the idea of discretion and that the presumption is that the word "shall," when used in a statute is
mandatory.11

Laws are enacted to achieve a goal intended and to guide against an evil or mischief that aims to prevent. In the
case at bar, the goal to achieve is to give effect to the wishes of the deceased and the evil to be prevented is the
possibility that unscrupulous individuals who for their benefit will employ means to defeat the wishes of the testator.

So, we believe that the paramount consideration in the present petition is to determine the true intent of the
deceased. An exhaustive and objective consideration of the evidence is imperative to establish the true intent of the
testator.

It will be noted that not all the witnesses presented by the respondents testified explicitly that they were familiar with
the handwriting of testator. In the case of Augusto Neri, clerk of court, Court of First Instance, Misamis Oriental, he
merely identified the record of Special Proceedings No. 427 before said court. He was not presented to declare
explicitly that the signature appearing in the holographic was that of the deceased.

Generosa E. Senon, the election registrar of Cagayan de Oro City, was presented to identify the signature of the
deceased in the voter's affidavit, which was not even produced as it was no longer available.

Matilde Ramonal Binanay, on the other hand, testified that:

Q. And you said for eleven (11) years Matilde Vda de Ramonal resided with your parents at Pinikitan,
Cagayan de Oro City. Would you tell the court what was your occupation or how did Matilde Vda de
Ramonal keep herself busy that time?
A. Collecting rentals.
Q. From where?
A. From the land rentals and commercial buildings at Pabayo-Gomez streets.12
xxx xxx xxx
Q. Who sometime accompany her?
A. I sometimes accompany her.
Q. In collecting rentals does she issue receipts?
A. Yes, sir.13
xxx xxx xxx
Q. Showing to you the receipt dated 23 October 1979, is this the one you are referring to as one of the
receipts which she issued to them?
A. Yes, sir.
Q. Now there is that signature of Matilde vda. De Ramonal, whose signature is that Mrs. Binanay?
A. Matilde vda. De Ramonal.
Q. Why do you say that is the signature of Matilde Vda. De Ramonal?
A. I am familiar with her signature.
Q. Now, you tell the court Mrs. Binanay, whether you know Matilde vda de Ramonal kept records of the
accounts of her tenants?
A. Yes, sir.
Q. Why do you say so?
A. Because we sometimes post a record of accounts in behalf of Matilde Vda. De Ramonal.
Q. How is this record of accounts made? How is this reflected?
A. In handwritten.14
xxx xxx xxx
Q. In addition to collection of rentals, posting records of accounts of tenants and deed of sale which you
said what else did you do to acquire familiarity of the signature of Matilde Vda De Ramonal?
A. Posting records.
Q. Aside from that?
A. Carrying letters.
 Q. Letters of whom?
A. Matilde.
Q. To whom?
A. To her creditors.15
xxx xxx xxx
Q. You testified that at time of her death she left a will. I am showing to you a document with its title "tugon"
is this the document you are referring to?
A. Yes, sir.
Q. Showing to you this exhibit "S", there is that handwritten "tugon", whose handwriting is this?
A. My Aunt.
Q. Why do you say this is the handwriting of your aunt?
A. Because I am familiar with her signature.16
What Ms. Binanay saw were pre-prepared receipts and letters of the deceased, which she either mailed or gave to
her tenants. She did not declare that she saw the deceased sign a document or write a note.
Further, during the cross-examination, the counsel for petitioners elicited the fact that the will was not found in the
personal belongings of the deceased but was in the possession of Ms. Binanay. She testified that:
Q. Mrs. Binanay, when you were asked by counsel for the petitioners if the late Matilde Seno vda de
Ramonal left a will you said, yes?
A. Yes, sir.
Q. Who was in possession of that will?
A. I.
Q. Since when did you have the possession of the will?
A. It was in my mother's possession.
Q. So, it was not in your possession?
A. Sorry, yes.
Q. And when did you come into possession since as you said this was originally in the possession of your
mother?
A. 1985.17
xxx xxx xxx
Q. Now, Mrs. Binanay was there any particular reason why your mother left that will to you and therefore
you have that in your possession?
A. It was not given to me by my mother, I took that in the aparador when she died.
Q. After taking that document you kept it with you?
A. I presented it to the fiscal.
Q. For what purpose?
A. Just to seek advice.
Q. Advice of what?
A. About the will.18
In her testimony it was also evident that Ms. Binanay kept the fact about the will from petitioners, the legally adopted
children of the deceased. Such actions put in issue her motive of keeping the will a secret to petitioners and
revealing it only after the death of Matilde Seño Vda. de Ramonal.
In the testimony of Ms. Binanay, the following were established:
Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly person is that correct?
A. Yes, sir.
Q. She was up and about and was still uprightly and she could walk agilely and she could go to her building
to collect rentals, is that correct?
A. Yes, sir.19
xxx xxx xxx
Q. Now, let us go to the third signature of Matilde Ramonal. Do you know that there are retracings in the
word Vda.?
A. Yes, a little. The letter L is continuous.
Q. And also in Matilde the letter L is continued to letter D?
A. Yes, sir.
Q. Again the third signature of Matilde Vda de Ramonal the letter L in Matilde is continued towards letter D.
A. Yes, sir.
Q. And there is a retracing in the word Vda.?
A. Yes, sir.20
xxx xxx xxx
Q. Now, that was 1979, remember one year after the alleged holographic will. Now, you identified a
document marked as Exhibit R. This is dated January 8, 1978 which is only about eight months from August
30, 1978. Do you notice that the signature Matilde Vda de Ramonal is beautifully written and legible?
A. Yes, sir the handwriting shows that she was very exhausted.
Q. You just say that she was very exhausted while that in 1978 she was healthy was not sickly and she
was agile. Now, you said she was exhausted?
A. In writing.
Q. How did you know that she was exhausted when you were not present and you just tried to explain
yourself out because of the apparent inconsistencies?
A. That was I think. (sic).
Q. Now, you already observed this signature dated 1978, the same year as the alleged holographic will. In
exhibit I, you will notice that there is no retracing; there is no hesitancy and the signature was written on a
fluid movement. . . . And in fact, the name Eufemia R. Patigas here refers to one of the petitioners?
 A. Yes, sir.
Q. You will also notice Mrs. Binanay that it is not only with the questioned signature appearing in the
alleged holographic will marked as Exhibit X but in the handwriting themselves, here you will notice the
hesitancy and tremors, do you notice that?
A. Yes, sir.21
Evangeline Calugay declared that the holographic will was written, dated and signed in the handwriting of the
testator. She testified that:
Q. You testified that you stayed with the house of the spouses Matilde and Justo Ramonal for the period of
22 years. Could you tell the court the services if any which you rendered to Matilde Ramonal?
A. During my stay I used to go with her to the church, to market and then to her transactions.
Q. What else? What services that you rendered?
A. After my college days I assisted her in going to the bank, paying taxes and to her lawyer.
Q. What was your purpose of going to her lawyer?
A. I used to be her personal driver.
Q. In the course of your stay for 22 years did you acquire familiarity of the handwriting of Matilde Vda de
Ramonal?
A. Yes, sir.
Q. How come that you acquired familiarity?
A. Because I lived with her since birth.22
xxx xxx xxx
Q. Now, I am showing to you Exhibit S which is captioned "tugon" dated Agosto 30, 1978 there is a
signature here below item No. 1, will you tell this court whose signature is this?
A. Yes, sir, that is her signature.
Q. Why do you say that is her signature?
A. I am familiar with her signature.23
So, the only reason that Evangeline can give as to why she was familiar with the handwriting of the deceased was
because she lived with her since birth. She never declared that she saw the deceased write a note or sign a
document.
The former lawyer of the deceased, Fiscal Waga, testified that:
Q. Do you know Matilde Vda de Ramonal?
A. Yes, sir I know her because she is my godmother the husband is my godfather. Actually I am related to
the husband by consanguinity.
Q. Can you tell the name of the husband?
A. The late husband is Justo Ramonal.24
xxx xxx xxx
Q. Can you tell this court whether the spouses Justo Ramonal and Matilde Ramonal have legitimate
children?
A. As far as I know they have no legitimate children.25
xxx xxx xxx
Q. You said after becoming a lawyer you practice your profession? Where?
A. Here in Cagayan de Oro City.
Q. Do you have services rendered with the deceased Matilde vda de Ramonal?
A. I assisted her in terminating the partition, of properties.
Q. When you said assisted, you acted as her counsel? Any sort of counsel as in what case is that, Fiscal?
A. It is about the project partition to terminate the property, which was under the court before.26
xxx xxx xxx
Q. Appearing in special proceeding no. 427 is the amended inventory which is marked as exhibit N of the
estate of Justo Ramonal and there appears a signature over the type written word Matilde vda de Ramonal,
whose signature is this?
A. That is the signature of Matilde Vda de Ramonal.
Q. Also in exhibit n-3, whose signature is this?
A. This one here that is the signature of Mrs. Matilde vda de Ramonal.27
xxx xxx xxx
Q. Aside from attending as counsel in that Special Proceeding Case No. 427 what were the other
assistance wherein you were rendering professional service to the deceased Matilde Vda de Ramonal?
A. I can not remember if I have assisted her in other matters but if there are documents to show that I have
assisted then I can recall.28
xxx xxx xxx
Q. Now, I am showing to you exhibit S which is titled "tugon", kindly go over this document, Fiscal Waga
and tell the court whether you are familiar with the handwriting contained in that document marked as exhibit
"S"?
A. I am not familiar with the handwriting.
Q. This one, Matilde Vda de Ramonal, whose signature is this?
A. I think this signature here it seems to be the signature of Mrs. Matilde vda de Ramonal.
Q. Now, in item No. 2 there is that signature here of Matilde Vda de Ramonal, can you tell the court whose
signature is this?
A. Well, that is similar to that signature appearing in the project of partition.
Q. Also in item no. 3 there is that signature Matilde Vda de Ramonal, can you tell the court whose
signature is that?
A. As I said, this signature also seems to be the signature of Matilde vda de Ramonal.
Q. Why do you say that?
 A. Because there is a similarity in the way it is being written.
Q. How about this signature in item no. 4, can you tell the court whose signature is this?
A. The same is true with the signature in item no. 4. It seems that they are similar.29
xxx xxx xxx
Q. Mr. Prosecutor, I heard you when you said that the signature of Matilde Vda de Ramonal Appearing in
exhibit S seems to be the signature of Matilde vda de Ramonal?
A. Yes, it is similar to the project of partition.
Q. So you are not definite that this is the signature of Matilde vda de Ramonal. You are merely supposing
that it seems to be her signature because it is similar to the signature of the project of partition which you
have made?
A. That is true.30

From the testimonies of these witnesses, the Court of Appeals allowed the will to probate and disregard the
requirement of three witnesses in case of contested holographic will, citing the decision in Azaola
vs. Singson,31ruling that the requirement is merely directory and not mandatory.

In the case of Ajero vs. Court of Appeals,32 we said that "the object of the solemnities surrounding the execution of
wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty
their truth and authenticity. Therefore, the laws on this subject should be interpreted in such a way as to attain these
primordial ends. But on the other hand, also one must not lose sight of the fact that it is not the object of the law to
restrain and curtail the exercise of the right to make a will.

However, we cannot eliminate the possibility of a false document being adjudged as the will of the testator, which is
why if the holographic will is contested, that law requires three witnesses to declare that the will was in the
handwriting of the deceased.

The will was found not in the personal belongings of the deceased but with one of the respondents, who kept it even
before the death of the deceased. In the testimony of Ms. Binanay, she revealed that the will was in her possession
as early as 1985, or five years before the death of the deceased.

There was no opportunity for an expert to compare the signature and the handwriting of the deceased with other
documents signed and executed by her during her lifetime. The only chance at comparison was during the cross-
examination of Ms. Binanay when the lawyer of petitioners asked Ms. Binanay to compare the documents which
contained the signature of the deceased with that of the holographic will and she is not a handwriting expert. Even
the former lawyer of the deceased expressed doubts as to the authenticity of the signature in the holographic will.

A visual examination of the holographic will convince us that the strokes are different when compared with other
documents written by the testator. The signature of the testator in some of the disposition is not readable. There
were uneven strokes, retracing and erasures on the will.

Comparing the signature in the holographic will dated August 30, 1978,33 and the signatures in several documents
such as the application letter for pasture permit dated December 30, 1980,34 and a letter dated June 16, 1978,35the
strokes are different. In the letters, there are continuous flows of the strokes, evidencing that there is no hesitation in
writing unlike that of the holographic will. We, therefore, cannot be certain that ruling holographic will was in the
handwriting by the deceased.

IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records are ordered remanded to the court of
origin with instructions to allow petitioners to adduce evidence in support of their opposition to the probate of the
holographic will of the deceased Matilde Seño vda. de Ramonal. 1âwphi1.nêt

13. 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.

14. G.R. No. 108581 December 8, 1999

LOURDES L. DOROTHEO, petitioner,

vs.
COURT OF APPEALS, NILDA D. QUINTANA, for Herself and as Attorney-in-Fact of VICENTE DOROTHEO
and JOSE DOROTHEO, respondents.

YNARES-SANTIAGO, J.:

May a last will and testament admitted to probate but declared intrinsically void in an order that has become final
and executory still be given effect? This is the issue that arose from the following antecedents:

Private respondents were the legitimate children of Alejandro Dorotheo and Aniceta Reyes. The latter died in 1969
without her estate being settled. Alejandro died thereafter. Sometime in 1977, after Alejandro's death, petitioner,
who claims to have taken care of Alejandro before he died, filed a special proceeding for the probate of the latter's
last will and testament. In 1981, the court issued an order admitting Alejandro's will to probate. Private respondents
did not appeal from said order. In 1983, they filed a "Motion To Declare The Will Intrinsically Void." The trial court
granted the motion and issued an order, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, Order is hereby issued declaring Lourdes Legaspi not the
wife of the late Alejandro Dorotheo, the provisions of the last will and testament of Alejandro
Dorotheo as intrinsically void, and declaring the oppositors Vicente Dorotheo, Jose Dorotheo and
Nilda Dorotheo Quintana as the only heirs of the late spouses Alejandro Dorotheo and Aniceta
Reyes, whose respective estates shall be liquidated and distributed according to the laws on
intestacy upon payment of estate and other taxes due to the government.1

Petitioner moved for reconsideration arguing that she is entitled to some compensation since she took care of
Alejandro prior to his death although she admitted that they were not married to each other. Upon denial of her
motion for reconsideration, petitioner appealed to the Court of Appeals, but the same was dismissed for failure to file
appellant's brief within the extended period
granted.2 This dismissal became final and executory on February 3, 1989 and a corresponding entry of judgment
was forthwith issued by the Court of Appeals on May 16, 1989. A writ of execution was issued by the lower court to
implement the final and executory Order. Consequently, private respondents filed several motions including a
motion to compel petitioner to surrender to them the Transfer Certificates of Titles (TCT) covering the properties of
the late Alejandro. When petitioner refused to surrender the TCT's, private respondents filed a motion for
cancellation of said titles and for issuance of new titles in their names. Petitioner opposed the motion.

An Order was issued on November 29, 1990 by Judge Zain B. Angas setting aside the final and executory Order
dated January 30, 1986, as well as the Order directing the issuance of the writ of execution, on the ground that the
order was merely "interlocutory", hence not final in character. The court added that the dispositive portion of the said
Order even directs the distribution of the estate of the deceased spouses. Private respondents filed a motion for
reconsideration which was denied in an Order dated February 1, 1991. Thus, private respondents filed a petition
before the Court of Appeals, which nullified the two assailed Orders dated November 29, 1990 and February 1,
1991.

Aggrieved, petitioner instituted a petition for review arguing that the case filed by private respondents before the
Court of Appeals was a petition under Rule 65 on the ground of grave abuse of discretion or lack of jurisdiction.
Petitioner contends that in issuing the two assailed orders, Judge Angas cannot be said to have no jurisdiction
because he was particularly designated to hear the case. Petitioner likewise assails the Order of the Court of
Appeals upholding the validity of the January 30, 1986 Order which declared the intrinsic invalidity of Alejandro's will
that was earlier admitted to probate.

Petitioner also filed a motion to reinstate her as executrix of the estate of the late Alejandro and to maintain
the status quo or lease of the premises thereon to third parties.3 Private respondents opposed the motion on the
ground that petitioner has no interest in the estate since she is not the lawful wife of the late Alejandro.

The petition is without merit. A final and executory decision or order can no longer be disturbed or reopened no
matter how erroneous it may be. In setting aside the January 30, 1986 Order that has attained finality, the trial court
in effect nullified the entry of judgment made by the Court of Appeals. It is well settled that a lower court cannot
reverse or set aside decisions or orders of a superior court, for to do so would be to negate the hierarchy of courts
and nullify the essence of review. It has been ruled that a final judgment on probated will, albeit erroneous, is
binding on the whole world. 4

It has been consistently held that if no appeal is taken in due time from a judgment or order of the trial court, the
same attains finality by mere lapse of time. Thus, the order allowing the will became final and the question
determined by the court in such order can no longer be raised anew, either in the same proceedings or in a different
motion. The matters of due execution of the will and the capacity of the testator acquired the character of res
judicata and cannot again be brought into question, all juridical questions in connection therewith being for once and
forever closed.5 Such final order makes the will conclusive against the whole world as to its extrinsic validity and due
execution.6

It should be noted that probate proceedings deals generally with the extrinsic validity of the will sought to be
probated,7 particularly on three aspects:

n whether the will submitted is indeed, the decedent's last will and
testament;

n compliance with the prescribed formalities for the execution of wills;

n the testamentary capacity of the testator; 8

n and the due execution of the last will and testament.9

Under the Civil Code, due execution includes a determination of whether the testator was of sound and disposing
mind at the time of its execution, that he had freely executed the will and was not acting under duress, fraud,
menace or undue influence and that the will is genuine and not a forgery, 10 that he was of the proper testamentary
age and that he is a person not expressly prohibited by law from making a will. 11

The intrinsic validity is another matter and questions regarding the same may still be raised even after the will has
been authenticated. 12 Thus, it does not necessarily follow that an extrinsically valid last will and testament is always
intrinsically valid. Even if the will was validly executed, if the testator provides for dispositions that deprives or
impairs the lawful heirs of their legitime or rightful inheritance according to the laws on succession, 13 the unlawful
provisions/dispositions thereof cannot be given effect. This is specially so when the courts had already determined
in a final and executory decision that the will is intrinsically void. Such determination having attained that character
of finality is binding on this Court which will no longer be disturbed. Not that this Court finds the will to be intrinsically
valid, but that a final and executory decision of which the party had the opportunity to challenge before the higher
tribunals must stand and should no longer be reevaluated. Failure to avail of the remedies provided by law
constitutes waiver. And if the party does not avail of other remedies despite its belief that it was aggrieved by a
decision or court action, then it is deemed to have fully agreed and is satisfied with the decision or order. As early as
1918, it has been declared that public policy and sound practice demand that, at the risk of occasional errors,
judgments of courts must at some point of time fixed by law 14 become final otherwise there will be no end to
litigation. Interes rei publicae ut finis sit litium — the very object of which the courts were constituted was to put an
end to controversies. 15 To fulfill this purpose and to do so speedily, certain time limits, more or less arbitrary, have to
be set up to spur on the slothful. 16 The only instance where a party interested in a probate proceeding may have a
final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or
inadvertence not imputable to negligence, 17 which circumstances do not concur herein.

Petitioner was privy to the suit calling for the declaration of the intrinsic invalidity of the will, as she precisely
appealed from an unfavorable order therefrom. Although the final and executory Order of January 30, 1986 wherein
private respondents were declared as the only heirs do not bind those who are not parties thereto such as the
alleged illegitimate son of the testator, the same constitutes res judicata with respect to those who were parties to
the probate proceedings. Petitioner cannot again raise those matters anew for relitigation otherwise that would
amount to forum-shopping. It should be remembered that forum shopping also occurs when the same issue had
already been resolved adversely by some other court. 18 It is clear from the executory order that the estates of
Alejandro and his spouse should be distributed according to the laws of intestate succession.

Petitioner posits that the January 30, 1986 Order is merely interlocutory, hence it can still be set aside by the trial
court. In support thereof, petitioner argues that "an order merely declaring who are heirs and the shares to which set
of heirs is entitled cannot be the basis of execution to require delivery of shares from one person to another
particularly when no project of partition has been filed." 19 The trial court declared in the January 30, 1986 Order that
petitioner is not the legal wife of Alejandro, whose only heirs are his three legitimate children (petitioners herein),
and at the same time it nullified the will. But it should be noted that in the same Order, the trial court also said that
the estate of the late spouses be distributed according to the laws of intestacy. Accordingly, it has no option but to
implement that order of intestate distribution and not to reopen and again re-examine the intrinsic provisions of the
same will.

It can be clearly inferred from Article 960 of the Civil Code, on the law of successional rights that testacy is preferred
to intestacy. 20 But before there could be testate distribution, the will must pass the scrutinizing test and safeguards
provided by law considering that the deceased testator is no longer available to prove the voluntariness of his
actions, aside from the fact that the transfer of the estate is usually onerous in nature and that no one is presumed
to give — Nemo praesumitur donare. 21 No intestate distribution of the estate can be done until and unless the will
had failed to pass both its extrinsic and intrinsic validity. If the will is extrinsically void, the rules of intestacy apply
regardless of the intrinsic validity thereof. If it is extrinsically valid, the next test is to determine its intrinsic validity —
that is whether the provisions of the will are valid according to the laws of succession. In this case, the court had
ruled that the will of Alejandro was extrinsically valid but the intrinsic provisions thereof were void. Thus, the rules of
intestacy apply as correctly held by the trial court.

Furthermore, Alejandro's disposition in his will of the alleged share in the conjugal properties of his late spouse,
whom he described as his "only beloved wife", is not a valid reason to reverse a final and executory order.
Testamentary dispositions of properties not belonging exclusively to the testator or properties which are part of the
conjugal regime cannot be given effect. Matters with respect to who owns the properties that were disposed of by
Alejandro in the void will may still be properly ventilated and determined in the intestate proceedings for the
settlement of his and that of his late spouse's estate.

Petitioner's motion for appointment as administratrix is rendered moot considering that she was not married to the
late Alejandro and, therefore, is not an heir.

WHEREFORE, the petition is DENIED and the decision appealed from is AFFIRMED.

SO ORDERED.

Davide, Jr., C.J., Puno, Kapunan and Pardo, JJ., concur.

 15. G.R. No. 110427 February 24, 1997

The Incompetent, CARMEN CAÑIZA, represented by her legal guardian, AMPARO EVANGELISTA, petitioner,
vs.
COURT OF APPEALS (SPECIAL FIRST DIVISION), PEDRO ESTRADA and his wife, LEONORA
ESTRADA, respondents.

NARVASA, C.J.:

On November 20, 1989, being then ninety-four (94) years of age, Carmen Cañiza, a spinster, a retired pharmacist,
and former professor of the College of Chemistry and Pharmacy of the University of the Philippines, was declared
incompetent by judgment1 of the Regional Trial Court of Quezon City, Branch 107,2 in a guardianship proceeding
instituted by her niece, Amparo A. Evangelista.3 She was so adjudged because of her advanced age and physical
infirmities which included cataracts in both eyes and senile dementia. Amparo A. Evangelista was appointed legal
guardian of her person and estate.

Cañiza was the owner of a house and lot at No. 61 Tobias St., Quezon City. On September 17, 1990, her guardian
Amparo Evangelista commenced a suit in the Metropolitan Trial Court (MetroTC) of Quezon City (Branch 35) to
eject the spouses Pedro and Leonora Estrada from said premises.4 The complaint was later amended to identify the
incompetent Cañiza as plaintiff, suing through her legal guardian, Amparo Evangelista.

The amended Complaint5 pertinently alleged that plaintiff Cañiza was the absolute owner of the property in question,
covered by TCT No. 27147; that out of kindness, she had allowed the Estrada Spouses, their children,
grandchildren and sons-in-law to temporarily reside in her house, rent-free; that Cañiza already had urgent need of
the house on account of her advanced age and failing health, "so funds could be raised to meet her expenses for
support, maintenance and medical treatment;" that through her guardian, Cañiza had asked the Estradas verbally
and in writing to vacate the house but they had refused to do so; and that "by the defendants' act of unlawfully
depriving plaintiff of the possession of the house in question, they . . (were) enriching themselves at the expense of
the incompetent, because, while they . . (were) saving money by not paying any rent for the house, the incompetent
. . (was) losing much money as her house could not be rented by others." Also alleged was that the complaint was
"filed within one (1) year from the date of of first letter of demand dated February 3, 1990."

In their Answer with Counterclaim, the defendants declared that they had been living in Cañiza's house since the
1960's; that in consideration of their faithful service they had been considered by Cañiza as her own family, and the
latter had in fact executed a holographic will on September 4, 1988 by which she "bequeathed" to the Estradas the
house and lot in question.

Judgment was rendered by the MetroTC on April 13, 1992 in Cañiza's favor,6 the Estradas being ordered to vacate
the premises and pay Cañiza P5,000.00 by way of attorney's fees.

But on appeal,8 the decision was reversed by the Quezon City Regional Trial Court, Branch 96.9 By judgment
rendered on October 21, 1992, 10 the RTC held that the "action by which the issue of defendants' possession should
be resolved is accion publiciana, the obtaining factual and legal situation . . demanding adjudication by such plenary
action for recovery of possession cognizable in the first instance by the Regional Trial Court."

Cañiza sought to have the Court of Appeals reverse the decision of October 21, 1992, but failed in that attempt. In a
decision 11 promulgated on June 2, 1993, the Appellate Court 12 affirmed the RTC's judgment in toto. It ruled that (a)
the proper remedy for Cañiza was indeed an accion publiciana in the RTC, not an accion interdictal in the MetroTC,
since the "defendants have not been in the subject premises as mere tenants or occupants by tolerance, they have
been there as a sort of adopted family of Carmen Cañiza," as evidenced by what purports to be the holographic will
of the plaintiff; and (b) while "said will, unless and until it has passed probate by the proper court, could not be the
basis of defendants' claim to the property, . . it is indicative of intent and desire on the part of Carmen Cañiza that
defendants are to remain and are to continue in their occupancy and possession, so much so that Cañiza's
supervening incompetency can not be said to have vested in her guardian the right or authority to drive the
defendants out." 13

Through her guardian, Cañiza came to this Court praying for reversal of the Appellate Court's judgment. She
contends in the main that the latter erred in (a) holding that she should have pursued an accion publiciana, and not
an accion interdictal; and in (b) giving much weight to "a xerox copy of an alleged holographic will, which is irrelevant
to this case." 14

In the responsive pleading filed by them on this Court's requirement, 15 the Estradas insist that the case against them
was really not one of unlawful detainer; they argue that since possession of the house had not been obtained by
them by any "contract, express or implied," as contemplated by Section 1, Rule 70 of the Rules of Court, their
occupancy of the premises could not be deemed one "terminable upon mere demand (and hence never became
unlawful) within the context of the law." Neither could the suit against them be deemed one of forcible entry, they
add, because they had been occupying the property with the prior consent of the "real owner," Carmen Cañiza,
which "occupancy can even ripen into full ownership once the holographic will of petitioner Carmen Cañiza is
admitted to probate." They conclude, on those postulates, that it is beyond the power of Cañiza's legal guardian to
oust them from the disputed premises.

Carmen Cañiza died on March 19, 1994, 16 and her heirs — the aforementioned guardian, Amparo Evangelista, and
Ramon C. Nevado, her niece and nephew, respectively — were by this Court's leave, substituted for her. 17

Three issues have to be resolved: (a) whether or not an ejectment action is the appropriate judicial remedy for
recovery of possession of the property in dispute; (b) assuming desahucio to be proper, whether or not Evangelista,
as Cañiza's legal guardian had authority to bring said action; and (c) assuming an affirmative answer to both
questions, whether or not Evangelista may continue to represent Cañiza after the latter's death.

It is axiomatic that what determines the nature of an action as well as which court has jurisdiction over it, are the
allegations of the complaint and the character of the relief sought. 18 An inquiry into the averments of the amended
complaint in the Court of origin is thus in order. 19

The amended Complaint alleges: 20

6. That the plaintiff Carmen Cañiza, is the sole and absolute owner of a house and lot at No. 61
Scout Tobias, Quezon City, which property is now the subject of this complaint;

xxx xxx xxx

9. That the defendants, their children, grandchildren and sons-in-law, were allowed to live
temporarily in the house of plaintiff Carmen Cañiza, for free, out of her kindness;

10. That the plaintiff, through her legal guardian, has duly notified the defendants, for them to vacate
the said house, but the two (2) letters of demand were ignored and the defendants refused to vacate
the same. . .

11. That the plaintiff, represented by her legal guardian, Amparo Evangelista, made another demand
on the defendants for them to vacate the premises, before Barangay Captain Angelina A. Diaz of
Barangay Laging Handa, Quezon City, but after two (2) conferences, the result was negative and no
settlement was reached. A photocopy of the Certification to File Action dated July 4, 1990, issued by
said Barangay Captain is attached, marked Annex "D" and made an integral part hereof;

12. That the plaintiff has given the defendants more than thirty (30) days to vacate the house, but
they still refused to vacate the premises, and they are up to this time residing in the said place;

13. That this complaint is filed within one (1) year from the date of first letter of demand dated
February 3, 1990 (Annex "B") sent by the plaintiff to the defendants, by her legal guardian —
Amparo Evangelista;

14. By the defendants' act of unlawfully depriving the plaintiff of the possession of the house in
question, they are enriching themselves at the expense of the incompetent plaintiff because, while
they are saving money by not paying any rent for the house, the plaintiff is losing much money as
her house could not be rented by others;

15. That the plaintiff's health is failing and she needs the house urgently, so that funds could be
raised to meet her expenses for her support, maintenance and medical treatment;

16. That because of defendants' refusal to vacate the house at No. 61 Scout Tobias, Quezon City,
the plaintiff, through her legal guardian, was compelled to go to court for justice, and she has to
spend P10,000.00 as attorney's fees.

Its prayer 21 is quoted below:

WHEREFORE, in the interest of justice and the rule of law, plaintiff, Carmen Cañiza, represented by
her legal guardian, Amparo Evangelista, respectfully prays to this Honorable Court, to render
judgment in favor of plaintiff and against the defendants as follows:

1. To order the defendants, their children, grandchildren, sons-in-law and other persons claiming
under them, to vacate the house and premises at No. 6 1 Scout Tobias, Quezon City, so that its
possession can be restored to the plaintiff Carmen Cañiza; and

2. To pay attorney's fees in the amount of P10,000.00;

 3. To pay the costs of the suit.

In essence, the amended complaint states:

1) that the Estradas were occupying Cañiza's house by tolerance — having been "allowed to live
temporarily . . (therein) for free, out of . . (Cañiza's) kindness;"

2) that Cañiza needed the house "urgently" because her "health . . (was) failing and she . . (needed)
funds . . to meet her expenses for her support, maintenance and medical treatment;"

3) that through her general guardian, Cañiza requested the Estradas several times, orally and in
writing, to give back possession of the house;

4) that the Estradas refused and continue to refuse to give back the house to Cañiza, to her
continuing prejudice; and

5) that the action was filed within one (1) year from the last demand to vacate.

Undoubtedly, a cause of action for desahucio has been adequately set out. It is settled that in an action for unlawful
detainer, it suffices to allege that the defendant is unlawfully withholding possession from the plaintiff is deemed
sufficient, 22 and a complaint for unlawful detainer is sufficient if it alleges that the withholding of possession or the
refusal to vacate is unlawful without necessarily employing the terminology of the law. 23

The Estradas' first proffered defense derives from a literal construction of Section 1, Rule 70 of the Rules of Court
which inter alia authorizes the institution of an unlawful detainer suit when "the possession of any land or building is
unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract,
express or implied." They contend that since they did not acquire possession of the property in question "by virtue of
any contract, express or implied" — they having been, to repeat, "allowed to live temporarily . . (therein) for free, out
of . . (Cañiza's) kindness" — in no sense could there be an "expiration or termination of . . (their) right to hold
possession, by virtue of any contract, express or implied." Nor would an action for forcible entry lie against them,
since there is no claim that they had "deprived (Cañiza) of the possession of . . (her property) by force, intimidation,
threat, strategy, or stealth.

The argument is arrant sophistry. Cañiza's act of allowing the Estradas to occupy her house, rent-free, did not
create a permanent and indefeasible right of possession in the latter's favor. Common sense, and the most
rudimentary sense of fairness clearly require that that act of liberality be implicitly, but no less certainly,
accompanied by the necessary burden on the Estradas of returning the house to Cañiza upon her demand. More
than once has this Court adjudged that a person who occupies the land of another at the latter's tolerance or
permission without any contract between them is necessarily bound by an implied promise that he will vacate upon
demand, failing which a summary action for ejectment is the proper remedy against him. 24 The situation is not much
different from that of a tenant whose lease expires but who continues in occupancy by tolerance of the owner, in
which case there is deemed to be an unlawful deprivation or withholding of possession as of the date of the demand
to vacate. 25 In other words, one whose stay is merely tolerated becomes a deforciant illegally occupying the land or
property the moment he is required to leave. 26 Thus, in Asset Privatization Trust vs. Court of Appeals, 27 where a
company, having lawfully obtained possession of a plant upon its undertaking to buy the same, refused to return it
after failing to fulfill its promise of payment despite demands, this Court held that "(a)fter demand and its repudiation,
. . (its) continuing possession . . became illegal and the complaint for unlawful detainer filed by the
. . (plant's owner) was its proper remedy.

It may not be amiss to point out in this connection that where there had been more than one demand to vacate, the
one-year period for filing the complaint for unlawful detainer must be reckoned from the date of the last
demand, 28the reason being that the lessor has the option to waive his right of action based on previous demands
and let the lessee remain meanwhile in the premises. 29 Now, the complaint filed by Cañiza's guardian alleges that
the same was "filed within one (1) year from the date of the first letter of demand dated February 3, 1990." Although
this averment is not in accord with law because there is in fact a second letter of demand to vacate, dated February
27, 1990, the mistake is inconsequential, since the complaint was actually filed on September 17, 1990, well within
one year from the second (last) written demand to vacate.

The Estradas' possession of the house stemmed from the owner's express permission. That permission was
subsequently withdrawn by the owner, as was her right; and it is immaterial that the withdrawal was made through
her judicial guardian, the latter being indisputably clothed with authority to do so. Nor is it of any consequence that
Carmen Cañiza had executed a will bequeathing the disputed property to the Estradas; that circumstance did not
give them the right to stay in the premises after demand to vacate on the theory that they might in future become
owners thereof, that right of ownership being at best inchoate, no transfer of ownership being possible unless and
until the will is duly probated.

Thus, at the time of the institution of the action of desahucio, the Estradas had no legal right to the property, whether
as possessors by tolerance or sufferance, or as owners. They could not claim the right of possession by sufferance;
that had been legally ended. They could not assert any right of possession flowing from their ownership of the
house; their status as owners is dependent on the probate of the holographic will by which the property had
allegedly been bequeathed to them — an event which still has to take place; in other words, prior to the probate of
the will, any assertion of possession by them would be premature and inefficacious.

In any case, the only issue that could legitimately be raised under the circumstances was that involving the
Estradas' possession by tolerance, i.e., possession de facto, not de jure. It is therefore incorrect to postulate that the
proper remedy for Cañiza is not ejectment but accion publiciana, a plenary action in the RTC or an action that is one
for recovery of the right to possession de jure.

II

The Estradas insist that the devise of the house to them by Cañiza clearly denotes her intention that they remain in
possession thereof, and legally incapacitated her judicial guardian, Amparo Evangelista, from evicting them
therefrom, since their ouster would be inconsistent with the ward's will.

A will is essentially ambulatory; at any time prior to the testator's death, it may be changed or revoked; 30 and until
admitted to probate, it has no effect whatever and no right can be claimed thereunder, the law being quite explicit:
"No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of
Court" (ART. 838, id.). 31 An owner's intention to confer title in the future to persons possessing property by his
tolerance, is not inconsistent with the former's taking back possession in the meantime for any reason deemed
sufficient. And that in this case there was sufficient cause for the owner's resumption of possession is apparent: she
needed to generate income from the house on account of the physical infirmities afflicting her, arising from her
extreme age.

Amparo Evangelista was appointed by a competent court the general guardian of both the person and the estate of
her aunt, Carmen Cañiza. Her Letters of Guardianship 32 dated December 19, 1989 clearly installed her as the
"guardian over the person and properties of the incompetent CARMEN CANIZA with full authority to take
possession of the property of said incompetent in any province or provinces in which it may be situated and to
perform all other acts necessary for the management of her properties . . " 33 By that appointment, it became
Evangelista's duty to care for her aunt's person, to attend to her physical and spiritual needs, to assure her well-
being, with right to custody of her person in preference to relatives and friends. 34 It also became her right and duty
to get possession of, and exercise control over, Cañiza's property, both real and personal, it being recognized
principle that the ward has no right to possession or control of his property during her incompetency. 35 That right to
manage the ward's estate carries with it the right to take possession thereof and recover it from anyone who retains
it, 36 and bring and defend such actions as may be needful for this purpose. 37

Actually, in bringing the action of desahucio, Evangelista was merely discharging the duty to attend to "the
comfortable and suitable maintenance of the ward" explicitly imposed on her by Section 4, Rule 96 of the Rules of
Court, viz.:

Sec. 4. Estate to be managed frugally, and proceeds applied to maintenance of ward. — A guardian
must manage the estate of his ward frugally and without waste, and apply the income and profits
thereof, so far as maybe necessary, to the comfortable and suitable maintenance of the ward and
his family, if there be any; and if such income and profits be insufficient for that purpose, the
guardian may sell or encumber the real estate, upon being authorized by order to do so, and apply
to such of the proceeds as may be necessary to such maintenance.

Finally, it may be pointed out in relation to the Estradas's defenses in the ejectment action, that as the law now
stands, even when, in forcible entry and unlawful detainer cases, the defendant raises the question of ownership in
his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the
Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts nevertheless have the
undoubted competence to resolve "the issue of ownership . . only to determine the issue of possession." 38

III

As already stated, Carmen Cañiza passed away during the pendency of this appeal. The Estradas thereupon
moved to dismiss the petition, arguing that Cañiza's death automatically terminated the guardianship, Amaparo
Evangelista lost all authority as her judicial guardian, and ceased to have legal personality to represent her in the
present appeal. The motion is without merit.

While it is indeed well-established rule that the relationship of guardian and ward is necessarily terminated by the
death of either the guardian or the ward, 39 the rule affords no advantage to the Estradas. Amparo Evangelista, as
niece of Carmen Cañiza, is one of the latter's only two (2) surviving heirs, the other being Cañiza's nephew, Ramon
C. Nevado. On their motion and by Resolution of this Court 40 of June 20, 1994, they were in fact substituted as
parties in the appeal at bar in place of the deceased, in accordance with Section 17, Rule 3 of the Rules of
Court, viz.: 41

Sec. 18. Death of a party. — After a party dies and the claim is not thereby extinguished, the court
shall order, upon proper notice, the legal representative of the deceased to appear and be
 substituted for the deceased within a period of thirty (30) days, or within such time as may be
granted. If the legal representative fails to appear within said time, the court may order the opposing
party to procure the appointment of a legal representative of the deceased within a time to be
specified by the court, and the representative shall immediately appear for and on behalf of the
interest of the deceased. The court charges involved in procuring such appointment, if defrayed by
the opposing party, may be recovered as costs. The heirs of the deceased may be allowed to be
substituted for the deceased, without requiring the appointment of an executor or administrator and
the court may appoint guardian ad litemfor the minor heirs.

To be sure, an ejectment case survives the death of a party. Cañiza's demise did not extinguish the desahucio suit
instituted by her through her guardian. 42 That action, not being a purely personal one, survived her death; her heirs
have taken her place and now represent her interests in the appeal at bar.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals promulgated on June 2, 1993 —
affirming the Regional Trial Court's judgment and dismissing petitioner's petition for certiorari — is REVERSED and
SET ASIDE, and the Decision dated April 13, 1992 of the Metropolitan Trial Court of Quezon City, Branch 35, in
Civil Case No. 3410 is REINSTATED and AFFIRMED. Costs against private respondents.

SO ORDERED.

Narvasa, C.J., Davide, Jr., Melo, Francisco and Panganiban, JJ., concur.