WHEN SUCCESSION TAKES PLACE

1. G.R. No. L-4963 January 29, 1953

MARIA USON, plaintiff-appellee,

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

Priscilo Evangelista for appellee.

Brigido G. Estrada for appellant.

BAUTISTA ANGELO, J.:

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

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

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

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

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

The claim of the defendants that Maria Uson had relinquished her right over the lands in question
because she expressly renounced to inherit any future property that her husband may acquire and
leave upon his death in the deed of separation they had entered into on February 21, 1931, cannot
be entertained for the simple reason that future inheritance cannot be the subject of a contract nor
can it be renounced (1 Manresa, 123, sixth edition; Tolentino on Civil Code, p. 12; Osorio vs.
Osorio and Ynchausti Steamship Co., 41 Phil., 531).

But defendants contend that, while it is true that the four minor defendants are illegitimate
children of the late Faustino Nebreda and under the old Civil Code are not entitled to any
successional rights, however, under the new Civil Code which became in force in June, 1950,
they are given the status and rights of natural children and are entitled to the successional rights
which the law accords to the latter (article 2264 and article 287, new Civil Code), and because
these successional rights were declared for the first time in the new code, they shall be given
retroactive effect even though the event which gave rise to them may have occurred under the
prior legislation (Article 2253, new Civil Code).

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

As regards the claim that Maria Uson, while her deceased husband was lying in state, in a
gesture of pity or compassion, agreed to assign the lands in question to the minor children for the
reason that they were acquired while the deceased was living with their mother and Maria Uson
wanted to assuage somewhat the wrong she has done to them, this much can be said; apart from
the fact that this claim is disputed, we are of the opinion that said assignment, if any, partakes of
the nature of a donation of real property, inasmuch as it involves no material consideration, and
in order that it may be valid it shall be made in a public document and must be accepted either in
the same document or in a separate one (Article 633, old Civil Code). Inasmuch as this essential
formality has not been followed, it results that the alleged assignment or donation has no valid
effect.
WHEREFORE, the decision appealed from is affirmed, without costs.

2. G.R. No. L-41715 June 18, 1976

ROSALIO BONILLA (a minor) SALVACION BONILLA (a minor) and PONCIANO

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

Federico Paredes for petitioners.

Demetrio V. Pre for private respondents.

MARTIN, J:

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

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

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

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

On August 19, 1975, counsel for the plaintiff received a copy of the order dismissing the
complaint and on August 23, 1975, he moved to set aside the order of the dismissal
pursuant to Sections 16 and 17 of Rule 3 of the Rules of Court. 2
On August 28, 1975, the court denied the motion for reconsideration filed by counsel for
the plaintiff for lack of merit. On September 1, 1975, counsel for deceased plaintiff filed
a written manifestation praying that the minors Rosalio Bonilla and Salvacion Bonilla be
allowed to substitute their deceased mother, but the court denied the counsel's prayer
for lack of merit. From the order, counsel for the deceased plaintiff filed a second motion
for reconsideration of the order dismissing the complaint claiming that the same is in
violation of Sections 16 and 17 of Rule 3 of the Rules of Court but the same was
denied.

Hence, this petition for review.

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

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

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

SO ORDERED.

3. G.R. No. 166236 July 29, 2010

NOLI ALFONSO and ERLINDA FUNDIALAN, Petitioners,

vs.
SPOUSES HENRY and LIWANAG ANDRES, Respondents.
 DECISION

DEL CASTILLO, J.:

Technical rules may be relaxed only for the furtherance of justice and to benefit the deserving.

In the present petition for review, petitioners assail the August 10, 2004 Resolution1 of the Court
of Appeals (CA) in CA-G.R. CV. No. 78362, which dismissed the appeal before it for failure of
petitioners to file their brief within the extended reglementary period.

Factual Antecedents

The present case stemmed from a complaint for accion publiciana with damages filed by
respondent spouses Henry and Liwanag Andres against Noli Alfonso and spouses Reynaldo and
Erlinda Fundialan before the Regional Trial Court (RTC), Branch 77, San Mateo, Rizal.

On July 8, 1997, the RTC rendered a Decision2 in favor of respondents. The dispositive portion
of the Decision states:

WHEREFORE, premises considered judgment is rendered in favor of the plaintiffs and against
the defendants and all persons claiming rights under them who are ordered:

1. to vacate the premises located at 236 General Luna St., Dulongbayan 11, San Mateo,
Rizal;

2. to jointly and severally pay the sum [of] ₱100.00 as reasonable compensation for the
use of said premises commencing from 04 September 1995; [and]

3. to jointly and severally pay the sum of ₱10,000.00 as and for attorney's fees and to pay
the cost of suit.

SO ORDERED.3

Petitioners,4 thus, appealed to the CA.

Proceedings Before the Court of Appeals

On November 5, 2003, petitioners' previous counsel was notified by the CA to file appellants'
brief within 45 days from receipt of the notice. The original 45-day period expired on December
21, 2003. But before then, on December 8, 2003, petitioners' former counsel filed a Motion to
Withdraw Appearance. Petitioners consented to the withdrawal.

On December 19, 2003, petitioners themselves moved for an extension of 30 days or until
January 21, 2004 within which to file their appellants' brief. Then on March 3, 2004, petitioners
themselves again moved for a fresh period of 45 days from March 3, 2004 or until April 18, 2004
within which to file their appellants' brief.
On March 17, 2004, the CA issued a Resolution:5 a) noting the withdrawal of appearance of
petitioners' former counsel; b) requiring petitioners to cause the Entry of Appearance of their
new counsel; and c) granting petitioners' motions for extension of time to file their brief for a
period totaling 75 days, commencing from December 21, 2003 or until March 5, 2004.

Petitioners themselves received a copy of this Resolution only on April 6, 2004. By that time, the
extension to file appellants' brief had already long expired.

On April 14, 2004, the Public Attorney's Office (PAO), having been approached by petitioners,
entered6 its appearance as new counsel for petitioners. However, on August 10, 2004, the CA
issued the assailed Resolution dismissing petitioners' appeal, to wit:

FOR failure of defendants-appellants to file their brief within the extended reglementary period
which expired on March 5, 2004 as per Judicial Records Division report dated July 26, 2004, the
appeal is hereby DISMISSED pursuant to Sec. 1 (e), Rule 50 of the 1997 Rules of Civil
Procedure.

SO ORDERED.

On September 6, 2004, the PAO filed their Motion for Reconsideration7 which requested for a
fresh period of 45 days from September 7, 2004 or until October 22, 2004 within which to file
appellants' brief. On October 21, 2004, the brief8 was filed by the PAO.

On November 26, 2004, the CA issued a Resolution9 which denied petitioners' motion for
reconsideration. Hence, this petition for review.

Issues

Petitioners raise the following issues:

THE HONORABLE COURT OF APPEALS ERRED IN DISMISSING PETITIONERS'

APPEAL FOR FAILURE TO FILE THEIR DEFENDANTS-APPELLANTS’ BRIEF,
DESPITE THE ATTENDANCE OF PECULIAR FACTS AND CIRCUMSTANCES
SURROUNDING SUCH FAILURE, LIKE THE GROSS AND RECKLESS
NEGLIGENCE OF THEIR FORMER COUNSEL, THE ABSENCE OF MANIFEST
INTENT TO CAUSE DELAY, THE SERIOUS QUESTIONS OF LAW POSED FOR
RESOLUTION BEFORE THE APPELLATE COURT, AND THE FACT THAT THE
APPELLANTS' BRIEF HAD ALREADY BEEN FILED WITH THE COURT OF
APPEALS AND ALREADY FORMED PART OF THE RECORDS OF THE CASE.

II

THE DISMISSAL OF PETITIONERS' APPEAL BY THE HONORABLE COURT OF

APPEALS IS HIGHLY UNJUSTIFIED, INIQUITOUS AND UNCONSCIONABLE
 BECAUSE IT OVERLOOKED AND/OR DISREGARDED THE MERITS OF
PETITIONERS’ CASE WHICH INVOLVES A DEPRIVATION OF THEIR
PROPERTY RIGHTS.10

Petitioners' Arguments

Petitioners contend that their failure to file their appellants' brief within the required period was
due to their indigency and poverty. They submit that there is no justification for the dismissal of
their appeal specially since the PAO had just entered its appearance as new counsel for
petitioners as directed by the CA, and had as yet no opportunity to prepare the brief. They
contend that appeal should be allowed since the brief had anyway already been prepared and
filed by the PAO before it sought reconsideration of the dismissal of the appeal and is already
part of the records. They contend that the late filing of the brief should be excused under the
circumstances so that the case may be decided on the merits and not merely on technicalities.

Respondents’ Arguments

On the other hand, respondents contend that failure to file appellants' brief on time is one
instance where the CA may dismiss an appeal. In the present case, they contend that the CA
exercised sound discretion when it dismissed the appeal upon petitioners’ failure to file their
appellants' brief within the extended period of 75 days after the original 45-day period expired.

Our Ruling

The petition has no merit.

Failure to file Brief On Time

Rule 50 of the Rules of Court states:

Section 1. Grounds for dismissal of appeal.-An appeal may be dismissed by the Court of
Appeals, on its own motion or on that of the appellee, on the following grounds:

xxxx

(e) Failure of the appellant to serve and file the required number of copies of his brief or
memorandum within the time provided by these Rules;

Petitioners plead for the suspension of the rules and cite a number of cases where the Court
excused the late filing of a notice of appeal as well as the late filing of the appellant's brief. They
further cite Development Bank of the Philippines v. Court of Appeals11 where the late filing of
the appellant's brief was excused because the Court found the case impressed with public
interest.
The cases cited by petitioners are not in point. In the present civil case which involves the failure
to file the appellants' brief on time, there is no showing of any public interest involved. Neither is
there a showing that an injustice will result due to the application of technical rules.

Poverty cannot be used as an excuse to justify petitioners' complacency in allowing months to

pass by before exerting the required effort to find a replacement lawyer. Poverty is not a
justification for delaying a case. Both parties have a right to a speedy resolution of their case.
Not only petitioners, but also the respondents, have a right to have the case finally settled without
delay.

Furthermore, the failure to file a brief on time was due primarily to petitioners' unwise choices
and not really due to poverty. Petitioners were able to get a lawyer to represent them despite their
poverty. They were able to get two other lawyers after they consented to the withdrawal of their
first lawyer. But they hired their subsequent lawyers too late.

It must be pointed out that petitioners had a choice of whether to continue the services of their
original lawyer or consent to let him go. They could also have requested the said lawyer to file
the required appellants' brief before consenting to his withdrawal from the case. But they did
neither of these. Then, not having done so, they delayed in engaging their replacement lawyer.
Their poor choices and lack of sufficient diligence, not poverty, are the main culprits for the
situation they now find themselves in. It would not be fair to pass on the bad consequences of
their choices to respondents. Petitioners' low regard for the rules or nonchalance toward
procedural requirements, which they camouflage with the cloak of poverty, has in fact
contributed much to the delay, and hence frustration of justice, in the present case.

No compelling reason to disregard technicalities

Petitioners beg us to disregard technicalities because they claim that on the merits their case is
strong. A study of the records fails to so convince us.

Petitioners theorize that publication of the deed of extrajudicial settlement of the estate of
Marcelino Alfonso is required before their father, Jose Alfonso (Jose) could validly transfer the
subject property. We are not convinced. In Alejandrino v. Court of Appeals,12 the Court upheld
the effectivity of a deed of extrajudicial settlement that was neither notarized nor published.

Significantly, the title of the property owned by a person who dies intestate passes at once to his
heirs. Such transmission is subject to the claims of administration and the property may be taken
from the heirs for the purpose of paying debts and expenses, but this does not prevent an
immediate passage of the title, upon the death of the intestate, from himself to his
heirs.131avvphi1 The deed of extrajudicial settlement executed by Filomena Santos Vda. de
Alfonso and Jose evidences their intention to partition the inherited property. It delineated what
portion of the inherited property would belong to whom.

The sale to respondents was made after the execution of the deed of extrajudicial settlement of
the estate. The extrajudicial settlement of estate, even though not published, being deemed a
partition14 of the inherited property, Jose could validly transfer ownership over the specific
portion of the property that was assigned to him.15

The records show that Jose did in fact sell to respondents the subject property. The deed of sale
executed by Jose in favor of the respondents being a public document, is entitled to full faith and
credit in the absence of competent

evidence that its execution was tainted with defects and irregularities that would warrant a
declaration of nullity. As found by the RTC, petitioners failed to prove any defect or
irregularities in the execution of the deed of sale. They failed to prove

by strong evidence, the alleged lack of consent of Jose to the sale of the subject real property. As
found by the RTC, although Jose was suffering from partial paralysis and could no longer sign
his name, there is no showing that his mental faculties were affected in such a way as to negate
the existence of his valid consent to the sale, as manifested by his thumbmark on the deed of
sale. The records sufficiently show that he was capable of boarding a tricycle to go on trips by
himself. Sufficient testimonial evidence in fact shows that Jose asked respondents to buy the
subject property so that it could be taken out from the bank to which it was mortgaged. This fact
evinces that Jose’s mental faculties functioned intelligently.

In view of the foregoing, we find no compelling reason to overturn the assailed CA resolution.
We find no injustice in the dismissal of the appeal by the CA. Justice dictates that this case be
put to rest already so that the respondents may not be deprived of their rights.

WHEREFORE, the petition is DENIED. The August 10, 2004 Resolution of the Court of
Appeals in CA-G.R. CV. No. 78362 is AFFIRMED.

SO ORDERED.

4. G. R. No. 171701 February 8, 2012

REPUBLIC OF THE PHILIPPINES Petitioner,

vs.
MA. IMELDA "IMEE" R. MARCOS-MANOTOC, FERDINAND "BONGBONG" R.
MARCOS, JR., GREGORIO MA. ARANETA III, IRENE R. MARCOS-ARANETA,
YEUNG CHUN FAN, YEUNG CHUN HO, YEUNG CHUN KAM, and PANTRANCO
EMPLOYEES ASSOCIATION (PEA)-PTGWO, Respondents.

DECISION

SERENO, J.:
Before this Court is a Petition for Review filed by the Republic of the Philippines assailing the
Resolutions1 issued by the Sandiganbayan in connection with an alleged portion of the
Marcoses’ supposed ill-gotten wealth.

This case involves ₱200 billion of the Marcoses’ alleged accumulated ill-gotten wealth. It also
includes the alleged use of the media networks IBC-13, BBC-2 and RPN-9 for the Marcos
family’s personal benefit; the alleged use of De Soleil Apparel for dollar salting; and the alleged
illegal acquisition and operation of the bus company Pantranco North Express, Inc. (Pantranco).

The Facts

After the EDSA People Power Revolution in 1986, the first executive act of then President
Corazon C. Aquino was to create the Presidential Commission on Good Government (PCGG).
Pursuant to Executive Order No. 1, the PCGG was given the following mandate:

Sec. 2. The Commission shall be charged with the task of assisting the President in regard to the
following matters:

(a) The recovery of all ill-gotten wealth accumulated by former President Ferdinand E.
Marcos, his immediate family, relatives, subordinates and close associates, whether
located in the Philippines or abroad, including the takeover or sequestration of all
business enterprises and entities owned or controlled by them, during his administration,
directly or through nominees, by taking undue advantage of their public office and/or
using their powers, authority, influence, connections or relationship.

(b) The investigation of such cases of graft and corruption as the President may assign to
the Commission from time to time.

(c) The adoption of safeguards to ensure that the above practices shall not be repeated in
any manner under the new government, and the institution of adequate measures to
prevent the occurrence of corruption.

Sec. 3. The Commission shall have the power and authority:

(a) To conduct investigation as may be necessary in order to accomplish and carry out the
purposes of this order.

(b) To sequester or place or cause to be placed under its control or possession any
building or office wherein any ill-gotten wealth or properties may be found, and any
records pertaining thereto, in order to prevent their destruction, concealment or
disappearance which would frustrate or hamper the investigation or otherwise prevent the
Commission from accomplishing its task.

(c) To provisionally take over in the public interest or to prevent its disposal or
dissipation, business enterprises and properties taken over by the government of the
Marcos Administration or by entities or persons close to former President Marcos, until
 the transactions leading to such acquisition by the latter can be disposed of by the
appropriate authorities.

(d) To enjoin or restrain any actual or threatened commission of facts by any person or
entity that may render moot and academic, or frustrate, or otherwise make ineffectual the
efforts of the Commission to carry out its tasks under this order.

(e) To administer oaths, and issue subpoena requiring the attendance and testimony of
witnesses and/or the production of such books, papers, contracts, records, statement of
accounts and other documents as may be material to the investigation conducted by the
Commission.

(f) To hold any person in direct or indirect contempt and impose the appropriate
penalties, following the same procedures and penalties provided in the Rules of Court.

(g) To seek and secure the assistance of any office, agency or instrumentality of the
government.

(h) To promulgate such rules and regulations as may be necessary to carry out the
purpose of this order.

Thus, numerous civil and criminal cases were subsequently filed. One of the civil cases filed
before the Sandiganbayan to recover the Marcoses’ alleged ill-gotten wealth was Civil Case No.
0002, now subject of this Petition.

On 16 July 1987, the PCGG, acting on behalf of the Republic and assisted by the Office of the
Solicitor General (OSG), filed a Complaint for Reversion, Reconveyance, Restitution,
Accounting and Damages against Ferdinand E. Marcos, who was later substituted by his estate
upon his death; Imelda R. Marcos; and herein respondents Imee Marcos-Manotoc, Irene Marcos-
Araneta, Bongbong Marcos, Tomas Manotoc, and Gregorio Araneta III.

On 1 October 1987, the PCGG filed an amended Complaint to add Constante Rubio as
defendant.

Again on 9 February 1988, it amended the Complaint, this time to include as defendants
Nemesio G. Co and herein respondents Yeung Chun Kam, Yeung Chun Ho, and Yeung Chun
Fan.

For the third time, on 23 April 1990, the PCGG amended its Complaint, adding to its growing
list of defendants Imelda Cojuangco, the estate of Ramon Cojuangco, and Prime Holdings, Inc.2

The PCGG filed a fourth amended Complaint, which was later denied by the Sandiganbayan in
its Resolution dated 2 September 1998.

The allegations contained in the Complaint specific to herein respondents are the following:3
29. Defendants Imelda (IMEE) R. Marcos-Manotoc, Tomas Manotoc, Irene R. Manotoc (sic)
Araneta, Gregorio Ma. Araneta III, and Ferdinand R. Marcos, Jr., actively collaborated, with
Defendants Ferdinand E. Marcos and Imelda R. Marcos among others, in confiscating and/or
unlawfully appropriating funds and other property, and in concealing the same as described
above. In addition, each of the said Defendants, either by taking undue advantage of their
relationship with Defendants Ferdinand E. Marcos and Imelda R. Marcos, or by reason of the
above-described active collaboration, unlawfully acquired or received property, shares of stocks
in corporations, illegal payments such as commissions, bribes or kickbacks, and other forms of
improper privileges, income, revenues and benefits. Defendant Araneta in particular made use of
Asialand Development Corporation which is included in Annex "A" hereof as corporate vehicle
to benefit in the manner stated above.

31. Defendants Nemesio G. Co, Yeung Chun Kam, Yeung Chun Ho and Yeung Chun Fan are
the controlling stockholders of Glorious Sun Fashion Manufacturing Corporation (Phils.).
Through Glorious Sun (Phils.), they acted as fronts or dummies, cronies or otherwise willing
tools of spouses Ferdinand and Imelda Marcos and/or the family, particularly of Defendant
Imelda (Imee) Marcos-Manotoc, in the illegal salting of foreign exchange4 by importing denim
fabrics from only one supplier – a Hong Kong based corporation which was also owned and
controlled by defendant Hong Kong investors, at prices much higher than those being paid by
other users of similar materials to the grave and irreparable damage of Plaintiff.

Thus, petitioner set forth the following causes of action in its Complaint:5

32. First Cause of Action: BREACH OF PUBLIC TRUST – A public office is a public
trust.1avvphi1 By committing all the acts described above, Defendants repeatedly breached
public trust and the law, making them liable solidarily to Plaintiff. The funds and other property
acquired by Defendants following, or as a result of, their breach of public trust, some of which
are mentioned or described above, estimated to amount to ₱ 200 billion are deemed to have been
acquired for the benefit of Plaintiff and are, therefore, impressed with constructive trust in favor
of Plaintiff and the Filipino people. Consequently, Defendants are solidarily liable to restore or
reconvey to Plaintiff all such funds and property thus impressed with constructive trust for the
benefit of Plaintiff and the Filipino people.

33. Second Cause of Action: ABUSE OF RIGHT AND POWER –

(a) Defendants, in perpetrating the unlawful acts described above, committed abuse of
right and power which caused untold misery, sufferings and damages to Plaintiff.
Defendants violated, among others Articles 19, 20, and 21 of the Civil Code of the
Philippines;

(b) As a result of the foregoing acts, Defendants acquired the title to the beneficial
interest in funds and other property and concealed such title, funds and interest through
the use of relatives, business associates, nominees, agents, or dummies. Defendants are,
therefore, solidarily liable to Plaintiff to return and reconvey all such funds and other
property unlawfully acquired by them estimated at TWO HUNDRED BILLION PESOS,
or alternatively, to pay Plaintiff, solidarily, by way of indemnity, the damage caused to
 Plaintiff equivalent to the amount of such funds or the value of other property not
returned or restored to Plaintiff, plus interest thereon from the date of unlawful
acquisition until full payment thereof.

34. Third Cause of Action: UNJUST ENRICHMENT –

Defendants illegally accumulated funds and other property whose estimated value is ₱ 200
billion in violation of the laws of the Philippines and in breach of their official functions and
fiduciary obligations. Defendants, therefore, have unjustly enriched themselves to the grave and
irreparable damage and prejudice of Plaintiff. Defendants have an obligation at law,
independently of breach of trust and abuse of right and power, and as an alternative, to solidarily
return to Plaintiff such funds and other property with which Defendants, in gross evident bad
faith, have unjustly enriched themselves or, in default thereof, restore to Plaintiff the amount of
such funds and the value of the other property including those which may have been wasted,
and/or lost estimated at ₱ 200 billion with interest thereon from the date of unlawful acquisition
until full payment thereof.

35. Fourth Cause of Action: ACCOUNTING –

The Commission, acting pursuant to the provisions of the applicable law, believe that
Defendants, acting singly or collectively, in unlawful concert with one another, and with the
active collaboration of third persons, subject of separate suits, acquired funds, assets and
property during the incumbency of Defendant public officers, manifestly out of proportion to
their salaries, to their other lawful income and income from legitimately acquired property.
Consequently, they are required to show to the satisfaction of this Honorable Court that they
have lawfully acquired all such funds, assets and property which are in excess of their legal net
income, and for this Honorable Court to decree that the Defendants are under obligation to
account to Plaintiff with respect to all legal or beneficial interests in funds, properties and assets
of whatever kind and wherever located in excess of the lawful earnings or lawful income from
legitimately acquired property.

36. Fifth Cause of Action – LIABILITY FOR DAMAGES –

(a) By reason of the unlawful acts set forth above, Plaintiff and the Filipino people have
suffered actual damages in an amount representing the pecuniary loss sustained by the
latter as a result of the Defendants’ unlawful acts, the approximate value and interest of
which, from the time of their wrongful acquisition, are estimated at ₱ 200 billion plus
expenses which Plaintiff has been compelled to incur and shall continue to incur in its
effort to recover Defendants’ ill-gotten wealth all over the world, which expenses are
reasonably estimated at ₱ 250 million. Defendants are, therefore, jointly and severally
liable to Plaintiff for actual damages in an amount reasonably estimated at ₱ 200 Billion
Pesos and to reimburse expenses for recovery of Defendants’ ill-gotten wealth estimated
to cost ₱ 250 million or in such amount as are proven during the trial.

(b) As a result of Defendants’ acts described above, Plaintiff and the Filipino people had
painfully endured and suffered moral damages for more than twenty long years, anguish,
 fright, sleepless nights, serious anxiety, wounded feelings and moral shock as well as
besmirched reputation and social humiliation before the international community.

(c) In addition, Plaintiff and the Filipino people are entitled to temperate damages for
their sufferings which, by their very nature are incapable of pecuniary estimation, but
which this Honorable Court may determine in the exercise of its sound discretion.

(d) Defendants, by reason of the above described unlawful acts, have violated and
invaded the inalienable right of Plaintiff and the Filipino people to a fair and decent way
of life befitting a Nation with rich natural and human resources. This basic and
fundamental right of Plaintiff and the Filipino people should be recognized and
vindicated by awarding nominal damages in an amount to be determined by the
Honorable Court in the exercise of its sound discretion.

(e) By way of example and correction for the public good and in order to ensure that
Defendants’ unlawful, malicious, immoral and wanton acts are not repeated, said
Defendants are solidarily liable to Plaintiff for exemplary damages.

In the meantime, the Pantranco Employees Association-PTGWO (PEA-PTGWO), a union of

Pantranco employees, moved to intervene before the Sandiganbayan. The former alleged that the
trust funds in the account of Pantranco North Express, Inc. (Pantranco) amounting to ₱ 55
million rightfully belonged to the Pantranco employees, pursuant to the money judgment the
National Labor Relations Commission (NLRC) awarded in favor of the employees and against
Pantranco. Thus, PEA-PTGWO contested the allegation of petitioner that the assets of Pantranco
were ill-gotten because, otherwise, these assets would be returned to the government and not to
the employees.

Thereafter, petitioner presented and formally offered its evidence against herein respondents.
However, the latter objected to the offer primarily on the ground that the documents violated the
best evidence rule of the Rules of Court, as these documents were unauthenticated; moreover,
petitioner had not provided any reason for its failure to present the originals.

On 11 March 2002, the Sandiganbayan issued a Resolution6 admitting the pieces of evidence
while expressing some reservation, to wit:

WHEREFORE, taking note of the objections of accused Marcoses and the reply thereto by the
plaintiff, all the documentary exhibits formally offered by the prosecution are hereby admitted in
evidence; however, their evidentiary value shall be left to the determination of the Court.

SO ORDERED.

Imelda R. Marcos; Imee Marcos-Manotoc and Bongbong Marcos, Jr.; Irene Marcos-Araneta and
Gregorio Ma. Araneta III; Yeung Chun Kam, Yeung Chun Ho and Yeung Chun Fan; and the
PEA-PTGWO subsequently filed their respective Demurrers to Evidence.
On 6 December 2005, the Sandiganbayan issued the assailed Resolution,7 which granted all the
Demurrers to Evidence except the one filed by Imelda R. Marcos. The dispositive portion reads:

WHEREFORE, premises considered, the Demurrer to Evidence filed by defendant Imelda R.

Marcos is hereby DENIED. The Demurrer to Evidence filed by defendants Maria Imelda
Marcos Manotoc, Ferdinand Marcos, Jr., Irene Marcos Araneta, Gregorio Maria Araneta III,
Yeung Chun Kam, Yeung Chun Fan, Yeung Chun Ho, and intervenor PEA-PTGWO, are hereby
GRANTED. The sequestration orders on the properties in the name of defendant Gregorio Maria
Araneta III, are accordingly ordered lifted.

SO ORDERED.

The Sandiganbayan denied Imelda R. Marcos’ Demurrer primarily because she had categorically
admitted that she and her husband owned properties enumerated in the Complaint, while stating
that these properties had been lawfully acquired. The court held that the evidence presented by
petitioner constituted a prima facie case against her, considering that the value of the properties
involved was grossly disproportionate to the Marcos spouses’ lawful income. Thus, this
admission and the fact that Imelda R. Marcos was the compulsory heir and administratrix of the
Marcos estate were the primary reasons why the court held that she was responsible for
accounting for the funds and properties alleged to be ill-gotten.

Secondly, the court pointed out that Rolando Gapud, whose deposition was taken in Hong Kong,
referred to her as one directly involved in amassing ill-gotten wealth. The court also considered
the compromise agreement between petitioner and Antonio O. Floirendo, who disclosed that he
had performed several business transactions upon the instructions of the Marcos spouses.

With regard to the siblings Imee Marcos-Manotoc and Bongbong Marcos, Jr., the court noted
that their involvement in the alleged illegal activities was never established. In fact, they were
never mentioned by any of the witnesses presented. Neither did the documentary evidence
pinpoint any specific involvement of the Marcos children.

Moreover, the court held that the evidence, in particular, exhibits "P,"8 "Q,"9 "R,"10 "S,"11 and
"T,"12 were considered hearsay, because their originals were not presented in court, nor were
they authenticated by the persons who executed them. Furthermore, the court pointed out that
petitioner failed to provide any valid reason why it did not present the originals in court. These
exhibits were supposed to show the interests of Imee Marcos-Manotok in the media networks
IBC-13, BBC-2 and RPN-9, all three of which she had allegedly acquired illegally. These
exhibits also sought to prove her alleged participation in dollar salting through De Soleil
Apparel.

Finally, the court held that the relationship of respondents to the Marcos spouses was not enough
reason to hold the former liable.

In the matter of the spouses Irene Marcos and Gregorio Araneta III, the court similarly held that
there was no testimonial or documentary evidence that supported petitioner’s allegations against
the couple. Again, petitioner failed to present the original documents that supposedly supported
the allegations against them. Instead, it merely presented photocopies of documents that sought
to prove how the Marcoses used the Potencianos13 as dummies in acquiring and operating the
bus company Pantranco.

Meanwhile, as far as the Yeungs were concerned, the court found the allegations against them
baseless. Petitioner failed to demonstrate how their business, Glorious Sun Fashion Garments
Manufacturing, Co. Phils. (Glorious Sun), was used as a vehicle for dollar salting; or to show
that they themselves were dummies of the Marcoses. Again, the court held that the documentary
evidence relevant to this allegation was inadmissible for being mere photocopies, and that the
affiants had not been presented as witnesses.

Finally, the court also granted the Demurrer filed by PEA-PTGWO. While the court held that
there was no evidence to show that Pantranco was illegally acquired, the former nevertheless
held that there was a need to first determine the ownership of the disputed funds before they
could be ordered released to the rightful owner.

On 20 December 2005, petitioner filed its Motion for Partial Reconsideration, insisting that there
was a preponderance of evidence to show that respondents Marcos siblings and Gregorio
Araneta III had connived with their parents in acquiring ill-gotten wealth. It pointed out that
respondents were compulsory heirs to the deposed President and were thus obliged to render an
accounting and to return the ill-gotten wealth.

Moreover, petitioner asserted that the evidence established that the Yeungs were dummies of the
Marcoses, and that the Pantranco assets were part of the Marcoses’ alleged ill-gotten wealth.

Finally, petitioner questioned the court’s ruling that the evidence previously admitted was later
held to be inadmissible in evidence against respondents, thus, depriving the former of due
process.

Inadvertently, petitioner was not able to serve a copy of the motion on respondents Imee Marcos-
Manotoc and Bongbong Marcos, Jr. But upon realizing the oversight, it immediately did so and
filed the corresponding Manifestation and Motion before the court. Nonetheless, this
inadvertence prompted Imee Marcos-Manotoc and Bongbong Marcos, Jr. to file their Motion for
Entry of Judgment.

On 2 March 2006, the court issued the second assailed Resolution,14 denying petitioner’s
Motion. The court pointed out its reservation in its Resolution dated 12 March 2002, wherein it
said that it would still assess and weigh the evidentiary value of the admitted evidence.
Furthermore, it said that even if it included the testimonies of petitioner’s witnesses, these were
not substantial to hold respondents liable. Thus, the court said:

WHEREFORE, there being no sufficient reason to set aside the resolution dated December 6,
2005, the plaintiff’s Motion for Partial Reconsideration is hereby DENIED. The plaintiff’s
Motion and Manifestation dated January 18, 2006 is GRANTED in the interest of justice. The
Motion for Entry of Judgment filed by defendants Imee Marcos and Bongbong Marcos is
DENIED.
SO ORDERED.

Hence, this Petition.

Petitioner raises the same issues it raised in its Motion for Reconsideration filed before the
Sandiganbayan, to wit:15

I. THE SANDIGANBAYAN ERRED IN GRANTING THE DEMURRER TO

EVIDENCE FILED BY RESPONDENTS MA. IMELDA (IMEE) R. MARCOS AND
FERDINAND (BONGBONG) R. MARCOS, JR., CONSIDERING THAT MORE
THAN PREPONDERANT EVIDENCE ON RECORD CLEARLY DEMONSTRATES
THEIR CONNIVANCE WITH FORMER PRESIDENT FERDINAND E. MARCOS
AND OTHER MARCOS DUMMIES AND ABUSED THEIR POWER AND
INFLUENCE IN UNLAWFULLY AMASSING FUNDS FROM THE NATIONAL
TREASURY.

II. PETITION PROVED, BY MORE THAN PREPONDERANT EVIDENCE, THAT

RESPONDENT-SPOUSES GREGORIO ARANETA III AND IRENE MARCOS
ARANETA CONNIVED WITH FORMER PRESIDENT MARCOS IN
UNLAWFULLY ACQUIRING BUSINESS INTERESTS WHICH ARE GROSSLY
DISADVANTAGEOUS TO THE GOVERNMENT, AND IN A MANNER
PROHIBITED UNDER THE CONSTITUTION AND ANTI-GRAFT STATUTES.

III. RESPONDENTS IMEE, BONGBONG, AND IRENE MARCOS ARE

COMPULSORY HEIRS OF FORMER PRESIDENT MARCOS AND ARE EQUALLY
OBLIGED TO RENDER AN ACCOUNTING AND RETURN THE ALLEGED ILL-
GOTTEN WEALTH OF THE MARCOSES.

IV. THERE EXISTS CONCRETE EVIDENCE PROVING THAT RESPONDENTS

YEUNG CHUN KAM, YEUNG CHUN FAN, AND YEUNG CHUN HO ACTED AS
DUMMIES FOR THE MARCOSES, AND USED THE CORPORATION, GLORIOUS
SUN, AS A CONDUIT IN AMASSING THE ILL-GOTTEN WEALTH.
ACCORDINGLY, THE SANDIGANBAYAN ERRED IN GRANTING THEIR
DEMURRER TO EVIDENCE.

V. THE DEMURRER TO EVIDENCE FILED BY INTERVENOR PEA-PTGWO

WITH RESPECT TO THE PANTRANCO ASSETS SHOULD NOT HAVE BEEN
GRANTED SINCE AMPLE EVIDENCE PROVES THAT THE SAID ASSETS
INDUBITABLY FORM PART OF THE MARCOS ILL-GOTTEN WEALTH, AS
BUTTRESSED BY THE FACT THAT NO JUDICIAL DETERMINATION HAS BEEN
MADE AS TO WHOM THESE ASSETS RIGHTFULLY BELONG.

VI. THE SANDIGANBAYAN’S RULING WHICH REJECTED PEITITONER’S

DOCUMENTARY EXHIBITS ALLEGEDLY FOR BEING "INADMISSIBLE"
DIRECTLY CONTRADICTS ITS EARLIER RULING ADMITTING ALL SAID
 DOCUMENTARY EVIDENCE AND WAS RENDERED IN A MANNER THAT
DEPRIVED PETITIONER’S RIGHT TO DUE PROCESS OF LAW.

There is some merit in petitioner’s contention.

The Marcos Siblings and

Gregorio Araneta III

Closely analyzing petitioner’s Complaint and the present Petition for Review, it is clear that the
Marcos siblings are being sued in two capacities: first, as co-conspirators in the alleged
accumulation of ill-gotten wealth; and second, as the compulsory heirs of their father, Ferdinand
E. Marcos.16

With regard to the first allegation, as contained in paragraph 29 of its Third Amended Complaint
quoted above, petitioner accused the Marcos siblings of having collaborated with, participated in,
and/or benefitted from their parents’ alleged accumulation of ill-gotten wealth. In particular, as
far as Imee Marcos-Manotoc was concerned, she was accused of dollar salting by using Glorious
Sun to import denim fabrics from one supplier at prices much higher than those paid by other
users of similar materials. It was also alleged that the Marcoses personally benefitted from the
sequestered media networks IBC-13, BBC-2, and RPN-9, in which Imee Marcos had a
substantial interest.

Irene Marcos-Araneta, on the other hand, was accused of having conspired with her husband,
respondent Gregorio Araneta III, in his being President Marcos’ conduit to Pantranco, thereby
paving the way for the President’s ownership of the company in violation of Article VII, Section
4, paragraph 2 of the 1973 Constitution.17

To prove the general allegations against the Marcos siblings, petitioner primarily relied on the
Sworn Statement18 and the Deposition19 of one of the financial advisors of President Marcos,
Rolando C. Gapud, taken in Hong Kong on various dates.

Meanwhile, to prove the participation and interests of Imee Marcos-Manotoc in De Soleil

Apparel and the media networks, petitioner relied on the Affidavits of Ramon S. Monzon,20
Yeung Kwok Ying,21 and Rodolfo V. Puno;22 and the transcript of stenographic notes (TSN)
taken during the PCGG hearing held on 8 June 1987.23

As to spouses Irene Marcos-Araneta and Gregorio Araneta III, petitioner submitted the Articles
of Incorporation of Northern Express Transport, Inc.;24 the Memorandum of Agreement25 and
the Purchase Agreement26 between Pantranco and Batangas Laguna Tayabas Bus Company,
Inc. (BLTBCo.); the Confidential Memorandum regarding the sale of the Pantranco assets;27 the
Affidavit28 and the letter to the PCGG29 of Dolores A. Potenciano, owner of BLTBCo.; the
Affidavit30 and the Memorandum31 of Eduardo Fajardo, who was then the Senior Vice-
President of the Account Management Group of the Philippine National Bank (PNB), which was
in turn the creditor for the Pantranco sale; and the Affidavit of Florencio P. Lucio, who was the
Senior Account Specialist of the National Investment and Development Corporation.32
Petitioner contends that these documents fall under the Rule’s third exception, that is, these
documents are public records in the custody of a public officer or are recorded in a public office.
It is its theory that since these documents were collected by the PCGG, then, necessarily, the
conditions for the exception to apply had been met. Alternatively, it asserts that the "documents
were offered to prove not only the truth of the recitals of the documents, but also of other
external or collateral facts."33

The Court’s Ruling

Petitioner failed to observe the

best evidence rule.

It is petitioner’s burden to prove the allegations in its Complaint. For relief to be granted, the
operative act on how and in what manner the Marcos siblings participated in and/or benefitted
from the acts of the Marcos couple must be clearly shown through a preponderance of evidence.
Should petitioner fail to discharge this burden, the Court is constrained and is left with no choice
but to uphold the Demurrer to Evidence filed by respondents.

First, petitioner does not deny that what should be proved are the contents of the documents
themselves. It is imperative, therefore, to submit the original documents that could prove
petitioner’s allegations.

Thus, the photocopied documents are in violation Rule 130, Sec. 3 of the Rules of Court,
otherwise known as the best evidence rule, which mandates that the evidence must be the
original document itself. The origin of the best evidence rule can be found and traced to as early
as the 18th century in Omychund v. Barker,34 wherein the Court of Chancery said:

The judges and sages of the law have laid it down that there is but one general rule of
evidence, the best that the nature of the case will admit.

The rule is, that if the writings have subscribing witnesses to them, they must be proved by
those witnesses.

The first ground judges have gone upon in departing from strict rules, is an absolute strict
necessity. Secondly, a presumed necessity. In the case of writings, subscribed by witnesses, if all
are dead, the proof of one of their hands is sufficient to establish the deed: where an original is
lost, a copy may be admitted; if no copy, then a proof by witnesses who have heard the deed, and
yet it is a thing the law abhors to admit the memory of man for evidence.

Petitioner did not even attempt to provide a plausible reason why the originals were not
presented, or any compelling ground why the court should admit these documents as secondary
evidence absent the testimony of the witnesses who had executed them.

In particular, it may not insist that the photocopies of the documents fall under Sec. 7 of Rule
130, which states:
Evidence admissible when original document is a public record. ─ When the original of a
document is in the custody of a public officer or is recorded in a public office, its contents may
be proved be a certified copy issued by the public officer in custody thereof.

Secs. 19 and 20 of Rule 132 provide:

SECTION 19. Classes of documents. ─ For the purpose of their presentation in evidence,
documents are either public or private.

Public documents are:

(a) The written official acts, or records of the official acts of the sovereign authority,
official bodies and tribunals, and public officers, whether of the Philippines, or of a
foreign country;

(b) Documents acknowledged before a notary public except last wills and testaments; and

(c) Public records, kept in the Philippines, of private documents required by law to be
entered therein.

All other writings are private.

SECTION 20. Proof of private document. — Before any private document offered as authentic is
received in evidence, its due execution and authenticity must be proved either:

(a) By anyone who saw the document executed or written; or

(b) By evidence of the genuineness of the signature or handwriting of the maker.

Any other private document need only be identified as that which it is claimed to be.

The fact that these documents were collected by the PCGG in the course of its investigations
does not make them per se public records referred to in the quoted rule.

Petitioner presented as witness its records officer, Maria Lourdes Magno, who testified that these
public and private documents had been gathered by and taken into the custody of the PCGG in
the course of the Commission’s investigation of the alleged ill-gotten wealth of the Marcoses.
However, given the purposes for which these documents were submitted, Magno was not a
credible witness who could testify as to their contents. To reiterate, "[i]f the writings have
subscribing witnesses to them, they must be proved by those witnesses." Witnesses can testify
only to those facts which are of their personal knowledge; that is, those derived from their own
perception.35 Thus, Magno could only testify as to how she obtained custody of these
documents, but not as to the contents of the documents themselves.

Neither did petitioner present as witnesses the affiants of these Affidavits or Memoranda
submitted to the court. Basic is the rule that, while affidavits may be considered as public
documents if they are acknowledged before a notary public, these Affidavits are still classified as
hearsay evidence. The reason for this rule is that they are not generally prepared by the affiant,
but by another one who uses his or her own language in writing the affiant's statements, parts of
which may thus be either omitted or misunderstood by the one writing them. Moreover, the
adverse party is deprived of the opportunity to cross-examine the affiants. For this reason,
affidavits are generally rejected for being hearsay, unless the affiants themselves are placed on
the witness stand to testify thereon.36

As to the copy of the TSN of the proceedings before the PCGG, while it may be considered as a
public document since it was taken in the course of the PCGG’s exercise of its mandate, it was
not attested to by the legal custodian to be a correct copy of the original. This omission falls
short of the requirement of Rule 132, Secs. 24 and 25 of the Rules of Court.37

In summary, we adopt the ruling of the Sandiganbayan, to wit:

Further, again contrary to the theory of the plaintiff, the presentation of the originals of the
aforesaid exhibits is not validly excepted under Rule 130, Section 3 (a), (b), and (d) of the Rules
of Court. Under paragraph (d), when ‘the original document is a public record in the custody of a
public officer or is recorded in a public office,’ presentation of the original thereof is excepted.
However, as earlier observed, all except one of the exhibits introduced by the plaintiff were not
necessarily public documents. The transcript of stenographic notes (TSN) of the proceedings
purportedly before the PCGG, the plaintiff’s exhibit "Q", may be a public document, but what
was presented by the plaintiff was a mere photocopy of the purported TSN. The Rules provide
that when the original document is in the custody of a public officer or is recorded in a public
office, its contents may be proved by a certified copy issued by the public officer in custody
thereof. Exhibit "Q" was not a certified copy and it was not even signed by the stenographer who
supposedly took down the proceedings.

The rest of the above-mentioned exhibits cannot likewise be excepted under paragraphs (a) and
(b) of Section 3. Section 5 of the same Rule provides that ‘when the original documents has been
lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or
existence and the cause of its unavailability without bad faith on his part, may prove its contents
by a copy, or by a recital of its contents in some authentic document, or by the testimony of
witnesses in the order stated.’ Thus, in order that secondary evidence may be admissible, there
must be proof by satisfactory evidence of (1) due execution of the original; (2) loss, destruction
or unavailability of all such originals and (3) reasonable diligence and good faith in the search
for or attempt to produce the original. None of these requirements were complied with by the
plaintiff. Similar to exhibit ‘Q’, exhibits ‘P’, ‘R’, ‘S’, and ‘T’ were all photocopies. ‘P’, ‘R’, and
‘T’ were affidavits of persons who did not testify before the Court. Exhibit ‘S’ is a letter which is
clearly a private document. Not only does it not fall within the exceptions of Section 3, it is also
a mere photocopy. As We previously emphasized, even if originals of these affidavits were
presented, they would still be considered hearsay evidence if the affiants do not testify and
identify them.38

Thus, absent any convincing evidence to hold otherwise, it follows that petitioner failed to prove
that the Marcos siblings and Gregorio Araneta III collaborated with former President Marcos and
Imelda R. Marcos and participated in the first couple’s alleged accumulation of ill-gotten wealth
insofar as the specific allegations herein were concerned.

The Marcos siblings are compulsory heirs.

To reiterate, in its third Amended Complaint, petitioner prays that the Marcos respondents be
made to (1) pay for the value of the alleged ill-gotten wealth with interest from the date of
acquisition; (2) render a complete accounting and inventory of all funds and other pieces of
property legally or beneficially held and/or controlled by them, as well as their legal and
beneficial interest therein; (3) pay actual damages estimated at ₱200 billion and additional actual
damages to reimburse expenses for the recovery of the alleged ill-gotten wealth estimated at
₱250 million or in such amount as may be proven during trial; (4) pay moral damages amounting
to ₱50 billion; (5) pay temperate and nominal damages, as well as attorney’s fees and litigation
expenses in an amount to be proven during the trial; (6) pay exemplary damages in the amount of
₱1 billion; and (7) pay treble judicial costs.39

It must be stressed that we are faced with exceptional circumstances, given the nature and the
extent of the properties involved in the case pending with the Sandiganbayan. It bears emphasis
that the Complaint is one for the reversion, the reconveyance, the restitution and the accounting
of alleged ill-gotten wealth and the payment of damages. Based on the allegations of the
Complaint, the court is charged with the task of (1) determining the properties in the Marcos
estate that constitute the alleged ill-gotten wealth; (2) tracing where these properties are; (3)
issuing the appropriate orders for the accounting, the recovery, and the payment of these
properties; and, finally, (4) determining if the award of damages is proper.

Since the pending case before the Sandiganbayan survives the death of Ferdinand E. Marcos, it is
imperative therefore that the estate be duly represented. The purpose behind this rule is the
protection of the right to due process of every party to a litigation who may be affected by the
intervening death. The deceased litigant is himself protected, as he continues to be properly
represented in the suit through the duly appointed legal representative of his estate.40 On that
note, we take judicial notice of the probate proceedings regarding the will of Ferdinand E.
Marcos. In Republic of the Philippines v. Marcos II,41 we upheld the grant by the Regional Trial
Court (RTC) of letters testamentary in solidum to Ferdinand R. Marcos, Jr. and Imelda
Romualdez-Marcos as executors of the last will and testament of the late Ferdinand E. Marcos.

Unless the executors of the Marcos estate or the heirs are ready to waive in favor of the state
their right to defend or protect the estate or those properties found to be ill-gotten in their
possession, control or ownership, then they may not be dropped as defendants in the civil case
pending before the Sandiganbayan.

Rule 3, Sec. 7 of the Rules of Court defines indispensable parties as those parties-in-interest
without whom there can be no final determination of an action. They are those parties who
possess such an interest in the controversy that a final decree would necessarily affect their
rights, so that the courts cannot proceed without their presence. Parties are indispensable if their
interest in the subject matter of the suit and in the relief sought is inextricably intertwined with
that of the other parties.42
In order to reach a final determination of the matters concerning the estate of Ferdinand E.
Marcos – that is, the accounting and the recovery of ill-gotten wealth – the present case must be
maintained against Imelda Marcos and herein respondent Ferdinand "Bongbong" R. Marcos, Jr.,
as executors of the Marcos estate pursuant to Sec. 1 of Rule 87 of the Rules of Court. According
to this provision, actions may be commenced to recover from the estate, real or personal
property, or an interest therein, or to enforce a lien thereon; and actions to recover damages for
an injury to person or property, real or personal, may be commenced against the executors.

We also hold that the action must likewise be maintained against Imee Marcos-Manotoc and
Irene Marcos-Araneta on the basis of the non-exhaustive list attached as Annex "A" to the Third
Amended Complaint, which states that the listed properties therein were owned by Ferdinand
and Imelda Marcos and their immediate family.43 It is only during the trial of Civil Case No.
0002 before the Sandiganbayan that there could be a determination of whether these properties
are indeed ill-gotten or were legitimately acquired by respondents and their predecessors. Thus,
while it was not proven that respondents conspired in accumulating ill-gotten wealth, they may
be in possession, ownership or control of such ill-gotten properties or the proceeds thereof as
heirs of the Marcos couple. Thus, their lack of participation in any illegal act does not remove
the character of the property as ill-gotten and, therefore, as rightfully belonging to the State.

Secondly, under the rules of succession, the heirs instantaneously became co-owners of the
Marcos properties upon the death of the President. The property rights and obligations to the
extent of the value of the inheritance of a person are transmitted to another through the
decedent’s death.44 In this concept, nothing prevents the heirs from exercising their right to
transfer or dispose of the properties that constitute their legitimes, even absent their declaration
or absent the partition or the distribution of the estate. In Jakosalem v. Rafols,45 we said:

Article 440 of the Civil Code provides that "the possession of hereditary property is deemed
to be transmitted to the heir without interruption from the instant of the death of the
decedent, in case the inheritance be accepted." And Manresa with reason states that upon the
death of a person, each of his heirs "becomes the undivided owner of the whole estate left
with respect to the part or portion which might be adjudicated to him, a community of
ownership being thus formed among the coowners of the estate while it remains
undivided." (3 Manresa, 357; Alcala vs. Alcala, 35 Phil. 679.) And according to article 399 of
the Civil Code, every part owner may assign or mortgage his part in the common property,
and the effect of such assignment or mortgage shall be limited to the portion which may be
allotted him in the partition upon the dissolution of the community. Hence, in the case of
Ramirez vs. Bautista, 14 Phil. 528, where some of the heirs, without the concurrence of the
others, sold a property left by their deceased father, this Court, speaking thru its then
Chief Justice Cayetano Arellano, said that the sale was valid, but that the effect thereof was
limited to the share which may be allotted to the vendors upon the partition of the estate.
(Emphasis supplied)

Lastly, petitioner’s prayer in its Third Amended Complaint directly refers to herein respondents,
to wit:
 1. AS TO THE FIRST SECOND AND THIRD CAUSES OF ACTION – To return and
reconvey to Plaintiff all funds and other property acquired by Defendants during
their incumbency as public officers, which funds and other property are manifestly out of
proportion to their salaries, other lawful income and income from legitimately acquired
property which Defendants have failed to establish as having been, in fact, lawfully
acquired by them, alternatively, to solidarily pay Plaintiff the value thereof with interest
thereon from the date of acquisition until full payment.

2. AS TO THE FOURTH CAUSE OF ACTION – to individually render to this

Honorable Court a complete accounting and inventory, subject to evaluation of
Court-appointed assessors, of all funds and other property legally or beneficially held
and/or controlled by them, as well as their legal and beneficial interest in such funds and
other property. (Emphasis supplied)

In sum, the Marcos siblings are maintained as respondents, because (1) the action pending before
the Sandiganbayan is one that survives death, and, therefore, the rights to the estate must be duly
protected; (2) they allegedly control, possess or own ill-gotten wealth, though their direct
involvement in accumulating or acquiring such wealth may not have been proven.

Yeung Chun Kam, Yeung Chun

Ho And Yeung Chun Fan

It is worthy to note that respondents draw our attention to American Inter-Fashion Corporation v.
Office of the President46 in which they contend that this Court considered the allegation of
dollar salting as baseless. The cited case, however, finds no application herein as the former
merely ruled that Glorious Sun was denied due process when it was not furnished by the
Garments and Textile Export Board (GTEB) any basis for the cancellation of the export quota
because of allegations of dollar salting. That Decision did not prevent petitioner from adducing
evidence to support its allegation in Civil Case No. 0002 before the Sandiganbayan under a
different cause of action.

Nevertheless, the allegations against Yeung Chun Kam, Yeung Chun Ho and Yeung Chun Fan in
the case at bar were also proved to be baseless. Again, petitioner failed to illustrate how
respondents herein acted as dummies of the Marcoses in acquiring ill-gotten wealth. This Court
notes that the Complaint against the Yeungs alleges that the Marcoses used Glorious Sun – the
garment company in which the Yeungs are controlling stockholders – for illegal dollar salting
through the company’s importation of denim fabrics from only one supplier at prices much
higher than those being paid by other users of similar materials. Notably, no mention of De
Soleil Apparel was made.

To prove its allegations, petitioner submitted the controverted Exhibits "P," "Q," "R," "S," and
"T." As earlier discussed in detail, these pieces of evidence were mere photocopies of the
originals and were unauthenticated by the persons who executed them; thus, they have no
probative value. Even the allegations of petitioner itself in its Petition for Review are bereft of
any factual basis for holding that these documents undoubtedly show respondents’ participation
in the alleged dollar salting. The pertinent portion of the Petition reads:
To illustrate, the Affidavit dated May 29, 1987 executed by Mr. Ramon Monzon which was
submitted as Exhibit P, showed that respondent Imee Marcos-Manotoc owns and controls IBC-
13, BBC-2 and (R)PN-9, and has interest in the De Soleil Apparel. The testimony of Mr. Ramon
Monzon during the hearing on June 8, 1987 before the Presidential Commission on Good
Government as shown in the Transcript of Stenographic Notes also affirmed his declarations in
the Affidavit dated May 29, 1987. The Transcript of Stenographic Notes dated June 8, 1987 was
presented as Exhibit Q. Moreover, the Affidavit dated March 21, 1986 of Yeung Kwok Ying
which was presented as Exhibit R disclosed that Imee Marcos-Manotoc is the owner of 67%
equity of De Soleil Apparel. The letter dated July 17, 1984 signed by seven (7) incorporators of
De Soleil Apparel, addressed to Hongkong investors which was presented as Exhibit S
confirmed that the signatories hold or own 67% equity of the corporation in behalf of the
beneficial owners previously disclosed to the addressees. In addition to the foregoing documents,
petitioner presented the Affidavit of Rodolfo V. Puno, Chairman of the Garments and Textile
Export Group (GTEB) as Exhibit T wherein he categorically declared that the majority of De
Soleil Apparel was actually owned by respondent Imee Marcos-Manotoc.47

The foregoing quotation from the Petition is bereft of any factual matter that warrants a
consideration by the Court. Straight from the horse’s mouth, these documents are only meant to
show the ownership and interest of Imee Marcos Manotoc in De Soleil – and not how respondent
supposedly participated in dollar salting or in the accumulation of ill-gotten wealth.

PEA-PTGWO

The PEA-PTGWO Demurrer to Evidence was granted primarily as a consequence of the

prosecution’s failure to establish that the assets of Pantranco were ill-gotten, as discussed earlier.
Thus, we find no error in the assailed Order of the Sandiganbayan.

A Final Note

As earlier adverted to, the best evidence rule has been recognized as an evidentiary standard
since the 18th century. For three centuries, it has been practiced as one of the most basic rules in
law. It is difficult to conceive that one could have finished law school and passed the bar
examinations without knowing such elementary rule. Thus, it is deeply disturbing that the PCGG
and the Office of the Solicitor General (OSG) – the very agencies sworn to protect the interest of
the state and its people – could conduct their prosecution in the manner that they did. To
emphasize, the PCGG is a highly specialized office focused on the recovery of ill-gotten wealth,
while the OSG is the principal legal defender of the government. The lawyers of these
government agencies are expected to be the best in the legal profession.

However, despite having the expansive resources of government, the members of the prosecution
did not even bother to provide any reason whatsoever for their failure to present the original
documents or the witnesses to support the government’s claims. Even worse was presenting in
evidence a photocopy of the TSN of the PCGG proceedings instead of the original, or a certified
true copy of the original, which the prosecutors themselves should have had in their custody.
Such manner of legal practice deserves the reproof of this Court. We are constrained to call
attention to this apparently serious failure to follow a most basic rule in law, given the special
circumstances surrounding this case.

The public prosecutors should employ and use all government resources and powers efficiently,
effectively, honestly and economically, particularly to avoid wastage of public funds and
revenues. They should perform and discharge their duties with the highest degree of excellence,
professionalism, intelligence and skill.48

The basic ideal of the legal profession is to render service and secure justice for those seeking its
aid.49 In order to do this, lawyers are required to observe and adhere to the highest ethical and
professional standards. The legal profession is so imbued with public interest that its
practitioners are accountable not only to their clients, but to the public as well.

The public prosecutors, aside from being representatives of the government and the state, are,
first and foremost, officers of the court. They took the oath to exert every effort and to consider it
their duty to assist in the speedy and efficient administration of justice.50 Lawyers owe fidelity
to the cause of the client and should be mindful of the trust and confidence reposed in them.51
Hence, should serve with competence and diligence.52

We note that there are instances when this Court may overturn the dismissal of the lower courts
in instances when it is shown that the prosecution has deprived the parties their due process of
law. In Merciales v. Court of Appeals,53 we reversed the Decision of the RTC in dismissing the
criminal case for rape with homicide. In that case, it was very apparent that the public prosecutor
violated the due process rights of the private complainant owing to its blatant disregard of
procedural rules and the failure to present available crucial evidence, which would tend to prove
the guilt or innocence of the accused therein. Moreover, we likewise found that the trial court
was gravely remiss in its duty to ferret out the truth and, instead, just "passively watched as the
public prosecutor bungled the case."

However, it must be emphasized that Merciales was filed exactly to determine whether the
prosecution and the trial court gravely abused their discretion in the proceedings of the case, thus
resulting in the denial of the offended party’s due process. Meanwhile, the present case merely
alleges that there was an error in the Sandiganbayan’s consideration of the probative value of
evidence. We also note that in Merciales, both the prosecution and the trial court were found to
be equally guilty of serious nonfeasance, which prompted us to remand the case to the trial court
for further proceedings and reception of evidence. Merciales is thus inapplicable to the case at
bar.

Nevertheless, given the particular context of this case, the failure of the prosecution to adhere to
something as basic as the best evidence rule raises serious doubts on the level and quality of
effort given to the government’s cause. Thus, we highly encourage the Office of the President,
the OSG, and the PCGG to conduct the appropriate investigation and consequent action on this
matter.

WHEREFORE, in view of the foregoing, the Petition is PARTIALLY GRANTED. The

assailed Sandiganbayan Resolution dated 6 December 2005 is AFFIRMED with
MODIFICATION. For the reasons stated herein, respondents Imelda Marcos-Manotoc, Irene
Marcos-Araneta, and Ferdinand R. Marcos, Jr. shall be maintained as defendants in Civil Case
No. 0002 pending before the Sandiganbayan.

Let a copy of this Decision be furnished to the Office of the President so that it may look into the
circumstances of this case and determine the liability, if any, of the lawyers of the Office of the
Solicitor General and the Presidential Commission on Good Government in the manner by which
this case was handled in the Sandiganbayan.

SO ORDERED.

LEGITIMES

1. G. R. No. 136773 June 25, 2003

MILAGROS MANONGSONG, joined by her husband, CARLITO MANONGSONG,

Petitioners,
vs.
FELOMENA JUMAQUIO ESTIMO, EMILIANA JUMAQUIO, NARCISO ORTIZ,
CELESTINO ORTIZ, RODOLFO ORTIZ, ERLINDA O. OCAMPO, PASTOR ORTIZ,
JR., ROMEO ORTIZ BENJAMIN DELA CRUZ, SR., BENJAMIN DELA CRUZ, JR.,
AURORA NICOLAS, GLORIA RACADIO, ROBERTO DELA CRUZ, JOSELITO DELA
CRUZ and LEONCIA S. LOPEZ, Respondents.

DECISION

CARPIO, J.:

The Case

Before this Court is a petition for review1 assailing the Decision2 of 26 June 1998 and the
Resolution of 21 December 1998 of the Court of Appeals in CA-G.R. CV No. 51643. The Court
of Appeals reversed the Decision dated 10 April 1995 of the Regional Trial Court of Makati
City, Branch 135, in Civil Case No. 92-1685, partitioning the property in controversy and
awarding to petitioners a portion of the property.

Antecedent Facts

Spouses Agatona Guevarra ("Guevarra") and Ciriaco Lopez had six (6) children, namely: (1)
Dominador Lopez; (2) Enriqueta Lopez-Jumaquio, the mother of respondents Emiliana
Jumaquio Rodriguez and Felomena Jumaquio Estimo ("Jumaquio sisters"); (3) Victor Lopez,
married to respondent Leoncia Lopez; (4) Benigna Lopez-Ortiz, the mother of respondents
Narciso, Celestino, Rodolfo, Pastor Jr. and Romeo Ortiz, and Erlinda Ortiz Ocampo; (5) Rosario
Lopez-dela Cruz, married to respondent Benjamin dela Cruz, Sr. and the mother of respondents
Benjamin Jr., Roberto, and Joselito, all surnamed dela Cruz, and of Gloria dela Cruz Racadio and
Aurora dela Cruz Nicolas; and (6) Vicente Lopez, the father of petitioner Milagros Lopez
Manongsong ("Manongsong").

The contested property is a parcel of land on San Jose Street, Manuyo Uno, Las Piñas, Metro
Manila with an area of approximately 152 square meters ("Property"). The records do not show
that the Property is registered under the Torrens system. The Property is particularly described in
Tax Declaration No. B-001-003903 as bounded in the north by Juan Gallardo, south by Calle
Velay, east by Domingo Lavana and west by San Jose Street. Tax Declaration No. B-001-00390
was registered with the Office of the Municipal Assessor of Las Piñas on 30 September 1984 in
the name of "Benigna Lopez, et al".4 However, the improvements on the portion of the Property
denominated as No. 831 San Jose St., Manuyo Uno, Las Piñas were separately declared in the
name of "Filomena J. Estimo" under Tax Declaration No. 90-001-02145 dated 14 October
1991.5

Milagros and Carlito Manongsong ("petitioners") filed a Complaint6 on 19 June 1992, alleging
that Manongsong and respondents are the owners pro indiviso of the Property. Invoking Article
494 of the Civil Code,7 petitioners prayed for the partition and award to them of an area
equivalent to one-fifth (1/5) of the Property or its prevailing market value, and for damages.

Petitioners alleged that Guevarra was the original owner of the Property. Upon Guevarra’s death,
her children inherited the Property. Since Dominador Lopez died without offspring, there were
only five children left as heirs of Guevarra. Each of the five children, including Vicente Lopez,
the father of Manongsong, was entitled to a fifth of the Property. As Vicente Lopez’ sole
surviving heir, Manongsong claims her father’s 1/5 share in the Property by right of
representation.

There is no dispute that respondents, who are the surviving spouses of Guevarra’s children and
their offspring, have been in possession of the Property for as long as they can remember. The
area actually occupied by each respondent family differs, ranging in size from approximately 25
to 50 square meters. Petitioners are the only descendants not occupying any portion of the
Property.

Most respondents, specifically Narciso, Rodolfo, Pastor Jr., and Celestino Ortiz, and Erlinda
Ortiz Ocampo ("Ortiz family"), as well as Benjamin Sr., Benjamin Jr., and Roberto dela Cruz,
Aurora dela Cruz Nicolas and Gloria Dela Cruz Racadio ("Dela Cruz family"), entered into a
compromise agreement with petitioners. Under the Stipulation of Facts and Compromise
Agreement8 dated 12 September 1992 ("Agreement"), petitioners and the Ortiz and Dela Cruz
families agreed that each group of heirs would receive an equal share in the Property. The
signatories to the Agreement asked the trial court to issue an order of partition to this effect and
prayed further that "those who have exceeded said one-fifth (1/5) must be reduced so that those
who have less and those who have none shall get the correct and proper portion."9

Among the respondents, the Jumaquio sisters and Leoncia Lopez – who each occupy 50 square
meter portions of the Property – and Joselito dela Cruz, did not sign the Agreement.10 However,
only the Jumaquio sisters actively opposed petitioners’ claim. The Jumaquio sisters contended
that Justina Navarro ("Navarro"), supposedly the mother of Guevarra, sold the Property to
Guevarra’s daughter Enriqueta Lopez Jumaquio.

The Jumaquio sisters presented provincial Tax Declaration No. 91111 for the year 1949 in the
sole name of Navarro. Tax Declaration No. 911 described a residential parcel of land with an
area of 172.51 square meters, located on San Jose St., Manuyo, Las Piñas, Rizal with the
following boundaries: Juan Gallardo to the north, I. Guevarra Street to the south, Rizal Street to
the east and San Jose Street to the west. In addition, Tax Declaration No. 911 stated that the
houses of "Agatona Lopez" and "Enriquita Lopez" stood on the Property as improvements.

The Jumaquio sisters also presented a notarized KASULATAN SA BILIHAN NG LUPA12

("Kasulatan") dated 11 October 1957, the relevant portion of which states:

AKO SI JUSTINA NAVARRO, sapat ang gulang, may asawa, Pilipino at naninirahan sa LAS
PIÑAS, ay siyang nagma-may-ari at nagtatangkilik ng isang lagay na lupa na matatagpuan sa
Manuyo, Las Piñas, Rizal, lihis sa anomang pagkakautang lalong napagkikilala sa pamamagitan
ng mga sumusunod na palatandaan:

BOUNDARIES:

NORTH: JUAN GALLARDO SOUTH: I. GUEVARRA ST. EAST: RIZAL ST., WEST: SAN
JOSE ST.,

na may sukat na 172.51 metros cuadrados na may TAX DECLARATION BILANG 911.

NA DAHIL AT ALANG ALANG sa halagang DALAWANG DAAN LIMANGPUNG PISO

(₱250.00), SALAPING PILIPINO, na sa akin ay kaliwang iniabot at ibinayad ni ENRIQUETA
LOPEZ, may sapat na gulang, Pilipino, may asawa at naninirahan sa Las Piñas, Rizal, at sa
karapatang ito ay aking pinatutunayan ng pagkakatanggap ng nasabing halaga na buong
kasiyahan ng aking kalooban ay aking IPINAGBILI, ISINALIN AT INILIPAT sa nasabing,
ENRIQUETA LOPEZ, sa kanyang mga tagapagmana at kahalili, ang kabuuang sukat ng lupang
nabanggit sa itaas nito sa pamamagitan ng bilihang walang anomang pasubali. Ang lupang ito ay
walang kasama at hindi taniman ng palay o mais.

Simula sa araw na ito ay aking ililipat ang pagmamay-ari at pagtatangkilik ng nasabing lupa kay
ENRIQUETA LOPEZ sa kanilang/kanyang tagapagmana at kahalili x x x.

The Clerk of Court of the Regional Trial Court of Manila certified on 1 June 1994 that the
"‘KASULATAN SA BILIHAN NG LUPA’, between Justina Navarro (Nagbili) and Enriqueta
Lopez (Bumili), was notarized by Atty. Ruperto Q. Andrada on 11 October 1957 and entered in
his Notarial Register xxx."13 The certification further stated that Atty. Andrada was a duly
appointed notary public for the City of Manila in 1957.

Because the Jumaquio sisters were in peaceful possession of their portion of the Property for
more than thirty years, they also invoked the defense of acquisitive prescription against
petitioners, and charged that petitioners were guilty of laches. The Jumaquio sisters argued that
the present action should have been filed years earlier, either by Vicente Lopez when he was
alive or by Manongsong when the latter reached legal age. Instead, petitioners filed this action
for partition only in 1992 when Manongsong was already 33 years old.

The Ruling of the Trial Court

After trial on the merits, the trial court in its Decision14 of 10 April 1995 ruled in favor of
petitioners. The trial court held that the Kasulatan was void, even absent evidence attacking its
validity. The trial court declared:

It appears that the ownership of the estate in question is controverted. According to defendants
Jumaquios, it pertains to them through conveyance by means of a Deed of Sale executed by their
common ancestor Justina Navarro to their mother Enriqueta, which deed was presented in
evidence as Exhs. "4" to "4-A". Plaintiff Milagros Manongsong debunks the evidence as fake.
The document of sale, in the observance of the Court, is however duly authenticated by means of
a certificate issued by the RTC of the Manila Clerk of Court as duly notarized public document
(Exh. "5"). No countervailing proof was adduced by plaintiffs to overcome or impugn the
document’s legality or its validity.

xxx The conveyance made by Justina Navarro is subject to nullity because the property conveyed
had a conjugal character. No positive evidence had been introduced that it was solely a
paraphernal property. The name of Justina Navarro’s spouse/husband was not mentioned and/or
whether the husband was still alive at the time the conveyance was made to Justina Navarro.
Agatona Guevarra as her compulsory heir should have the legal right to participate with the
distribution of the estate under question to the exclusion of others. She is entitled to her legitime.
The Deed of Sale [Exhs "4" & "4-1"(sic)] did not at all provide for the reserved legitime or the
heirs, and, therefore it has no force and effect against Agatona Guevarra and her six (6)
legitimate children including the grandchildren, by right of representation, as described in the
order of intestate succession. The same Deed of Sale should be declared a nullity ab initio. The
law on the matter is clear. The compulsory heirs cannot be deprived of their legitime, except on
(sic) cases expressly specified by law like for instance disinheritance for cause. xxx (Emphasis
supplied)

Since the other respondents had entered into a compromise agreement with petitioners, the
dispositive portion of the trial court’s decision was directed against the Jumaquio sisters only, as
follows:

WHEREFORE, premises considered, judgment is hereby rendered in favor of plaintiffs and

against the remaining active defendants, Emiliana Jumaquio and Felomena J. Estimo, jointly and
severally, ordering:

1. That the property consisting of 152 square meters referred to above be immediately
partitioned giving plaintiff Milagros Lopez-Manongsong her lawful share of 1/5 of the
area in square meters, or the prevailing market value on the date of the decision;
 2. Defendants to pay plaintiffs the sum of ₱10,000.00 as compensatory damages for
having deprived the latter the use and enjoyment of the fruits of her 1/5 share;

3. Defendants to pay plaintiffs’ litigation expenses and attorney’s fee in the sum of
₱10,000.00; and

4. Defendants to pay the costs of suit.

SO ORDERED.15 (Emphasis supplied)

When the trial court denied their motion for reconsideration, the Jumaquio sisters appealed to the
Court of Appeals.

The Ruling of the Court of Appeals

Petitioners, in their appellee’s brief before the Court of Appeals, presented for the first time a
supposed photocopy of the death certificate16 of Guevarra, which stated that Guevarra’s mother
was a certain Juliana Gallardo. Petitioner also attached an affidavit17 from Benjamin dela Cruz,
Sr. attesting that he knew Justina Navarro only by name and had never met her personally,
although he had lived for some years with Agatona Guevarra after his marriage with Rosario
Lopez. On the basis of these documents, petitioners assailed the genuineness and authenticity of
the Kasulatan.

The Court of Appeals refused to take cognizance of the death certificate and affidavit presented
by petitioners on the ground that petitioners never formally offered these documents in evidence.

The appellate court further held that the petitioners were bound by their admission that Navarro
was the original owner of the Property, as follows:

Moreover, plaintiffs-appellees themselves admitted before the trial court that Justina Navarro and
not Juliana Gallardo was the original owner of the subject property and was the mother of
Agatona Navarro (sic). Plaintiffs-appellees in their Reply-Memorandum averred:

"As regards the existence of common ownership, the defendants clearly admit as follows:

xxx xxx xxx

‘History of this case tells us that originally the property was owned by JUSTINA NAVARRO
who has a daughter by the name of AGATONA GUEVARRA who on the other hand has six
children namely: xxx xxx xxx.’

which point-out that co-ownership exists on the property between the parties. Since this is the
admitted history, facts of the case, it follows that there should have been proper document to
extinguish this status of co-ownership between the common owners either by (1) Court action or
proper deed of tradition, xxx xxx xxx."
The trial court confirms these admissions of plaintiffs-appellees. The trial court held:

"x x x xxx xxx

With the parties’ admissions and their conformity to a factual common line of relationship of the
heirs with one another, it has been elicited ascendant Justina Navarro is the common ancestor of
the heirs herein mentioned, however, it must be noted that the parties failed to amplify who was
the husband and the number of compulsory heirs of Justina Navarro. xxx xxx xxx"

Therefore, plaintiffs-appellees cannot now be heard contesting the fact that Justina Navarro was
their common ancestor and was the original owner of the subject property.

The Court of Appeals further held that the trial court erred in assuming that the Property was
conjugal in nature when Navarro sold it. The appellate court reasoned as follows:

However, it is a settled rule that the party who invokes the presumption that all property of
marriage belongs to the conjugal partnership, must first prove that the property was acquired
during the marriage. Proof of acquisition during the coveture is a condition sine qua non for the
operation of the presumption in favor of conjugal ownership.

In this case, not a single iota of evidence was submitted to prove that the subject property was
acquired by Justina Navarro during her marriage. xxx

The findings of the trial court that the subject property is conjugal in nature is not supported by
any evidence.

To the contrary, records show that in 1949 the subject property was declared, for taxation
purposes under the name of Justina Navarro alone. This indicates that the land is the paraphernal
property of Justina Navarro.

For these reasons, the Court of Appeals reversed the decision of the trial court, thus:

WHEREFORE, foregoing considered, the appealed decision is hereby REVERSED and SET
ASIDE. A new one is hereby rendered DISMISSING plaintiffs-appellees’ complaint in so far as
defendants-appellants are concerned.

Costs against plaintiffs-appellees.

SO ORDERED.18

Petitioners filed a motion for reconsideration, but the Court of Appeals denied the same in its
Resolution of 21 December 1998.19

On 28 January 1999, petitioners appealed the appellate court’s decision and resolution to this
Court. The Court initially denied the petition for review due to certain procedural defects. The
Court, however, gave due course to the petition in its Resolution of 31 January 2000.20
 The Issues

Petitioners raise the following issues before this Court:

1. WHETHER PETITIONER HAS NO COUNTERVAILING EVIDENCE ON THE

ALLEGED SALE BY ONE JUSTINA NAVARRO;

2. WHETHER THERE IS PRETERITION AND THE ISSUES RAISED ARE

REVIEWABLE;

3. WHETHER THERE IS CO-OWNERSHIP PRO INDIVISO;

4. WHETHER THE RULE OF THE MAJORITY CO-OWNERS ON THE LAND

SHOULD PREVAIL;

5. WHETHER THE ALLEGED SALE IS VALID AND BINDS THE OTHER CO-
HEIRS;

6. WHETHER PRESCRIPTION APPLIES AGAINST THE SHARE OF

PETITIONERS.21

The fundamental question for resolution is whether petitioners were able to prove, by the
requisite quantum of evidence, that Manongsong is a co-owner of the Property and therefore
entitled to demand for its partition.

The Ruling of the Court

The petition lacks merit.

The issues raised by petitioners are mainly factual in nature. In general, only questions of law are
appealable to this Court under Rule 45. However, where the factual findings of the trial court and
Court of Appeals conflict, this Court has the authority to review and, if necessary, reverse the
findings of fact of the lower courts.22 This is precisely the situation in this case.

We review the factual and legal issues of this case in light of the general rules of evidence and
the burden of proof in civil cases, as explained by this Court in Jison v. Court of Appeals :23

xxx Simply put, he who alleges the affirmative of the issue has the burden of proof, and upon the
plaintiff in a civil case, the burden of proof never parts. However, in the course of trial in a civil
case, once plaintiff makes out a prima facie case in his favor, the duty or the burden of evidence
shifts to defendant to controvert plaintiff's prima facie case, otherwise, a verdict must be returned
in favor of plaintiff. Moreover, in civil cases, the party having the burden of proof must produce
a preponderance of evidence thereon, with plaintiff having to rely on the strength of his own
evidence and not upon the weakness of the defendant’s. The concept of "preponderance of
evidence" refers to evidence which is of greater weight, or more convincing, that which is
offered in opposition to it; at bottom, it means probability of truth.
Whether the Court of Appeals erred in affirming the validity of the Kasulatan sa Bilihan ng Lupa

Petitioners anchor their action for partition on the claim that Manongsong is a co-owner or co-
heir of the Property by inheritance, more specifically, as the heir of her father, Vicente Lopez.
Petitioners likewise allege that the Property originally belonged to Guevarra, and that Vicente
Lopez inherited from Guevarra a 1/5 interest in the Property. As the parties claiming the
affirmative of these issues, petitioners had the burden of proof to establish their case by
preponderance of evidence.

To trace the ownership of the Property, both contending parties presented tax declarations and
the testimonies of witnesses. However, the Jumaquio sisters also presented a notarized
KASULATAN SA BILIHAN NG LUPA which controverted petitioners’ claim of co-ownership.

The Kasulatan, being a document acknowledged before a notary public, is a public document and
prima facie evidence of its authenticity and due execution. To assail the authenticity and due
execution of a notarized document, the evidence must be clear, convincing and more than merely
preponderant.24 Otherwise the authenticity and due execution of the document should be
upheld.25 The trial court itself held that "(n)o countervailing proof was adduced by plaintiffs to
overcome or impugn the document’s legality or its validity."26

Even if the Kasulatan was not notarized, it would be deemed an ancient document and thus still
presumed to be authentic. The Kasulatan is: (1) more than 30 years old, (2) found in the proper
custody, and (3) unblemished by any alteration or by any circumstance of suspicion. It appears,
on its face, to be genuine.27

Nevertheless, the trial court held that the Kasulatan was void because the Property was conjugal
at the time Navarro sold it to Enriqueta Lopez Jumaquio. We do not agree. The trial court’s
conclusion that the Property was conjugal was not based on evidence, but rather on a
misapprehension of Article 160 of the Civil Code, which provides:

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

As the Court of Appeals correctly pointed out, the presumption under Article 160 of the Civil
Code applies only when there is proof that the property was acquired during the marriage. Proof
of acquisition during the marriage is an essential condition for the operation of the presumption
in favor of the conjugal partnership.28

There was no evidence presented to establish that Navarro acquired the Property during her
marriage. There is no basis for applying the presumption under Article 160 of the Civil Code to
the present case. On the contrary, Tax Declaration No. 911 showed that, as far back as in 1949,
the Property was declared solely in Navarro’s name.29 This tends to support the argument that
the Property was not conjugal.

We likewise find no basis for the trial court’s declaration that the sale embodied in the Kasulatan
deprived the compulsory heirs of Guevarra of their legitimes. As opposed to a disposition inter
vivos by lucrative or gratuitous title, a valid sale for valuable consideration does not diminish the
estate of the seller. When the disposition is for valuable consideration, there is no diminution of
the estate but merely a substitution of values,30 that is, the property sold is replaced by the
equivalent monetary consideration.1âwphi1

Under Article 1458 of the Civil Code, the elements of a valid contract of sale are: (1) consent or
meeting of the minds; (2) determinate subject matter and (3) price certain in money or its
equivalent.31 The presence of these elements is apparent on the face of the Kasulatan itself. The
Property was sold in 1957 for ₱250.00.32

Whether the Court of Appeals erred in not admitting the documents presented by petitioners for
the first time on appeal

We find no error in the Court of Appeals’ refusal to give any probative value to the alleged birth
certificate of Guevarra and the affidavit of Benjamin dela Cruz, Sr. Petitioners belatedly attached
these documents to their appellee’s brief. Petitioners could easily have offered these documents
during the proceedings before the trial court. Instead, petitioners presented these documents for
the first time on appeal without any explanation. For reasons of their own, petitioners did not
formally offer in evidence these documents before the trial court as required by Section 34, Rule
132 of the Rules of Court.33 To admit these documents now is contrary to due process, as it
deprives respondents of the opportunity to examine and controvert them.

Moreover, even if these documents were admitted, they would not controvert Navarro’s
ownership of the Property. Benjamin dela Cruz, Sr.’s affidavit stated merely that, although he
knew Navarro by name, he was not personally acquainted with her.34 Guevarra’s alleged birth
certificate casts doubt only as to whether Navarro was indeed the mother of Guevarra. These
documents do not prove that Guevarra owned the Property or that Navarro did not own the
Property.

Petitioners admitted before the trial court that Navarro was the mother of Guevarra. However,
petitioners denied before the Court of Appeals that Navarro was the mother of Guevarra. We
agree with the appellate court that this constitutes an impermissible change of theory. When a
party adopts a certain theory in the court below, he cannot change his theory on appeal. To allow
him to do so is not only unfair to the other party, it is also offensive to the basic rules of fair play,
justice and due process.35

If Navarro were not the mother of Guevarra, it would only further undermine petitioners’ case.
Absent any hereditary relationship between Guevarra and Navarro, the Property would not have
passed from Navarro to Guevarra, and then to the latter’s children, including petitioners, by
succession. There would then be no basis for petitioners’ claim of co-ownership by virtue of
inheritance from Guevarra. On the other hand, this would not undermine respondents’ position
since they anchor their claim on the sale under the Kasulatan and not on inheritance from
Guevarra.

Since the notarized Kasulatan is evidence of greater weight which petitioners failed to refute by
clear and convincing evidence, this Court holds that petitioners were not able to prove by
preponderance of evidence that the Property belonged to Guevarra’s estate. There is therefore no
legal basis for petitioners’ complaint for partition of the Property.

WHEREFORE, the Decision of 26 June 1998 of the Court of Appeals in CA-G.R. CV No.
51643, dismissing the complaint of petitioners against Felomena Jumaquio Estimo and Emiliana
Jumaquio, is AFFIRMED.

SO ORDERED.

2. G.R. No. 126376 November 20, 2003

SPOUSES BERNARDO BUENAVENTURA and CONSOLACION JOAQUIN, SPOUSES

JUANITO EDRA and NORA JOAQUIN, SPOUSES RUFINO VALDOZ and EMMA
JOAQUIN, and NATIVIDAD JOAQUIN, petitioners,
vs.
COURT OF APPEALS, SPOUSES LEONARDO JOAQUIN and FELICIANA
LANDRITO, SPOUSES FIDEL JOAQUIN and CONCHITA BERNARDO, SPOUSES
TOMAS JOAQUIN and SOLEDAD ALCORAN, SPOUSES ARTEMIO JOAQUIN and
SOCORRO ANGELES, SPOUSES ALEXANDER MENDOZA and CLARITA JOAQUIN,
SPOUSES TELESFORO CARREON and FELICITAS JOAQUIN, SPOUSES DANILO
VALDOZ and FE JOAQUIN, and SPOUSES GAVINO JOAQUIN and LEA ASIS,
respondents.

DECISION

CARPIO, J.:

The Case

This is a petition for review on certiorari1 to annul the Decision2 dated 26 June 1996 of the
Court of Appeals in CA-G.R. CV No. 41996. The Court of Appeals affirmed the Decision3 dated
18 February 1993 rendered by Branch 65 of the Regional Trial Court of Makati ("trial court") in
Civil Case No. 89-5174. The trial court dismissed the case after it found that the parties executed
the Deeds of Sale for valid consideration and that the plaintiffs did not have a cause of action
against the defendants.

The Facts

The Court of Appeals summarized the facts of the case as follows:

Defendant spouses Leonardo Joaquin and Feliciana Landrito are the parents of plaintiffs
Consolacion, Nora, Emma and Natividad as well as of defendants Fidel, Tomas, Artemio,
Clarita, Felicitas, Fe, and Gavino, all surnamed JOAQUIN. The married Joaquin children are
joined in this action by their respective spouses.
Sought to be declared null and void ab initio are certain deeds of sale of real property executed
by defendant parents Leonardo Joaquin and Feliciana Landrito in favor of their co-defendant
children and the corresponding certificates of title issued in their names, to wit:

1. Deed of Absolute Sale covering Lot 168-C-7 of subdivision plan (LRC) Psd-256395
executed on 11 July 1978, in favor of defendant Felicitas Joaquin, for a consideration of
₱6,000.00 (Exh. "C"), pursuant to which TCT No. [36113/T-172] was issued in her name
(Exh. "C-1");

2. Deed of Absolute Sale covering Lot 168-I-3 of subdivision plan (LRC) Psd-256394
executed on 7 June 1979, in favor of defendant Clarita Joaquin, for a consideration of
₱1[2],000.00 (Exh. "D"), pursuant to which TCT No. S-109772 was issued in her name
(Exh. "D-1");

3 Deed of Absolute Sale covering Lot 168-I-1 of subdivision plan (LRC) Psd-256394
executed on 12 May 1988, in favor of defendant spouses Fidel Joaquin and Conchita
Bernardo, for a consideration of ₱54,[3]00.00 (Exh. "E"), pursuant to which TCT No.
155329 was issued to them (Exh. "E-1");

4. Deed of Absolute Sale covering Lot 168-I-2 of subdivision plan (LRC) Psd-256394
executed on 12 May 1988, in favor of defendant spouses Artemio Joaquin and Socorro
Angeles, for a consideration of ₱[54,3]00.00 (Exh. "F"), pursuant to which TCT No.
155330 was issued to them (Exh. "F-1"); and

5. Absolute Sale of Real Property covering Lot 168-C-4 of subdivision plan (LRC) Psd-
256395 executed on 9 September 1988, in favor of Tomas Joaquin, for a consideration of
₱20,000.00 (Exh. "G"), pursuant to which TCT No. 157203 was issued in her name (Exh.
"G-1").

6. Deed of Absolute Sale covering Lot 168-C-1 of subdivision plan (LRC) Psd-256395
executed on 7 October 1988, in favor of Gavino Joaquin, for a consideration of
₱25,000.00 (Exh. "K"), pursuant to which TCT No. 157779 was issued in his name (Exh.
"K-1").]

In seeking the declaration of nullity of the aforesaid deeds of sale and certificates of title,
plaintiffs, in their complaint, aver:

- XX-

The deeds of sale, Annexes "C," "D," "E," "F," and "G," [and "K"] are simulated as they are, are
NULL AND VOID AB INITIO because –

a) Firstly, there was no actual valid consideration for the deeds of sale xxx over the
properties in litis;
 b) Secondly, assuming that there was consideration in the sums reflected in the
questioned deeds, the properties are more than three-fold times more valuable than the
measly sums appearing therein;

c) Thirdly, the deeds of sale do not reflect and express the true intent of the parties
(vendors and vendees); and

d) Fourthly, the purported sale of the properties in litis was the result of a deliberate
conspiracy designed to unjustly deprive the rest of the compulsory heirs (plaintiffs
herein) of their legitime.

- XXI -

Necessarily, and as an inevitable consequence, Transfer Certificates of Title Nos. 36113/T-172,

S-109772, 155329, 155330, 157203 [and 157779] issued by the Registrar of Deeds over the
properties in litis xxx are NULL AND VOID AB INITIO.

Defendants, on the other hand aver (1) that plaintiffs do not have a cause of action against them
as well as the requisite standing and interest to assail their titles over the properties in litis; (2)
that the sales were with sufficient considerations and made by defendants parents voluntarily, in
good faith, and with full knowledge of the consequences of their deeds of sale; and (3) that the
certificates of title were issued with sufficient factual and legal basis.4 (Emphasis in the original)

The Ruling of the Trial Court

Before the trial, the trial court ordered the dismissal of the case against defendant spouses
Gavino Joaquin and Lea Asis.5 Instead of filing an Answer with their co-defendants, Gavino
Joaquin and Lea Asis filed a Motion to Dismiss.6 In granting the dismissal to Gavino Joaquin
and Lea Asis, the trial court noted that "compulsory heirs have the right to a legitime but such
right is contingent since said right commences only from the moment of death of the decedent
pursuant to Article 777 of the Civil Code of the Philippines."7

After trial, the trial court ruled in favor of the defendants and dismissed the complaint. The trial
court stated:

In the first place, the testimony of the defendants, particularly that of the xxx father will show
that the Deeds of Sale were all executed for valuable consideration. This assertion must prevail
over the negative allegation of plaintiffs.

And then there is the argument that plaintiffs do not have a valid cause of action against
defendants since there can be no legitime to speak of prior to the death of their parents. The court
finds this contention tenable. In determining the legitime, the value of the property left at the
death of the testator shall be considered (Art. 908 of the New Civil Code). Hence, the legitime of
a compulsory heir is computed as of the time of the death of the decedent. Plaintiffs therefore
cannot claim an impairment of their legitime while their parents live.
All the foregoing considered, this case is DISMISSED.

In order to preserve whatever is left of the ties that should bind families together, the
counterclaim is likewise DISMISSED.

No costs.

SO ORDERED.8

The Ruling of the Court of Appeals

The Court of Appeals affirmed the decision of the trial court.1âwphi1 The appellate court ruled:

To the mind of the Court, appellants are skirting the real and decisive issue in this case, which is,
whether xxx they have a cause of action against appellees.

Upon this point, there is no question that plaintiffs-appellants, like their defendant brothers and
sisters, are compulsory heirs of defendant spouses, Leonardo Joaquin and Feliciana Landrito,
who are their parents. However, their right to the properties of their defendant parents, as
compulsory heirs, is merely inchoate and vests only upon the latter’s death. While still alive,
defendant parents are free to dispose of their properties, provided that such dispositions are not
made in fraud of creditors.

Plaintiffs-appellants are definitely not parties to the deeds of sale in question. Neither do they
claim to be creditors of their defendant parents. Consequently, they cannot be considered as real
parties in interest to assail the validity of said deeds either for gross inadequacy or lack of
consideration or for failure to express the true intent of the parties. In point is the ruling of the
Supreme Court in Velarde, et al. vs. Paez, et al., 101 SCRA 376, thus:

The plaintiffs are not parties to the alleged deed of sale and are not principally or subsidiarily
bound thereby; hence, they have no legal capacity to challenge their validity.

Plaintiffs-appellants anchor their action on the supposed impairment of their legitime by the
dispositions made by their defendant parents in favor of their defendant brothers and sisters. But,
as correctly held by the court a quo, "the legitime of a compulsory heir is computed as of the
time of the death of the decedent. Plaintiffs therefore cannot claim an impairment of their
legitime while their parents live."

With this posture taken by the Court, consideration of the errors assigned by plaintiffs-appellants
is inconsequential.

WHEREFORE, the decision appealed from is hereby AFFIRMED, with costs against plaintiffs-
appellants.

SO ORDERED.9
Hence, the instant petition.

Issues

Petitioners assign the following as errors of the Court of Appeals:

1. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE

CONVEYANCE IN QUESTION HAD NO VALID CONSIDERATION.

2. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT EVEN ASSUMING

THAT THERE WAS A CONSIDERATION, THE SAME IS GROSSLY
INADEQUATE.

3. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE DEEDS OF

SALE DO NOT EXPRESS THE TRUE INTENT OF THE PARTIES.

4. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE

CONVEYANCE WAS PART AND PARCEL OF A CONSPIRACY AIMED AT
UNJUSTLY DEPRIVING THE REST OF THE CHILDREN OF THE SPOUSES
LEONARDO JOAQUIN AND FELICIANA LANDRITO OF THEIR INTEREST
OVER THE SUBJECT PROPERTIES.

5. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT PETITIONERS

HAVE A GOOD, SUFFICIENT AND VALID CAUSE OF ACTION AGAINST THE
PRIVATE RESPONDENTS.10

The Ruling of the Court

We find the petition without merit.

We will discuss petitioners’ legal interest over the properties subject of the Deeds of Sale before
discussing the issues on the purported lack of consideration and gross inadequacy of the prices of
the Deeds of Sale.

Whether Petitioners have a legal interest over the properties subject of the Deeds of Sale

Petitioners’ Complaint betrays their motive for filing this case. In their Complaint, petitioners
asserted that the "purported sale of the properties in litis was the result of a deliberate conspiracy
designed to unjustly deprive the rest of the compulsory heirs (plaintiffs herein) of their legitime."
Petitioners’ strategy was to have the Deeds of Sale declared void so that ownership of the lots
would eventually revert to their respondent parents. If their parents die still owning the lots,
petitioners and their respondent siblings will then co-own their parents’ estate by hereditary
succession.11

It is evident from the records that petitioners are interested in the properties subject of the Deeds
of Sale, but they have failed to show any legal right to the properties. The trial and appellate
courts should have dismissed the action for this reason alone. An action must be prosecuted in
the name of the real party-in-interest.12

[T]he question as to "real party-in-interest" is whether he is "the party who would be benefitted
or injured by the judgment, or the ‘party entitled to the avails of the suit.’"

xxx

In actions for the annulment of contracts, such as this action, the real parties are those who are
parties to the agreement or are bound either principally or subsidiarily or are prejudiced in their
rights with respect to one of the contracting parties and can show the detriment which would
positively result to them from the contract even though they did not intervene in it (Ibañez v.
Hongkong & Shanghai Bank, 22 Phil. 572 [1912]) xxx.

These are parties with "a present substantial interest, as distinguished from a mere expectancy or
future, contingent, subordinate, or consequential interest…. The phrase ‘present substantial
interest’ more concretely is meant such interest of a party in the subject matter of the action as
will entitle him, under the substantive law, to recover if the evidence is sufficient, or that he has
the legal title to demand and the defendant will be protected in a payment to or recovery by
him."13

Petitioners do not have any legal interest over the properties subject of the Deeds of Sale. As the
appellate court stated, petitioners’ right to their parents’ properties is merely inchoate and vests
only upon their parents’ death. While still living, the parents of petitioners are free to dispose of
their properties. In their overzealousness to safeguard their future legitime, petitioners forget that
theoretically, the sale of the lots to their siblings does not affect the value of their parents’ estate.
While the sale of the lots reduced the estate, cash of equivalent value replaced the lots taken from
the estate.

Whether the Deeds of Sale are void for lack of consideration

Petitioners assert that their respondent siblings did not actually pay the prices stated in the Deeds
of Sale to their respondent father. Thus, petitioners ask the court to declare the Deeds of Sale
void.

A contract of sale is not a real contract, but a consensual contract. As a consensual contract, a
contract of sale becomes a binding and valid contract upon the meeting of the minds as to price.
If there is a meeting of the minds of the parties as to the price, the contract of sale is valid,
despite the manner of payment, or even the breach of that manner of payment. If the real price is
not stated in the contract, then the contract of sale is valid but subject to reformation. If there is
no meeting of the minds of the parties as to the price, because the price stipulated in the contract
is simulated, then the contract is void.14 Article 1471 of the Civil Code states that if the price in
a contract of sale is simulated, the sale is void.

It is not the act of payment of price that determines the validity of a contract of sale. Payment of
the price has nothing to do with the perfection of the contract. Payment of the price goes into the
performance of the contract. Failure to pay the consideration is different from lack of
consideration. The former results in a right to demand the fulfillment or cancellation of the
obligation under an existing valid contract while the latter prevents the existence of a valid
contract.15

Petitioners failed to show that the prices in the Deeds of Sale were absolutely simulated. To
prove simulation, petitioners presented Emma Joaquin Valdoz’s testimony stating that their
father, respondent Leonardo Joaquin, told her that he would transfer a lot to her through a deed
of sale without need for her payment of the purchase price.16 The trial court did not find the
allegation of absolute simulation of price credible. Petitioners’ failure to prove absolute
simulation of price is magnified by their lack of knowledge of their respondent siblings’ financial
capacity to buy the questioned lots.17 On the other hand, the Deeds of Sale which petitioners
presented as evidence plainly showed the cost of each lot sold. Not only did respondents’ minds
meet as to the purchase price, but the real price was also stated in the Deeds of Sale. As of the
filing of the complaint, respondent siblings have also fully paid the price to their respondent
father.18

Whether the Deeds of Sale are void for gross inadequacy of price

Petitioners ask that assuming that there is consideration, the same is grossly inadequate as to
invalidate the Deeds of Sale.

Articles 1355 of the Civil Code states:

Art. 1355. Except in cases specified by law, lesion or inadequacy of cause shall not invalidate a
contract, unless there has been fraud, mistake or undue influence. (Emphasis supplied)

Article 1470 of the Civil Code further provides:

Art. 1470. Gross inadequacy of price does not affect a contract of sale, except as may indicate a
defect in the consent, or that the parties really intended a donation or some other act or contract.
(Emphasis supplied)

Petitioners failed to prove any of the instances mentioned in Articles 1355 and 1470 of the Civil
Code which would invalidate, or even affect, the Deeds of Sale. Indeed, there is no requirement
that the price be equal to the exact value of the subject matter of sale. All the respondents
believed that they received the commutative value of what they gave. As we stated in Vales v.
Villa:19

Courts cannot follow one every step of his life and extricate him from bad bargains, protect him
from unwise investments, relieve him from one-sided contracts, or annul the effects of foolish
acts. Courts cannot constitute themselves guardians of persons who are not legally incompetent.
Courts operate not because one person has been defeated or overcome by another, but because he
has been defeated or overcome illegally. Men may do foolish things, make ridiculous contracts,
use miserable judgment, and lose money by them – indeed, all they have in the world; but not for
that alone can the law intervene and restore. There must be, in addition, a violation of the law,
the commission of what the law knows as an actionable wrong, before the courts are authorized
to lay hold of the situation and remedy it. (Emphasis in the original)

Moreover, the factual findings of the appellate court are conclusive on the parties and carry
greater weight when they coincide with the factual findings of the trial court. This Court will not
weigh the evidence all over again unless there has been a showing that the findings of the lower
court are totally devoid of support or are clearly erroneous so as to constitute serious abuse of
discretion.20 In the instant case, the trial court found that the lots were sold for a valid
consideration, and that the defendant children actually paid the purchase price stipulated in their
respective Deeds of Sale. Actual payment of the purchase price by the buyer to the seller is a
factual finding that is now conclusive upon us.

WHEREFORE, we AFFIRM the decision of the Court of Appeals in toto.

SO ORDERED.

3. G.R. No. 184148 June 9, 2014

NORA B. CALALANG-PARULAN and ELVIRA B. CALALANG, Petitioners,

vs.
ROSARIO CALALANG-GARCIA, LEONORA CALALANG-SABILE, and CARLITO S.
CALALANG, Respondents.

DECISION

VILLARAMA, JR., J.:

Before us is a petition for review on certiorari assailing the Decision1 dated December 21, 2007
and Resolution2 dated July 25, 2008 of the Thirteenth Division of the Court of Appeals (CA) in
CA-G.R. CV No. 72531. The CA modified the Decision3 dated July 10, 2001 of the Regional
Trial Court (RTC), Branch 21, of Malolos, Bulacan, in Civil Case No. 370-M-91.

The facts, as culled from the records, follow:

In a Complaint4 for Annulment of Sale and Reconveyance of Property filed with the RTC of
Malolos, Bulacan on June 10, 1991, the respondents Rosario Calalang-Garcia, Leonora
Calalang-Sabile, and Carlito S. Calalang asserted their ownership over a certain parcel of land
against the petitioners Nora B. Calalang-Parulan and Elvira B. Calalang. The said lot with an
area of 1,266 square meters and specifically identified as Lot 1132, Cad. 333, Bigaa Cadastre
situated in Brgy. Burol 2nd, Municipality of Balagtas, Province of Bulacan, was allegedly
acquired by the respondents from their mother Encarnacion Silverio, through succession as the
latter’s compulsory heirs.
According to the respondents, their father, Pedro Calalang contracted two marriages during his
lifetime. The first marriage was with their mother Encarnacion Silverio. During the subsistence
of this marriage, their parents acquired the above-mentioned parcel of land from their maternal
grandmother Francisca Silverio. Despite enjoying continuous possession of the land, however,
their parents failed to register the same. On June 7, 1942, the first marriage was dissolved with
the death of Encarnacion Silverio.

On November 6, 1967, Pedro Calalang entered into a second marriage with Elvira B. Calalang
who then gave birth to Nora B. Calalang-Parulan and Rolando Calalang. According to the
respondents, it was only during this time that Pedro Calalang filed an application for free patent
over the parcel of land with the Bureau of Lands. Pedro Calalang committed fraud in such
application by claiming sole and exclusive ownership over the land since 1935 and concealing
the fact that he had three children with his first spouse. As a result, on September 22, 1974, the
Register of Deeds of Bulacan issued Original Certificate of Title (OCT) No. P-28715 in favor of
Pedro Calalang only.

On February 17, 1984, Pedro Calalang sold the said parcel of land to Nora B. Calalang-Parulan
as evidenced by a Deed of Sale6 executed by both Pedro Calalang and Elvira B. Calalang.
Accordingly, the Register of Deeds of Bulacan cancelled OCT No. P-2871 and issued Transfer
Certificate of Title (TCT) No. 283321 in the name of Nora B. Calalang-Parulan. On December
27, 1989,7 Pedro Calalang died.

The respondents assailed the validity of TCT No. 283321 on two grounds. First, the respondents
argued that the sale of the land was void because Pedro Calalang failed to obtain the consent of
the respondents who were co-owners of the same. As compulsory heirs upon the death of
Encarnacion Silverio, the respondents claimed that they acquired successional rights over the
land. Thus, in alienating the land without their consent, Pedro Calalang allegedly deprived them
of their pro indiviso share in the property. Second, the respondents claimed that the sale was
absolutely simulated as Nora B. Calalang-Parulan did not have the capacity to pay for the
consideration stated in the Deed of Sale.

In their Answer,8 the petitioners argued that the parcel of land was acquired during the second
marriage of Pedro Calalang with Elvira B. Calalang. They stressed that OCT No. P-2871 itself
stated that it was issued in the name of "Pedro Calalang, married to Elvira Berba [Calalang]."
Thus, the property belonged to the conjugal partnership of the spouses Pedro Calalang and Elvira
B. Calalang. The petitioners likewise denied the allegation that the sale of the land was
absolutely simulated as Nora B. Calalang-Parulan was gainfully employed in Spain at the time of
the sale. Moreover, they alleged that the respondents did not have a valid cause of action against
them and that their cause of action, if any, was already barred by laches, estoppel and
prescription. By way of counterclaim, the petitioners also sought the payment to them of moral
and exemplary damages plus costs of suit for the filing of the clearly unfounded suit.

On July 10, 2001, the trial court rendered decision in favor of the respondents. The dispositive
portion of the RTC decision reads as follows:
WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the defendants
in the following manner:

1. Ordering the defendants to reconvey in favor of the plaintiffs, their rightful share to
three-fourth (3/4) of one-half (1/2) or a total of 474.75 square meters at 158.25 square
meters for each of the three plaintiffs, namely: Rosario, Leonora, and Juanito all
surname[d] Calalang, of the real property covered by TCT No. 283321 of the Registry of
Deeds of Bulacan corresponding to their shares in the conjugal estate of the late
Encarnacion S. Calalang [sic];

2. Ordering defendants to pay plaintiffs the amount of ₱50,000.00 for moral damages;
₱50,000.00 for attorney’s fees and another ₱50,000.00 for litigation expenses.

3. Dismissing the defendants’ counterclaims.

With costs against the defendants.

SO ORDERED.9

The trial court declared that the parcel of land was jointly acquired by the spouses Pedro
Calalang and Encarnacion Silverio from the parents of the latter. Thus, it was part of the conjugal
property of the first marriage of Pedro Calalang. When this marriage was dissolved upon the
death of Encarnacion Silverio on June 7, 1942,the corresponding shares to the disputed property
were acquired by the heirs of the decedent according to the laws of succession. In particular, the
trial court allocated half of the disputed property to Pedro Calalang as his share in the conjugal
partnership and allocated the other half to the three respondents and Pedro Calalang to be divided
equally among them. The trial court then ordered all of Pedro’s share to be given to Nora B.
Calalang-Parulan on account of the sale. The trial court also ruled that because the application
for free patent filed by Pedro Calalang was attended by fraud and misrepresentation, Pedro
Calalang should be considered as a trustee of an implied trust.

Aggrieved by the adverse ruling, the petitioners appealed the case to the CA which rendered the
assailed Decision on December 21, 2007. The dispositive portion of the CA decision reads,

WHEREFORE, in light of the foregoing premises, the Decision dated July 10, 2001of the
Regional Trial Court of Malolos, Bulacan is hereby MODIFIED to read as follows:

"WHEREFORE, judgment is hereby rendered in favor of the plaintiffs, and against the
defendants in the following manner:

1. Ordering the defendants to reconvey in favor of the plaintiffs, their rightful share to the
property owned by their common father Pedro Calalang, equivalent to one half(1/2)
portion of the whole area or 633 square meters to be divided equally by the three
plaintiffs, namely:
 Rosario, Leonora and Carlito, all surnamed Calalang, each getting an area of 211
square meters of the property covered by TCT No. 2883321 of the Registry of
Deeds of Bulacan corresponding to their shares in the property of their late father
Pedro Calalang;

2. Ordering defendants to pay plaintiffs the amount of ₱50,000.00 for moral damages;
₱50,000.00 for attorney’s fees and another ₱50,000.00 for litigation expenses.

3. Dismissing the defendants’ counterclaims.

With costs against the defendants.

SO ORDERED.

SO ORDERED.10

The CA reversed the factual findings of the trial court and held that Pedro Calalang was the sole
and exclusive owner of the subject parcel of land. Firstly, it held that there was insufficient
evidence to prove that the disputed property was indeed jointly acquired from the parents of
Encarnacion Silverio during the first marriage. Secondly, the CA upheld the indefeasibility of
OCT No. P-2871. It held that although the free patent was issued in the name of "Pedro
Calalang, married to Elvira Berba [Calalang]" this phrase was merely descriptive of the civil
status of Pedro Calalang at the time of the registration of the disputed property. Thus, contrary to
the ruling of the trial court, upon the death of Encarnacion Silverio on June 7, 1942, the
respondents did not acquire any successional rights to the parcel of land which was exclusively
owned by Pedro Calalang. However, applying the rules of succession, Pedro’s heirs namely,
Rosario Calalang-Garcia, Leonora Calalang-Sabile, Carlito Calalang, Nora B. Calalang-Parulan,
Elvira B. Calalang, and Rolando Calalang, succeeded Pedro to the land in equal shares upon his
death. Thus, the CA ordered the petitioners to reconvey in favor of the respondents their rightful
shares to the land. The CA ruled that the sale by Pedro Calalang to Nora B. Calalang-Parulan
was fraudulent and fictitious as the vendee was in bad faith and the respondents were unlawfully
deprived of their pro indiviso shares over the disputed property. As regards the issue of
prescription, the CA ruled that the prescriptive period for reconveyance of fraudulently
registered real property is ten years. Since the property was registered in the name of Nora
in1984 and the action for reconveyance was filed in 1991, the action has not yet prescribed.

On January 23, 2008, petitioners filed their Motion for Reconsideration. The CA, however,
denied their motion in its Resolution dated July 25, 2008.

Hence, this petition raising the sole issue:

Whether or not the court a quo gravely erred in rendering its December 21, 2007 Decision
modifying the July 10, 2001 Decision of the trial court, and in issuing its July 25, 2008
Resolution denying petitioners’ Motion for Reconsideration dated January 23, 2008.11
Essentially, the only issue in this case is whether Pedro Calalang was the exclusive owner of the
disputed property prior to its transfer to his daughter Nora B. Calalang-Parulan.

The petitioners argue that the disputed property belonged to the conjugal partnership of the
second marriage of Pedro Calalang with Elvira B. Calalang as evidenced by OCT No. P-2871
which was issued to Pedro Calalang during the subsistence of his marriage to Elvira B. Calalang.
On the other hand, the respondents claim that the disputed property was transferred by their
maternal grandmother, Francisca Silverio, to their parents, Pedro Calalang and Encarnacion
Silverio, during the latter’s marriage. Thus, the respondents argue that it belonged to the conjugal
partnership of the first marriage of Pedro Calalang with Encarnacion Silverio.

The petition is meritorious.

Preliminarily, we note that the resolution of the issue in this case requires a reevaluation of the
probative value of the evidence presented by the parties in order to trace the title of the disputed
property. What is involved is indeed a question of fact which is generally beyond the jurisdiction
of this Court to resolve in a petition for review on certiorari.12 However, a recognized exception
to the rule is when the RTC and CA have conflicting findings of fact as in this case.13 Here,
while the trial court ruled that the disputed property belonged to the conjugal partnership of the
first marriage of Pedro Calalang with Encarnacion Silverio, the court a quo declared that the
evidence proved the sole and exclusive ownership of the disputed property of Pedro Calalang.

We have carefully reviewed the records of this case and sustain the finding of the CA that Pedro
Calalang is the sole and exclusive owner of the disputed property.

The trial court ruled that the respondents were able to establish that Lot 1132, Cad. 333
originated from the parents of Encarnacion, and therefore said property "either became property
of Encarnacion in her own right or jointly with her husband Pedro Calalang in 1936." In so
ruling, the trial court relied on the testimony of Rosario Calalang-Garcia that her parents built a
nipa house on the subject lot and lived there before and after World War II. The trial court
further noted that Rosario’s testimony was corroborated by her cousin and adjacent neighbor
Manolo Calalang.14

However, as correctly pointed out by the CA, a close perusal of the records of this case would
show that the records are bereft of any concrete proof to show that the subject property indeed
belonged to respondents’ maternal grandparents. The evidence respondents adduced merely
consisted of testimonial evidence such as the declaration of Rosario Calalang-Garcia that they
have been staying on the property as far as she can remember and that the property was acquired
by her parents through purchase from her maternal grandparents. However, she was unable to
produce any document to evidence the said sale, nor was she able to present any documentary
evidence such as the tax declaration issued in the name of either of her parents. Moreover, we
note that the free patent was issued solely in the name of Pedro Calalang and that it was issued
more than 30 years after the death of Encarnacion and the dissolution of the conjugal partnership
of gains of the first marriage. Thus, we cannot subscribe to respondents’ submission that the
subject property originally belonged to the parents of Encarnacion and was acquired by Pedro
Calalang and Encarnacion.
We likewise cannot sustain the argument of the petitioners that the disputed property belongs to
the conjugal partnership of the second marriage of Pedro Calalang with Elvira B. Calalang on the
ground that the title was issued in the name of "Pedro Calalang, married to Elvira Berba
[Calalang]."

The contents of a certificate of title are enumerated by Section 45 of Presidential Decree No.
1529, otherwise known as the Property Registration Decree:

SEC. 45. Statement of personal circumstances in the certificate. – Every certificate of title shall
set forth the full names of all persons whose interests make up the full ownership in the whole
land, including their civil status, and the names of their respective spouses, if married, as well as
their citizenship, residence and postal address. If the property covered belongs to the conjugal
partnership, it shall be issued in the names of both spouses.1âwphi1

A plain reading of the above provision would clearly reveal that the phrase "Pedro Calalang,
married to Elvira Berba [Calalang]" merely describes the civil status and identifies the spouse of
the registered owner Pedro Calalang. Evidently, this does not mean that the property is conjugal.
In Litam v. Rivera,15 we declared:

Further strong proofs that the properties in question are the paraphernal properties of Marcosa
Rivera, are the very Torrens Titles covering said properties. All the said properties are registered
in the name of "Marcosa Rivera, married to Rafael Litam." This circumstance indicates that the
properties in question belong to the registered owner, Marcosa Rivera, as her paraphernal
properties, for if they were conjugal, the titles covering the same should have been issued in the
names of Rafael Litam and Marcosa Rivera. The words "married to Rafael Litam" written after
the name of Marcosa Rivera, in each of the above mentioned titles are merely descriptive of the
civil status of Marcosa Rivera, the registered owner of the properties covered by said titles.

It must likewise be noted that in his application for free patent,16 applicant Pedro Calalang
averred that the land was first occupied and cultivated by him since 1935 and that he had planted
mango trees, coconut plants, caimito trees, banana plants and seasonal crops and built his house
on the subject lot. But he applied for free patent only in 1974 and was issued a free patent while
already married to Elvira B. Calalang. Thus, having possessed the subject land in the manner and
for the period required by law after the dissolution of the first marriage and before the second
marriage, the subject property ipso jure became private property and formed part of Pedro
Calalang’s exclusive property.17 It was therefore excluded from the conjugal partnership of
gains of the second marriage.18

As the sole and exclusive owner, Pedro Calalang had the right to convey his property in favor of
Nora B. Calalang-Parulan by executing a Deed of Sale on February 17, 1984. The CA therefore
erred in ruling that Pedro Calalang deprived his heirs of their respective shares over the disputed
property when he alienated the same.

It is hornbook doctrine that successional rights are vested only at the time of death. Article 777
of the New Civil Code provides that "[t]he rights to the succession are transmitted from the
moment of the death of the decedent." In Butte v. Manuel Uy and Sons, Inc.,19 we proclaimed
the fundamental tenets of succession:

The principle of transmission as of the time of the predecessor's death is basic in our Civil Code,
and is supported by other related articles. Thus, the capacity of the heir is determined as of the
time the decedent died (Art. 1034); the legitime is to be computed as of the same moment (Art.
908), and so is the in officiousness of the donation inter vivas (Art. 771). Similarly, the legacies
of credit and remission are valid only in the amount due and outstanding at the death of the
testator (Art. 935), and the fruits accruing after that instant are deemed to pertain to the legatee
(Art. 948).

Thus, it is only upon the death of Pedro Calalang on December 27, 1989 that his heirs acquired
their respective inheritances, entitling them to their pro indiviso shares to his whole estate. At the
time of the sale of the disputed property, the rights to the succession were not yet bestowed upon
the heirs of Pedro Calalang. And absent clear and convincing evidence that the sale was
fraudulent or not duly supported by valuable consideration (in effect an in officious donation
inter vivas), the respondents have no right to question the sale of the disputed property on the
ground that their father deprived them of their respective shares. Well to remember, fraud must
be established by clear and convincing evidence. Mere preponderance of evidence is not even
adequate to prove fraud.20 The Complaint for Annulment of Sale and Reconveyance of Property
must therefore be dismissed.

WHEREFORE, the petition for review on certiorari is GRANTED. The Decision dated
December 21, 2007 and Resolution dated July 25, 2008 of the Thirteenth Division of the Court
of Appeals in CA-G.R. CV No. 72531 are REVERSED and SET ASIDE. Civil Case No. 370-M-
91, or the Complaint for Annulment of Sale and Reconveyance of Property filed by the
respondents with the Regional Trial Court, Branch 21 of Malolos, Bulacan, on June 10, 1991, is
hereby DISMISSED for lack of merit.

No pronouncement as to costs.

SO ORDERED.

RIGHT OF ADOPTED TO INHERIT FROM BIOLOGICAL PARENTS/RELATIVES

1. Republic Act No. 8552 February 25, 1998

AN ACT ESTABLISHING THE RULES AND POLICIES ON THE DOMESTIC

ADOPTION OF FILIPINO CHILDREN AND FOR OTHER PURPOSES

Be it enacted by the Senate and House of Representatives of the Philippines in Congress

assembled:
 ARTICLE I
GENERAL PROVISIONS

Section 1. Short Title. – This Act shall be known as the "Domestic Adoption Act of 1998."

Section 2. Declaration of Policies. – (a) It is hereby declared the policy of the State to ensure
that every child remains under the care and custody of his/her parent(s) and be provided with
love, care, understanding and security towards the full and harmonious development of his/her
personality. Only when such efforts prove insufficient and no appropriate placement or adoption
within the child's extended family is available shall adoption by an unrelated person be
considered.

(b) In all matters relating to the care, custody and adoption of a child, his/her interest shall be the
paramount consideration in accordance with the tenets set forth in the United Nations (UN)
Convention on the Rights of the Child; UN Declaration on Social and Legal Principles Relating
to the Protection and Welfare of Children with Special Reference to Foster Placement and
Adoption, Nationally and Internationally; and the Hague Convention on the Protection of
Children and Cooperation in Respect of Intercountry Adoption. Toward this end, the State shall
provide alternative protection and assistance through foster care or adoption for every child who
is neglected, orphaned, or abandoned.

(c) It shall also be a State policy to:

(i) Safeguard the biological parent(s) from making hurried decisions to relinquish his/her
parental authority over his/her child;

(ii) Prevent the child from unnecessary separation from his/her biological parent(s);

(iii) Protect adoptive parent(s) from attempts to disturb his/her parental authority and
custody over his/her adopted child.

Any voluntary or involuntary termination of parental authority shall be administratively

or judicially declared so as to establish the status of the child as "legally available for
adoption" and his/her custody transferred to the Department of Social Welfare and
Development or to any duly licensed and accredited child-placing or child-caring agency,
which entity shall be authorized to take steps for the permanent placement of the child;

(iv) Conduct public information and educational campaigns to promote a positive

environment for adoption;

(v) Ensure that sufficient capacity exists within government and private sector agencies to
handle adoption inquiries, process domestic adoption applications, and offer adoption-
related services including, but not limited to, parent preparation and post-adoption
education and counseling; and
 (vi) Encourage domestic adoption so as to preserve the child's identity and culture in
his/her native land, and only when this is not available shall intercountry adoption be
considered as a last resort.

Section 3. Definition of Terms. – For purposes of this Act, the following terms shall be defined
as:

(a) "Child" is a person below eighteen (18) years of age.

(b) "A child legally available for adoption" refers to a child who has been voluntarily or
involuntarily committed to the Department or to a duly licensed and accredited child-
placing or child-caring agency, freed of the parental authority of his/her biological
parent(s) or guardian or adopter(s) in case of rescission of adoption.

(c) "Voluntarily committed child" is one whose parent(s) knowingly and willingly
relinquishes parental authority to the Department.

(d) "Involuntarily committed child" is one whose parent(s), known or unknown, has been
permanently and judicially deprived of parental authority due to abandonment;
substantial, continuous, or repeated neglect; abuse; or incompetence to discharge parental
responsibilities.

(e) "Abandoned child" refers to one who has no proper parental care or guardianship or
whose parent(s) has deserted him/her for a period of at least six (6) continuous months
and has been judicially declared as such.

(f) "Supervised trial custody" is a period of time within which a social worker oversees
the adjustment and emotional readiness of both adopter(s) and adoptee in stabilizing their
filial relationship.

(g) "Department" refers to the Department of Social Welfare and Development.

(h) "Child-placing agency" is a duly licensed and accredited agency by the Department to
provide comprehensive child welfare services including, but not limited to, receiving
applications for adoption, evaluating the prospective adoptive parents, and preparing the
adoption home study.

(i) "Child-caring agency" is a duly licensed and accredited agency by the Department
that provides twenty four (24)-hour residential care services for abandoned, orphaned,
neglected, or voluntarily committed children.

(j) "Simulation of birth" is the tampering of the civil registry making it appear in the birth
records that a certain child was born to a person who is not his/her biological mother,
causing such child to lose his/her true identity and status.
 ARTICLE II
PRE-ADOPTION SERVICES

Section 4. Counseling Service. – The Department shall provide the services of licensed social
workers to the following:

(a) Biological Parent(s) – Counseling shall be provided to the parent(s) before and after
the birth of his/her child. No binding commitment to an adoption plan shall be permitted
before the birth of his/her child. A period of six (6) months shall be allowed for the
biological parent(s) to reconsider any decision to relinquish his/her child for adoption
before the decision becomes irrevocable. Counseling and rehabilitation services shall also
be offered to the biological parent(s) after he/she has relinquished his/her child for
adoption.

Steps shall be taken by the Department to ensure that no hurried decisions are made and
all alternatives for the child's future and the implications of each alternative have been
provided.

(b) Prospective Adoptive Parent(s) – Counseling sessions, adoption fora and seminars,
among others, shall be provided to prospective adoptive parent(s) to resolve possible
adoption issues and to prepare him/her for effective parenting.

(c) Prospective Adoptee – Counseling sessions shall be provided to ensure that he/she
understands the nature and effects of adoption and is able to express his/her views on
adoption in accordance with his/her age and level of maturity.

Section 5. Location of Unknown Parent(s). – It shall be the duty of the Department or the child-
placing or child-caring agency which has custody of the child to exert all efforts to locate his/her
unknown biological parent(s). If such efforts fail, the child shall be registered as a foundling and
subsequently be the subject of legal proceedings where he/she shall be declared abandoned.

Section 6. Support Services. – The Department shall develop a pre-adoption program which
shall include, among others, the above mentioned services.

ARTICLE III
ELIGIBILITY

Section 7. Who May Adopt. – The following may adopt:

(a) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights,
of good moral character, has not been convicted of any crime involving moral turpitude,
emotionally and psychologically capable of caring for children, at least sixteen (16) years
older than the adoptee, and who is in a position to support and care for his/her children in
keeping with the means of the family. The requirement of sixteen (16) year difference
between the age of the adopter and adoptee may be waived when the adopter is the
biological parent of the adoptee, or is the spouse of the adoptee's parent;
 (b) Any alien possessing the same qualifications as above stated for Filipino nationals:
Provided, That his/her country has diplomatic relations with the Republic of the
Philippines, that he/she has been living in the Philippines for at least three (3) continuous
years prior to the filing of the application for adoption and maintains such residence until
the adoption decree is entered, that he/she has been certified by his/her diplomatic or
consular office or any appropriate government agency that he/she has the legal capacity
to adopt in his/her country, and that his/her government allows the adoptee to enter
his/her country as his/her adopted son/daughter: Provided, Further, That the requirements
on residency and certification of the alien's qualification to adopt in his/her country may
be waived for the following:

(i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th)
degree of consanguinity or affinity; or

(ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse;
or

(iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her
spouse a relative within the fourth (4th) degree of consanguinity or affinity of the
Filipino spouse; or

(c) The guardian with respect to the ward after the termination of the guardianship and
clearance of his/her financial accountabilities.

Husband and wife shall jointly adopt, except in the following cases:

(i) if one spouse seeks to adopt the legitimate son/daughter of the other; or

(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided,
However, that the other spouse has signified his/her consent thereto; or

(iii) if the spouses are legally separated from each other.

In case husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of the
other, joint parental authority shall be exercised by the spouses.

Section 8. Who May Be Adopted. – The following may be adopted:

(a) Any person below eighteen (18) years of age who has been administratively or
judicially declared available for adoption;

(b) The legitimate son/daughter of one spouse by the other spouse;

(c) An illegitimate son/daughter by a qualified adopter to improve his/her status to that of

legitimacy;
 (d) A person of legal age if, prior to the adoption, said person has been consistently
considered and treated by the adopter(s) as his/her own child since minority;

(e) A child whose adoption has been previously rescinded; or

(f) A child whose biological or adoptive parent(s) has died: Provided, That no
proceedings shall be initiated within six (6) months from the time of death of said
parent(s).

Section 9. Whose Consent is Necessary to the Adoption. – After being properly counseled and
informed of his/her right to give or withhold his/her approval of the adoption, the written consent
of the following to the adoption is hereby required:

(a) The adoptee, if ten (10) years of age or over;

(b) The biological parent(s) of the child, if known, or the legal guardian, or the proper
government instrumentality which has legal custody of the child;

(c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the
adopter(s) and adoptee, if any;

(d) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter if living
with said adopter and the latter's spouse, if any; and

(e) The spouse, if any, of the person adopting or to be adopted.

ARTICLE IV
PROCEDURE

Section 10. Hurried Decisions. – In all proceedings for adoption, the court shall require proof
that the biological parent(s) has been properly counseled to prevent him/her from making hurried
decisions caused by strain or anxiety to give up the child, and to sustain that all measures to
strengthen the family have been exhausted and that any prolonged stay of the child in his/her
own home will be inimical to his/her welfare and interest.

Section 11. Case Study. – No petition for adoption shall be set for hearing unless a licensed
social worker of the Department, the social service office of the local government unit, or any
child-placing or child-caring agency has made a case study of the adoptee, his/her biological
parent(s), as well as the adopter(s), and has submitted the report and recommendations on the
matter to the court hearing such petition.

At the time of preparation of the adoptee's case study, the concerned social worker shall confirm
with the Civil Registry the real identity and registered name of the adoptee. If the birth of the
adoptee was not registered with the Civil Registry, it shall be the responsibility of the concerned
social worker to ensure that the adoptee is registered.
The case study on the adoptee shall establish that he/she is legally available for adoption and that
the documents to support this fact are valid and authentic. Further, the case study of the
adopter(s) shall ascertain his/her genuine intentions and that the adoption is in the best interest of
the child.

The Department shall intervene on behalf of the adoptee if it finds, after the conduct of the case
studies, that the petition should be denied. The case studies and other relevant documents and
records pertaining to the adoptee and the adoption shall be preserved by the Department.

Section 12. Supervised Trial Custody. – No petition for adoption shall be finally granted until
the adopter(s) has been given by the court a supervised trial custody period for at least six (6)
months within which the parties are expected to adjust psychologically and emotionally to each
other and establish a bonding relationship. During said period, temporary parental authority shall
be vested in the adopter(s).

The court may motu proprio or upon motion of any party reduce the trial period if it finds the
same to be in the best interest of the adoptee, stating the reasons for the reduction of the period.
However, for alien adopter(s), he/she must complete the six (6)-month trial custody except for
those enumerated in Sec. 7 (b) (i) (ii) (iii).

If the child is below seven (7) years of age and is placed with the prospective adopter(s) through
a pre-adoption placement authority issued by the Department, the prospective adopter(s) shall
enjoy all the benefits to which biological parent(s) is entitled from the date the adoptee is placed
with the prospective adopter(s).

Section 13. Decree of Adoption. – If, after the publication of the order of hearing has been
complied with, and no opposition has been interposed to the petition, and after consideration of
the case studies, the qualifications of the adopter(s), trial custody report and the evidence
submitted, the court is convinced that the petitioners are qualified to adopt, and that the adoption
would redound to the best interest of the adoptee, a decree of adoption shall be entered which
shall be effective as of the date the original petition was filed. This provision shall also apply in
case the petitioner(s) dies before the issuance of the decree of adoption to protect the interest of
the adoptee. The decree shall state the name by which the child is to be known.

Section 14. Civil Registry Record. – An amended certificate of birth shall be issued by the Civil
Registry, as required by the Rules of Court, attesting to the fact that the adoptee is the child of
the adopter(s) by being registered with his/her surname. The original certificate of birth shall be
stamped "cancelled" with the annotation of the issuance of an amended birth certificate in its
place and shall be sealed in the civil registry records. The new birth certificate to be issued to the
adoptee shall not bear any notation that it is an amended issue.

Section 15. Confidential Nature of Proceedings and Records. – All hearings in adoption cases
shall be confidential and shall not be open to the public. All records, books, and papers relating
to the adoption cases in the files of the court, the Department, or any other agency or institution
participating in the adoption proceedings shall be kept strictly confidential.
If the court finds that the disclosure of the information to a third person is necessary for purposes
connected with or arising out of the adoption and will be for the best interest of the adoptee, the
court may merit the necessary information to be released, restricting the purposes for which it
may be used.

ARTICLE V
EFFECTS OF ADOPTION

Section 16. Parental Authority. – Except in cases where the biological parent is the spouse of
the adopter, all legal ties between the biological parent(s) and the adoptee shall be severed and
the same shall then be vested on the adopter(s).

Section 17. Legitimacy. – The adoptee shall be considered the legitimate son/daughter of the
adopter(s) for all intents and purposes and as such is entitled to all the rights and obligations
provided by law to legitimate sons/daughters born to them without discrimination of any kind.
To this end, the adoptee is entitled to love, guidance, and support in keeping with the means of
the family.

Section 18. Succession. – In legal and intestate succession, the adopter(s) and the adoptee shall
have reciprocal rights of succession without distinction from legitimate filiation. However, if the
adoptee and his/her biological parent(s) had left a will, the law on testamentary succession shall
govern.

ARTICLE VI
RESCISSION OF ADOPTION

Section 19. Grounds for Rescission of Adoption. – Upon petition of the adoptee, with the
assistance of the Department if a minor or if over eighteen (18) years of age but is incapacitated,
as guardian/counsel, the adoption may be rescinded on any of the following grounds committed
by the adopter(s): (a) repeated physical and verbal maltreatment by the adopter(s) despite having
undergone counseling; (b) attempt on the life of the adoptee; (c) sexual assault or violence; or (d)
abandonment and failure to comply with parental obligations.

Adoption, being in the best interest of the child, shall not be subject to rescission by the
adopter(s). However, the adopter(s) may disinherit the adoptee for causes provided in Article 919
of the Civil Code.

Section 20. Effects of Rescission. – If the petition is granted, the parental authority of the
adoptee's biological parent(s), if known, or the legal custody of the Department shall be restored
if the adoptee is still a minor or incapacitated. The reciprocal rights and obligations of the
adopter(s) and the adoptee to each other shall be extinguished.

The court shall order the Civil Registrar to cancel the amended certificate of birth of the adoptee
and restore his/her original birth certificate.
Succession rights shall revert to its status prior to adoption, but only as of the date of judgment of
judicial rescission. Vested rights acquired prior to judicial rescission shall be respected.

All the foregoing effects of rescission of adoption shall be without prejudice to the penalties
imposable under the Penal Code if the criminal acts are properly proven.

ARTICLE VII
VIOLATIONS AND PENALTIES

Section 21. Violations and Penalties. – (a) The penalty of imprisonment ranging from six (6)
years and one (1) day to twelve (12) years and/or a fine not less than Fifty thousand pesos
(P50,000.00), but not more than Two hundred thousand pesos (P200,000.00) at the discretion of
the court shall be imposed on any person who shall commit any of the following acts:

(i) obtaining consent for an adoption through coercion, undue influence, fraud, improper
material inducement, or other similar acts;

(ii) non-compliance with the procedures and safeguards provided by the law for adoption;
or

(iii) subjecting or exposing the child to be adopted to danger, abuse, or exploitation.

(b) Any person who shall cause the fictitious registration of the birth of a child under the name(s)
of a person(s) who is not his/her biological parent(s) shall be guilty of simulation of birth, and
shall be punished by prision mayor in its medium period and a fine not exceeding Fifty thousand
pesos (P50,000.00).

Any physician or nurse or hospital personnel who, in violation of his/her oath of office, shall
cooperate in the execution of the abovementioned crime shall suffer the penalties herein
prescribed and also the penalty of permanent disqualification.

Any person who shall violate established regulations relating to the confidentiality and integrity
of records, documents, and communications of adoption applications, cases, and processes shall
suffer the penalty of imprisonment ranging from one (1) year and one (1) day to two (2) years,
and/or a fine of not less than Five thousand pesos (P5,000.00) but not more than Ten thousand
pesos (P10,000.00), at the discretion of the court.

A penalty lower by two (2) degrees than that prescribed for the consummated offense under this
Article shall be imposed upon the principals of the attempt to commit any of the acts herein
enumerated. Acts punishable under this Article, when committed by a syndicate or where it
involves two (2) or more children shall be considered as an offense constituting child trafficking
and shall merit the penalty of reclusion perpetua.

Acts punishable under this Article are deemed committed by a syndicate if carried out by a group
of three (3) or more persons conspiring and/or confederating with one another in carrying out
any of the unlawful acts defined under this Article. Penalties as are herein provided, shall be in
addition to any other penalties which may be imposed for the same acts punishable under other
laws, ordinances, executive orders, and proclamations.

When the offender is an alien, he/she shall be deported immediately after service of sentence and
perpetually excluded from entry to the country.

Any government official, employee or functionary who shall be found guilty of violating any of
the provisions of this Act, or who shall conspire with private individuals shall, in addition to the
above-prescribed penalties, be penalized in accordance with existing civil service laws, rules and
regulations: Provided, That upon the filing of a case, either administrative or criminal, said
government official, employee, or functionary concerned shall automatically suffer suspension
until the resolution of the case.

Section 22. Rectification of Simulated Births. – A person who has, prior to the effectivity of this
Act, simulated the birth of a child shall not be punished for such act: Provided, That the
simulation of birth was made for the best interest of the child and that he/she has been
consistently considered and treated by that person as his/her own son/daughter: Provided,
further, That the application for correction of the birth registration and petition for adoption shall
be filed within five (5) years from the effectivity of this Act and completed thereafter: Provided,
finally, That such person complies with the procedure as specified in Article IV of this Act and
other requirements as determined by the Department.

ARTICLE VIII
FINAL PROVISIONS

Section 23. Adoption Resource and Referral Office. – There shall be established an Adoption
Resources and Referral Office under the Department with the following functions: (a) monitor
the existence, number, and flow of children legally available for adoption and prospective
adopter(s) so as to facilitate their matching; (b) maintain a nationwide information and
educational campaign on domestic adoption; (c) keep records of adoption proceedings; (d)
generate resources to help child-caring and child-placing agencies and foster homes maintain
viability; and (e) do policy research in collaboration with the Intercountry Adoption Board and
other concerned agencies. The office shall be manned by adoption experts from the public and
private sectors.

Section 24. Implementing Rules and Regulations. – Within six (6) months from the
promulgation of this Act, the Department, with the Council for the Welfare of Children, the
Office of Civil Registry General, the Department of Justice, Office of the Solicitor General, and
two (2) private individuals representing child-placing and child-caring agencies shall formulate
the necessary guidelines to make the provisions of this Act operative.

Section 25. Appropriations. – Such sum as may be necessary for the implementation of the
provisions of this Act shall be included in the General Appropriations Act of the year following
its enactment into law and thereafter.
Section 26. Repealing Clause. – Any law, presidential decree or issuance, executive order, letter
of instruction, administrative order, rule, or regulation contrary to, or inconsistent with the
provisions of this Act is hereby repealed, modified, or amended accordingly.

Section 27. Separability Clause. – If any provision of this Act is held invalid or unconstitutional,
the other provisions not affected thereby shall remain valid and subsisting.

Section 28. Effectivity Clause. – This Act shall take effect fifteen (15) days following its
complete publication in any newspaper of general circulation or in the Official Gazette.

Approved: February 25, 1998

2. G.R. No. 148311. March 31, 2005

IN THE MATTER OF THE ADOPTION OF STEPHANIE NATHY ASTORGA GARCIA

HONORATO B. CATINDIG, petitioner.

DECISION

SANDOVAL-GUTIERREZ, J.:

May an illegitimate child, upon adoption by her natural father, use the surname of her natural
mother as her middle name? This is the issue raised in the instant case.

The facts are undisputed.

On August 31, 2000, Honorato B. Catindig, herein petitioner, filed a petition1 to adopt his
minor illegitimate child Stephanie Nathy Astorga Garcia. He alleged therein, among others,
that Stephanie was born on June 26, 1994;2 that her mother is Gemma Astorga Garcia; that
Stephanie has been using her mother’s middle name and surname; and that he is now a widower
and qualified to be her adopting parent. He prayed that Stephanie’s middle name Astorga be
changed to "Garcia," her mother’s surname, and that her surname "Garcia" be changed to
"Catindig," his surname.

On March 23, 2001,3 the trial court rendered the assailed Decision granting the adoption, thus:

"After a careful consideration of the evidence presented by the petitioner, and in the absence of
any opposition to the petition, this Court finds that the petitioner possesses all the qualifications
and none of the disqualification provided for by law as an adoptive parent, and that as such he is
qualified to maintain, care for and educate the child to be adopted; that the grant of this petition
would redound to the best interest and welfare of the minor Stephanie Nathy Astorga Garcia. The
Court further holds that the petitioner’s care and custody of the child since her birth up to the
present constitute more than enough compliance with the requirement of Article 35 of
Presidential Decree No. 603.

WHEREFORE, finding the petition to be meritorious, the same is GRANTED. Henceforth,

Stephanie Nathy Astorga Garcia is hereby freed from all obligations of obedience and
maintenance with respect to her natural mother, and for civil purposes, shall henceforth be the
petitioner’s legitimate child and legal heir. Pursuant to Article 189 of the Family Code of the
Philippines, the minor shall be known as STEPHANIE NATHY CATINDIG.

Upon finality of this Decision, let the same be entered in the Local Civil Registrar concerned
pursuant to Rule 99 of the Rules of Court.

Let copy of this Decision be furnished the National Statistics Office for record purposes.

SO ORDERED."4

On April 20, 2001, petitioner filed a motion for clarification and/or reconsideration5 praying that
Stephanie should be allowed to use the surname of her natural mother (GARCIA) as her middle
name.

On May 28, 2001,6 the trial court denied petitioner’s motion for reconsideration holding that
there is no law or jurisprudence allowing an adopted child to use the surname of his biological
mother as his middle name.

Hence, the present petition raising the issue of whether an illegitimate child may use the surname
of her mother as her middle name when she is subsequently adopted by her natural father.

Petitioner submits that the trial court erred in depriving Stephanie of a middle name as a
consequence of adoption because: (1) there is no law prohibiting an adopted child from having a
middle name in case there is only one adopting parent; (2) it is customary for every Filipino to
have as middle name the surname of the mother; (3) the middle name or initial is a part of the
name of a person; (4) adoption is for the benefit and best interest of the adopted child, hence, her
right to bear a proper name should not be violated; (5) permitting Stephanie to use the middle
name "Garcia" (her mother’s surname) avoids the stigma of her illegitimacy; and; (6) her
continued use of "Garcia" as her middle name is not opposed by either the Catindig or Garcia
families.

The Republic, through the Office of the Solicitor General (OSG), agrees with petitioner that
Stephanie should be permitted to use, as her middle name, the surname of her natural mother for
the following reasons:

First, it is necessary to preserve and maintain Stephanie’s filiation with her natural mother
because under Article 189 of the Family Code, she remains to be an intestate heir of the latter.
Thus, to prevent any confusion and needless hardship in the future, her relationship or proof of
that relationship with her natural mother should be maintained.
Second, there is no law expressly prohibiting Stephanie to use the surname of her natural mother
as her middle name. What the law does not prohibit, it allows.

Last, it is customary for every Filipino to have a middle name, which is ordinarily the surname of
the mother. This custom has been recognized by the Civil Code and Family Code. In fact, the
Family Law Committees agreed that "the initial or surname of the mother should immediately
precede the surname of the father so that the second name, if any, will be before the surname of
the mother."7

We find merit in the petition.

Use Of Surname Is Fixed By Law –

For all practical and legal purposes, a man's name is the designation by which he is known and
called in the community in which he lives and is best known. It is defined as the word or
combination of words by which a person is distinguished from other individuals and, also, as the
label or appellation which he bears for the convenience of the world at large addressing him, or
in speaking of or dealing with him.8 It is both of personal as well as public interest that every
person must have a name.

The name of an individual has two parts: (1) the given or proper name and (2) the surname or
family name. The given or proper name is that which is given to the individual at birth or at
baptism, to distinguish him from other individuals. The surname or family name is that which
identifies the family to which he belongs and is continued from parent to child. The given name
may be freely selected by the parents for the child, but the surname to which the child is entitled
is fixed by law.9

Thus, Articles 364 to 380 of the Civil Code provides the substantive rules which regulate the use
of surname10 of an individual whatever may be his status in life, i.e., whether he may be
legitimate or illegitimate, an adopted child, a married woman or a previously married woman, or
a widow, thus:

"Art. 364. Legitimate and legitimated children shall principally use the surname of the father.

Art. 365. An adopted child shall bear the surname of the adopter.

xxx

Art. 369. Children conceived before the decree annulling a voidable marriage shall principally
use the surname of the father.

Art. 370. A married woman may use:

(1) Her maiden first name and surname and add her husband's surname, or

(2) Her maiden first name and her husband's surname or

(3) Her husband's full name, but prefixing a word indicating that she is his wife, such as ‘Mrs.’

Art. 371. In case of annulment of marriage, and the wife is the guilty party, she shall resume her
maiden name and surname. If she is the innocent spouse, she may resume her maiden name and
surname. However, she may choose to continue employing her former husband's surname,
unless:

(1) The court decrees otherwise, or

(2) She or the former husband is married again to another person.

Art. 372. When legal separation has been granted, the wife shall continue using her name and
surname employed before the legal separation.

Art. 373. A widow may use the deceased husband's surname as though he were still living, in
accordance with Article 370.

Art. 374. In case of identity of names and surnames, the younger person shall be obliged to use
such additional name or surname as will avoid confusion.

Art. 375. In case of identity of names and surnames between ascendants and descendants, the
word ‘Junior’ can be used only by a son. Grandsons and other direct male descendants shall
either:

(1) Add a middle name or the mother's surname,

(2) Add the Roman numerals II, III, and so on.

x x x"

Law Is Silent As To The Use Of

Middle Name –

As correctly submitted by both parties, there is no law regulating the use of a middle name. Even
Article 17611 of the Family Code, as amended by Republic Act No. 9255, otherwise known as
"An Act Allowing Illegitimate Children To Use The Surname Of Their Father," is silent as to
what middle name a child may use.

The middle name or the mother’s surname is only considered in Article 375(1), quoted above, in
case there is identity of names and surnames between ascendants and descendants, in which case,
the middle name or the mother’s surname shall be added.

Notably, the law is likewise silent as to what middle name an adoptee may use. Article 365
of the Civil Code merely provides that "an adopted child shall bear the surname of the adopter."
Also, Article 189 of the Family Code, enumerating the legal effects of adoption, is likewise silent
on the matter, thus:

"(1) For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters
and both shall acquire the reciprocal rights and obligations arising from the relationship of parent
and child, including the right of the adopted to use the surname of the adopters;

x x x"

However, as correctly pointed out by the OSG, the members of the Civil Code and Family Law
Committees that drafted the Family Code recognized the Filipino custom of adding the
surname of the child’s mother as his middle name. In the Minutes of the Joint Meeting of the
Civil Code and Family Law Committees, the members approved the suggestion that the initial
or surname of the mother should immediately precede the surname of the father, thus

"Justice Caguioa commented that there is a difference between the use by the wife of the
surname and that of the child because the father’s surname indicates the family to which he
belongs, for which reason he would insist on the use of the father’s surname by the child
but that, if he wants to, the child may also use the surname of the mother.

Justice Puno posed the question: If the child chooses to use the surname of the mother, how will
his name be written? Justice Caguioa replied that it is up to him but that his point is that it
should be mandatory that the child uses the surname of the father and permissive in the
case of the surname of the mother.

Prof. Baviera remarked that Justice Caguioa’s point is covered by the present Article 364, which
reads:

Legitimate and legitimated children shall principally use the surname of the father.

Justice Puno pointed out that many names change through no choice of the person himself
precisely because of this misunderstanding. He then cited the following example: Alfonso Ponce
Enrile’s correct surname is Ponce since the mother’s surname is Enrile but everybody calls him
Atty. Enrile. Justice Jose Gutierrez David’s family name is Gutierrez and his mother’s surname
is David but they all call him Justice David.

Justice Caguioa suggested that the proposed Article (12) be modified to the effect that it
shall be mandatory on the child to use the surname of the father but he may use the
surname of the mother by way of an initial or a middle name. Prof. Balane stated that they
take note of this for inclusion in the Chapter on Use of Surnames since in the proposed Article
(10) they are just enumerating the rights of legitimate children so that the details can be covered
in the appropriate chapter.

xxx
Justice Puno remarked that there is logic in the simplification suggested by Justice Caguioa that
the surname of the father should always be last because there are so many traditions like the
American tradition where they like to use their second given name and the Latin tradition, which
is also followed by the Chinese wherein they even include the Clan name.

xxx

Justice Puno suggested that they agree in principle that in the Chapter on the Use of
Surnames, they should say that initial or surname of the mother should immediately
precede the surname of the father so that the second name, if any, will be before the
surname of the mother. Prof. Balane added that this is really the Filipino way. The
Committee approved the suggestion."12 (Emphasis supplied)

In the case of an adopted child, the law provides that "the adopted shall bear the surname of the
adopters."13 Again, it is silent whether he can use a middle name. What it only expressly allows,
as a matter of right and obligation, is for the adoptee to bear the surname of the adopter, upon
issuance of the decree of adoption.14

The Underlying Intent of

Adoption Is In Favor of the

Adopted Child –

Adoption is defined as the process of making a child, whether related or not to the adopter,
possess in general, the rights accorded to a legitimate child.15 It is a juridical act, a proceeding in
rem which creates between two persons a relationship similar to that which results from
legitimate paternity and filiation.16 The modern trend is to consider adoption not merely as an
act to establish a relationship of paternity and filiation, but also as an act which endows the child
with a legitimate status.17 This was, indeed, confirmed in 1989, when the Philippines, as a State
Party to the Convention of the Rights of the Child initiated by the United Nations, accepted
the principle that adoption is impressed with social and moral responsibility, and that its
underlying intent is geared to favor the adopted child.18 Republic Act No. 8552, otherwise
known as the "Domestic Adoption Act of 1998,"19 secures these rights and privileges for the
adopted.20

One of the effects of adoption is that the adopted is deemed to be a legitimate child of the
adopter for all intents and purposes pursuant to Article 18921 of the Family Code and Section
1722 Article V of RA 8552.23

Being a legitimate child by virtue of her adoption, it follows that Stephanie is entitled to all
the rights provided by law to a legitimate child without discrimination of any kind,
including the right to bear the surname of her father and her mother, as discussed above.
This is consistent with the intention of the members of the Civil Code and Family Law
Committees as earlier discussed. In fact, it is a Filipino custom that the initial or surname of the
mother should immediately precede the surname of the father.
Additionally, as aptly stated by both parties, Stephanie’s continued use of her mother’s surname
(Garcia) as her middle name will maintain her maternal lineage. It is to be noted that Article
189(3) of the Family Code and Section 1824, Article V of RA 8552 (law on adoption) provide
that the adoptee remains an intestate heir of his/her biological parent. Hence, Stephanie can well
assert or claim her hereditary rights from her natural mother in the future.

Moreover, records show that Stephanie and her mother are living together in the house built by
petitioner for them at 390 Tumana, San Jose, Baliuag, Bulacan. Petitioner provides for all their
needs. Stephanie is closely attached to both her mother and father. She calls them "Mama" and
"Papa". Indeed, they are one normal happy family. Hence, to allow Stephanie to use her mother’s
surname as her middle name will not only sustain her continued loving relationship with her
mother but will also eliminate the stigma of her illegitimacy.

Liberal Construction of

Adoption Statutes In Favor Of

Adoption –

It is a settled rule that adoption statutes, being humane and salutary, should be liberally construed
to carry out the beneficent purposes of adoption.25 The interests and welfare of the adopted child
are of primary and paramount consideration,26 hence, every reasonable intendment should be
sustained to promote and fulfill these noble and compassionate objectives of the law.27

Lastly, Art. 10 of the New Civil Code provides that:

"In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking
body intended right and justice to prevail."

This provision, according to the Code Commission, "is necessary so that it may tip the scales in
favor of right and justice when the law is doubtful or obscure. It will strengthen the
determination of the courts to avoid an injustice which may apparently be authorized by some
way of interpreting the law."28

Hence, since there is no law prohibiting an illegitimate child adopted by her natural father, like
Stephanie, to use, as middle name her mother’s surname, we find no reason why she should not
be allowed to do so.

WHEREFORE, the petition is GRANTED. The assailed Decision is partly MODIFIED in the
sense that Stephanie should be allowed to use her mother’s surname "GARCIA" as her middle
name.

Let the corresponding entry of her correct and complete name be entered in the decree of
adoption.

SO ORDERED.
WILLS

1. A.M. No. 2026-CFI December 19, 1981

NENITA DE VERA SUROZA, complainant,

vs.
JUDGE REYNALDO P. HONRADO of the Court of First Instance of Rizal, Pasig
Branch 25 and EVANGELINE S. YUIPCO, Deputy Clerk of Court, respondents.

AQUINO, J.:

Should disciplinary action be taken against respondent judge for having admitted to
probate a will, which on its face is void because it is written in English, a language not
known to the illiterate testatrix, and which is probably a forged will because she and the
attesting witnesses did not appear before the notary as admitted by the notary himself?

That question arises under the pleadings filed in the testate case and in the certiorari
case in the Court of Appeals which reveal the following tangled strands of human
relationship:

Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (Philippine Scouts), Fort
McKinley, married Marcelina Salvador in 1923 (p. 150, Spec. Proc. No. 7816). They
were childless. They reared a boy named Agapito who used the surname Suroza and
who considered them as his parents as shown in his 1945 marriage contract with Nenita
de Vera (p. 15, Rollo of CA-G.R. No. 08654-R; p. 148, Rollo of Testate Case showing
that Agapito was 5 years old when Mauro married Marcelina in 1923).

Mauro died in 1942. Marcelina, as a veteran's widow, became a pensioner of the

Federal Government. That explains why on her death she had accumulated some cash
in two banks.

Agapito and Nenita begot a child named Lilia who became a medical technologist and
went abroad. Agapito also became a soldier. He was disabled and his wife Nenita was
appointed as his guardian in 1953 when he was declared an incompetent in Special
Proceeding No. 1807 of the Court of First Instance of Rizal, Pasig Branch I (p. 16, Rollo
of CA-G.R. No. 08654-R).

In that connection, it should be noted that a woman named Arsenia de la Cruz wanted
also to be his guardian in another proceeding. Arsenia tried to prove that Nenita was
living separately from Agapito and that she (Nenita) admitted to Marcelina that she was
unfaithful to Agapito (pp. 61-63, Record of testate case).
Judge Bienvenido A. Tan dismissed the second guardianship proceeding and confirmed
Nenita's appointment as guardian of Agapito (p. 16, Rollo of CA case). Agapito has
been staying in a veteran's hospital in San Francisco or Palo Alto, California (p. 87,
Record).

On a date not indicated in the record, the spouses Antonio Sy and Hermogena Talan
begot a child named Marilyn Sy, who, when a few days old, was entrusted to Arsenia de
la Cruz (apparently a girl friend of Agapito) and who was later delivered to Marcelina
Salvador Suroza who brought her up as a supposed daughter of Agapito and as her
granddaughter (pp. 23-26, Rollo of CA-G.R. No.SP-08654-R). Marilyn used the
surname Suroza. She stayed with Marcelina but was not legally adopted by Agapito.
She married Oscar Medrano and is residing at 7666 J.B. Roxas Street, Makati,
apparently a neighbor of Marina Paje, a resident of 7668 J.B. Roxas Street.

Marcelina supposedly executed a notarial will in Manila on July 23, 1973, when she was
73 years old. That will which is in English was thumbmarked by her. She was illiterate.
Her letters in English to the Veterans Administration were also thumbmarked by her (pp.
38-39, CA Rollo). In that wig, Marcelina bequeathed all her estate to her supposed
granddaughter Marilyn.

Marcelina died on November 15, 1974 at the Veterans Hospital in Quezon City. At the
time of her death, she was a resident of 7374 San Maximo Street, Olimpia, Makati,
Rizal. She owned a 150-square meter lot and house in that place. She acquired the lot
in 1966 (p. 134, Record of testate case).

On January 13, 1975, Marina Paje, alleged to be a laundrywoman of Marcelina (P. 97,
CA Rollo) and the executrix in her will (the alternate executrix was Juanita Macaraeg,
mother of Oscar, Marilyn's husband), filed with the Court of First Instance of Rizal, Pasig
Branch 25, a petition for the probate of Marcelina's alleged will. The case was assigned
to Judge Reynaldo P. Honrado.

As there was no opposition, Judge Honrado commissioned his deputy clerk of court,
Evangeline S. Yuipco, to hear the evidence. The transcripts of the stenographic notes
taken at the hearing before the deputy clerk of court are not in the record.

In an order dated March 31, 1975, Judge Honrado appointed Marina as administratrix.
On the following day, April 1, Judge Honrado issued two orders directing the Merchants
Banking Corporation and the Bank of America to allow Marina to withdraw the sum of
P10,000 from the savings accounts of Marcelina S. Suroza and Marilyn Suroza and
requiring Corazon Castro, the custodian of the passbooks, to deliver them to Marina.

Upon motion of Marina, Judge Honrado issued another order dated April 11, 1975,
instructing a deputy sheriff to eject the occupants of the testatrix's house, among whom
was Nenita V. Suroza, and to place Marina in possession thereof.
That order alerted Nenita to the existence of the testamentary proceeding for the
settlement of Marcelina's estate. She and the other occupants of the decedent's house
filed on April 18 in the said proceeding a motion to set aside the order of April 11
ejecting them. They alleged that the decedent's son Agapito was the sole heir of the
deceased, that he has a daughter named Lilia, that Nenita was Agapito's guardian and
that Marilyn was not Agapito's daughter nor the decedent's granddaughter (pp. 52-68,
Record of testate case). Later, they questioned the probate court's jurisdiction to issue
the ejectment order.

In spite of the fact that Judge Honrado was already apprised that persons, other than
Marilyn, were claiming Marcelina's estate, he issued on April 23 an order probating her
supposed will wherein Marilyn was the instituted heiress (pp. 74-77, Record).

On April 24, Nenita filed in the testate case an omnibus petition "to set aside
proceedings, admit opposition with counter-petition for administration and preliminary
injunction". Nenita in that motion reiterated her allegation that Marilyn was a stranger to
Marcelina, that the will was not duly executed and attested, that it was procured by
means of undue influence employed by Marina and Marilyn and that the thumbmarks of
the testatrix were procured by fraud or trick.

Nenita further alleged that the institution of Marilyn as heir is void because of the
preterition of Agapito and that Marina was not qualified to act as executrix (pp. 83-91,
Record).

To that motion was attached an affidavit of Zenaida A. Penaojas the housemaid of

Marcelina, who swore that the alleged will was falsified (p. 109, Record).

Not content with her motion to set aside the ejectment order (filed on April 18) and her
omnibus motion to set aside the proceedings (filed on April 24), Nenita filed the next
day, April 25, an opposition to the probate of the will and a counter-petition for letters of
administration. In that opposition, Nenita assailed the due execution of the will and
stated the names and addresses of Marcelina's intestate heirs, her nieces and nephews
(pp. 113-121, Record). Nenita was not aware of the decree of probate dated April 23,
1975.

To that opposition was attached an affidavit of Dominga Salvador Teodocio, Marcelina's

niece, who swore that Marcelina never executed a win (pp. 124-125, Record).

Marina in her answer to Nenita's motion to set aside the proceedings admitted that
Marilyn was not Marcelina's granddaughter but was the daughter of Agapito and
Arsenia de la Cruz and that Agapito was not Marcelina's son but merely an anak-
anakan who was not legally adopted (p. 143, Record).

Judge Honrado in his order of July 17, 1975 dismissed Nenita's counter-petition for the
issuance of letters of administration because of the non-appearance of her counsel at
the hearing. She moved for the reconsideration of that order.
In a motion dated December 5, 1975, for the consolidation of all pending incidents,
Nenita V. Suroza reiterated her contention that the alleged will is void because
Marcelina did not appear before the notary and because it is written in English which is
not known to her (pp. 208-209, Record).

Judge Honrado in his order of June 8, 1976 "denied" the various incidents "raised" by
Nenita (p. 284, Record).

Instead of appealing from that order and the order probating the wig, Nenita "filed a
case to annul" the probate proceedings (p. 332, Record). That case, Civil Case No.
24276, Suroza vs. Paje and Honrado (p. 398, Record), was also assigned to Judge
Honrado. He dismissed it in his order of February 16, 1977 (pp. 398-402, Record).

Judge Honrado in his order dated December 22, 1977, after noting that the executrix
had delivered the estate to Marilyn, and that the estate tax had been paid, closed the
testamentary proceeding.

About ten months later, in a verified complaint dated October 12, 1978, filed in this
Court, Nenita charged Judge Honrado with having probated the fraudulent will of
Marcelina. The complainant reiterated her contention that the testatrix was illiterate as
shown by the fact that she affixed her thumbmark to the will and that she did not know
English, the language in which the win was written. (In the decree of probate Judge
Honrado did not make any finding that the will was written in a language known to the
testatrix.)

Nenita further alleged that Judge Honrado, in spite of his knowledge that the testatrix
had a son named Agapito (the testatrix's supposed sole compulsory and legal heir), who
was preterited in the will, did not take into account the consequences of such a
preterition.

Nenita disclosed that she talked several times with Judge Honrado and informed him
that the testatrix did not know the executrix Marina Paje, that the beneficiary's real name
is Marilyn Sy and that she was not the next of kin of the testatrix.

Nenita denounced Judge Honrado for having acted corruptly in allowing Marina and her
cohorts to withdraw from various banks the deposits Marcelina.

She also denounced Evangeline S. Yuipco, the deputy clerk of court, for not giving her
access to the record of the probate case by alleging that it was useless for Nenita to
oppose the probate since Judge Honrado would not change his decision. Nenita also
said that Evangeline insinuated that if she (Nenita) had ten thousand pesos, the case
might be decided in her favor. Evangeline allegedly advised Nenita to desist from
claiming the properties of the testatrix because she (Nenita) had no rights thereto and,
should she persist, she might lose her pension from the Federal Government.
Judge Honrado in his brief comment did not deal specifically with the allegations of the
complaint. He merely pointed to the fact that Nenita did not appeal from the decree of
probate and that in a motion dated July 6, 1976 she asked for a thirty day period within
which to vacate the house of the testatrix.

Evangeline S. Yuipco in her affidavit said that she never talked with Nenita and that the
latter did not mention Evangeline in her letter dated September 11, 1978 to President
Marcos.

Evangeline branded as a lie Nenita's imputation that she (Evangeline) prevented Nenita
from having access to the record of the testamentary proceeding. Evangeline was not
the custodian of the record. Evangeline " strongly, vehemently and flatly denied"
Nenita's charge that she (Evangeline) said that the sum of ten thousand pesos was
needed in order that Nenita could get a favorable decision. Evangeline also denied that
she has any knowledge of Nenita's pension from the Federal Government.

The 1978 complaint against Judge Honorado was brought to attention of this Court in
the Court Administrator's memorandum of September 25, 1980. The case was referred
to Justice Juan A. Sison of the Court of Appeals for investigation, report and
recommendation. He submitted a report dated October 7, 1981.

On December 14, 1978, Nenita filed in the Court of Appeals against Judge Honrado a
petition for certiorari and prohibition wherein she prayed that the will, the decree of
probate and all the proceedings in the probate case be declared void.

Attached to the petition was the affidavit of Domingo P. Aquino, who notarized the will.
He swore that the testatrix and the three attesting witnesses did not appear before him
and that he notarized the will "just to accommodate a brother lawyer on the condition"
that said lawyer would bring to the notary the testatrix and the witnesses but the lawyer
never complied with his commitment.

The Court of Appeals dismissed the petition because Nenita's remedy was an appeal
and her failure to do so did not entitle her to resort to the special civil action of certiorari
(Suroza vs. Honrado, CA-G.R. No. SP-08654, May 24, 1981).

Relying on that decision, Judge Honrado filed on November 17, 1981 a motion to
dismiss the administrative case for having allegedly become moot and academic.

We hold that disciplinary action should be taken against respondent judge for his
improper disposition of the testate case which might have resulted in a miscarriage of
justice because the decedent's legal heirs and not the instituted heiress in the void win
should have inherited the decedent's estate.

A judge may be criminally liable or knowingly rendering an unjust judgment or

interlocutory order or rendering a manifestly unjust judgment or interlocutory order by
reason of inexcusable negligence or ignorance (Arts. 204 to 206, Revised Penal Code).
Administrative action may be taken against a judge of the court of first instance for
serious misconduct or inefficiency ( Sec. 67, Judiciary Law). Misconduct implies malice
or a wrongful intent, not a mere error of judgment. "For serious misconduct to exist,
there must be reliable evidence showing that the judicial acts complained of were
corrupt or inspired by an intention to violate the law, or were in persistent disregard of
well-known legal rules" (In re lmpeachment of Horrilleno, 43 Phil. 212, 214-215).

Inefficiency implies negligence, incompetence, ignorance and carelessness. A judge

would be inexcusably negligent if he failed to observe in the performance of his duties
that diligence, prudence and circumspection which the law requires in the rendition of
any public service (In re Climaco, Adm. Case No. 134-J, Jan. 21, 1974, 55 SCRA 107,
119).

In this case, respondent judge, on perusing the will and noting that it was written in
English and was thumbmarked by an obviously illiterate testatrix, could have readily
perceived that the will is void.

In the opening paragraph of the will, it was stated that English was a language
"understood and known" to the testatrix. But in its concluding paragraph, it was stated
that the will was read to the testatrix "and translated into Filipino language". (p. 16,
Record of testate case). That could only mean that the will was written in a language not
known to the illiterate testatrix and, therefore, it is void because of the mandatory
provision of article 804 of the Civil Code that every will must be executed in a language
or dialect known to the testator. Thus, a will written in English, which was not known to
the Igorot testator, is void and was disallowed (Acop vs. Piraso, 52 Phil. 660).

The hasty preparation of the will is shown in the attestation clause and notarial
acknowledgment where Marcelina Salvador Suroza is repeatedly referred to as the
"testator" instead of "testatrix".

Had respondent judge been careful and observant, he could have noted not only the
anomaly as to the language of the will but also that there was something wrong in
instituting the supposed granddaughter as sole heiress and giving nothing at all to her
supposed father who was still alive.

Furthermore, after the hearing conducted by respondent deputy clerk of court,

respondent judge could have noticed that the notary was not presented as a witness.

In spite of the absence of an opposition, respondent judge should have personally

conducted the hearing on the probate of the will so that he could have ascertained
whether the will was validly executed.

Under the circumstances, we find his negligence and dereliction of duty to be

inexcusable.
WHEREFORE, for inefficiency in handling the testate case of Marcelina S. Suroza, a
fine equivalent to his salary for one month is imposed on respondent judge (his
compulsory retirement falls on December 25, 1981).

The case against respondent Yuipco has become moot and academic because she is
no longer employed in the judiciary. Since September 1, 1980 she has been assistant
city fiscal of Surigao City. She is beyond this Court's disciplinary jurisdiction (Peralta vs.
Firm Adm. Matter No. 2044-CFI November 21, 1980, 101 SCRA 225).

SO ORDERED.

2. G.R. No. 147145 January 31, 2005

TESTATE ESTATE OF THE LATE ALIPIO ABADA, BELINDA CAPONONG-NOBLE,

petitioner,
vs.
ALIPIO ABAJA and NOEL ABELLAR, respondents.

DECISION

CARPIO, J.:

The Case

Before the Court is a petition for review1 assailing the Decision2 of the Court of Appeals of 12
January 2001 in CA-G.R. CV No. 47644. The Court of Appeals sustained the Resolution3 of the
Regional Trial Court of Kabankalan, Negros Occidental, Branch 61 ("RTC-Kabankalan"),
admitting to probate the last will and testament of Alipio Abada ("Abada").

The Antecedent Facts

Abada died sometime in May 1940.4 His widow Paula Toray ("Toray") died sometime in
September 1943. Both died without legitimate children.

On 13 September 1968, Alipio C. Abaja ("Alipio") filed with the then Court of First Instance of
Negros Occidental (now RTC-Kabankalan) a petition,5 docketed as SP No. 070 (313-8668), for
the probate of the last will and testament ("will") of Abada. Abada allegedly named as his
testamentary heirs his natural children Eulogio Abaja ("Eulogio") and Rosario Cordova. Alipio is
the son of Eulogio.

Nicanor Caponong ("Caponong") opposed the petition on the ground that Abada left no will
when he died in 1940. Caponong further alleged that the will, if Abada really executed it, should
be disallowed for the following reasons: (1) it was not executed and attested as required by law;
(2) it was not intended as the last will of the testator; and (3) it was procured by undue and
improper pressure and influence on the part of the beneficiaries. Citing the same grounds
invoked by Caponong, the alleged intestate heirs of Abada, namely, Joel, Julian, Paz,
Evangeline, Geronimo, Humberto, Teodora and Elena Abada ("Joel Abada, et al."), and Levi,
Leandro, Antonio, Florian, Hernani and Carmela Tronco ("Levi Tronco, et al."), also opposed the
petition. The oppositors are the nephews, nieces and grandchildren of Abada and Toray.

On 13 September 1968, Alipio filed another petition6 before the RTC-Kabankalan, docketed as
SP No. 071 (312-8669), for the probate of the last will and testament of Toray. Caponong, Joel
Abada, et al., and Levi Tronco, et al. opposed the petition on the same grounds they cited in SP
No. 070 (313-8668).

On 20 September 1968, Caponong filed a petition7 before the RTC-Kabankalan, docketed as SP

No. 069 (309), praying for the issuance in his name of letters of administration of the intestate
estate of Abada and Toray.

In an Order dated 14 August 1981, the RTC-Kabankalan admitted to probate the will of Toray.
Since the oppositors did not file any motion for reconsideration, the order allowing the probate of
Toray’s will became final and executory.8

In an order dated 23 November 1990, the RTC-Kabankalan designated Belinda Caponong-Noble

("Caponong-Noble") Special Administratrix of the estate of Abada and Toray.9 Caponong-Noble
moved for the dismissal of the petition for probate of the will of Abada. The RTC-Kabankalan
denied the motion in an Order dated 20 August 1991.10

Sometime in 1993, during the proceedings, Presiding Judge Rodolfo S. Layumas discovered that
in an Order dated 16 March 1992, former Presiding Judge Edgardo Catilo had already submitted
the case for decision. Thus, the RTC-Kabankalan rendered a Resolution dated 22 June 1994, as
follows:

There having been sufficient notice to the heirs as required by law; that there is substantial
compliance with the formalities of a Will as the law directs and that the petitioner through his
testimony and the deposition of Felix Gallinero was able to establish the regularity of the
execution of the said Will and further, there being no evidence of bad faith and fraud, or
substitution of the said Will, the Last Will and Testament of Alipio Abada dated June 4, 1932 is
admitted and allowed probate.

As prayed for by counsel, Noel Abbellar11 is appointed administrator of the estate of Paula Toray
who shall discharge his duties as such after letters of administration shall have been issued in his
favor and after taking his oath and filing a bond in the amount of Ten Thousand (₱10,000.00)
Pesos.

Mrs. Belinda C. Noble, the present administratrix of the estate of Alipio Abada shall continue
discharging her duties as such until further orders from this Court.

SO ORDERED.12
The RTC-Kabankalan ruled on the only issue raised by the oppositors in their motions to dismiss
the petition for probate, that is, whether the will of Abada has an attestation clause as required by
law. The RTC-Kabankalan further held that the failure of the oppositors to raise any other matter
forecloses all other issues.

Not satisfied with the Resolution, Caponong-Noble filed a notice of appeal.

In a Decision promulgated on 12 January 2001, the Court of Appeals affirmed the Resolution of
the RTC-Kabankalan. The appellate court found that the RTC-Kabankalan properly admitted to
probate the will of Abada.

Hence, the present recourse by Caponong-Noble.

The Issues

The petition raises the following issues:

1. What laws apply to the probate of the last will of Abada;

2. Whether the will of Abada requires acknowledgment before a notary public;13

3. Whether the will must expressly state that it is written in a language or dialect known
to the testator;

4. Whether the will of Abada has an attestation clause, and if so, whether the attestation
clause complies with the requirements of the applicable laws;

5. Whether Caponong-Noble is precluded from raising the issue of whether the will of
Abada is written in a language known to Abada;

6. Whether evidence aliunde may be resorted to in the probate of the will of Abada.

The Ruling of the Court

The Court of Appeals did not err in sustaining the RTC-Kabankalan in admitting to probate the
will of Abada.

The Applicable Law

Abada executed his will on 4 June 1932. The laws in force at that time are the Civil Code of
1889 or the Old Civil Code, and Act No. 190 or the Code of Civil Procedure14 which governed
the execution of wills before the enactment of the New Civil Code.

The matter in dispute in the present case is the attestation clause in the will of Abada. Section
618 of the Code of Civil Procedure, as amended by Act No. 2645,15 governs the form of the
attestation clause of Abada’s will.16 Section 618 of the Code of Civil Procedure, as amended,
provides:

SEC. 618. Requisites of will. – No will, except as provided in the preceding section,17 shall be
valid to pass any estate, real or personal, nor charge or affect the same, unless it be written in the
language or dialect known by the testator and signed by him, or by the testator’s name written by
some other person in his presence, and by his express direction, and attested and subscribed by
three or more credible witnesses in the presence of the testator and of each other. The testator or
the person requested by him to write his name and the instrumental witnesses of the will, shall
also sign, as aforesaid, each and every page thereof, on the left margin, and said pages shall be
numbered correlatively in letters placed on the upper part of each sheet. The attestation shall
state the number of sheets or pages used, upon which the will is written, and the fact that the
testator signed the will and every page thereof, or caused some other person to write his name,
under his express direction, in the presence of three witnesses, and the latter witnessed and
signed the will and all pages thereof in the presence of the testator and of each other.

Requisites of a Will under the Code of Civil Procedure

Under Section 618 of the Code of Civil Procedure, the requisites of a will are the following:

(1) The will must be written in the language or dialect known by the testator;

(2) The will must be signed by the testator, or by the testator’s name written by some
other person in his presence, and by his express direction;

(3) The will must be attested and subscribed by three or more credible witnesses in the
presence of the testator and of each other;

(4) The testator or the person requested by him to write his name and the instrumental
witnesses of the will must sign each and every page of the will on the left margin;

(5) The pages of the will must be numbered correlatively in letters placed on the upper
part of each sheet;

(6) The attestation shall state the number of sheets or pages used, upon which the will is
written, and the fact that the testator signed the will and every page of the will, or caused
some other person to write his name, under his express direction, in the presence of three
witnesses, and the witnesses witnessed and signed the will and all pages of the will in the
presence of the testator and of each other.

Caponong-Noble asserts that the will of Abada does not indicate that it is written in a language
or dialect known to the testator. Further, she maintains that the will is not acknowledged before a
notary public. She cites in particular Articles 804 and 805 of the Old Civil Code, thus:

Art. 804. Every will must be in writing and executed in [a] language or dialect known to the
testator.
Art. 806. Every will must be acknowledged before a notary public by the testator and the
witnesses. xxx18

Caponong-Noble actually cited Articles 804 and 806 of the New Civil Code.19 Article 804 of the
Old Civil Code is about the rights and obligations of administrators of the property of an
absentee, while Article 806 of the Old Civil Code defines a legitime.

Articles 804 and 806 of the New Civil Code are new provisions. Article 804 of the New Civil
Code is taken from Section 618 of the Code of Civil Procedure.20 Article 806 of the New Civil
Code is taken from Article 685 of the Old Civil Code21 which provides:

Art. 685. The notary and two of the witnesses who authenticate the will must be acquainted with
the testator, or, should they not know him, he shall be identified by two witnesses who are
acquainted with him and are known to the notary and to the attesting witnesses. The notary and
the witnesses shall also endeavor to assure themselves that the testator has, in their judgment, the
legal capacity required to make a will.

Witnesses authenticating a will without the attendance of a notary, in cases falling under Articles
700 and 701, are also required to know the testator.

However, the Code of Civil Procedure22 repealed Article 685 of the Old Civil Code. Under the
Code of Civil Procedure, the intervention of a notary is not necessary in the execution of any
will.23 Therefore, Abada’s will does not require acknowledgment before a notary
public.1awphi1.nét

Caponong-Noble points out that nowhere in the will can one discern that Abada knew the
Spanish language. She alleges that such defect is fatal and must result in the disallowance of the
will. On this issue, the Court of Appeals held that the matter was not raised in the motion to
dismiss, and that it is now too late to raise the issue on appeal. We agree with Caponong-Noble
that the doctrine of estoppel does not apply in probate proceedings.24 In addition, the language
used in the will is part of the requisites under Section 618 of the Code of Civil Procedure and the
Court deems it proper to pass upon this issue.

Nevertheless, Caponong-Noble’s contention must still fail. There is no statutory requirement to

state in the will itself that the testator knew the language or dialect used in the will.25 This is a
matter that a party may establish by proof aliunde.26 Caponong-Noble further argues that Alipio,
in his testimony, has failed, among others, to show that Abada knew or understood the contents
of the will and the Spanish language used in the will. However, Alipio testified that Abada used
to gather Spanish-speaking people in their place. In these gatherings, Abada and his companions
would talk in the Spanish language.27 This sufficiently proves that Abada speaks the Spanish
language.

The Attestation Clause of Abada’s Will

A scrutiny of Abada’s will shows that it has an attestation clause. The attestation clause of
Abada’s will reads:
Suscrito y declarado por el testador Alipio Abada como su ultima voluntad y testamento en
presencia de nosotros, habiendo tambien el testador firmado en nuestra presencia en el margen
izquierdo de todas y cada una de las hojas del mismo. Y en testimonio de ello, cada uno de
nosotros lo firmamos en presencia de nosotros y del testador al pie de este documento y en el
margen izquierdo de todas y cada una de las dos hojas de que esta compuesto el mismo, las
cuales estan paginadas correlativamente con las letras "UNO" y "DOS’ en la parte superior de la
carrilla.28

Caponong-Noble proceeds to point out several defects in the attestation clause. Caponong-Noble
alleges that the attestation clause fails to state the number of pages on which the will is written.

The allegation has no merit. The phrase "en el margen izquierdo de todas y cada una de las dos
hojas de que esta compuesto el mismo" which means "in the left margin of each and every one of
the two pages consisting of the same" shows that the will consists of two pages. The pages are
numbered correlatively with the letters "ONE" and "TWO" as can be gleaned from the phrase
"las cuales estan paginadas correlativamente con las letras "UNO" y "DOS."

Caponong-Noble further alleges that the attestation clause fails to state expressly that the testator
signed the will and its every page in the presence of three witnesses. She then faults the Court of
Appeals for applying to the present case the rule on substantial compliance found in Article 809
of the New Civil Code.29

The first sentence of the attestation clause reads: "Suscrito y declarado por el testador Alipio
Abada como su ultima voluntad y testamento en presencia de nosotros, habiendo tambien el
testador firmado en nuestra presencia en el margen izquierdo de todas y cada una de las hojas
del mismo." The English translation is: "Subscribed and professed by the testator Alipio Abada
as his last will and testament in our presence, the testator having also signed it in our presence on
the left margin of each and every one of the pages of the same." The attestation clause clearly
states that Abada signed the will and its every page in the presence of the witnesses.

However, Caponong-Noble is correct in saying that the attestation clause does not indicate the
number of witnesses. On this point, the Court agrees with the appellate court in applying the rule
on substantial compliance in determining the number of witnesses. While the attestation clause
does not state the number of witnesses, a close inspection of the will shows that three witnesses
signed it.

This Court has applied the rule on substantial compliance even before the effectivity of the New
Civil Code. In Dichoso de Ticson v. De Gorostiza,30 the Court recognized that there are two
divergent tendencies in the law on wills, one being based on strict construction and the other on
liberal construction. In Dichoso, the Court noted that Abangan v. Abangan,31 the basic case on
the liberal construction, is cited with approval in later decisions of the Court.

In Adeva vda. De Leynez v. Leynez,32 the petitioner, arguing for liberal construction of
applicable laws, enumerated a long line of cases to support her argument while the respondent,
contending that the rule on strict construction should apply, also cited a long series of cases to
support his view. The Court, after examining the cases invoked by the parties, held:
x x x It is, of course, not possible to lay down a general rule, rigid and inflexible, which would be
applicable to all cases. 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 will, 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. x x x.

An attestation clause is made for the purpose of preserving, in permanent form, a record of the
facts attending the execution of the will, so that in case of failure of the memory of the
subscribing witnesses, or other casualty, they may still be proved. (Thompson on Wills, 2d ed.,
sec. 132.) A will, therefore, should not be rejected where its attestation clause serves the purpose
of the law. x x x 331a\^/phi1.net

We rule to apply the liberal construction in the probate of Abada’s will. Abada’s will clearly
shows four signatures: that of Abada and of three other persons. It is reasonable to conclude that
there are three witnesses to the will. The question on the number of the witnesses is answered by
an examination of the will itself and without the need for presentation of evidence aliunde. The
Court explained the extent and limits of the rule on liberal construction, thus:

[T]he so-called liberal rule does not offer any puzzle or difficulty, nor does it open the door to
serious consequences. The later decisions do tell us when and where to stop; they draw the
dividing line with precision. They do not allow evidence aliunde to fill a void in any part of
the document or supply missing details that should appear in the will itself.l^vvphi1.net
They only permit a probe into the will, an exploration within its confines, to ascertain its
meaning or to determine the existence or absence of the requisite formalities of law. This
clear, sharp limitation eliminates uncertainty and ought to banish any fear of dire results.34
(Emphasis supplied)

The phrase "en presencia de nosotros" or "in our presence" coupled with the signatures
appearing on the will itself and after the attestation clause could only mean that: (1) Abada
subscribed to and professed before the three witnesses that the document was his last will, and
(2) Abada signed the will and the left margin of each page of the will in the presence of these
three witnesses.

Finally, Caponong-Noble alleges that the attestation clause does not expressly state the
circumstances that the witnesses witnessed and signed the will and all its pages in the presence
of the testator and of each other. This Court has ruled:

Precision of language in the drafting of an attestation clause is desirable. However, it is not

imperative that a parrot-like copy of the words of the statute be made. It is sufficient if from the
language employed it can reasonably be deduced that the attestation clause fulfills what the law
expects of it.35

The last part of the attestation clause states "en testimonio de ello, cada uno de nosotros lo
firmamos en presencia de nosotros y del testador." In English, this means "in its witness, every
one of us also signed in our presence and of the testator." This clearly shows that the attesting
witnesses witnessed the signing of the will of the testator, and that each witness signed the will in
the presence of one another and of the testator.

WHEREFORE, we AFFIRM the Decision of the Court of Appeals of 12 January 2001 in CA-
G.R. CV No. 47644.

SO ORDERED.

3. G.R. No. 174489 April 11, 2012

ANTONIO B. BALTAZAR, SEBASTIAN M. BALTAZAR, ANTONIO L.

MANGALINDAN, ROSIE M. MATEO, NENITA A. PACHECO, VIRGILIO REGALA,
JR., and RAFAEL TITCO, Petitioners,
vs.
LORENZO LAXA, Respondent.

DECISION

DEL CASTILLO, J.:

It is incumbent upon those who oppose the probate of a will to clearly establish that the decedent
was not of sound and disposing mind at the time of the execution of said will. Otherwise, the
state is duty-bound to give full effect to the wishes of the testator to distribute his estate in the
manner provided in his will so long as it is legally tenable.1

Before us is a Petition for Review on Certiorari2 of the June 15, 2006 Decision3 of the Court of
Appeals (CA) in CA-G.R. CV No. 80979 which reversed the September 30, 2003 Decision4 of
the Regional Trial Court (RTC), Branch 52, Guagua, Pampanga in Special Proceedings No. G-
1186. The assailed CA Decision granted the petition for probate of the notarial will of Paciencia
Regala (Paciencia), to wit:

WHEREFORE, premises considered, finding the appeal to be impressed with merit, the decision
in SP. PROC. NO. G-1186 dated 30 September 2003, is hereby SET ASIDE and a new one
entered GRANTING the petition for the probate of the will of PACIENCIA REGALA.

SO ORDERED.5

Also assailed herein is the August 31, 2006 CA Resolution6 which denied the Motion for
Reconsideration thereto.

Petitioners call us to reverse the CA’s assailed Decision and instead affirm the Decision of the
RTC which disallowed the notarial will of Paciencia.
Factual Antecedents

Paciencia was a 78 year old spinster when she made her last will and testament entitled "Tauli
Nang Bilin o Testamento Miss Paciencia Regala"7 (Will) in the Pampango dialect on September
13, 1981. The Will, executed in the house of retired Judge Ernestino G. Limpin (Judge Limpin),
was read to Paciencia twice. After which, Paciencia expressed in the presence of the instrumental
witnesses that the document is her last will and testament. She thereafter affixed her signature at
the end of the said document on page 38 and then on the left margin of pages 1, 2 and 4 thereof.9

The witnesses to the Will were Dra. Maria Lioba A. Limpin (Dra. Limpin), Francisco Garcia
(Francisco) and Faustino R. Mercado (Faustino). The three attested to the Will’s due execution
by affixing their signatures below its attestation clause10 and on the left margin of pages 1, 2 and
4 thereof,11 in the presence of Paciencia and of one another and of Judge Limpin who acted as
notary public.

Childless and without any brothers or sisters, Paciencia bequeathed all her properties to
respondent Lorenzo R. Laxa (Lorenzo) and his wife Corazon F. Laxa and their children Luna
Lorella Laxa and Katherine Ross Laxa, thus:

xxxx

Fourth - In consideration of their valuable services to me since then up to the present by the
spouses LORENZO LAXA and CORAZON F. LAXA, I hereby BEQUEATH, CONVEY and
GIVE all my properties enumerated in parcels 1 to 5 unto the spouses LORENZO R. LAXA and
CORAZON F. LAXA and their children, LUNA LORELLA LAXA and KATHERINE LAXA,
and the spouses Lorenzo R. Laxa and Corazon F. Laxa both of legal age, Filipinos, presently
residing at Barrio Sta. Monica, [Sasmuan], Pampanga and their children, LUNA LORELLA and
KATHERINE ROSS LAXA, who are still not of legal age and living with their parents who
would decide to bequeath since they are the children of the spouses;

xxxx

[Sixth] - Should other properties of mine may be discovered aside from the properties mentioned
in this last will and testament, I am also bequeathing and giving the same to the spouses Lorenzo
R. Laxa and Corazon F. Laxa and their two children and I also command them to offer masses
yearly for the repose of my soul and that of D[ñ]a Nicomeda Regala, Epifania Regala and their
spouses and with respect to the fishpond situated at San Antonio, I likewise command to fulfill
the wishes of D[ñ]a Nicomeda Regala in accordance with her testament as stated in my
testament. x x x12

The filial relationship of Lorenzo with Paciencia remains undisputed. Lorenzo is Paciencia’s
nephew whom she treated as her own son. Conversely, Lorenzo came to know and treated
Paciencia as his own mother.13 Paciencia lived with Lorenzo’s family in Sasmuan, Pampanga
and it was she who raised and cared for Lorenzo since his birth. Six days after the execution of
the Will or on September 19, 1981, Paciencia left for the United States of America (USA).
There, she resided with Lorenzo and his family until her death on January 4, 1996.
In the interim, the Will remained in the custody of Judge Limpin.

More than four years after the death of Paciencia or on April 27, 2000, Lorenzo filed a petition14
with the RTC of Guagua, Pampanga for the probate of the Will of Paciencia and for the issuance
of Letters of Administration in his favor, docketed as Special Proceedings No. G-1186.

There being no opposition to the petition after its due publication, the RTC issued an Order on
June 13, 200015 allowing Lorenzo to present evidence on June 22, 2000. On said date, Dra.
Limpin testified that she was one of the instrumental witnesses in the execution of the last will
and testament of Paciencia on September 13, 1981.16 The Will was executed in her father’s
(Judge Limpin) home office, in her presence and of two other witnesses, Francisco and
Faustino.17 Dra. Limpin positively identified the Will and her signatures on all its four pages.18
She likewise positively identified the signature of her father appearing thereon.19 Questioned by
the prosecutor regarding Judge Limpin’s present mental fitness, Dra. Limpin testified that her
father had a stroke in 1991 and had to undergo brain surgery.20 The judge can walk but can no
longer talk and remember her name. Because of this, Dra. Limpin stated that her father can no
longer testify in court.21

The following day or on June 23, 2000, petitioner Antonio Baltazar (Antonio) filed an
opposition22 to Lorenzo’s petition. Antonio averred that the properties subject of Paciencia’s
Will belong to Nicomeda Regala Mangalindan, his predecessor-in-interest; hence, Paciencia had
no right to bequeath them to Lorenzo.23

Barely a month after or on July 20, 2000, Antonio, now joined by petitioners Sebastian M.
Baltazar, Virgilio Regala, Jr., Nenita A. Pacheco, Felix B. Flores, Rafael Titco, Rosie M. Mateo
(Rosie) and Antonio L. Mangalindan filed a Supplemental Opposition24 contending that
Paciencia’s Will was null and void because ownership of the properties had not been transferred
and/or titled to Paciencia before her death pursuant to Article 1049, paragraph 3 of the Civil
Code.25 Petitioners also opposed the issuance of Letters of Administration in Lorenzo’s favor
arguing that Lorenzo was disqualified to be appointed as such, he being a citizen and resident of
the USA.26 Petitioners prayed that Letters of Administration be instead issued in favor of
Antonio.27

Later still on September 26, 2000, petitioners filed an Amended Opposition28 asking the RTC to
deny the probate of Paciencia’s Will on the following grounds: the Will was not executed and
attested to in accordance with the requirements of the law; that Paciencia was mentally incapable
to make a Will at the time of its execution; that she was forced to execute the Will under duress
or influence of fear or threats; that the execution of the Will had been procured by undue and
improper pressure and influence by Lorenzo or by some other persons for his benefit; that the
signature of Paciencia on the Will was forged; that assuming the signature to be genuine, it was
obtained through fraud or trickery; and, that Paciencia did not intend the document to be her
Will. Simultaneously, petitioners filed an Opposition and Recommendation29 reiterating their
opposition to the appointment of Lorenzo as administrator of the properties and requesting for
the appointment of Antonio in his stead.
On January 29, 2001, the RTC issued an Order30 denying the requests of both Lorenzo and
Antonio to be appointed administrator since the former is a citizen and resident of the USA while
the latter’s claim as a co-owner of the properties subject of the Will has not yet been established.

Meanwhile, proceedings on the petition for the probate of the Will continued. Dra. Limpin was
recalled for cross-examination by the petitioners. She testified as to the age of her father at the
time the latter notarized the Will of Paciencia; the living arrangements of Paciencia at the time of
the execution of the Will; and the lack of photographs when the event took place. 31

Aside from Dra. Limpin, Lorenzo and Monico Mercado (Monico) also took the witness stand.
Monico, son of Faustino, testified on his father’s condition. According to him his father can no
longer talk and express himself due to brain damage. A medical certificate was presented to the
court to support this allegation. 32

For his part, Lorenzo testified that: from 1944 until his departure for the USA in April 1980, he
lived in Sasmuan, Pampanga with his family and his aunt, Paciencia; in 1981 Paciencia went to
the USA and lived with him and his family until her death in January 1996; the relationship
between him and Paciencia was like that of a mother and child since Paciencia took care of him
since birth and took him in as an adopted son; Paciencia was a spinster without children, and
without brothers and sisters; at the time of Paciencia’s death, she did not suffer from any mental
disorder and was of sound mind, was not blind, deaf or mute; the Will was in the custody of
Judge Limpin and was only given to him after Paciencia’s death through Faustino; and he was
already residing in the USA when the Will was executed.33 Lorenzo positively identified the
signature of Paciencia in three different documents and in the Will itself and stated that he was
familiar with Paciencia’s signature because he accompanied her in her transactions.34 Further,
Lorenzo belied and denied having used force, intimidation, violence, coercion or trickery upon
Paciencia to execute the Will as he was not in the Philippines when the same was executed.35
On cross-examination, Lorenzo clarified that Paciencia informed him about the Will shortly after
her arrival in the USA but that he saw a copy of the Will only after her death.36

As to Francisco, he could no longer be presented in court as he already died on May 21, 2000.

For petitioners, Rosie testified that her mother and Paciencia were first cousins.37 She claimed to
have helped in the household chores in the house of Paciencia thereby allowing her to stay
therein from morning until evening and that during the period of her service in the said
household, Lorenzo’s wife and his children were staying in the same house.38 She served in the
said household from 1980 until Paciencia’s departure for the USA on September 19, 1981.39

On September 13, 1981, Rosie claimed that she saw Faustino bring "something" for Paciencia to
sign at the latter’s house.40 Rosie admitted, though, that she did not see what that "something"
was as same was placed inside an envelope.41 However, she remembered Paciencia instructing
Faustino to first look for money before she signs them.42 A few days after or on September 16,
1981, Paciencia went to the house of Antonio’s mother and brought with her the said
envelope.43 Upon going home, however, the envelope was no longer with Paciencia.44 Rosie
further testified that Paciencia was referred to as "magulyan" or "forgetful" because she would
sometimes leave her wallet in the kitchen then start looking for it moments later.45 On cross
examination, it was established that Rosie was neither a doctor nor a psychiatrist, that her
conclusion that Paciencia was "magulyan" was based on her personal assessment,46 and that it
was Antonio who requested her to testify in court.47

In his direct examination, Antonio stated that Paciencia was his aunt.48 He identified the Will
and testified that he had seen the said document before because Paciencia brought the same to his
mother’s house and showed it to him along with another document on September 16, 1981.49
Antonio alleged that when the documents were shown to him, the same were still unsigned.50
According to him, Paciencia thought that the documents pertained to a lease of one of her rice
lands,51 and it was he who explained that the documents were actually a special power of
attorney to lease and sell her fishpond and other properties upon her departure for the USA, and a
Will which would transfer her properties to Lorenzo and his family upon her death.52 Upon
hearing this, Paciencia allegedly uttered the following words: "Why will I never [return], why
will I sell all my properties?" Who is Lorenzo? Is he the only [son] of God? I have other relatives
[who should] benefit from my properties. Why should I die already?"53 Thereafter, Antonio
advised Paciencia not to sign the documents if she does not want to, to which the latter
purportedly replied, "I know nothing about those, throw them away or it is up to you. The more I
will not sign them."54 After which, Paciencia left the documents with Antonio. Antonio kept the
unsigned documents

and eventually turned them over to Faustino on September 18, 1981.55

Ruling of the Regional Trial Court

On September 30, 2003, the RTC rendered its Decision56 denying the petition thus:

WHEREFORE, this court hereby (a) denies the petition dated April 24, 2000; and (b) disallows
the notarized will dated September 13, 1981 of Paciencia Regala.

SO ORDERED.57

The trial court gave considerable weight to the testimony of Rosie and concluded that at the time
Paciencia signed the Will, she was no longer possessed of sufficient reason or strength of mind
to have testamentary capacity.58

Ruling of the Court of Appeals

On appeal, the CA reversed the RTC Decision and granted the probate of the Will of Paciencia.
The appellate court did not agree with the RTC’s conclusion that Paciencia was of unsound mind
when she executed the Will. It ratiocinated that "the state of being ‘magulyan’ does not make a
person mentally unsound so [as] to render [Paciencia] unfit for executing a Will."59 Moreover,
the oppositors in the probate proceedings were not able to overcome the presumption that every
person is of sound mind. Further, no concrete circumstances or events were given to prove the
allegation that Paciencia was tricked or forced into signing the Will.60
Petitioners moved for reconsideration61 but the motion was denied by the CA in its
Resolution62 dated August 31, 2006.

Hence, this petition.

Issues

Petitioners come before this Court by way of Petition for Review on Certiorari ascribing upon
the CA the following errors:

I.

THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED WHEN IT

ALLOWED THE PROBATE OF PACIENCIA’S WILL DESPITE RESPONDENT’S
UTTER FAILURE TO COMPLY WITH SECTION 11, RULE 76 OF THE RULES OF
COURT;

II.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN MAKING

CONCLUSIONS NOT IN ACCORDANCE WITH THE EVIDENCE ON RECORD;

III.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT

PETITIONERS FAILED TO PROVE THAT PACIENCIA WAS NOT OF SOUND
MIND AT THE TIME THE WILL WAS ALLEGEDLY EXECUTED63

The pivotal issue is whether the authenticity and due execution of the notarial Will was
sufficiently established to warrant its allowance for probate.

Our Ruling

We deny the petition.

Faithful compliance with the formalities laid down by law is apparent from the face of the Will.

Courts are tasked to determine nothing more than the extrinsic validity of a Will in probate
proceedings.64 This is expressly provided for in Rule 75, Section 1 of the Rules of Court, which
states:

Rule 75

Production of Will. Allowance of Will Necessary.

Section 1. Allowance necessary. Conclusive as to execution. – No will shall pass either real or
personal estate unless it is proved and allowed in the proper court. Subject to the right of appeal,
such allowance of the will shall be conclusive as to its due execution.

Due execution of the will or its extrinsic validity pertains to whether the testator, being of sound
mind, freely executed the will in accordance with the formalities prescribed by law.65 These
formalities are enshrined in Articles 805 and 806 of the New Civil Code, to wit:

Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testator's name written by some other person in his presence, and by his
express direction, and attested and subscribed by three or more credible witnesses in the presence
of the testator and of one another.

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

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

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

Art. 806. Every will must be acknowledged before a notary public by the testator and the
witnesses. The notary public shall not be required to retain a copy of the will, or file another with
the Office of the Clerk of Court.

Here, a careful examination of the face of the Will shows faithful compliance with the
formalities laid down by law. The signatures of the testatrix, Paciencia, her instrumental
witnesses and the notary public, are all present and evident on the Will. Further, the attestation
clause explicitly states the critical requirement that the testatrix and her instrumental witnesses
signed the Will in the presence of one another and that the witnesses attested and subscribed to
the Will in the presence of the testator and of one another. In fact, even the petitioners acceded
that the signature of Paciencia in the Will may be authentic although they question her state of
mind when she signed the same as well as the voluntary nature of said act.

The burden to prove that Paciencia was of unsound mind at the time of the execution of the will
lies on the shoulders of the petitioners.

Petitioners, through their witness Rosie, claim that Paciencia was "magulyan" or forgetful so
much so that it effectively stripped her of testamentary capacity. They likewise claimed in their
Motion for Reconsideration66 filed with the CA that Paciencia was not only "magulyan" but was
actually suffering from paranoia.67

We are not convinced.

We agree with the position of the CA that the state of being forgetful does not necessarily make a
person mentally unsound so as to render him unfit to execute a Will.68 Forgetfulness is not
equivalent to being of unsound mind. Besides, Article 799 of the New Civil Code states:

Art. 799. To be of sound mind, it is not necessary that the testator be in full possession of all his
reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease,
injury or other cause.

It shall be sufficient if the testator was able at the time of making the will to know the nature of
the estate to be disposed of, the proper objects of his bounty, and the character of the
testamentary act.

In this case, apart from the testimony of Rosie pertaining to Paciencia’s forgetfulness, there is no
substantial evidence, medical or otherwise, that would show that Paciencia was of unsound mind
at the time of the execution of the Will. On the other hand, we find more worthy of credence Dra.
Limpin’s testimony as to the soundness of mind of Paciencia when the latter went to Judge
Limpin’s house and voluntarily executed the Will. "The testimony of subscribing witnesses to a
Will concerning the testator’s mental condition is entitled to great weight where they are truthful
and intelligent."69 More importantly, a testator is presumed to be of sound mind at the time of
the execution of the Will and the burden to prove otherwise lies on the oppositor. Article 800 of
the New Civil Code states:

Art. 800. The law presumes that every person is of sound mind, in the absence of proof to the
contrary.

The burden of proof that the testator was not of sound mind at the time of making his
dispositions is on the person who opposes the probate of the will; but if the testator, one month,
or less, before making his will was publicly known to be insane, the person who maintains the
validity of the will must prove that the testator made it during a lucid interval.

Here, there was no showing that Paciencia was publicly known to be insane one month or less
before the making of the Will. Clearly, thus, the burden to prove that Paciencia was of unsound
mind lies upon the shoulders of petitioners. However and as earlier mentioned, no substantial
evidence was presented by them to prove the same, thereby warranting the CA’s finding that
petitioners failed to discharge such burden.

Furthermore, we are convinced that Paciencia was aware of the nature of her estate to be
disposed of, the proper objects of her bounty and the character of the testamentary act. As aptly
pointed out by the CA:
A scrutiny of the Will discloses that [Paciencia] was aware of the nature of the document she
executed. She specially requested that the customs of her faith be observed upon her death. She
was well aware of how she acquired the properties from her parents and the properties she is
bequeathing to LORENZO, to his wife CORAZON and to his two (2) children. A third child was
born after the execution of the will and was not included therein as devisee.70

Bare allegations of duress or influence of fear or threats, undue and improper influence and
pressure, fraud and trickery cannot be used as basis to deny the probate of a will.

An essential element of the validity of the Will is the willingness of the testator or testatrix to
execute the document that will distribute his/her earthly possessions upon his/her death.
Petitioners claim that Paciencia was forced to execute the Will under duress or influence of fear
or threats; that the execution of the Will had been procured by undue and improper pressure and
influence by Lorenzo or by some other persons for his benefit; and that assuming Paciencia’s
signature to be genuine, it was obtained through fraud or trickery. These are grounded on the
alleged conversation between Paciencia and Antonio on September 16, 1981 wherein the former
purportedly repudiated the Will and left it unsigned.

We are not persuaded.

We take into consideration the unrebutted fact that Paciencia loved and treated Lorenzo as her
own son and that love even extended to Lorenzo’s wife and children. This kind of relationship is
not unusual. It is in fact not unheard of in our culture for old maids or spinsters to care for and
raise their nephews and nieces and treat them as their own children. Such is a prevalent and
accepted cultural practice that has resulted in many family discords between those favored by the
testamentary disposition of a testator and those who stand to benefit in case of intestacy.

In this case, evidence shows the acknowledged fact that Paciencia’s relationship with Lorenzo
and his family is different from her relationship with petitioners. The very fact that she cared for
and raised Lorenzo and lived with him both here and abroad, even if the latter was already
married and already has children, highlights the special bond between them. This unquestioned
relationship between Paciencia and the devisees tends to support the authenticity of the said
document as against petitioners’ allegations of duress, influence of fear or threats, undue and
improper influence, pressure, fraud, and trickery which, aside from being factual in nature, are
not supported by concrete, substantial and credible evidence on record. It is worth stressing that
bare arguments, no matter how forceful, if not based on concrete and substantial evidence cannot
suffice to move the Court to uphold said allegations.71 Furthermore, "a purported will is not [to
be] denied legalization on dubious grounds. Otherwise, the very institution of testamentary
succession will be shaken to its foundation, for even if a will has been duly executed in fact,
whether x x x it will be probated would have to depend largely on the attitude of those interested
in [the estate of the deceased]."72

Court should be convinced by the evidence presented before it that the Will was duly executed.

Petitioners dispute the authenticity of Paciencia’s Will on the ground that Section 11 of Rule 76
of the Rules of Court was not complied with. It provides:
 RULE 76

Allowance or Disallowance of Will

Section 11. Subscribing witnesses produced or accounted for where will contested. – If the will
is contested, all the subscribing witnesses, and the notary in the case of wills executed under the
Civil Code of the Philippines, if present in the Philippines and not insane, must be produced and
examined, and the death, absence, or insanity of any of them must be satisfactorily shown to the
court. If all or some of such witnesses are present in the Philippines but outside the province
where the will has been filed, their deposition must be taken. If any or all of them testify against
the due execution of the will, or do not remember having attested to it, or are otherwise of
doubtful credibility, the will may nevertheless, be allowed if the court is satisfied from the
testimony of other witnesses and from all the evidence presented that the will was executed and
attested in the manner required by law.

If a holographic will is contested, the same shall be allowed if at least three (3) witnesses who
know the handwriting of the testator explicitly declare that the will and the signature are in the
handwriting of the testator; in the absence of any competent witnesses, and if the court deem it
necessary, expert testimony may be resorted to. (Emphasis supplied.)

They insist that all subscribing witnesses and the notary public should have been presented in
court since all but one witness, Francisco, are still living.

We cannot agree with petitioners.

We note that the inability of Faustino and Judge Limpin to appear and testify before the court
was satisfactorily explained during the probate proceedings. As testified to by his son, Faustino
had a heart attack, was already bedridden and could no longer talk and express himself due to
brain damage. To prove this, said witness presented the corresponding medical certificate. For
her part, Dra. Limpin testified that her father, Judge Limpin, suffered a stroke in 1991 and had to
undergo brain surgery. At that time, Judge Limpin could no longer talk and could not even
remember his daughter’s name so that Dra. Limpin stated that given such condition, her father
could no longer testify. It is well to note that at that point, despite ample opportunity, petitioners
neither interposed any objections to the testimonies of said witnesses nor challenged the same on
cross examination. We thus hold that for all intents and purposes, Lorenzo was able to
satisfactorily account for the incapacity and failure of the said subscribing witness and of the
notary public to testify in court. Because of this the probate of Paciencia’s Will may be allowed
on the basis of Dra. Limpin’s testimony proving her sanity and the due execution of the Will, as
well as on the proof of her handwriting. It is an established rule that "[a] testament may not be
disallowed just because the attesting witnesses declare against its due execution; neither does it
have to be necessarily allowed just because all the attesting witnesses declare in favor of its
legalization; what is decisive is that the court is convinced by evidence before it, not necessarily
from the attesting witnesses, although they must testify, that the will was or was not duly
executed in the manner required by law."73 1âwphi1
Moreover, it bears stressing that "[i]rrespective x x x of the posture of any of the parties as
regards the authenticity and due execution of the will x x x in question, it is the mandate of the
law that it is the evidence before the court and/or [evidence that] ought to be before it that is
controlling."74 "The very existence of [the Will] is in itself prima facie proof that the supposed
[testatrix] has willed that [her] estate be distributed in the manner therein provided, and it is
incumbent upon the state that, if legally tenable, such desire be given full effect independent of
the attitude of the parties affected thereby."75 This, coupled with Lorenzo’s established
relationship with Paciencia, the evidence and the testimonies of disinterested witnesses, as
opposed to the total lack of evidence presented by petitioners apart from their self-serving
testimonies, constrain us to tilt the balance in favor of the authenticity of the Will and its
allowance for probate.

WHEREFORE, the petition is DENIED. The Decision dated June 15, 2006 and the Resolution
dated August 31, 2006 of the Court of Appeals in CA-G.R. CV No. 80979 are AFFIRMED.

SO ORDERED.

4.

5. G.R. No. L-42258 January 15, 1936

In re Will of the deceased Leoncia Tolentino.

VICTORIO PAYAD, petitioner-appellant,
vs.
AQUILINA TOLENTINO, oppositor-appellant.

Vicente Foz, Marciano Almario and Leonardo Abola for petitioner-appellant.

Leodegario Azarraga for oppositor-appellant.

GODDARD, J.:

Both parties in this case appeal from an order of the trial court denying the probate of the alleged
will of Leoncia Tolentino, deceased. That court found that the will in question was executed by
the deceased on the date appearing thereon, September 7, 1933, one day before the death of the
testatrix, contrary to the contention of the oppositor that it was executed after her death. The
court, however, denied probate on the ground that the attestation clause was not in conformity
with the requirements of law in that it is not stated therein that the testatrix caused Attorney
Almario to write her name at her express direction.

The appeal of the oppositor-appellant is based upon the alleged failure of the trial court in not
finding that the will in question was executed after the death of Leoncia Tolentino, or that she
was mentally and physically incapable of executing said will one day before her death. After a
careful examination of the evidence on these points we find no reason for setting aside the
conclusion of the trial court as set forth above. The assignments of the oppositor-appellant are
therefore overruled.

As to the contention of the petitioner-appellant, as stated above, the trial court denied probate of
the will on the sole ground that the attestation clause does not state that the testratrix requested
Attorney Almario to write her name.

The last paragraph of the questioned will reads in part as follows:

En prueba de todo lo cual, firmo el presente testamento con mi marcha digital, poque no
puedo estampar mi firma a causa de mi debilidad, rogando al abogado M. Almario que
poga mi nombre en el sitio donde he de estampar mi marcha digital . . ..

The evidence of record established the fact that Leoncia Tolentino, assisted by Attorney
Almario, placed her thumb mark on each and every age of time questioned will and the said
attorney merely wrote her name to indicate the place where she placed said thumb mark. In other
words Attorney Almario did not sign for the testatrix. She signed for placing her thumb mark on
each and every page thereof "A statute requiring a will to be 'signed' is satisfied if the signature is
made by the testator's mark." (Quoted by this court from 28 R.C.L., p, 117; De Gala vs. Gonzales
and Ona, 53 Phil., 104, 108.) It is clear, therefore, that it was not necessary that the attestation
clause in question should state that the testatrix requested Attorney Almario to sign her name
inasmuch as the testratrix signed the will in question in accordance with law.

The appealed order of the trial court is reversed and the questioned will of Leoncia Tolentino,
deceased, is hereby admitted to probate with the costs of this appeal against the oppositor-
appellant.

6. G.R. No. L-4067 November 29, 1951

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA,

petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.

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

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

PARAS, C.J.:

This is an appeal from a decision of the Court of Appeals disallowing the will of Antero
Mercado dated January 3, 1943. The will is written in the Ilocano dialect and contains the
following attestation clause:
 We, the undersigned, by these presents to declare that the foregoing testament of Antero
Mercado was signed by himself and also by us below his name and of this attestation
clause and that of the left margin of the three pages thereof. Page three the continuation
of this attestation clause; this will is written in Ilocano dialect which is spoken and
understood by the testator, and it bears the corresponding number in letter which
compose of three pages and all them were signed in the presence of the testator and
witnesses, and the witnesses in the presence of the testator and all and each and every one
of us witnesses.

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

(Sgd.) NUMERIANO (Sgd.) "ROSENDA

EVANGELISTA CORTES
(Sgd.) BIBIANA ILLEGIBLE

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

In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado
caused Atty. Florentino Javier to write the testator's name under his express direction, as required
by section 618 of the Code of Civil Procedure. The herein petitioner (who is appealing by way of
certiorari from the decision of the Court of Appeals) argues, however, that there is no need for
such recital because the cross written by the testator after his name is a sufficient signature and
the signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is that the cross is as
much a signature as a thumbmark, the latter having been held sufficient by this Court in the cases
of De Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs.
Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.

It is not here pretended that the cross appearing on the will is the usual signature of Antero
Mercado or even one of the ways by which he signed his name. After mature reflection, we are
not prepared to liken the mere sign of the cross to a thumbmark, and the reason is obvious. The
cross cannot and does not have the trustworthiness of a thumbmark.
What has been said makes it unnecessary for us to determine there is a sufficient recital in the
attestation clause as to the signing of the will by the testator in the presence of the witnesses, and
by the latter in the presence of the testator and of each other.

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

7. G.R. No. L-5971 February 27, 1911

BEATRIZ NERA, ET AL., plaintiffs-appellees,

vs.
NARCISA RIMANDO, defendant-appellant.

Valerio Fontanilla and Andres Asprer for appellant.

Anacleto Diaz for appellees.

CARSON, J.:

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

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

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

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

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

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

8. G.R. No. L-6285 February 15, 1912

PEDRO BARUT, petitioner-appellant,

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

A. M. Jimenez for appellant.

Ramon Querubin for appellees.

MORELAND, J.:

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

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

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

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

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

The court seems , by inference at least, to have had in mind that under the law relating to the
execution of a will it is necessary that the person who signs the name of the testatrix must
afterwards sign his own name; and that, in view of the fact that, in the case at bar, the name
signed below that of the testatrix as the person who signed her name, being, from its appearance,
not the same handwriting as that constituting the name of the testatrix, the will is accordingly
invalid, such fact indicating that the person who signed the name of the testatrix failed to sign his
own. We do not believe that this contention can be sustained. Section 618 of the Code of Civil
Procedure reads as follows:

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

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

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

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

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

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

The testatrix was not able to sign it for her. Instead of writing her name he wrote his own
upon the will. Held, That the will was not duly executed.

All of the above cases are precisely of this character. Every one of them was a case in which the
person who signed the will for the testator wrote his own name to the will instead of writing that
of the testator, so that the testator's name nowhere appeared attached to the will as the one who
executed it. The case of Ex parte Arcenas contains the following paragraph:

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

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

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

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

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

Separate Opinions

TORRES, J., concurring:

The undersigned agrees and admits that section 618 of the Code of Civil Procedure does not
expressly require that, when the testator or testatrix is unable or does not know how to sign, the
person who, in the presence and under the express direction of either of them, writes in the name
of the said testator or testatrix must also sign his own name thereto, it being sufficient for the
validity of the will that the said person so requested to sign the testator or testatrix write the name
of either in his own handwriting.
Since this court began to decide cases with regard to the form, conditions and validity of wills
executed in accordance with the provisions of the Code of Civil Procedure, never has the specific
point just above mentioned been brought into question. Now for the first time is affirmed in the
majority opinion, written by the learned and distinguished Hon. Justice Moreland, that, not being
required by the said code, the signature of the name of the person who, at the request of the
testator or testatrix, writes the name of either of the latter to the will executed, is not necessary.

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

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

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

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

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

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

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

The following syllabus precedes decision No. 3907:4

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

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

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

The recital of the name of the testator as written below the will at his request serves as a
signature by a third person.

Moreover among the grounds given as a basis for this same decision, the following appears:

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

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

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

The syllabus of decision No. 51497 sets forth that:

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

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

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

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

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

It is undisputable that the latter does not require the said subscription and signature of the person
requested to affix to the will the name of the testator or testatrix who is not able to sign; but by
stating in the decisions hereinabove quoted that the name and surname of the said person should
be affixed by him, no act prohibited by law was recommended or suggested, nor may such a
detail be understood to be contrary or opposed to the plain provisions thereof.

In the preceding decision itself, it is recognized to be convenient and even prudent to require that
the person requested to write the name of the testator or testatrix in the will also sign the
instrument with his own name and surname. This statement induces us to believe that, in behalf
of the inhabitants of this country and for sake of an upright administration of justice, it should be
maintained that such a signature must appear in the will, since no harm could accrue to anyone
thereby and, on the contrary, it would serve as a guarantee of the certainty of the act performed
and also might eliminate some possible cause of controversy between the interested parties.

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

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

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

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

With regard to the execution of wills in accordance with the provisions of previous statutes,
among them those of the Civil Code, the person or witness requested by the testator or testatrix
who was not able or did not know how to sign, authenticated the will by signing it with his own
name and surname, preceded by the words "at the request of the testator or testatrix." Paragraph
2 of article 695 of the Civil Code contains the following provisions bearing on the subject:

Should the testator declare that he does not know how, or is not able to sign, one of the
attesting witnesses or another person shall do so for him at his request, the notary
certifying thereto. This shall be done if any one of the witnesses can not sign.

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

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

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

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

The foregoing considerations, which perhaps have not the support of better premises, but in the
opinion of the undersigned, are conducive to the realization of the purposes of justice, have
impelled him to believe that the proposition should be enforced that the witness requested or
invited by the testator or testatrix to write his or her name to the will, should also subscribed the
instrument by signing thereto his own name and surname; and therefore, with the proper finding
in this sense, and reversal of the judgment appealed from, that the court below should be ordered
to proceed with the probate of the will of the decedent, Maria Salomon, in accordance with the
law.

9. G.R. No. 192916 October 11, 2010

MANUEL A. ECHAVEZ, Petitioner,

vs.
DOZEN CONSTRUCTION AND DEVELOPMENT CORPORATION and THE
REGISTER OF DEEDS OF CEBU CITY, Respondents.

RESOLUTION

BRION, J.:
Vicente Echavez (Vicente) was the absolute owner of several lots in Cebu City, which includes
Lot No. 1956-A and Lot No. 1959 (subject lots). On September 7, 1985, Vicente donated the
subject lots to petitioner Manuel Echavez (Manuel) through a Deed of Donation Mortis Causa.1
Manuel accepted the donation.

In March 1986, Vicente executed a Contract to Sell over the same lots in favor of Dozen
Construction and Development Corporation (Dozen Corporation). In October 1986, they
executed two Deeds of Absolute Sale over the same properties covered by the previous Contract
to Sell.

On November 6, 1986, Vicente died. Emiliano Cabanig, Vicente’s nephew, filed a petition for
the settlement of Vicente’s intestate estate. On the other hand, Manuel filed a petition to approve
Vicente’s donation mortis causa in his favor and an action to annul the contracts of sale Vicente
executed in favor of Dozen Corporation. These cases were jointly heard.

The Regional Trial Court (RTC) dismissed Manuel’s petition to approve the donation and his
action for annulment of the contracts of sale.2 The RTC found that the execution of a Contract to
Sell in favor of Dozen Corporation, after Vicente had donated the lots to Manuel, was an
equivocal act that revoked the donation. The Court of Appeals (CA) affirmed the RTC’s
decision.3 The CA held that since the donation in favor of Manuel was a donation mortis causa,
compliance with the formalities for the validity of wills should have been observed. The CA
found that the deed of donation did not contain an attestation clause and was therefore void.

The Petition for Review on Certiorari

Manuel claims that the CA should have applied the rule on substantial compliance in the
construction of a will to Vicente’s donation mortis causa. He insists that the strict construction of
a will was not warranted in the absence of any indication of bad faith, fraud, or substitution in the
execution of the Deed of Donation Mortis Causa. He argues that the CA ignored the
Acknowledgment portion of the deed of donation, which contains the "import and purpose" of
the attestation clause required in the execution of wills. The Acknowledgment reads:

BEFORE ME, Notary Public, this 7th day of September 1985 at Talisay, Cebu, personally
appeared VICENTE S. Echavez with Res. Cert. No. 16866094 issued on April 10, 1985 at [sic]
Talisay, Cebu known to me to be the same person who executed the foregoing instrument of
Deed of Donartion Mortis Causa before the Notary Public and in the presence of the foregoing
three (3) witnesses who signed this instrument before and in the presence of each other and of
the Notary Public and all of them acknowledge to me that the same is their voluntary act and
deed. [Emphasis in the original.]

THE COURT’S RULING

The CA correctly declared that a donation mortis causa must comply with the formalities
prescribed by law for the validity of wills,4 "otherwise, the donation is void and would produce
no effect." 5 Articles 805 and 806 of the Civil Code should have been applied.
As the CA correctly found, the purported attestation clause embodied in the Acknowledgment
portion does not contain the number of pages on which the deed was written.lavvphilThe
exception to this rule in Singson v. Florentino6 and Taboada v. Hon. Rosal,7 cannot be applied to
the present case, as the facts of this case are not similar with those of Singson and Taboada. In
those cases, the Court found that although the attestation clause failed to state the number of
pages upon which the will was written, the number of pages was stated in one portion of the will.
This is not the factual situation in the present case.

Even granting that the Acknowledgment embodies what the attestation clause requires, we are
not prepared to hold that an attestation clause and an acknowledgment can be merged in one
statement.

That the requirements of attestation and acknowledgment are embodied in two separate
provisions of the Civil Code (Articles 805 and 806, respectively) indicates that the law
contemplates two distinct acts that serve different purposes. An acknowledgment is made by one
executing a deed, declaring before a competent officer or court that the deed or act is his own.
On the other hand, the attestation of a will refers to the act of the instrumental witnesses
themselves who certify to the execution of the instrument before them and to the manner of its
execution.81avvphi1

Although the witnesses in the present case acknowledged the execution of the Deed of Donation
Mortis Causa before the notary public, this is not the avowal the law requires from the
instrumental witnesses to the execution of a decedent’s will. An attestation must state all the
details the third paragraph of Article 805 requires. In the absence of the required avowal by the
witnesses themselves, no attestation clause can be deemed embodied in the Acknowledgement of
the Deed of Donation Mortis Causa.

Finding no reversible error committed by the CA, the Court hereby DENIES Manuel’s petition
for review on certiorari.

SO ORDERED.

10. G.R. No. L-5826 April 29, 1953

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

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

Clouduallo Lucero and Vicente C. Santos for appellants.

Marciano Chitongco and Zosimo B. Echanova for appellee.

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

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

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

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

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

G.R. No. 122880 April 12, 2006

FELIX AZUELA, Petitioner,

vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO G.
CASTILLO, Respondents.

DECISION

TINGA, J.:

The core of this petition is a highly defective notarial will, purportedly executed by Eugenia E.
Igsolo (decedent), who died on 16 December 1982 at the age of 80. In refusing to give legal
recognition to the due execution of this document, the Court is provided the opportunity to assert
a few important doctrinal rules in the execution of notarial wills, all self-evident in view of
Articles 805 and 806 of the Civil Code.
A will whose attestation clause does not contain the number of pages on which the will is
written is fatally defective. A will whose attestation clause is not signed by the instrumental
witnesses is fatally defective. And perhaps most importantly, a will which does not contain
an acknowledgment, but a mere jurat, is fatally defective. Any one of these defects is
sufficient to deny probate. A notarial will with all three defects is just aching for judicial
rejection.

There is a distinct and consequential reason the Civil Code provides a comprehensive catalog of
imperatives for the proper execution of a notarial will. Full and faithful compliance with all the
detailed requisites under Article 805 of the Code leave little room for doubt as to the validity in
the due execution of the notarial will. Article 806 likewise imposes another safeguard to the
validity of notarial wills — that they be acknowledged before a notary public by the testator and
the witnesses. A notarial will executed with indifference to these two codal provisions opens
itself to nagging questions as to its legitimacy.

The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial Court
(RTC) of Manila. The petition filed by petitioner Felix Azuela sought to admit to probate the
notarial will of Eugenia E. Igsolo, which was notarized on 10 June 1981. Petitioner is the son of
the cousin of the decedent.

The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full:

HULING HABILIN NI EUGENIA E. IGSOLO

SA NGALAN NG MAYKAPAL, AMEN:

AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila, pitongput
siyam (79) na gulang, nasa hustong pagi-isip, pag-unawa at memoria ay nag-hahayag na ito na
ang aking huling habilin at testamento, at binabali wala ko lahat ang naunang ginawang habilin o
testamento:

Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong sa

kaugalian at patakaran ng simbahang katoliko at ang taga-pag-ingat (Executor) ng habiling ito ay
magtatayo ng bantayog upang silbing ala-ala sa akin ng aking pamilya at kaibigan;

Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking pamangkin na si

Felix Azuela, na siyang nag-alaga sa akin sa mahabang panahon, yaong mga bahay na nakatirik
sa lote numero 28, Block 24 at nakapangalan sa Pechaten Korporasyon, ganoon din ibinibigay ko
ang lahat ng karapatan sa bahay na nakatirik sa inoopahan kong lote, numero 43, Block 24 na
pag-aari ng Pechaten Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan sa
bahay at lupa na nasa 500 San Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix Azuela
at ang pagkakaloob kong ito ay walang pasubali’t at kondiciones;

Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling habiling

ito at kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981.

(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)

PATUNAY NG MGA SAKSI

Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na ipinahayag sa amin
ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng Hunyo
1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang
panig ng lahat at bawa’t dahon, sa harap ng lahat at bawa’t sa amin, at kami namang mga saksi
ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa
ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawa’t dahon ng kasulatan ito.

EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.

QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981

LAMBERTO C. LEAÑO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981

JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.

Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng Maynila.

(Sgd.)
PETRONIO Y. BAUTISTA

Doc. No. 1232 ; NOTARIO PUBLIKO

Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-81
The three named witnesses to the will affixed their signatures on the left-hand margin of both
pages of the will, but not at the bottom of the attestation clause.

The probate petition adverted to only two (2) heirs, legatees and devisees of the decedent,
namely: petitioner himself, and one Irene Lynn Igsolo, who was alleged to have resided abroad.
Petitioner prayed that the will be allowed, and that letters testamentary be issued to the
designated executor, Vart Prague.

The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented herself
as the attorney-in-fact of "the 12 legitimate heirs" of the decedent.2 Geralda Castillo claimed that
the will is a forgery, and that the true purpose of its emergence was so it could be utilized as a
defense in several court cases filed by oppositor against petitioner, particularly for forcible entry
and usurpation of real property, all centering on petitioner’s right to occupy the properties of the
decedent.3 It also asserted that contrary to the representations of petitioner, the decedent was
actually survived by 12 legitimate heirs, namely her grandchildren, who were then residing
abroad. Per records, it was subsequently alleged that decedent was the widow of Bonifacio
Igsolo, who died in 1965,4 and the mother of a legitimate child, Asuncion E. Igsolo, who
predeceased her mother by three (3) months.5

Oppositor Geralda Castillo also argued that the will was not executed and attested to in
accordance with law. She pointed out that decedent’s signature did not appear on the second
page of the will, and the will was not properly acknowledged. These twin arguments are among
the central matters to this petition.

After due trial, the RTC admitted the will to probate, in an Order dated 10 August 1992.6 The
RTC favorably took into account the testimony of the three (3) witnesses to the will, Quirino
Agrava, Lamberto Leano, and Juanito Estrada. The RTC also called to fore "the modern
tendency in respect to the formalities in the execution of a will x x x with the end in view of
giving the testator more freedom in expressing his last wishes;"7 and from this perspective,
rebutted oppositor’s arguments that the will was not properly executed and attested to in
accordance with law.

After a careful examination of the will and consideration of the testimonies of the subscribing
and attesting witnesses, and having in mind the modern tendency in respect to the formalities in
the execution of a will, i.e., the liberalization of the interpretation of the law on the formal
requirements of a will with the end in view of giving the testator more freedom in expressing his
last wishes, this Court is persuaded to rule that the will in question is authentic and had been
executed by the testatrix in accordance with law.

On the issue of lack of acknowledgement, this Court has noted that at the end of the will after the
signature of the testatrix, the following statement is made under the sub-title, "Patunay Ng Mga
Saksi":

"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na ipinahayag sa
amin ni Eugenia N. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayong ika-10 ng
Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa
kaliwang panig ng lahat at bawa’t dahon, sa harap ng lahat at bawa’t sa amin, at kami namang
mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawa’t isa sa
amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawa’t dahon ng kasulatan
ito."

The aforequoted declaration comprises the attestation clause and the acknowledgement and is
considered by this Court as a substantial compliance with the requirements of the law.

On the oppositor’s contention that the attestation clause was not signed by the subscribing
witnesses at the bottom thereof, this Court is of the view that the signing by the subscribing
witnesses on the left margin of the second page of the will containing the attestation clause and
acknowledgment, instead of at the bottom thereof, substantially satisfies the purpose of
identification and attestation of the will.

With regard to the oppositor’s argument that the will was not numbered correlatively in letters
placed on upper part of each page and that the attestation did not state the number of pages
thereof, it is worthy to note that the will is composed of only two pages. The first page contains
the entire text of the testamentary dispositions, and the second page contains the last portion of
the attestation clause and acknowledgement. Such being so, the defects are not of a serious
nature as to invalidate the will. For the same reason, the failure of the testatrix to affix her
signature on the left margin of the second page, which contains only the last portion of the
attestation clause and acknowledgment is not a fatal defect.

As regards the oppositor’s assertion that the signature of the testatrix on the will is a forgery, the
testimonies of the three subscribing witnesses to the will are convincing enough to establish the
genuineness of the signature of the testatrix and the due execution of the will.8

The Order was appealed to the Court of Appeals by Ernesto Castillo, who had substituted his
since deceased mother-in-law, Geralda Castillo. In a Decision dated 17 August 1995, the Court
of Appeals reversed the trial court and ordered the dismissal of the petition for probate.9 The
Court of Appeals noted that the attestation clause failed to state the number of pages used in the
will, thus rendering the will void and undeserving of probate.10

Hence, the present petition.

Petitioner argues that the requirement under Article 805 of the Civil Code that "the number of
pages used in a notarial will be stated in the attestation clause" is merely directory, rather than
mandatory, and thus susceptible to what he termed as "the substantial compliance rule."11

The solution to this case calls for the application of Articles 805 and 806 of the Civil Code,
which we replicate in full.

Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testator's name written by some other person in his presence, and by his
express direction, and attested and subscribed by three or more credible witnesses in the presence
of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental witnesses of
the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left
margin, and all the pages shall be numbered correlatively in letters placed on the upper part of
each page.

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

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

Art. 806. Every will must be acknowledged before a notary public by the testator and the
witnesses. The notary public shall not be required to retain a copy of the will, or file another with
the office of the Clerk of Court.

The appellate court, in its Decision, considered only one defect, the failure of the attestation
clause to state the number of pages of the will. But an examination of the will itself reveals
several more deficiencies.

As admitted by petitioner himself, the attestation clause fails to state the number of pages of the
will.12 There was an incomplete attempt to comply with this requisite, a space having been
allotted for the insertion of the number of pages in the attestation clause. Yet the blank was never
filled in; hence, the requisite was left uncomplied with.

The Court of Appeals pounced on this defect in reversing the trial court, citing in the process Uy
Coque v. Navas L. Sioca13 and In re: Will of Andrada.14 In Uy Coque, the Court noted that
among the defects of the will in question was the failure of the attestation clause to state the
number of pages contained in the will.15 In ruling that the will could not be admitted to probate,
the Court made the following consideration which remains highly relevant to this day: "The
purpose of requiring the number of sheets to be stated in the attestation clause is obvious; the
document might easily be so prepared that the removal of a sheet would completely change
the testamentary dispositions of the will and in the absence of a statement of the total
number of sheets such removal might be effected by taking out the sheet and changing the
numbers at the top of the following sheets or pages. If, on the other hand, the total number of
sheets is stated in the attestation clause the falsification of the document will involve the
inserting of new pages and the forging of the signatures of the testator and witnesses in the
margin, a matter attended with much greater difficulty."16

The case of In re Will of Andrada concerned a will the attestation clause of which failed to state
the number of sheets or pages used. This consideration alone was sufficient for the Court to
declare "unanim[ity] upon the point that the defect pointed out in the attesting clause is fatal."17 It
was further observed that "it cannot be denied that the x x x requirement affords additional
security against the danger that the will may be tampered with; and as the Legislature has seen fit
to prescribe this requirement, it must be considered material."18

Against these cited cases, petitioner cites Singson v. Florentino19 and Taboada v. Hon. Rosal,20
wherein the Court allowed probate to the wills concerned therein despite the fact that the
attestation clause did not state the number of pages of the will. Yet the appellate court itself
considered the import of these two cases, and made the following distinction which petitioner is
unable to rebut, and which we adopt with approval:

Even a cursory examination of the Will (Exhibit "D"), will readily show that the attestation does
not state the number of pages used upon which the will is written. Hence, the Will is void and
undeserving of probate.

We are not impervious of the Decisions of the Supreme Court in "Manuel Singson versus Emilia
Florentino, et al., 92 Phil. 161 and Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118
SCRA 195," to the effect that a will may still be valid even if the attestation does not contain the
number of pages used upon which the Will is written. However, the Decisions of the Supreme
Court are not applicable in the aforementioned appeal at bench. This is so because, in the case of
"Manuel Singson versus Emilia Florentino, et al., supra," although the attestation in the subject
Will did not state the number of pages used in the will, however, the same was found in the last
part of the body of the Will:

"x x x

The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645,
which requires that the attestation clause shall state the number of pages or sheets upon which
the will is written, which requirement has been held to be mandatory as an effective safeguard
against the possibility of interpolation or omission of some of the pages of the will to the
prejudice of the heirs to whom the property is intended to be bequeathed (In re Will of Andrada,
42 Phil. 180; Uy Coque vs. Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50 Phil. 30;
Quinto vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of
these cases seems to be that the attestation clause must contain a statement of the number of
sheets or pages composing the will and that if this is missing or is omitted, it will have the effect
of invalidating the will if the deficiency cannot be supplied, not by evidence aliunde, but by a
consideration or examination of the will itself. But here the situation is different. While the
attestation clause does not state the number of sheets or pages upon which the will is written,
however, the last part of the body of the will contains a statement that it is composed of eight
pages, which circumstance in our opinion takes this case out of the rigid rule of construction and
places it within the realm of similar cases where a broad and more liberal view has been adopted
to prevent the will of the testator from being defeated by purely technical considerations." (page
165-165, supra) (Underscoring supplied)

In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial acknowledgement in
the Will states the number of pages used in the:

"x x x
We have examined the will in question and noticed that the attestation clause failed to state the
number of pages used in writing the will. This would have been a fatal defect were it not for the
fact that, in this case, it is discernible from the entire will that it is really and actually composed
of only two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated,
the first page which contains the entirety of the testamentary dispositions is signed by the
testatrix at the end or at the bottom while the instrumental witnesses signed at the left margin.
The other page which is marked as "Pagina dos" comprises the attestation clause and the
acknowledgment. The acknowledgment itself states that "this Last Will and Testament consists
of two pages including this page" (pages 200-201, supra) (Underscoring supplied).

However, in the appeal at bench, the number of pages used in the will is not stated in any part of
the Will. The will does not even contain any notarial acknowledgment wherein the number of
pages of the will should be stated.21

Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code in 1950, at a
time when the statutory provision governing the formal requirement of wills was Section

618 of the Code of Civil Procedure.22 Reliance on these cases remains apropos, considering that
the requirement that the attestation state the number of pages of the will is extant from Section
618.23 However, the enactment of the Civil Code in 1950 did put in force a rule of interpretation
of the requirements of wills, at least insofar as the attestation clause is concerned, that may vary
from the philosophy that governed these two cases. Article 809 of the Civil Code states: "In the
absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects
and imperfections in the form of attestation or in the language used therein shall not render the
will invalid if it is proved that the will was in fact executed and attested in substantial
compliance with all the requirements of article 805."

In the same vein, petitioner cites the report of the Civil Code Commission, which stated that "the
underlying and fundamental objective permeating the provisions on the [law] on [wills] in this
project consists in the [liberalization] of the manner of their execution with the end in view of
giving the testator more [freedom] in [expressing] his last wishes. This objective is in accord
with the [modern tendency] in respect to the formalities in the execution of wills."24 However,
petitioner conveniently omits the qualification offered by the Code Commission in the very same
paragraph he cites from their report, that such liberalization be "but with sufficient safeguards
and restrictions to prevent the commission of fraud and the exercise of undue and improper
pressure and influence upon the testator."25

Caneda v. Court of Appeals26 features an extensive discussion made by Justice Regalado,

speaking for the Court on the conflicting views on the manner of interpretation of the legal
formalities required in the execution of the attestation clause in wills.27 Uy Coque and Andrada
are cited therein, along with several other cases, as examples of the application of the rule of
strict construction.28 However, the Code Commission opted to recommend a more liberal
construction through the "substantial compliance rule" under Article 809. A cautionary note was
struck though by Justice J.B.L. Reyes as to how Article 809 should be applied:
x x x The rule must be limited to disregarding those defects that can be supplied by an
examination of the will itself: whether all the pages are consecutively numbered; whether the
signatures appear in each and every page; whether the subscribing witnesses are three or the will
was notarized. All these are facts that the will itself can reveal, and defects or even omissions
concerning them in the attestation clause can be safely disregarded. But the total number of
pages, and whether all persons required to sign did so in the presence of each other must
substantially appear in the attestation clause, being the only check against perjury in the
probate proceedings.29 (Emphasis supplied.)

The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed decision,
considering that the failure to state the number of pages of the will in the attestation clause is one
of the defects which cannot be simply disregarded. In Caneda itself, the Court refused to allow
the probate of a will whose attestation clause failed to state that the witnesses subscribed their
respective signatures to the will in the presence of the testator and of each other,30 the other
omission cited by Justice J.B.L. Reyes which to his estimation cannot be lightly disregarded.

Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that omission which
can be supplied by an examination of the will itself, without the need of resorting to extrinsic
evidence, will not be fatal and, correspondingly, would not obstruct the allowance to probate of
the will being assailed. However, those omissions which cannot be supplied except by evidence
aliunde would result in the invalidation of the attestation clause and ultimately, of the will
itself."31 Thus, a failure by the attestation clause to state that the testator signed every page can
be liberally construed, since that fact can be checked by a visual examination; while a failure by
the attestation clause to state that the witnesses signed in one another’s presence should be
considered a fatal flaw since the attestation is the only textual guarantee of compliance.32

The failure of the attestation clause to state the number of pages on which the will was written
remains a fatal flaw, despite Article 809. The purpose of the law in requiring the clause to state
the number of pages on which the will is written is to safeguard against possible interpolation or
omission of one or some of its pages and to prevent any increase or decrease in the pages.33 The
failure to state the number of pages equates with the absence of an averment on the part of the
instrumental witnesses as to how many pages consisted the will, the execution of which they had
ostensibly just witnessed and subscribed to. Following Caneda, there is substantial compliance
with this requirement if the will states elsewhere in it how many pages it is comprised of, as was
the situation in Singson and Taboada. However, in this case, there could have been no substantial
compliance with the requirements under Article 805 since there is no statement in the attestation
clause or anywhere in the will itself as to the number of pages which comprise the will.

At the same time, Article 809 should not deviate from the need to comply with the formal
requirements as enumerated under Article 805. Whatever the inclinations of the members of the
Code Commission in incorporating Article 805, the fact remains that they saw fit to prescribe
substantially the same formal requisites as enumerated in Section 618 of the Code of Civil
Procedure, convinced that these remained effective safeguards against the forgery or
intercalation of notarial wills.34 Compliance with these requirements, however picayune in
impression, affords the public a high degree of comfort that the testator himself or herself had
decided to convey property post mortem in the manner established in the will.35 The
transcendent legislative intent, even as expressed in the cited comments of the Code
Commission, is for the fruition of the testator’s incontestable desires, and not for the
indulgent admission of wills to probate.

The Court could thus end here and affirm the Court of Appeals. However, an examination of the
will itself reveals a couple of even more critical defects that should necessarily lead to its
rejection.

For one, the attestation clause was not signed by the instrumental witnesses. While the
signatures of the instrumental witnesses appear on the left-hand margin of the will, they do not
appear at the bottom of the attestation clause which after all consists of their averments before
the notary public.

Cagro v. Cagro36 is material on this point. As in this case, "the signatures of the three witnesses
to the will do not appear at the bottom of the attestation clause, although the page containing the
same is signed by the witnesses on the left-hand margin."37 While three (3) Justices38 considered
the signature requirement had been substantially complied with, a majority of six (6), speaking
through Chief Justice Paras, ruled that the attestation clause had not been duly signed, rendering
the will fatally defective.

There is no question that the signatures of the three witnesses to the will do not appear at the
bottom of the attestation clause, although the page containing the same is signed by the witnesses
on the left-hand margin.

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

The petitioner and appellee contends that signatures of the three witnesses on the left-hand
margin conform substantially to the law and may be deemed as their signatures to the attestation
clause. This is untenable, because said signatures are in compliance with the legal mandate that
the will be signed on the left-hand margin of all its pages. If an attestation clause not signed by
the three witnesses at the bottom thereof, be admitted as sufficient, it would be easy to add such
clause to a will on a subsequent occasion and in the absence of the testator and any or all of the
witnesses.39

The Court today reiterates the continued efficacy of Cagro. Article 805 particularly segregates
the requirement that the instrumental witnesses sign each page of the will, from the requisite that
the will be "attested and subscribed by [the instrumental witnesses]." The respective intents
behind these two classes of signature are distinct from each other. The signatures on the left-hand
corner of every page signify, among others, that the witnesses are aware that the page they are
signing forms part of the will. On the other hand, the signatures to the attestation clause establish
that the witnesses are referring to the statements contained in the attestation clause itself. Indeed,
the attestation clause is separate and apart from the disposition of the will. An unsigned
attestation clause results in an unattested will. Even if the instrumental witnesses signed the left-
hand margin of the page containing the unsigned attestation clause, such signatures cannot
demonstrate these witnesses’ undertakings in the clause, since the signatures that do appear on
the page were directed towards a wholly different avowal.

The Court may be more charitably disposed had the witnesses in this case signed the attestation
clause itself, but not the left-hand margin of the page containing such clause. Without
diminishing the value of the instrumental witnesses’ signatures on each and every page, the fact
must be noted that it is the attestation clause which contains the utterances reduced into writing
of the testamentary witnesses themselves. It is the witnesses, and not the testator, who are
required under Article 805 to state the number of pages used upon which the will is written; the
fact that the testator had signed the will and every page thereof; and that they witnessed and
signed the will and all the pages thereof in the presence of the testator and of one another. The
only proof in the will that the witnesses have stated these elemental facts would be their
signatures on the attestation clause.

Thus, the subject will cannot be considered to have been validly attested to by the instrumental
witnesses, as they failed to sign the attestation clause.

Yet, there is another fatal defect to the will on which the denial of this petition should also hinge.
The requirement under Article 806 that "every will must be acknowledged before a notary public
by the testator and the witnesses" has also not been complied with. The importance of this
requirement is highlighted by the fact that it had been segregated from the other requirements
under Article 805 and entrusted into a separate provision, Article 806. The non-observance of
Article 806 in this case is equally as critical as the other cited flaws in compliance with Article
805, and should be treated as of equivalent import.

In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote "Nilagdaan ko at

ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila."40 By no manner
of contemplation can those words be construed as an acknowledgment. An acknowledgment is
the act of one who has executed a deed in going before some competent officer or court and
declaring it to be his act or deed.41 It involves an extra step undertaken whereby the signor
actually declares to the notary that the executor of a document has attested to the notary that the
same is his/her own free act and deed.

It might be possible to construe the averment as a jurat, even though it does not hew to the usual
language thereof. A jurat is that part of an affidavit where the notary certifies that before
him/her, the document was subscribed and sworn to by the executor.42 Ordinarily, the language
of the jurat should avow that the document was subscribed and sworn before the notary public,
while in this case, the notary public averred that he himself "signed and notarized" the document.
Possibly though, the word "ninotario" or "notarized" encompasses the signing of and swearing in
of the executors of the document, which in this case would involve the decedent and the
instrumental witnesses.

Yet even if we consider what was affixed by the notary public as a jurat, the will would
nonetheless remain invalid, as the express requirement of Article 806 is that the will be
"acknowledged", and not merely subscribed and sworn to. The will does not present any textual
proof, much less one under oath, that the decedent and the instrumental witnesses executed or
signed the will as their own free act or deed. The acknowledgment made in a will provides for
another all-important legal safeguard against spurious wills or those made beyond the free
consent of the testator. An acknowledgement is not an empty meaningless act.43 The
acknowledgment coerces the testator and the instrumental witnesses to declare before an officer
of the law that they had executed and subscribed to the will as their own free act or deed. Such
declaration is under oath and under pain of perjury, thus allowing for the criminal prosecution of
persons who participate in the execution of spurious wills, or those executed without the free
consent of the testator. It also provides a further degree of assurance that the testator is of certain
mindset in making the testamentary dispositions to those persons he/she had designated in the
will.

It may not have been said before, but we can assert the rule, self-evident as it is under Article
806. A notarial will that is not acknowledged before a notary public by the testator and the
witnesses is fatally defective, even if it is subscribed and sworn to before a notary public.

There are two other requirements under Article 805 which were not fully satisfied by the will in
question. We need not discuss them at length, as they are no longer material to the

disposition of this case. The provision requires that the testator and the instrumental witnesses
sign each and every page of the will on the left margin, except the last; and that all the pages
shall be numbered correlatively in letters placed on the upper part of each page. In this case, the
decedent, unlike the witnesses, failed to sign both pages of the will on the left margin, her only
signature appearing at the so-called "logical end"44 of the will on its first page. Also, the will
itself is not numbered correlatively in letters on each page, but instead numbered with Arabic
numerals. There is a line of thought that has disabused the notion that these two requirements be
construed as mandatory.45 Taken in isolation, these omissions, by themselves, may not be
sufficient to deny probate to a will. Yet even as these omissions are not decisive to the
adjudication of this case, they need not be dwelt on, though indicative as they may be of a
general lack of due regard for the requirements under Article 805 by whoever executed the will.

All told, the string of mortal defects which the will in question suffers from makes the probate
denial inexorable.

WHEREFORE, the petition is DENIED. Costs against petitioner.

SO ORDERED.

11. G.R. No. 157451 December 16, 2005

LETICIA VALMONTE ORTEGA, Petitioner,

vs.
JOSEFINA C. VALMONTE, Respondent.
 DECISION

PANGANIBAN, J.:

The law favors the probate of a will. Upon those who oppose it rests the burden of showing why
it should not be allowed. In the present case, petitioner has failed to discharge this burden
satisfactorily. For this reason, the Court cannot attribute any reversible error on the part of the
appellate tribunal that allowed the probate of the will.

The Case

Before the Court is a Petition for Review1 under Rule 45 of the Rules of Court, seeking to
reverse and set aside the December 12, 2002 Decision2 and the March 7, 2003 Resolution3 of
the Court of Appeals (CA) in CA-GR CV No. 44296. The assailed Decision disposed as follows:

"WHEREFORE, the appeal is GRANTED, and the Decision appealed from is REVERSED and
SET ASIDE. In its place judgment is rendered approving and allowing probate to the said last
will and testament of Placido Valmonte and ordering the issuance of letters testamentary to the
petitioner Josefina Valmonte. Let this case be remanded to the court a quo for further and
concomitant proceedings."4

The assailed Resolution denied petitioner’s Motion for Reconsideration.

The Facts

The facts were summarized in the assailed Decision of the CA, as follows:

"x x x: Like so many others before him, Placido toiled and lived for a long time in the United
States until he finally reached retirement. In 1980, Placido finally came home to stay in the
Philippines, and he lived in the house and lot located at #9200 Catmon St., San Antonio Village,
Makati, which he owned in common with his sister Ciriaca Valmonte and titled in their names in
TCT 123468. Two years after his arrival from the United States and at the age of 80 he wed
Josefina who was then 28 years old, in a ceremony solemnized by Judge Perfecto Laguio, Jr. on
February 5, 1982. But in a little more than two years of wedded bliss, Placido died on October 8,
1984 of a cause written down as COR PULMONALE.

"Placido executed a notarial last will and testament written in English and consisting of two (2)
pages, and dated June 15, 1983 but acknowledged only on August 9, 1983. The first page
contains the entire testamentary dispositions and a part of the attestation clause, and was signed
at the end or bottom of that page by the testator and on the left hand margin by the three
instrumental witnesses. The second page contains the continuation of the attestation clause and
the acknowledgment, and was signed by the witnesses at the end of the attestation clause and
again on the left hand margin. It provides in the body that:

‘LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN THE NAME OF THE

LORD AMEN:
‘I, PLACIDO VALMONTE, of legal age, married to Josefina Cabansag Valmonte, and a
resident of 9200 Catmon Street, Makati, Metro Manila, 83 years of age and being of sound and
disposing mind and memory, do hereby declare this to be my last will and testament:

1. It is my will that I be buried in the Catholic Cemetery, under the auspices of the Catholic
Church in accordance with the rites and said Church and that a suitable monument to be erected
and provided my by executrix (wife) to perpetuate my memory in the minds of my family and
friends;

2. I give, devise and bequeath unto my loving wife, JOSEFINA C. VALMONTE, one half (1/2)
portion of the follow-described properties, which belongs to me as [co-owner]:

a. Lot 4-A, Block 13 described on plan Psd-28575, LRC, (GLRO), situated in Makati, Metro
Manila, described and covered by TCT No. 123468 of the Register of Deeds of Pasig, Metro-
Manila registered jointly as co-owners with my deceased sister (Ciriaca Valmonte), having share
and share alike;

b. 2-storey building standing on the above-described property, made of strong and mixed
materials used as my residence and my wife and located at No. 9200 Catmon Street, Makati,
Metro Manila also covered by Tax Declaration No. A-025-00482, Makati, Metro-Manila, jointly
in the name of my deceased sister, Ciriaca Valmonte and myself as co-owners, share and share
alike or equal co-owners thereof;

3. All the rest, residue and remainder of my real and personal properties, including my savings
account bank book in USA which is in the possession of my nephew, and all others whatsoever
and wherever found, I give, devise and bequeath to my said wife, Josefina C. Valmonte;

4. I hereby appoint my wife, Josefina C. Valmonte as sole executrix of my last will and
testament, and it is my will that said executrix be exempt from filing a bond;

IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of June 1983 in Quezon
City, Philippines.’

"The allowance to probate of this will was opposed by Leticia on the grounds that:

1. Petitioner failed to allege all assets of the testator, especially those found in the USA;

2. Petitioner failed to state the names, ages, and residences of the heirs of the testator; or to give
them proper notice pursuant to law;

3. Will was not executed and attested as required by law and legal solemnities and formalities
were not complied with;

4. Testator was mentally incapable to make a will at the time of the alleged execution he being in
an advance sate of senility;
5. Will was executed under duress, or the influence of fear or threats;

6. Will was procured by undue and improper influence and pressure on the part of the petitioner
and/or her agents and/or assistants; and/or

7. Signature of testator was procured by fraud, or trick, and he did not intend that the instrument
should be his will at the time of affixing his signature thereto;’

and she also opposed the appointment as Executrix of Josefina alleging her want of
understanding and integrity.

"At the hearing, the petitioner Josefina testified and called as witnesses the notary public Atty.
Floro Sarmiento who prepared and notarized the will, and the instrumental witnesses spouses
Eugenio Gomez, Jr. and Feliza Gomez and Josie Collado. For the opposition, the oppositor
Leticia and her daughter Mary Jane Ortega testified.

"According to Josefina after her marriage with the testator they lived in her parents house at
Salingcob, Bacnotan, La Union but they came to Manila every month to get his $366.00 monthly
pension and stayed at the said Makati residence. There were times though when to shave off on
expenses, the testator would travel alone. And it was in one of his travels by his lonesome self
when the notarial will was made. The will was witnessed by the spouses Eugenio and Feliza
Gomez, who were their wedding sponsors, and by Josie Collado. Josefina said she had no
knowledge of the existence of the last will and testament of her husband, but just serendipitously
found it in his attache case after his death. It was only then that she learned that the testator
bequeathed to her his properties and she was named the executrix in the said will. To her
estimate, the value of property both real and personal left by the testator is worth more or less
P100,000.00. Josefina declared too that the testator never suffered mental infirmity because
despite his old age he went alone to the market which is two to three kilometers from their home
cooked and cleaned the kitchen and sometimes if she could not accompany him, even traveled to
Manila alone to claim his monthly pension. Josefina also asserts that her husband was in good
health and that he was hospitalized only because of a cold but which eventually resulted in his
death.

"Notary Public Floro Sarmiento, the notary public who notarized the testator’s will, testified that
it was in the first week of June 1983 when the testator together with the three witnesses of the
will went to his house cum law office and requested him to prepare his last will and testament.
After the testator instructed him on the terms and dispositions he wanted on the will, the notary
public told them to come back on June 15, 1983 to give him time to prepare it. After he had
prepared the will the notary public kept it safely hidden and locked in his drawer. The testator
and his witnesses returned on the appointed date but the notary public was out of town so they
were instructed by his wife to come back on August 9, 1983, and which they did. Before the
testator and his witnesses signed the prepared will, the notary public explained to them each and
every term thereof in Ilocano, a dialect which the testator spoke and understood. He likewise
explained that though it appears that the will was signed by the testator and his witnesses on June
15, 1983, the day when it should have been executed had he not gone out of town, the formal
execution was actually on August 9, 1983. He reasoned that he no longer changed the
typewritten date of June 15, 1983 because he did not like the document to appear dirty. The
notary public also testified that to his observation the testator was physically and mentally
capable at the time he affixed his signature on the will.

"The attesting witnesses to the will corroborated the testimony of the notary public, and testified
that the testator went alone to the house of spouses Eugenio and Feliza Gomez at GSIS Village,
Quezon City and requested them to accompany him to the house of Atty. Floro Sarmiento
purposely for his intended will; that after giving his instructions to Atty. Floro Sarmiento, they
were told to return on June 15, 1983; that they returned on June 15, 1983 for the execution of the
will but were asked to come back instead on August 9, 1983 because of the absence of the notary
public; that the testator executed the will in question in their presence while he was of sound and
disposing mind and that he was strong and in good health; that the contents of the will was
explained by the notary public in the Ilocano and Tagalog dialect and that all of them as
witnesses attested and signed the will in the presence of the testator and of each other. And that
during the execution, the testator’s wife, Josefina was not with them.

"The oppositor Leticia declared that Josefina should not inherit alone because aside from her
there are other children from the siblings of Placido who are just as entitled to inherit from him.
She attacked the mental capacity of the testator, declaring that at the time of the execution of the
notarial will the testator was already 83 years old and was no longer of sound mind. She knew
whereof she spoke because in 1983 Placido lived in the Makati residence and asked Leticia’s
family to live with him and they took care of him. During that time, the testator’s physical and
mental condition showed deterioration, aberrations and senility. This was corroborated by her
daughter Mary Jane Ortega for whom Placido took a fancy and wanted to marry.

"Sifting through the evidence, the court a quo held that [t]he evidence adduced, reduces the
opposition to two grounds, namely:

1. Non-compliance with the legal solemnities and formalities in the execution and attestation of
the will; and

2. Mental incapacity of the testator at the time of the execution of the will as he was then in an
advanced state of senility

"It then found these grounds extant and proven, and accordingly disallowed probate."5

Ruling of the Court of Appeals

Reversing the trial court, the appellate court admitted the will of Placido Valmonte to probate.
The CA upheld the credibility of the notary public and the subscribing witnesses who had
acknowledged the due execution of the will. Moreover, it held that the testator had testamentary
capacity at the time of the execution of the will. It added that his "sexual exhibitionism and
unhygienic, crude and impolite ways"6 did not make him a person of unsound mind.

Hence, this Petition.7

 Issues

Petitioner raises the following issues for our consideration:

"I.

Whether or not the findings of the probate court are entitled to great respect.

"II.

Whether or not the signature of Placido Valmonte in the subject will was procured by fraud or
trickery, and that Placido Valmonte never intended that the instrument should be his last will and
testament.

"III.

Whether or not Placido Valmonte has testamentary capacity at the time he allegedly executed the
subject will."8

In short, petitioner assails the CA’s allowance of the probate of the will of Placido Valmonte.

This Court’s Ruling

The Petition has no merit.

Main Issue:

Probate of a Will

At the outset, we stress that only questions of law may be raised in a Petition for Review under
Section 1 of Rule 45 of the Rules of Court. As an exception, however, the evidence presented
during the trial may be examined and the factual matters resolved by this Court when, as in the
instant case, the findings of fact of the appellate court differ from those of the trial court.9

The fact that public policy favors the probate of a will does not necessarily mean that every will
presented for probate should be allowed. The law lays down the procedures and requisites that
must be satisfied for the probate of a will.10 Verily, Article 839 of the Civil Code states the
instances when a will may be disallowed, as follows:

"Article 839. The will shall be disallowed in any of the following cases:

(1) If the formalities required by law have not been complied with;

(2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its
execution;
(3) If it was executed through force or under duress, or the influence of fear, or threats;

(4) If it was procured by undue and improper pressure and influence, on the part of the
beneficiary or of some other person;

(5) If the signature of the testator was procured by fraud;

(6) If the testator acted by mistake or did not intend that the instrument he signed should be his
will at the time of affixing his signature thereto."

In the present case, petitioner assails the validity of Placido Valmonte’s will by imputing fraud in
its execution and challenging the testator’s state of mind at the time.

Existence of Fraud in the

Execution of a Will

Petitioner does not dispute the due observance of the formalities in the execution of the will, but
maintains that the circumstances surrounding it are indicative of the existence of fraud.
Particularly, she alleges that respondent, who is the testator’s wife and sole beneficiary,
conspired with the notary public and the three attesting witnesses in deceiving Placido to sign it.
Deception is allegedly reflected in the varying dates of the execution and the attestation of the
will.

Petitioner contends that it was "highly dubious for a woman at the prime of her young life [to]
almost immediately plunge into marriage with a man who [was] thrice her age x x x and who
happened to be [a] Fil-American pensionado,"11 thus casting doubt on the intention of
respondent in seeking the probate of the will. Moreover, it supposedly "defies human reason,
logic and common experience"12 for an old man with a severe psychological condition to have
willingly signed a last will and testament.

We are not convinced. Fraud "is a trick, secret device, false statement, or pretense, by which the
subject of it is cheated. It may be of such character that the testator is misled or deceived as to
the nature or contents of the document which he executes, or it may relate to some extrinsic fact,
in consequence of the deception regarding which the testator is led to make a certain will which,
but for the fraud, he would not have made."13

We stress that the party challenging the will bears the burden of proving the existence of fraud at
the time of its execution.14 The burden to show otherwise shifts to the proponent of the will only
upon a showing of credible evidence of fraud.15 Unfortunately in this case, other than the self-
serving allegations of petitioner, no evidence of fraud was ever presented.

It is a settled doctrine that the omission of some relatives does not affect the due execution of a
will.16 That the testator was tricked into signing it was not sufficiently established by the fact
that he had instituted his wife, who was more than fifty years his junior, as the sole beneficiary;
and disregarded petitioner and her family, who were the ones who had taken "the cudgels of
taking care of [the testator] in his twilight years."17

Moreover, as correctly ruled by the appellate court, the conflict between the dates appearing on
the will does not invalidate the document, "because the law does not even require that a [notarial]
will x x x be executed and acknowledged on the same occasion."18 More important, the will
must be subscribed by the testator, as well as by three or more credible witnesses who must also
attest to it in the presence of the testator and of one another.19 Furthermore, the testator and the
witnesses must acknowledge the will before a notary public.20 In any event, we agree with the
CA that "the variance in the dates of the will as to its supposed execution and attestation was
satisfactorily and persuasively explained by the notary public and the instrumental witnesses."21

The pertinent transcript of stenographic notes taken on June 11, 1985, November 25, 1985,
October 13, 1986, and October 21, 1987 -- as quoted by the CA -- are reproduced respectively as
follows:

"Atty. Floro Sarmiento:

Q You typed this document exhibit C, specifying the date June 15 when the testator and his
witnesses were supposed to be in your office?

A Yes sir.

Q On June 15, 1983, did the testator and his witnesses come to your house?

A They did as of agreement but unfortunately, I was out of town.

xxxxxxxxx

Q The document has been acknowledged on August 9, 1983 as per acknowledgement appearing
therein. Was this the actual date when the document was acknowledged?

A Yes sir.

Q What about the date when the testator and the three witnesses affixed their respective signature
on the first and second pages of exhibit C?

A On that particular date when it was acknowledged, August 9, 1983.

Q Why did you not make the necessary correction on the date appearing on the body of the
document as well as the attestation clause?

A Because I do not like anymore to make some alterations so I put it in my own handwriting
August 9, 1983 on the acknowledgement. (tsn, June 11, 1985, pp. 8-10)

Eugenio Gomez:
Q It appears on the first page Mr. Witness that it is dated June 15, 1983, whereas in the
acknowledgement it is dated August 9, 1983, will you look at this document and tell us this
discrepancy in the date?

A We went to Atty. Sarmiento together with Placido Valmonte and the two witnesses; that was
first week of June and Atty. Sarmiento told us to return on the 15th of June but when we
returned, Atty. Sarmiento was not there.

Q When you did not find Atty. Sarmiento on June 15, 1983, did you again go back?

A We returned on the 9th of August and there we signed.

Q This August 9, 1983 where you said it is there where you signed, who were your companions?

A The two witnesses, me and Placido Valmonte. (tsn, November 25, 1985, pp. 7-8)

Felisa Gomez on cross-examination:

Q Why did you have to go to the office of Atty. Floro Sarmiento, three times?

xxxxxxxxx

A The reason why we went there three times is that, the first week of June was out first time. We
went there to talk to Atty. Sarmiento and Placido Valmonte about the last will and testament.
After that what they have talked what will be placed in the testament, what Atty. Sarmiento said
was that he will go back on the 15th of June. When we returned on June 15, Atty. Sarmiento was
not there so we were not able to sign it, the will. That is why, for the third time we went there on
August 9 and that was the time we affixed our signature. (tsn, October 13, 1986, pp. 4-6)

Josie Collado:

Q When you did not find Atty. Sarmiento in his house on June 15, 1983, what transpired?

A The wife of Atty. Sarmiento told us that we will be back on August 9, 1983.

Q And on August 9, 1983 did you go back to the house of Atty. Sarmiento?

A Yes, Sir.

Q For what purpose?

A Our purpose is just to sign the will.

Q Were you able to sign the will you mentioned?

A Yes sir. (tsn, October 21, 1987, pp. 4-5)"22

Notably, petitioner failed to substantiate her claim of a "grand conspiracy" in the commission of
a fraud. There was no showing that the witnesses of the proponent stood to receive any benefit
from the allowance of the will. The testimonies of the three subscribing witnesses and the notary
are credible evidence of its due execution.23 Their testimony favoring it and the finding that it
was executed in accordance with the formalities required by law should be affirmed, absent any
showing of ill motives.24

Capacity to Make a Will

In determining the capacity of the testator to make a will, the Civil Code gives the following
guidelines:

"Article 798. In order to make a will it is essential that the testator be of sound mind at the time
of its execution.

"Article 799. To be of sound mind, it is not necessary that the testator be in full possession of all
his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or shattered by disease,
injury or other cause.

"It shall be sufficient if the testator was able at the time of making the will to know the nature of
the estate to be disposed of, the proper objects of his bounty, and the character of the
testamentary act.

"Article 800. The law presumes that every person is of sound mind, in the absence of proof to the
contrary.

"The burden of proof that the testator was not of sound mind at the time of making his
dispositions is on the person who opposes the probate of the will; but if the testator, one month,
or less, before making his will was publicly known to be insane, the person who maintains the
validity of the will must prove that the testator made it during a lucid interval."

According to Article 799, the three things that the testator must have the ability to know to be
considered of sound mind are as follows: (1) the nature of the estate to be disposed of, (2) the
proper objects of the testator’s bounty, and (3) the character of the testamentary act. Applying
this test to the present case, we find that the appellate court was correct in holding that Placido
had testamentary capacity at the time of the execution of his will.

It must be noted that despite his advanced age, he was still able to identify accurately the kinds
of property he owned, the extent of his shares in them and even their locations. As regards the
proper objects of his bounty, it was sufficient that he identified his wife as sole beneficiary. As
we have stated earlier, the omission of some relatives from the will did not affect its formal
validity. There being no showing of fraud in its execution, intent in its disposition becomes
irrelevant.

Worth reiterating in determining soundness of mind is Alsua-Betts v. CA,25 which held thus:
"Between the highest degree of soundness of mind and memory which unquestionably carries
with it full testamentary capacity, and that degrees of mental aberration generally known as
insanity or idiocy, there are numberless degrees of mental capacity or incapacity and while on
one hand it has been held that mere weakness of mind, or partial imbecility from disease of body,
or from age, will not render a person incapable of making a will; a weak or feebleminded person
may make a valid will, provided he has understanding and memory sufficient to enable him to
know what he is about to do and how or to whom he is disposing of his property. To constitute a
sound and disposing mind, it is not necessary that the mind be unbroken or unimpaired or
unshattered by disease or otherwise. It has been held that testamentary incapacity does not
necessarily require that a person shall actually be insane or of unsound mind."26

WHEREFORE, the Petition is DENIED, and the assailed Decision and Resolution of the Court
of Appeals are AFFIRMED. Costs against petitioner.

SO ORDERED.

12.

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

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

Paul G. Gorrez for petitioner.

Mario D. Ortiz for respondent Manuel B. Lugay.

ESGUERRA, J.:

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

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

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

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

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

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

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

ART. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public
shall not be required to retain a copy of the will or file another with the office of the Clerk of Court. [Emphasis supplied]

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

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

Cost against the appellee.

14. EN BANC

[G.R. No. L-26615. April 30, 1970.]

REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA

NATIVIDAD DE JESUS AND DR. JAIME ROSARIO, Petitioners, v. HON. CONRADO
M. VASQUEZ, as Judge of the Court of First Instance of Manila, Branch and CONSUELO
GONZALES VDA. DE PRECILLA, Respondents.

[G.R. No. L-26884. April 30, 1970.]

 REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA
NATIVIDAD DE JESUS AND DR. JAIME ROSARIO, Petitioners, v. HON. CONRADO
M. VASQUEZ, as Judge of the Court of First Instance of Manila, Branch V, REGISTER
OF DEEDS OF MANILA, and CONSUELO GONZALES VDA. DE PRECILLA,
Respondents.

[G.R. No. L-27200. April 30, 1970.]

TESTATE ESTATE OF GLICERIA A. DEL ROSARIO, deceased CONSUELO S.

GONZALES VDA. DE PRECILLA, petitioner administratrix, v. SEVERINA NARCISO,
ROSA NARCISO, JOSEFINA NARCISO, VICENTE MAURICIO, DELFIN MAURICIO,
REMEDIOS NARCISO, ENCARNACION, NARCISO, MARIA NARCISO, EDUARDO
NARCISO, FR. LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA
NATIVIDAD DE JESUS, DR. JAIME DEL ROSARIO, ET AL., NATIVIDAD DEL
ROSARIO-SARMIENTO and PASCUALA NARCISO-MANAHAN, Oppositors-
Appellants.

Antonio Enrile Inton for petitioner Rev. Father Lucio V. Garcia.

Pedro V. Garcia for petitioner Antonio Jesus de Praga, Et. Al.

Leandro Sevilla & Ramon C. Aquino and Melquiades M. Virata, Jr. for respondent
Consuelo S. Gonzales Vda. de Precilla.

Lorenzo C. Gella for respondent Register of Deeds of Manila. Leandro Sevilla & Ramon C.
Aquino for petitioner administratrix.

Castro, Makalintal & Associates for oppositors-appellants Encarnacion Narciso, Et. Al.

Pedro Garcia for oppositors-appellants Dr. Jaime Rosario, Et. Al.

Antonio Enrile Inton for oppositors-appellants Fr. Lucio V. Garcia and Antonio Jesus de
Praga.

Salonga, Ordoñez, Yap, Sicat & Associates for oppositors-appellants Severina Narciso, Et.
Al.

George G. Arbolario and Sixto R. Reyes & Vicente Redor for oppositors-appellants
Natividad del Rosario Sarmiento, Et. Al.
 SYLLABUS

1. CIVIL LAW; SUCCESSION, WILLS; PROBATE OF WILLS; GROUND FOR

DISALLOWANCE; TESTATRIX’S DEFECTIVE EYESIGHT AS UNABLING HER TO
READ THE PROVISIONS OF LATER WILL.— The declarations in court of the
opthalmologist as to the condition of the testatrix’s eyesight fully establish the fact that her
vision remained mainly for viewing distant objects and not for reading print; that she was, at the
time of the execution of the second will on December 29, 1960, incapable of reading and could
not have read the provisions of the will supposedly signed by her.

2. ID.; ID.; ID.; ID.; ID.; IRREGULARITIES IN THE EXECUTION OF THE WILL; CASE AT
BAR.— Upon its face, the testamentary provisions, the attestation clause and acknowledgment
were crammed together into a single sheet of paper, apparently to save on space. Plainly, the
testament was not prepared with any regard for the defective vision of Dña. Gliceria, the
typographical errors remained uncorrected thereby indicating that the execution thereof must
have been characterized by haste. It is difficult to understand that so important a document
containing the final disposition of one’s worldly possessions should be embodied in an informal
and untidy written instrument; or that the glaring spelling errors should have escaped her notice
if she had actually retained the ability to read the purported will and had done so.

3. ID.; ID.; ID.; EXECUTION OF WILLS; REQUISITES FOR VALIDITY; ART. 808, NEW
CIVIL CODE — READING OF THE WILL TWICE TO A BLIND TESTATOR; PURPOSE.—
The rationale behind the requirement of reading the will to the testator if he is blind or incapable
of reading the will himself is to make the provisions thereof known to him, so that he may be
able to object if they are not in accordance with his wishes.

4. ID.; ID.; ID.; ID.; ID.; ID.; NOT COMPLIED WITH IN INSTANT CASE.— Where as in the
1960 will there is nothing in the record to show that the requisites of Art. 808 of the Civil Code
of the Philippines that "if the testator is blind, the will shall be read to him twice," have not been
complied with, the said 1960 will suffer from infirmity that affects its due execution.

5. REMEDIAL LAW; SETTLEMENT OF ESTATE OF DECEASED PERSONS;

ADMINISTRATORS; GROUNDS FOR REMOVAL; ACQUISITION OF INTEREST
ADVERSE TO THAT OF THE ESTATE MAKES THE ADMINISTRATOR UNSUITABLE
TO DISCHARGE THE TRUST; CASE AT BAR.— Considering that the alleged deed of sale
was executed when Gliceria del Rosario was already practically blind and that the consideration
given seems unconscionably small for the properties, there was likelihood that a case for
annulment might be filed against the estate or heirs of Alfonso Precilla. And the administratrix
being the widow and heir of the alleged transferee, cannot be expected to sue herself in an action
to recover property that may turn out to belong to the estate. This, plus her conduct in securing
new copies of the owner’s duplicate of titles without the court’s knowledge and authority and
having the contract bind the land through issuance of new titles in her husband’s name, cannot
but expose her to the charge of unfitness or unsuitability to discharge the trust, justifying her
removal from the administration of the estate.

6. REMEDIAL LAW; NOTICE OF LIS PENDENS; ACTION MUST AFFECT "THE TITLE
OR THE RIGHT OF POSSESSION OF REAL PROPERTY." — On the matter of lis pendens,
the provisions of the Rules of Court are clear: notice of the pendency of an action may be
recorded in the office of the register of deeds of the province in which the property is situated, if
the action affects "the title or the right of possession of (such) real property."
cralaw virtua1aw library

7. ID.; ID.; ID.; NOT APPLICABLE TO INSTANT CASE.— The issue in controversy here is
simply the fitness or unfitness of said special administratrix to continue holding the trust, it does
not involve or affect at all the title to, or possession of, the properties covered by TCT Nos.
81735, 81736 and 81737. Clearly, the pendency of such case (L-26615) is not an action that can
properly be annotated in the record of the titles to the properties.

DECISION

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

G.R. No. L-27200 is an appeal from the order of the Court of First Instance of Manila (in Sp.
Proc. No. 62618) admitting to probate the alleged last will an, testament of the late Gliceria
Avelino del Rosario dated 29 December 1960. G.R. Nos. L-26615 and L-2684 are separate
petitions for mandamus filed by certain alleged heirs of said decedent seeking (1) to compel the
probate court to remove Consuelo S. Gonzales-Precilla as special administratrix of the estate, for
conflict of interest, to appoint a new one in her stead; and (2) to order the Register of Deeds of
Manila to annotate notice of lis pendens in TCT Nos. 81735, 81736 ,and 81737, registered in the
name of Alfonso Precilla, married to Consuelo Gonzales y Narciso, and said to be properly
belonging to the estate of the deceased Gliceria A. del Rosario.

Insofar as pertinent to the issues involved herein, the facts of these cases may be stated as
follows:chanrob1es virtual 1aw library

Gliceria Avelino del Rosario died unmarried in the City of Manila on 2 September 1965, leaving
no descendents, ascendants, brother or sister. At the time of her death, she was said to be 90
years old more or less, and possessed of an estate consisting mostly of real properties.

On 17 September 1965, Consuelo S. Gonzales Vda. de Precilla, a niece of the deceased,

petitioned the Court of First Instance of Manila for probate of the alleged last will and testament
of Gliceria A. del Rosario, executed on 29 December 1960, and for her appointment as special
administratrix of the latter’s estate, said to be valued at about P100,000.00, pending the
appointment of a regular administrator thereof.

The petition was opposed separately by several groups of alleged heirs: (1) Rev. Fr. Lucio V.
Garcia, a legatee named in an earlier will executed by Gliceria A. del Rosario on 9 June 1956;
(2) Jaime Rosario and children, relatives and legatees in both the 1956 and 1960 wills; Antonio
Jesus de Praga and Marta Natividad de Jesus, wards of the deceased and legatees in the 1956 and
1960 wills; (3) Remedios, Encarnacion, and Eduardo, all surnamed Narciso; (4) Natividad del
Rosario-Sarmiento; (5) Maria Narciso; (6) Pascuala Narciso de Manahan; (7) Severina, Rosa and
Josefa, surnamed Narciso, and Vicente and Delfin, surnamed Mauricio, — the latter five groups
of persons all claiming to be relatives of Doña Gliceria within the fifth civil degree. The
oppositions invariably charged that the instrument executed in 1960 was not intended by the
deceased to be her true will; that the signatures of the deceased appearing in the will was
procured through undue and improper pressure and influence the part of the beneficiaries and/or
other persons; that the testatrix did not know the object of her bounty; that the instrument itself
reveals irregularities in its execution, and that the formalities required by law for such execution
have not been complied with.

Oppositor Lucio V. Garcia, who also presented for probate the 1956 will of the deceased, joined
the group of Dr. Jaime Rosario in registering opposition to the appointment of petitioner
Consuelo S. Gonzales Vda. de Precilla as special administratrix, on the ground that the latter
possesses interest adverse to the estate. After the parties were duly heard, the probate court, in its
order of 2 October 1965, granted petitioner’s prayer and appointed her special administratrix of
the estate upon a bond for P30,000.00. The order was premised on the fact the petitioner was
managing the properties belonging to the estate even during the lifetime of the deceased, and to
appoint another person as administrator or co administrator at that stage of the proceeding would
only result in further confusion and difficulties.

On 30 September 1965, oppositors Jaime Rosario, Et. Al. filed with the probate court an urgent
motion to require the Hongkong & Shanghai Bank to report all withdrawals made against the
funds of the deceased after 2 September 1965. The court denied this motion on 22 October 1965
for being premature, it being unaware that such deposit in the name of the deceased existed. 1

On 14 December 1965, the same sets of oppositors, Dr. Jaime Rosario and children, Antonio
Jesus de Praga, Natividad de Jesus and Fr. Lucio V. Garcia, petitioned the court for the
immediate removal of the special administratrix. It was their claim that the special administratrix
and her deceased husband, Alfonso Precilla, 2 had caused Gliceria A. del Rosario to execute a
simulated and fraudulent deed of absolute sale dated 10 January 1961 allegedly conveying unto
said spouses for the paltry sum of P30,000.00 ownership of 3 parcels of land and the
improvements thereon located on Quiapo and San Nicolas, Manila, with a total assessed value of
P334,050.00. Oppositors contended that since it is the duty of the administrator to protect and
conserve the properties of the estate, and it may become necessary that, an action for the
annulment of the deed of sale land for recovery of the aforementioned parcels of land be filed
against the special administratrix, as wife and heir of Alfonso Precilla, the removal of the said
administratrix was imperative.

On 17 December 1965, the same oppositors prayed the court for an order directing the Special
Administratrix to deposit with the Clerk of Court all certificates of title belonging to the estate. It
was alleged that on 22 October 1965, or after her appointment, petitioner Consuelo Gonzales
Vda. de Precilla, in her capacity as special administratrix of the estate of the deceased Gliceria A.
del Rosario, filed with Branch IV of the Court of First Instance of Manila a motion for the
issuance of new copies of the owner’s duplicates of certain certificates of title in the name of
Gliceria del Rosario, supposedly needed by her "in the preparation of the inventory" of the
properties constituting the estate. The motion having been granted, new copies of the owner’s
duplicates of certificates appearing the name of Gliceria del Rosario (among which were TCT
Nos. 66201, 66202 and 66204) were issued on 15 November 1965. On 8 December 1965,
according to the oppositors, the same special administratrix presented to the Register of Deeds
the deed of sale involving properties covered by TCT Nos. 66201, 66202 and 66204 supposedly
executed by Gliceria del Rosario on 10 January 1961 in favor of Alfonso Precilla, and, in
consequence, said certificates of title were cancelled and new certificates (Nos. 81735, 81736
and 81737) were issued in the name of Alfonso Precilla, married to Consuelo S. Gonzales y
Narciso.

On 25 August 1966, the Court issued an order admitting to probate the 1960 will of Gliceria A.
del Rosario (Exhibit "D"). In declaring the due execution of the will, the probate court took note
that no evidence had been presented to establish that the testatrix was not of sound mind when
the will was executed; that the fact that she had prepared an earlier will did not, prevent her from
executing another one thereafter; that the fact that the 1956 will consisted of 12 pages whereas
the 1960 testament was contained in one page does not render the latter invalid; that, the erasures
and alterations in the instrument were insignificant to warrant rejection; that the inconsistencies
in the testimonies of the instrumental witnesses which were noted by the oppositors are even
indicative of their truthfulness. The probate court, also considering that petitioner had already
shown capacity to administer the properties of the estate and that from the provisions of the will
she stands as the person most concerned and interested therein, appointed said petitioner regular
administratrix with a bond for P50,000.00. From this order all the oppositors appealed, the case
being docketed in this Court as G.R. No. L-27200.

Then, on 13 September 1966, the probate court resolved the oppositors’ motion of 14 December
1965 for the removal of the then special administratrix, as follows:jgc:chanrobles.com.ph

"It would seem that the main purpose of the motion to remove the special administratrix and to
appoint another one in her stead, is in order that an action may be filed against the special
administratrix for the annulment of the deed of sale executed by the decedent on January 10,
1961. Under existing documents, the properties sold pursuant to the said deed of absolute sale no
longer forms part of the estate. The alleged conflict of interest is accordingly not between
different claimants of the same estate. If it is desired by the movants that an action be filed by
them to annul the aforesaid deed absolute sale, it is not necessary that the special administratrix
be removed and that another one be appointed to file such action. Such a course of action would
only produce confusion and difficulties in the settlement of the estate. The movants may file the
aforesaid proceedings, preferably in an independent action, to secure the nullity of the deed of
absolute even without leave of this court:"

As regard the motion of 17 December 1965 asking for the deposit in court of the titles in the
name of the decedent, the same was also denied, for the reason that if the movants were referring
to the old titles, they could no longer be produced, and if they meant the new duplicate copies
thereof that were issued at the instance of the special administratrix, there would be no necessity
therefor, because they were already cancelled and other certificates were issued in the name of
Alfonso Precilla. This order precipitated the oppositors’ filing in this Court of a petition for
mandamus (G.R. No. L-26615, Rev. Fr. Lucio V. Garcia, Et. Al. v. Hon. Judge Conrado M.
Vasquez, Et. Al.), which was given due course on 6 October 1966.
On 15 December 1965, with that motion for removal pending in the court, the oppositors
requested the Register of Deeds of Manila to annotate a notice of lis pendens in the records of
TCT Nos. 81735, 81736, and 81737 in the name of Alfonso Precilla. And when said official
refused to do so, they applied to the probate court (in Sp. Proc. No. 62618) for an order to
compel the Register of Deeds to annotate a lis pendens notice in the aforementioned titles
contending that the matter of removal and appointment of the administratrix, involving TCT
Nos. 81735, 81736, and 81737, was already before the Supreme Court. Upon denial of this
motion on 12 November 1966, oppositors filed another mandamus action, this time against the
probate court and the Register of Deeds. The case was docketed and given due course in this
Court as G.R. No. L-26864.

Foremost of the questions to be determined here concerns the correctness of the order allowing
the probate of the 1960 will.

The records of the probate proceeding fully establish the fact that the testatrix, Gliceria A. del
Rosario, during her lifetime, executed two wills: one on 9 June 1956 consisting of 12 pages and
written in Spanish, a language that she knew and spoke, witnessed by Messrs. Antonio Cabrera,
Jesus Y. Ayala and Valentin Marquez, and acknowledged before notary public Jose Ayala; and
another dated 29 December 1960, consisting of 1 page and written in Tagalog, witnessed by
Messrs. Vicente Rosales, Francisco Decena, and Francisco Lopez and acknowledged before
notary public Remigio M. Tividad.

Called to testify on the due execution of the 1960 will, instrumental witnesses Decena, Lopez
and Rosales uniformly declared that they were individually requested by Alfonso Precilla (the
late husband of petitioner special administratrix) to witness the execution of the last will of Doña
Gliceria A. del Rosario; that they arrived at the house of the old lady at No. 2074 Azcarraga,
Manila, one after the other, in the afternoon of 29 December 1960; that the testatrix at the time
was apparently of clear and sound mind, although she was being aided by Precilla when she
walked; 3 that the will, which was already prepared, was first read "silently" by the testatrix
herself before she signed it; 4 that he three witnesses thereafter signed the will in the presence of
the testatrix and the notary public and of one another. There is also testimony that after the
testatrix and the witnesses to the will acknowledged the instrument to be their voluntary act and
deed, the notary public asked for their respective residence certificates which were handed to
him by Alfonso Precilla, clipped together; 5 that after comparing them with the numbers already
written on the will, the notary public filled in the blanks in the instrument with the date, 29
January 1960, before he affixed his signature and seal thereto. 6 They also testified that on that
occasion no pressure or influence has been exerted by any person upon the testatrix to execute
the will.

Of course, the interest and active participation of Alfonso Precilla in the signing of this 1960 will
are evident from the records. The will appeared to have been prepared by one who is not
conversant with the spelling of Tagalog words, and it has been shown that Alfonso Precilla is a
Cebuano who speaks Tagalog with a Visayan accent. 7 The witnesses to the will, two of whom
are fellow Visayans, 8 admitted their relationship or closeness to Precilla. 9 It was Precilla who
instructed them to go to the house of Gliceria del Rosario on 29 December 1960 to witness an
important document, 10 and who took their residence certificates from them a few days before
the will was signed. 11 Precilla had met the notary public and witnesses Rosales and Lopez at the
door of the residence of the old woman; he ushered them to the room at the second floor where
the signing of the document took place; 12 then he fetched witness Decena from the latter’s
haberdashery shop a few doors away and brought him to, the house the testatrix. 13 And when
the will was actually executed Precilla was present. 14

The oppositors-appellants in the present case, however, challenging the correctness of the
probate court’s ruling, maintain that on 29 December 1960 the eyesight of Gliceria del Rosario
was so poor and defective that she could not have read the provisions of the will, contrary to the
testimonies of witnesses Decena, Lopez and Rosales.

On this point, we find the declarations in court of Dr. Jesus V. Tamesis very material and
illuminating. Said ophthalmologist, whose expertise was admitted by both parties, testified,
among other things, that when Doña Gliceria del Rosario saw him for consultation on 11 March
1960 he found her left eye to have cataract (opaque lens), 15 and that it was "above normal in
pressure", denoting a possible glaucoma, a disease that leads to blindness 16 As to the conditions
of her right eye, Dr. Tamesis declared: jgc:chanrobles.com.ph

"Q But is there anything here in the entry appearing in the other documents Exhibits 3-B, 3-C
and 3-D from which you could inform the court as to the condition of the vision of the patient as
to the right eve?

"A Under date of August 30, 1960, is the record of refraction. that is setting of glass by myself
which showed that the right eye with my prescription of glasses had a vision of 2 over 60 (20/60)
and for the left eye with her correction 20 over 300 (20/300).

"Q In layman’s language, Doctor, what is the significance of that notation that the right had a
degree of 20 over 60 (20/60)?

"A It meant that eye at least would be able to recognize objects or persons at a minimum distance
of twenty feet.

"Q But would that grade enable the patient to read print?

"A Apparently that is only a record for distance vision, for distance sight, not for near." cralaw virtua1aw library

(pages 20-21, t.s.n., hearing of 23 March 1966)

The records also show that although Dr. Tamesis operated of the left eye of the decedent at the
Lourdes Hospital on 8 August 1960; as of 23 August 1960, inspite of the glasses her vision was
only "counting fingers," 17 at five feet. The cross-examination of the doctor further elicited the
following responses: jgc:chanrobles.com.ph

"Q After she was discharged from the hospital you prescribed lenses for her, or glasses?
"A After her discharge from the hospital, she was coming to my clinic for further examination
and then sometime later glasses were prescribed.

x x x

"Q And the glasses prescribed by you enabled her to read, Doctor?

"A As far as my record is concerned, with the glasses for the left eye which I prescribed — the
eye which I operated — she could see only forms but not read. That is on the left eye.

"Q How about the right eye?

"A The same, although the vision on the right eye is even better than the left eye." (pages 34. 85.
t.s.n., hearing of 23 March 1966).

Then, confronted with a medical certificate (Exhibit H) issued by him on 29 November 1965
certifying that Gliceria del Rosario was provided with aphakic lenses and "had been under
medical supervision up to 1963 with apparently good vision", the doctor had this to say: jgc:chanrobles.com.ph

"Q When yon said that she had apparently good vision you mean that she was able to read?

"A No, not necessarily, only able to go around, take care of herself and see. This I can tell you,
this report was made on pure recollections and I recall she was using her glasses although I recall
also that we have to give her medicines to improve her vision, some medicines to improve her
identification some more.

x x x

"Q What about the vision in the right eve, was that corrected by the glasses?

"A Yes, with the new prescription which I issued on 80 August 1960. It is in the clinical record.

"Q The vision in the right eye was corrected?

"A Yes That is the vision for distant objects." cralaw virtua1aw library

(pages 38, 39, 40. t.s.n., hearing of 23 March 1966).

The foregoing testimony of the ophthalmologist who treated the deceased and, therefore, has first
hand knowledge of the actual condition of her eyesight from August, 1960 up to 1963, fully
establish the fact that notwithstanding the operation and removal of the cataract in her left eye
and her being fitted with aphakic lens (used by cataract patients), her vision remained mainly for
viewing distant objects and not for reading print. Thus, the conclusion is inescapable that with
the condition of her eyesight in August, 1960, and there is no evidence that it had improved by
29 December 1960, Gliceria del Rosario was incapable f reading, and could not have read the
provisions of the will supposedly signed by her on 29 December 1960. It is worth noting that the
instrumental witnesses stated that she read the instrument "silently" (t.s.n., pages 164-165).
which is a conclusion and not a fact.

Against the background of defective eyesight of the alleged testatrix, the appearance of the will,
Exhibit "D", acquires striking significance. Upon its face, the testamentary provisions, the
attestation clause and acknowledgment were crammed together into a single sheet of paper, to
much so that the words had to be written very close on the top, bottom and two sides of the
paper, leaving no margin whatsoever; the word "and" had to be written by the symbol" &",
apparently to save on space. Plainly, the testament was not prepared with any regard for the
defective vision of Doña Gliceria. Further, typographical errors like "HULINH" for "HULING"
(last), "Alfonsa" ;or "Alfonso", "MERCRDRS" for MERCEDES", "instrumental" for
"Instrumental", and "acknowledged" for "acknowledge’’, remained uncorrected, thereby
indicating that execution thereof must have been characterized by haste. It is difficult to
understand that so important a document containing the final disposition of one’s worldly
possessions should be embodied in an informal and untidily written instrument; or that the
glaring spelling errors should have escaped her notice if she had actually retained the ability to
read the purported will and had done so. The record is thus convincing that the supposed testatrix
could not have physically read or understood the alleged testament, Exhibit "D", and that its
admission to probate was erroneous and should be reversed.

That Doña Gliceria should be able to greet her guests on her birthday, arrange flowers and attend
to kitchen tasks shortly prior to the alleged execution of the testament Exhibit "D", as appears
from the photographs, Exhibits "E" to "E-1", in no way proves; that she was able to read a
closely typed page, since the acts shown do not require vision at close range. It must be
remembered that with the natural lenses removed, her eyes had lost the power of adjustment to
near vision, the substituted glass lenses being rigid and uncontrollable by her. Neither is the
signing of checks (Exhibits "G" to "G-3") by her indicative of ability to see at normal reading
distances. Writing or signing of one’s name, when sufficiently practiced, becomes automatic, so
that one need only to have a rough indication of the place where the signature is to be affixed in
order to be able to write it. Indeed, a close examination of the checks, amplified in the
photograph, Exhibit "O", et seq., reinforces the contention of oppositors that the alleged testatrix
could not see at normal reading distance: the signatures in the checks are written far above the
printed base, lines, and the names of the payees as well as the amounts written do not appear to
be in the handwriting of the alleged testatrix, being in a much firmer and more fluid hand than
hers.

Thus, for all intents and purpose of the rules on probate, the deceased Gliceria del Rosario was,
as appellant oppositors contend, not unlike a blind testator, and the due execution of her will
would have required observance of the provisions of Article 808 of the Civil Code.

"ART. 808. If the testator is blind, the will shall be read to him twice; once, by one of the
subscribing witnesses, and again, by the notary public before whom the will is acknowledged." cralaw virtua1aw library

The rationale behind the requirement of reading the will to the testator if he is blind or incapable
of reading the will himself (as when he is illiterate), 18 is to make the provisions thereof known
to him, so that he may be able to object if they are not in accordance with his wishes. That the
aim of the law is to insure that the dispositions of the will are properly communicated to and
understood by the handicapped testator, thus making them truly reflective of his desire, is
evidenced by the requirement that the will should be read to the latter, not only once but twice,
by two different persons, and that the witnesses have to act within the range of his (the testator’s)
other senses. 19

In connection with the will here in question, there is nothing in the records to show that the
above requisites have been complied with. Clearly, as already stated, the 1960 will sought to be
probated suffers from infirmity that affects its due execution.

We also find merit in the complaint of oppositors Lucio V. Garcia, Et Al., against the denial by
the probate court of their petition for the removal of Consuelo Gonzales Vda. de Precilla as
special administratrix of the estate of the deceased Doña Gliceria (Petition, G.R. No. L-26615,
Annex "B").

The oppositors’ petition was based allegedly on the existence in the special administratrix of an
interest adverse to that of the estate. It was their contention that through fraud her husband had
caused the deceased Gliceria del Rosario to execute a deed of sale, dated 10 January 1961, by
virtue of which the latter purportedly conveyed unto said Alfonso D. Precilla, married to
Consuelo Gonzales y Narciso, the ownership of 3 parcels of land and the improvements thereon,
assessed at P334,050.00, for the sum of P30,000.00.

In denying the petition, the probate court, in its order of 13 September 1966 (Annex "P",
Petition) reasoned out that since the properties were already sold no longer form part of the
estate. The conflict of interest would not be between the estate and third parties, but among the
different claimants of said properties, in which case, according to the court, the participation of
the special administratrix in the action for annulment that may be brought would not be
necessary.

The error in this line of reasoning lies in the fact that what was being questioned was precisely
the validity of the conveyance or sale of the properties. In short, if proper, the action for
annulment would have to be undertaken on behalf of the estate by the special administratrix,
affecting as it does the property or rights of the deceased. 20 For the rule is that only where there
is no special proceeding for the settlement of the estate of the deceased may the legal heirs
commence an action arising out of a right belonging to their ancestor. 21

There is no doubt that to settle the question of the due execution and validity of the deed of sale,
an ordinary and separate action would have to be instituted, the matter not falling within the
competence of the probate court. 22 Considering the facts then before it, i.e., the alleged deed of
sale having been executed by Gliceria del Rosario on 10 January 1961, when she was already
practically blind; and that the consideration of P30,000.00 seems to be unconscionably small for
properties with a total assessed value of P334,050.00, there was likelihood that a case for
annulment might indeed be filed against the estate or heirs of Alfonso Precilla. And the
administratrix, being the widow and heir of the alleged transferee, cannot be expected to sue
herself in an action to recover property that may turn out to belong to the estate. 22 Not only this,
but the conduct of the special administratrix in securing new copies of the owner’s duplicates of
TCT Nos. 66201, 66202, and 66204, without the court’s knowledge or authority, and on the
pretext that she needed them in the preparation of the inventory of the estate, when she must
have already known by then that the properties covered therein were already "conveyed" to her
husband by the deceased, being the latter’s successor, and having the contract bind the land
through issuance of new titles in her husband’s name cannot but expose her to the charge of
unfitness or unsuitableness to discharge the trust, justifying her removal from the administration
of the estate.

With respect to the orders of the court a quo denying (1) the oppositors’ motion to require the
Hongkong and Shanghai Bank to report all withdrawals made against the funds of the deceased
after 2 September 1965 and (2) the motion for annotation of a lis pendens notice on TCT Nos.
81735, 81736 and 81737, the same are to be affirmed.

The probate court pointed out in its order of 22 October 1965 (Annex "H") that it could not have
taken action on the complaint against the alleged withdrawals from the bank deposits of the
deceased, because as of that time the court had not yet been apprised that such deposits exist.
Furthermore, as explained by the special administratrix in her pleading of 30 October 1965, the
withdrawals referred to by the oppositors could be those covered by checks issued in the name of
Gliceria del Rosario during her lifetime but cleared only after her death. That explanation, which
not only appears plausible but has not been rebutted by the petitioners-oppositors, negates any
charge of grave abuse in connection with the issuance of the order here in question.

On the matter of lis pendens (G.R. No. L-26864), the provisions of the Rules of Court are clear:
notice of the pendency of an action may be recorded in the office of the register of deeds of the
province in which the property is situated, if the action affects "the title or the right of possession
of (such) real property." 23 In the case at bar, the pending action which oppositors seek to
annotate in the records of TCT Nos. 81735, 81736, and 81737 is the mandamus proceeding filed
in this Court (G.R. No. L-26615). As previously discussed in this opinion, however, that case is
concerned merely with the correctness of the denial by the probate court of the motion for the
removal of Consuelo Gonzales Vda. de Precilla as special administratrix of the estate of the late
Gliceria del Rosario. In short, the issue in controversy there is simply the fitness or unfitness of
said special administratrix to continue holding the trust; it does not involve or affect at all the
title to, or possession of, the properties covered by said TCT Nos. 81735, 81736 and 81737.
Clearly, the pendency of such case (L-26615) is not an action that can properly be annotated in
the record of the titles to the properties.

FOR THE FOREGOING REASONS, the order of the court below allowing to probate the
alleged 1960 will of Gliceria A. del Rosario is hereby reversed and set aside. The petition in G.R.
No. L-26615 being meritorious, the appealed order is set aside and the court below is ordered to
remove the administratrix, Consuelo Gonzales Vda. de Precilla, and appoint one of the heirs
intestate of the deceased Doña Gliceria Avelino del Rosario as special administrator for the
purpose of instituting action on behalf of her estate to recover the properties allegedly sold by her
to the late Alfonso D. Precilla. And in Case G.R. No. L-26864, petition is dismissed. No costs.
15. G.R. No. 74695 September 14, 1993
In the Matter of the Probate of the Last Will and Testament of the Deceased Brigido Alvarado, CESAR ALVARADO, petitioner,
vs.
HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA. ROSARIO QUETULIO LOSA and HON. LEONOR INES LUCIANO,
Associate Justices, Intermediate Appellate Court, First Division (Civil Cases), and BAYANI MA. RINO, respondents.

Vicente R. Redor for petitioner.

Bayani Ma. Rino for and in his own behalf.

BELLOSILLO, J.:

Before us is an appeal from the Decision dated 11 April 19861 of the First Civil Cases Division of the then Intermediate Appellate Court, now
Court of Appeals, which affirmed the Order dated 27 June 19832 of the Regional Trial Court of Sta. Cruz, Laguna, admitting to probate the
last will and testament3 with codicil4 of the late Brigido Alvarado.

On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will entitled "Huling Habilin" wherein he disinherited an
illegitimate son (petitioner) and expressly revoked a previously executed holographic will at the time awaiting probate before Branch 4 of the
Regional Trial Court of sta. Cruz, Laguna.

As testified to by the three instrumental witnesses, the notary public and by private respondent who were present at the execution, the
testator did not read the final draft of the will himself. Instead, private respondent, as the lawyer who drafted the eight-paged document, read
the same aloud in the presence of the testator, the three instrumental witnesses and the notary public. The latter four followed the reading
with their own respective copies previously furnished them.

Meanwhile, Brigido's holographic will was subsequently admitted to probate on 9 December 1977. On the 29th day of the same month, a
codicil entitled "Kasulatan ng Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling Habilin na may Petsa Nobiembre 5, 1977 ni Brigido
Alvarado" was executed changing some dispositions in the notarial will to generate cash for the testator's eye operation. Brigido was then
suffering from glaucoma. But the disinheritance and revocatory clauses were unchanged. As in the case of the notarial will, the testator did
not personally read the final draft of the codicil. Instead, it was private respondent who read it aloud in his presence and in the presence of
the three instrumental witnesses (same as those of the notarial will) and the notary public who followed the reading using their own copies.

A petition for the probate of the notarial will and codicil was filed upon the testator's death on 3 January 1979 by private respondent as
executor with the Court of First Instance, now Regional Trial Court, of Siniloan, Laguna.5 Petitioner, in turn, filed an Opposition on the
following grounds: that the will sought to be probated was not executed and attested as required by law; that the testator was insane or
otherwise mentally incapacitated to make a will at the time of its execution due to senility and old age; that the will was executed under
duress, or influence of fear and threats; that it was procured by undue and improper pressure and influence on the part of the beneficiary
who stands to get the lion's share of the testator's estate; and lastly, that the signature of the testator was procured by fraud or trick.

When the oppositor (petitioner) failed to substantiate the grounds relied upon in the Opposition, a Probate Order was issued on 27 June
1983 from which an appeal was made to respondent court. The main thrust of the appeal was that the deceased was blind within the
meaning of the law at the time his "Huling Habilin" and the codicil attached thereto was executed; that since the reading required by Art. 808
of the Civil Code was admittedly not complied with, probate of the deceased's last will and codicil should have been denied.

On 11 April 1986, the Court of Appeals rendered the decision under review with the following findings: that Brigido Alvarado was not blind at
the time his last will and codicil were executed; that assuming his blindness, the reading requirement of Art. 808 was substantially complied
with when both documents were read aloud to the testator with each of the three instrumental witnesses and the notary public following the
reading with their respective copies of the instruments. The appellate court then concluded that although Art. 808 was not followed to the
letter, there was substantial compliance since its purpose of making known to the testator the contents of the drafted will was served.

The issues now before us can be stated thus: Was Brigido Alvarado blind for purpose of Art, 808 at the time his "Huling Habilin" and its
codicil were executed? If so, was the double-reading requirement of said article complied with?

Regarding the first issue, there is no dispute on the following facts: Brigido Alvarado was not totally blind at the time the will and codicil were
executed. However, his vision on both eyes was only of "counting fingers at three (3) feet" by reason of the glaucoma which he had been
suffering from for several years and even prior to his first consultation with an eye specialist on
14 December 1977.

The point of dispute is whether the foregoing circumstances would qualify Brigido as a "blind" testator under Art. 808 which reads:
 Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again,
by the notary public before whom the will is acknowledged.

Petitioner contends that although his father was not totally blind when the will and codicil were executed, he can be so considered within the
scope of the term as it is used in Art. 808. To support his stand, petitioner presented before the trial court a medical certificate issued by Dr.
Salvador R. Salceda, Director of the Institute of Opthalmology (Philippine Eye Research Institute),6 the contents of which were interpreted in
layman's terms by Dr. Ruperto Roasa, whose expertise was admitted by private respondent.7 Dr. Roasa explained that although the testator
could visualize fingers at three (3) feet, he could no longer read either printed or handwritten matters as of 14 December 1977, the day of his
first consultation.8

On the other hand, the Court of Appeals, contrary to the medical testimony, held that the testator could still read on the day the will and the
codicil were executed but chose not to do so because of "poor eyesight."9 Since the testator was still capable of reading at that time, the
court a quo concluded that Art. 808 need not be complied with.

We agree with petitioner in this respect.

Regardless of respondent's staunch contention that the testator was still capable of reading at the time his will and codicil were prepared, the
fact remains and this was testified to by his witnesses, that Brigido did not do so because of his "poor," 10 "defective," 11 or "blurred"12
vision making it necessary for private respondent to do the actual reading for him.

The following pronouncement in Garcia vs. Vasquez 13 provides an insight into the scope of the term "blindness" as used in Art. 808, to wit:

The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will
himself (as when he is illiterate), is to make the provisions thereof known to him, so that he may be able to object if they
are not in accordance with his wishes . . .

Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those who, for one reason or another, are "incapable of
reading the(ir) will(s)." Since Brigido Alvarado was incapable of reading the final drafts of his will and codicil on the separate occasions of
their execution due to his "poor," "defective," or "blurred" vision, there can be no other course for us but to conclude that Brigido Alvarado
comes within the scope of the term "blind" as it is used in Art. 808. Unless the contents were read to him, he had no way of ascertaining
whether or not the lawyer who drafted the will and codicil did so confortably with his instructions. Hence, to consider his will as validly
executed and entitled to probate, it is essential that we ascertain whether Art. 808 had been complied with.

Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read twice; once, by one of the instrumental witnesses
and, again, by the notary public before whom the will was acknowledged. The purpose is to make known to the incapacitated testator the
contents of the document before signing and to give him an opportunity to object if anything is contrary to his instructions.

That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public and an instrumental witness, it was the lawyer (private
respondent) who drafted the eight-paged will and the five-paged codicil who read the same aloud to the testator, and read them only once,
not twice as Art. 808 requires.

Private respondent however insists that there was substantial compliance and that the single reading suffices for purposes of the law. On the
other hand, petitioner maintains that the only valid compliance or compliance to the letter and since it is admitted that neither the notary
public nor an instrumental witness read the contents of the will and codicil to Brigido, probate of the latter's will and codicil should have been
disallowed.

We sustain private respondent's stand and necessarily, the petition must be denied.

This Court has held in a number of occasions that substantial compliance is acceptable where the purpose of the law has been satisfied, the
reason being that the solemnities surrounding the execution of wills are intended to protect the testator from all kinds of fraud and trickery but
are never intended to be so rigid and inflexible as to destroy the testamentary privilege. 14

In the case at bar, private respondent read the testator's will and codicil aloud in the presence of the testator, his three instrumental
witnesses, and the notary public. Prior and subsequent thereto, the testator affirmed, upon being asked, that the contents read corresponded
with his instructions. Only then did the signing and acknowledgement take place. There is no evidence, and petitioner does not so allege,
that the contents of the will and codicil were not sufficiently made known and communicated to the testator. On the contrary, with respect to
the "Huling Habilin," the day of the execution was not the first time that Brigido had affirmed the truth and authenticity of the contents of the
draft. The uncontradicted testimony of Atty. Rino is that Brigido Alvarado already acknowledged that the will was drafted in accordance with
his expressed wishes even prior to 5 November 1977 when Atty. Rino went to the testator's residence precisely for the purpose of securing
his conformity to the draft. 15

Moreover, it was not only Atty. Rino who read the documents on
5 November and 29 December 1977. The notary public and the three instrumental witnesses likewise read the will and codicil, albeit silently.
Afterwards, Atty. Nonia de la Pena (the notary public) and Dr. Crescente O. Evidente (one of the three instrumental witnesses and the
testator's physician) asked the testator whether the contents of the document were of his own free will. Brigido answered in the affirmative.
16 With four persons following the reading word for word with their own copies, it can be safely concluded that the testator was reasonably
assured that what was read to him (those which he affirmed were in accordance with his instructions), were the terms actually appearing on
the typewritten documents. This is especially true when we consider the fact that the three instrumental witnesses were persons known to
the testator, one being his physician (Dr. Evidente) and another (Potenciano C. Ranieses) being known to him since childhood.

The spirit behind the law was served though the letter was not. Although there should be strict compliance with the substantial requirements
of the law in order to insure the authenticity of the will, the formal imperfections should be brushed aside when they do not affect its purpose
and which, when taken into account, may only defeat the testator's will. 17

As a final word to convince petitioner of the propriety of the trial court's Probate Order and its affirmance by the Court of Appeals, we quote
the following pronouncement in Abangan v. Abangan, 18 to wit:

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

Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in his "Huling Habilin" and the codicil attached thereto. We
are unwilling to cast these aside fro the mere reason that a legal requirement intended for his protection was not followed strictly when such
compliance had been rendered unnecessary by the fact that the purpose of the law, i.e., to make known to the incapacitated testator the
contents of the draft of his will, had already been accomplished. To reiterate, substantial compliance suffices where the purpose has been
served.

WHEREFORE, the petition is DENIED and the assailed Decision of respondent Court of Appeals dated 11 April 1986 is AFFIRMED.
Considering the length of time that this case has remained pending, this decision is immediately executory. Costs against petitioner.

SO ORDERED.

16. G.R. No. 103554 May 28, 1993

TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO, AUREA CABALLERO, OSCAR LAROSA, HELEN
CABALLERO, SANTOS CABALLERO, PABLO CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO,
represented herein by his Attorney-in-Fact, ARMSTICIA * ABAPO VELANO, and CONSESO CANEDA, represented herein by his
heirs, JESUS CANEDA, NATIVIDAD CANEDA and ARTURO CANEDA, petitioners,
vs.
HON. COURT OF APPEALS and WILLIAM CABRERA, as Special Administrator of the Estate of Mateo Caballero, respondents.

Palma, Palma & Associates for petitioners.

Emilio Lumontad, Jr. for private respondents.

REGALADO, J.:

Presented for resolution by this Court in the present petition for review on certiorari is the issue of whether or not the attestation clause
contained in the last will and testament of the late Mateo Caballero complies with the requirements of Article 805, in relation to Article 809, of
the Civil Code.

The records show that on December 5, 1978, Mateo Caballero, a widower without any children and already in the twilight years of his life,
executed a last will and testament at his residence in Talisay, Cebu before three attesting witnesses, namely, Cipriano Labuca, Gregorio
Cabando and Flaviano Toregosa. The said testator was duly assisted by his lawyer, Atty. Emilio Lumontad, and a notary public, Atty. Filoteo
Manigos, in the preparation of that last will.1 It was declared therein, among other things, that the testator was leaving by way of legacies and
devises his real and personal properties to Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera
and Marcosa Alcantara, all of whom do not appear to be related to the testator.2

Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed as Special Proceeding No. 3899-R before Branch II
of the then Court of First Instance of Cebu seeking the probate of his last will and testament. The probate court set the petition for hearing on
August 20, 1979 but the same and subsequent scheduled hearings were postponed for one reason to another. On May 29, 1980, the testator
passed away before his petition could finally be heard by the probate court.3 On February 25, 1981, Benoni Cabrera, on of the legatees
named in the will, sough his appointment as special administrator of the testator's estate, the estimated value of which was P24,000.00, and
he was so appointed by the probate court in its order of March 6, 1981.4

Thereafter, herein petitioners, claiming to be nephews and nieces of the testator, instituted a second petition, entitled "In the Matter of the
Intestate Estate of Mateo Caballero" and docketed as Special Proceeding No. 3965-R, before Branch IX of the aforesaid Court of First
Instance of Cebu. On October 18, 1982, herein petitioners had their said petition intestate proceeding consolidated with Special Proceeding
No. 3899-R in Branch II of the Court of First Instance of Cebu and opposed thereat the probate of the Testator's will and the appointment of a
special administrator for his estate.5

Benoni Cabrera died on February 8, 1982 hence the probate court, now known as Branch XV of the Regional Trial Court of Cebu, appointed
William Cabrera as special administrator on June 21, 1983. Thereafter, on July 20, 1983, it issued an order for the return of the records of
Special Proceeding No. 3965-R to the archives since the testate proceeding for the probate of the will had to be heard and resolved first. On
March 26, 1984 the case was reraffled and eventually assigned to Branch XII of the Regional Trial Court of Cebu where it remained until the
conclusion of the probate proceedings.6

In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners appeared as oppositors and objected to the allowance of
the testator's will on the ground that on the alleged date of its execution, the testator was already in the poor state of health such that he
could not have possibly executed the same. Petitioners likewise reiterated the issue as to the genuineness of the signature of the testator
therein.7

On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary public Atty. Filoteo Manigos, testified that the testator
executed the will in question in their presence while he was of sound and disposing mind and that, contrary to the assertions of the
oppositors, Mateo Caballero was in good health and was not unduly influenced in any way in the execution of his will. Labuca also testified
that he and the other witnesses attested and signed the will in the presence of the testator and of each other. The other two attesting
witnesses were not presented in the probate hearing as the had died by then.8

On April 5, 1988, the probate court rendered a decision declaring the will in question as the last will and testament of the late Mateo
Caballero, on the ratiocination that:

. . . The self-serving testimony of the two witnesses of the oppositors cannot overcome the positive testimonies of Atty.
Filoteo Manigos and Cipriano Labuca who clearly told the Court that indeed Mateo Caballero executed the Last Will
and Testament now marked Exhibit "C" on December 5, 1978. Moreover, the fact that it was Mateo Caballero who
initiated the probate of his Will during his lifetime when he caused the filing of the original petition now marked Exhibit
"D" clearly underscores the fact that this was indeed his Last Will. At the start, counsel for the oppositors manifested
that he would want the signature of Mateo Caballero in Exhibit "C" examined by a handwriting expert of the NBI but it
would seem that despite their avowal and intention for the examination of this signature of Mateo Caballero in Exhibit
"C", nothing came out of it because they abandoned the idea and instead presented Aurea Caballero and Helen
Caballero Campo as witnesses for the oppositors.

All told, it is the finding of this Court that Exhibit "C" is the Last Will and Testament of Mateo Caballero and that it was
executed in accordance with all the requisites of the law.9

Undaunted by the said judgment of the probate court, petitioners elevated the case in the Court of Appeals in CA-G.R. CV No. 19669. They
asserted therein that the will in question is null and void for the reason that its attestation clause is fatally defective since it fails to specifically
state that the instrumental witnesses to the will witnessed the testator signing the will in their presence and that they also signed the will and
all the pages thereof in the presence of the testator and of one another.

On October 15, 1991, respondent court promulgated its decision 10 affirming that of the trial court, and ruling that the attestation clause in
the last will of Mateo Caballero substantially complies with Article 805 of the Civil Code, thus:

The question therefore is whether the attestation clause in question may be considered as having substantialy
complied with the requirements of Art. 805 of the Civil Code. What appears in the attestation clause which the
oppositors claim to be defective is "we do certify that the testament was read by him and the attestator, Mateo
Caballero, has published unto us the foregoing will consisting of THREE PAGES, including the acknowledgment, each
page numbered correlatively in letters of the upper part of each page, as his Last Will and Testament, and he has
signed the same and every page thereof, on the spaces provided for his signature and on the left hand margin in the
presence of the said testator and in the presence of each and all of us (emphasis supplied).

To our thinking, this is sufficient compliance and no evidence need be presented to indicate the meaning that the said
will was signed by the testator and by them (the witnesses) in the presence of all of them and of one another. Or as the
language of the law would have it that the testator signed the will "in the presence of the instrumental witnesses, and
that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one
another." If not completely or ideally perfect in accordance with the wordings of Art. 805 but (sic) the phrase as
formulated is in substantial compliance with the requirement of the law." 11
Petitioners moved for the reconsideration of the said ruling of respondent court, but the same was denied in the latter's resolution of January
14, 1992, 12 hence this appeal now before us. Petitioners assert that respondent court has ruled upon said issue in a manner not in accord
with the law and settled jurisprudence on the matter and are now questioning once more, on the same ground as that raised before
respondent court, the validity of the attestation clause in the last will of Mateo Caballero.

We find the present petition to be meritorious, as we shall shortly hereafter, after some prefatory observations which we feel should be made
in aid of the rationale for our resolution of the controversy.

1. A will has been defined as a species of conveyance whereby a person is permitted, with the formalities prescribed by law, to control to a
certain degree the disposition of his estate after his death. 13 Under the Civil Code, there are two kinds of wills which a testator may
execute.14 the first kind is the ordinary or attested will, the execution of which is governed by Articles 804 to 809 of the Code. Article 805
requires that:

Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by
the testator's name written by some other person in his presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the presence of the testator and of one another.

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

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

If the attestation clause is in a language not known to the witness, it shall be interpreted to them.

In addition, the ordinary will must be acknowledged before a notary public by a testator and the attesting witness. 15 hence it is likewise
known as notarial will. Where the attestator is deaf or deaf-mute, Article 807 requires that he must personally read the will, if able to do so.
Otherwise, he should designate two persons who would read the will and communicate its contents to him in a practicable manner. On the
other hand, if the testator is blind, the will should be read to him twice; once, by anyone of the witnesses thereto, and then again, by the
notary public before whom it is acknowledged. 16

The other kind of will is the holographic will, which Article 810 defines as one that is entirely written, dated, and signed by the testator himself.
This kind of will, unlike the ordinary type, requires no attestation by witnesses. A common requirement in both kinds of will is that they should
be in writing and must have been executed in a language or dialect known to the testator. 17

However, in the case of an ordinary or attested will, its attestation clause need not be written in a language or dialect known to the testator
since it does not form part of the testamentary disposition. Furthermore, the language used in the attestation clause likewise need not even
be known to the attesting witnesses. 18 The last paragraph of Article 805 merely requires that, in such a case, the attestation clause shall be
interpreted to said witnesses.

An attestation clause refers to that part of an ordinary will whereby the attesting witnesses certify that the instrument has been executed
before them and to the manner of the execution the same. 19 It is a separate memorandum or record of the facts surrounding the conduct of
execution and once signed by the witnesses, it gives affirmation to the fact that compliance with the essential formalities required by law has
been observed. 20 It is made for the purpose of preserving in a permanent form a record of the facts that attended the execution of a
particular will, so that in case of failure of the memory of the attesting witnesses, or other casualty, such facts may still be proved. 21

Under the third paragraph of Article 805, such a clause, the complete lack of which would result in the invalidity of the will, 22 should state (1)
the number of the pages used upon which the will is written; (2) that the testator signed, or expressly caused another to sign, the will and
every page thereof in the presence of the attesting witnesses; and (3) that the attesting witnesses witnessed the signing by the testator of the
will and all its pages, and that said witnesses also signed the will and every page thereof in the presence of the testator and of one another.

The purpose of the law in requiring the clause to state the number of pages on which the will is written is to safeguard against possible
interpolation or omission of one or some of its pages and to prevent any increase or decrease in the pages;23 whereas the subscription of
the signature of the testator and the attesting witnesses is made for the purpose of authentication and identification, and thus indicates that
the will is the very same instrument executed by the testator and attested to by the witnesses.24

Further, by attesting and subscribing to the will, the witnesses thereby declare the due execution of the will as embodied in the attestation
clause.25 The attestation clause, therefore, provide strong legal guaranties for the due execution of a will and to insure the authenticity
thereof.26 As it appertains only to the witnesses and not to the testator, it need be signed only by them.27 Where it is left unsigned, it would
result in the invalidation of the will as it would be possible and easy to add the clause on a subsequent occasion in the absence of the
testator and its witnesses.28
In its report, the Code Commission commented on the reasons of the law for requiring the formalities to be followed in the execution of wills,
in the following manner:

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

This objective is in accord with the modern tendency with respect to the formalities in the execution of wills. . . .29

2. An examination of the last will and testament of Mateo Caballero shows that it is comprised of three sheets all of which have been
numbered correlatively, with the left margin of each page thereof bearing the respective signatures of the testator and the three attesting
witnesses. The part of the will containing the testamentary dispositions is expressed in the Cebuano-Visayan dialect and is signed at the foot
thereof by the testator. The attestation clause in question, on the other hand, is recited in the English language and is likewise signed at the
end thereof by the three attesting witnesses hereto.30 Since it is the proverbial bone of contention, we reproduce it again for facility of
reference:

We, the undersigned attesting Witnesses, whose Residences and postal addresses appear on the Opposite of our
respective names, we do hereby certify that the Testament was read by him and the testator, MATEO CABALLERO;
has published unto us the foregoing Will consisting of THREE PAGES, including the Acknowledgment, each page
numbered correlatively in the letters on the upper part of each page, as his Last Will and Testament and he has the
same and every page thereof, on the spaces provided for his signature and on the left hand margin, in the presence of
the said testator and in the presence of each and all of us.

It will be noted that Article 805 requires that the witness should both attest and subscribe to the will in the presence of the testator and of one
another. "Attestation" and "subscription" differ in meaning. Attestation is the act of senses, while subscription is the act of the hand. The
former is mental, the latter mechanical, and to attest a will is to know that it was published as such, and to certify the facts required to
constitute an actual and legal publication; but to subscribe a paper published as a will is only to write on the same paper the names of the
witnesses, for the sole purpose of identification.31

In Taboada vs. Rizal,32 we clarified that attestation consists in witnessing the testator's execution of the will in order to see and take note
mentally that those things are done which the statute requires for the execution of a will and that the signature of the testator exists as a fact.
On the other hand, subscription is the signing of the witnesses' names upon the same paper for the purpose of identification of such paper as
the will which was executed by the testator. As it involves a mental act, there would be no means, therefore, of ascertaining by a physical
examination of the will whether the witnesses had indeed signed in the presence of the testator and of each other unless this is substantially
expressed in the attestation.

It is contended by petitioners that the aforequoted attestation clause, in contravention of the express requirements of the third paragraph of
Article 805 of the Civil Code for attestation clauses, fails to specifically state the fact that the attesting witnesses the testator sign the will and
all its pages in their presence and that they, the witnesses, likewise signed the will and every page thereof in the presence of the testator and
of each other. We agree.

What is fairly apparent upon a careful reading of the attestation clause herein assailed is the fact that while it recites that the testator indeed
signed the will and all its pages in the presence of the three attesting witnesses and states as well the number of pages that were used, the
same does not expressly state therein the circumstance that said witnesses subscribed their respective signatures to the will in the presence
of the testator and of each other.

The phrase "and he has signed the same and every page thereof, on the spaces provided for his signature and on the left hand margin,"
obviously refers to the testator and not the instrumental witnesses as it is immediately preceded by the words "as his Last Will and
Testament." On the other hand, although the words "in the presence of the testator and in the presence of each and all of us" may, at first
blush, appear to likewise signify and refer to the witnesses, it must, however, be interpreted as referring only to the testator signing in the
presence of the witnesses since said phrase immediately follows the words "he has signed the same and every page thereof, on the spaces
provided for his signature and on the left hand margin." What is then clearly lacking, in the final logical analysis , is the statement that the
witnesses signed the will and every page thereof in the presence of the testator and of one another.

It is our considered view that the absence of that statement required by law is a fatal defect or imperfection which must necessarily result in
the disallowance of the will that is here sought to be admitted to probate. Petitioners are correct in pointing out that the aforestated defect in
the attestation clause obviously cannot be characterized as merely involving the form of the will or the language used therein which would
warrant the application of the substantial compliance rule, as contemplated in the pertinent provision thereon in the Civil Code, to wit:

Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is not proved
that the will was in fact executed and attested in substantial compliance with all the requirements of article 805"
(Emphasis supplied.)

While it may be true that the attestation clause is indeed subscribed at the end thereof and at the left margin of each page by the three
attesting witnesses, it certainly cannot be conclusively inferred therefrom that the said witness affixed their respective signatures in the
presence of the testator and of each other since, as petitioners correctly observed, the presence of said signatures only establishes the fact
that it was indeed signed, but it does not prove that the attesting witnesses did subscribe to the will in the presence of the testator and of
each other. The execution of a will is supposed to be one act so that where the testator and the witnesses sign on various days or occasions
and in various combinations, the will cannot be stamped with the imprimatur of effectivity.33

We believe that the further comment of former Justice J.B.L. Reyes34 regarding Article 809, wherein he urged caution in the application of
the substantial compliance rule therein, is correct and should be applied in the case under consideration, as well as to future cases with
similar questions:

. . . The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself:
whether all the pages are consecutively numbered; whether the signatures appear in each and every page; whether
the subscribing witnesses are three or the will was notarized. All theses are facts that the will itself can reveal, and
defects or even omissions concerning them in the attestation clause can be safely disregarded. But the total number of
pages, and whether all persons required to sign did so in the presence of each other must substantially appear in the
attestation clause, being the only check against perjury in the probate proceedings. (Emphasis ours.)

3. We stress once more that under Article 809, the defects and imperfections must only be with respect to the form of the attestation or the
language employed therein. Such defects or imperfections would not render a will invalid should it be proved that the will was really executed
and attested in compliance with Article 805. In this regard, however, the manner of proving the due execution and attestation has been held
to be limited to merely an examination of the will itself without resorting to evidence aliunde, whether oral or written.

The foregoing considerations do not apply where the attestation clause totally omits the fact that the attesting witnesses signed each and
every page of the will in the presence of the testator and of each other.35 In such a situation, the defect is not only in the form or language of
the attestation clause but the total absence of a specific element required by Article 805 to be specifically stated in the attestation clause of a
will. That is precisely the defect complained of in the present case since there is no plausible way by which we can read into the questioned
attestation clause statement, or an implication thereof, that the attesting witness did actually bear witness to the signing by the testator of the
will and all of its pages and that said instrumental witnesses also signed the will and every page thereof in the presence of the testator and of
one another.

Furthermore, the rule on substantial compliance in Article 809 cannot be revoked or relied on by respondents since it presupposes that the
defects in the attestation clause can be cured or supplied by the text of the will or a consideration of matters apparent therefrom which would
provide the data not expressed in the attestation clause or from which it may necessarily be gleaned or clearly inferred that the acts not
stated in the omitted textual requirements were actually complied within the execution of the will. In other words, defects must be remedied
by intrinsic evidence supplied by the will itself.

In the case at bar, contrarily, proof of the acts required to have been performed by the attesting witnesses can be supplied by only extrinsic
evidence thereof, since an overall appreciation of the contents of the will yields no basis whatsoever from with such facts may be plausibly
deduced. What private respondent insists on are the testimonies of his witnesses alleging that they saw the compliance with such
requirements by the instrumental witnesses, oblivious of the fact that he is thereby resorting to extrinsic evidence to prove the same and
would accordingly be doing by the indirection what in law he cannot do directly.

4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence of views as to which manner of interpretation should be
followed in resolving issues centering on compliance with the legal formalities required in the execution of wills. The formal requirements
were at that time embodied primarily in Section 618 of Act No. 190, the Code of Civil Procedure. Said section was later amended by Act No.
2645, but the provisions respecting said formalities found in Act. No. 190 and the amendment thereto were practically reproduced and
adopted in the Civil Code.

One view advance the liberal or substantial compliance rule. This was first laid down in the case of Abangan vs. Abangan,36 where it was
held 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 guarantee their truth and authenticity. Therefore, the laws on this subject should be interpreted in such a way
as to attain these primordial ends. Nonetheless, it was also emphasized that 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, hence when an interpretation already given assures such ends, any other
interpretation whatsoever that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testator's last
will, must be disregarded. The subsequent cases of Avera vs. Garcia,37 Aldaba vs. Roque,38 Unson vs. Abella,39 Pecson vs. Coronel,40
Fernandez vs. Vergel de Dios, et al.,41 and Nayve vs. Mojal, et al.42 all adhered to this position.

The other view which advocated the rule that statutes which prescribe the formalities that should be observed in the execution of wills are
mandatory in nature and are to be strictly construed was followed in the subsequent cases of In the Matter of the Estate of Saguinsin,43 In re
Will of Andrada,44 Uy Coque vs. Sioca,45 In re Estate of Neumark, 46 and Sano vs. Quintana.47

Gumban vs. Gorecho, et al.,48 provided the Court with the occasion to clarify the seemingly conflicting decisions in the aforementioned
cases. In said case of Gumban, the attestation clause had failed to state that the witnesses signed the will and each and every page thereof
on the left margin in the presence of the testator. The will in question was disallowed, with these reasons therefor:

In support of their argument on the assignment of error above-mentioned, appellants rely on a series of cases of this
court beginning with (I)n the Matter of the (E)state of Saguinsin ([1920], 41 Phil., 875), continuing with In re Will of
Andrada [1921], 42 Phil., 180), Uy Coque vs. Navas L. Sioca [1922], 43 Phil., 405), and In re Estate of Neumark
([1923], 46 Phil., 841), and ending with Sano vs. Quintana ([1925], 48 Phil., 506). Appellee counters with the citation of
 a series of cases beginning with Abangan vs. Abangan ([1919], 40 Phil., 476), continuing through Aldaba vs. Roque
([1922], 43 Phil., 378), and Fernandez vs. Vergel de Dios ([1924], 46 Phil., 922), and culminating in Nayve vs. Mojal
and Aguilar ([1924], 47 Phil., 152). In its last analysis, our task is to contrast and, if possible, conciliate the last two
decisions cited by opposing counsel, namely, those of Sano vs. Quintana, supra, and Nayve vs. Mojal and Aguilar,
supra.

In the case of Sano vs. Quintana, supra, it was decided that an attestation clause which does not recite that the
witnesses signed the will and each and every page thereof on the left margin in the presence of the testator is
defective, and such a defect annuls the will. The case of Uy Coque vs. Sioca, supra, was cited, but the case of Nayve
vs. Mojal and Aguilar, supra, was not mentioned. In contrast, is the decision in Nayve vs. Mojal and Aguilar, supra,
wherein it was held that the attestation clause must estate the fact that the testator and the witnesses reciprocally saw
the signing of the will, for such an act cannot be proved by the mere exhibition of the will, if it is not stated therein. It
was also held that the fact that the testator and the witnesses signed each and every page of the will can be proved
also by the mere examination of the signatures appearing on the document itself, and the omission to state such
evident facts does not invalidate the will.

It is a habit of courts to reaffirm or distinguish previous cases; seldom do they admit inconsistency in doctrine. Yet here,
unless aided impossible to reconcile the Mojal and Quintana decisions. They are fundamentally at variance. If we rely
on one, we affirm. If we rely on the other, we reverse.

In resolving this puzzling question of authority, three outstanding points may be mentioned. In the first place, the Mojal,
decision was concurred in by only four members of the court, less than a majority, with two strong dissenting opinions;
the Quintana decision was concurred in by seven members of the court, a clear majority, with one formal dissent. In the
second place, the Mojal decision was promulgated in December, 1924, while the Quintana decision was promulgated
in December, 1925; the Quintana decision was thus subsequent in point of time. And in the third place, the Quintana
decision is believed more nearly to conform to the applicable provisions of the law.

The right to dispose of property by will is governed entirely by statute. The law of the case is here found in section 61 of
the Code of Civil Procedure as amended by Act No. 2645, and in section 634 of the same Code, as unamended. It is in
part provided in section 61, as amended that "No will . . . shall be valid . . . unless . . .." It is further provided in the same
section that "The attestation shall state the number of sheets or pages used, upon which the will is written, and the fact
that the testator signed the will and every page thereof, or caused some other person to write his name, under his
express direction, in the presence of three witnesses, and the latter witnessed and signed the will and all pages thereof
in the presence of the testator and of each other." Codal section 634 provides that "The will shall be disallowed in either
of the following case: 1. If not executed and attested as in this Act provided." The law not alone carefully makes use of
the imperative, but cautiously goes further and makes use of the negative, to enforce legislative intention. It is not
within the province of the courts to disregard the legislative purpose so emphatically and clearly expressed.

We adopt and reaffirm the decision in the case of Sano vs. Quintana, supra, and, to the extent necessary, modify the
decision in the case of Nayve vs. Mojal and Aguilar, supra. (Emphases in the original text).

But after the Gumban clarificatory pronouncement, there were decisions of the Court that once more appeared to revive the seeming
diversity of views that was earlier threshed out therein. The cases of Quinto vs. Morata,49 Rodriguez vs. Alcala,50 Enchevarria vs.
Sarmiento,51 and Testate Estate of Toray52 went the way of the ruling as restated in Gumban. But De Gala vs. Gonzales, et al.,53 Rey vs.
Cartagena,54 De Ticson vs. De Gorostiza,55 Sebastian vs. Panganiban,56 Rodriguez vs. Yap,57 Grey vs. Fabia,58 Leynez vs. Leynez,59
Martir vs. Martir,60 Alcala vs. De Villa,61 Sabado vs.
Fernandez,62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro,64 veered away from the strict interpretation rule and established a trend toward
an application of the liberal view.

The Code Commission, cognizant of such a conflicting welter of views and of the undeniable inclination towards a liberal construction,
recommended the codification of the substantial compliance rule, as it believed this rule to be in accord with the modern tendency to give a
liberal approach to the interpretation of wills. Said rule thus became what is now Article 809 of the Civil Code, with this explanation of the
Code Commission:

The present law provides for only one form of executing a will, and that is, in accordance with the formalities prescribed
by Section 618 of the Code of Civil Procedure as amended by Act No. 2645. The Supreme Court of the Philippines had
previously upheld the strict compliance with the legal formalities and had even said that the provisions of Section 618 of
the Code of Civil Procedure, as amended regarding the contents of the attestation clause were mandatory, and non-
compliance therewith invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405). These decisions necessarily restrained
the freedom of the testator in disposing of his property.

However, in recent years the Supreme Court changed its attitude and has become more liberal in the interpretation of
the formalities in the execution of wills. This liberal view is enunciated in the cases of Rodriguez vs. Yap, G.R. No.
45924, May 18, 1939; Leynez vs. Leynez, G.R. No. 46097, October 18, 1939; Martir vs. Martir, G.R. No. 46995, June
21, 1940; and Alcala vs. Villa, G.R. No. 47351, April 18, 1941.

In the above mentioned decisions of our Supreme Court, it has practically gone back to the original provisions of
Section 618 of the Code of Civil Procedure before its amendment by Act No. 2645 in the year 1916. To turn this
 attitude into a legislative declaration and to attain the main objective of the proposed Code in the liberalization of the
manner of executing wills, article 829 of the Project is recommended, which reads:

"Art. 829. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and
influence, defects and imperfections in the form of attestation or in the language used therein
shall not render the will invalid if it is proved that the will was in fact executed and attested in
substantial compliance with all the requirements of article 829."65

The so-called liberal rule, the Court said in Gil vs. Murciano,66 "does not offer any puzzle or difficulty, nor does it open the door to serious
consequences. The later decisions do tell us when and where to stop; they draw the dividing line with precision. They do not allow evidence
aliunde to fill a void in any part of the document or supply missing details that should appear in the will itself. They only permit a probe into
the will, an exploration into its confines, to ascertain its meaning or to determine the existence or absence of the requisite formalities of law.
This clear, sharp limitation eliminates uncertainty and ought to banish any fear of dire results."

It may thus be stated that the rule, as it now stands, is that omissions which can be supplied by an examination of the will itself, without the
need of resorting to extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the allowance to probate of the will being
assailed. However, those omissions which cannot be supplied except by evidence aliunde would result in the invalidation of the attestation
clause and ultimately, of the will itself.67

WHEREFORE, the petition is hereby GRANTED and the impugned decision of respondent court is hereby REVERSED and SET ASIDE.
The court a quo is accordingly directed to forthwith DISMISS its Special Proceeding No. 3899-R (Petition for the Probate of the Last Will and
Testament of Mateo Caballero) and to REVIVE Special Proceeding No. 3965-R (In the matter of the Intestate Estate of Mateo Caballero) as
an active case and thereafter duly proceed with the settlement of the estate of the said decedent.

SO ORDERED.

17. G.R. No. 189984 November 12, 2012

IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE LAST WILL
AND TESTAMENT OF ENRIQUE S. LOPEZ RICHARD B. LOPEZ, Petitioner,
vs.
DIANA JEANNE LOPEZ, MARYBETH DE LEON and VICTORIA L. TUAZON,
Respondents.

RESOLUTION

PERLAS-BERNABE, J.:

This Petition for Review on Certiorari assails the March 30, 2009 Decision1 and October 22,
2009 Resolution2 of the Court of Appeals (CA) in CA-G.R. CV No. 87064 which affirmed the
August 26, 2005 Decision3 of the Regional Trial Court of Manila, Branch 42 (RTC), in SP. Proc.
No. 99-95225 disallowing the probate of the Last Will and Testament of Enrique S. Lopez.

The Factual Antecedents

On June 21, 1999, Enrique S. Lopez (Enrique) died leaving his wife, Wendy B. Lopez, and their
four legitimate children, namely, petitioner Richard B. Lopez (Richard) and the respondents
Diana Jeanne Lopez (Diana), Marybeth de Leon (Marybeth) and Victoria L. Tuazon (Victoria) as
compulsory heirs. Before Enrique’s death, he executed a Last Will and Testament4 on August
10, 1996 and constituted Richard as his executor and administrator.
On September 27, 1999, Richard filed a petition for the probate of his father's Last Will and
Testament before the RTC of Manila with prayer for the issuance of letters testamentary in his
favor. Marybeth opposed the petition contending that the purported last will and testament was
not executed and attested as required by law, and that it was procured by undue and improper
pressure and influence on the part of Richard. The said opposition was also adopted by Victoria.

After submitting proofs of compliance with jurisdictional requirements, Richard presented the
attesting witnesses, namely: Reynaldo Maneja; Romulo Monteiro; Ana Maria Lourdes Manalo
(Manalo); and the notary public who notarized the will, Atty. Perfecto Nolasco (Atty. Nolasco).
The instrumental witnesses testified that after the late Enrique read and signed the will on each
and every page, they also read and signed the same in the latter's presence and of one another.
Photographs of the incident were taken and presented during trial. Manalo further testified that
she was the one who prepared the drafts and revisions from Enrique before the final copy of the
will was made.

Likewise, Atty. Nolasco claimed that Enrique had been his client for more than 20 years. Prior to
August 10, 1996, the latter consulted him in the preparation of the subject will and furnished him
the list of his properties for distribution among his children. He prepared the will in accordance
with Enrique's instruction and that before the latter and the attesting witnesses signed it in the
presence of one another, he translated the will which was written in English to Filipino and
added that Enrique was in good health and of sound mind at that time.

On the other hand, the oppositors presented its lone witness, Gregorio B. Paraon (Paraon),
Officer-in-Charge of the Notarial Section, Office of the Clerk of Court, RTC, Manila. His
testimony centered mainly on their findings that Atty. Nolasco was not a notary public for the
City of Manila in 1996, which on cross examination was clarified after Paraon discovered that
Atty. Nolasco was commissioned as such for the years 1994 to 1997.

Ruling of the RTC

In the Decision dated August 26, 2005,5 the RTC disallowed the probate of the will for failure to
comply with Article 805 of the Civil Code which requires a statement in the attestation clause of
the number of pages used upon which the will is written. It held that while Article 809 of the
same Code requires mere substantial compliance of the form laid down in Article 805 thereof,
the rule only applies if the number of pages is reflected somewhere else in the will with no
evidence aliunde or extrinsic evidence required. While the acknowledgment portion stated that
the will consists of 7 pages including the page on which the ratification and acknowledgment are
written, the RTC observed that it has 8 pages including the acknowledgment portion. As such, it
disallowed the will for not having been executed and attested in accordance with law.

Aggrieved, Richard filed a Notice of Appeal which the RTC granted in the Order dated October
26, 2005.6

Ruling of the Court of Appeals

On March 30, 2009,7 the CA issued the assailed decision dismissing the appeal. It held that the
RTC erroneously granted Richard's appeal as the Rules of Court is explicit that appeals in special
proceedings, as in this case, must be made through a record on appeal. Nevertheless, even on the
merits, the CA found no valid reason to deviate from the findings of the RTC that the failure to
state the number of pages of the will in the attestation clause was fatal. It noted that while Article
809 of the Civil Code sanctions mere substantial compliance with the formal requirements set
forth in Article 805 thereof, there was a total omission of such fact in the attestation clause.
Moreover, while the acknowledgment of the will made mention of "7 pages including the page
on which the ratification and acknowledgment are written," the will had actually 8 pages
including the acknowledgment portion thus, necessitating the presentation of evidence aliunde to
explain the discrepancy. Richard's motion for reconsideration from the decision was likewise
denied in the second assailed Resolution8 dated October 22, 2009.

Hence, the instant petition assailing the propriety of the CA's decision.

Ruling of the Court

The petition lacks merit.

The provisions of the Civil Code on Forms of Wills, particularly, Articles 805 and 809 of the
Civil Code provide:

ART. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testator's name written by some other person in his presence, and by his
express direction, and attested and subscribed by three or more credible witnesses in the presence
of the testator and of one another.

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

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

If the attestation clause is in a language not known to the witnesses, it shall be interpreted to
them.1âwphi1 (underscoring supplied)

ART. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and
influence, defects and imperfections in the form of attestation or in the language used therein
shall not render the will invalid if it is proved that the will was in fact executed and attested in
substantial compliance with all the requirements of Article 805.
The law is clear that the attestation must state the number of pages used upon which the will is
written. The purpose of the law is to safeguard against possible interpolation or omission of one
or some of its pages and prevent any increase or decrease in the pages.9

While Article 809 allows substantial compliance for defects in the form of the attestation clause,
Richard likewise failed in this respect. The statement in the Acknowledgment portion of the
subject last will and testament that it "consists of 7 pages including the page on which the
ratification and acknowledgment are written"10 cannot be deemed substantial compliance. The
will actually consists of 8 pages including its acknowledgment which discrepancy cannot be
explained by mere examination of the will itself but through the presentation of evidence
aliund.11 On this score is the comment of Justice J.B.L. Reyes regarding the application of
Article 809, to wit:

x x x The rule must be limited to disregarding those defects that can be supplied by an
examination of the will itself: whether all the pages are consecutively numbered; whether the
signatures appear in each and every page; whether the subscribing witnesses are three or the will
was notarized. All these are facts that the will itself can reveal, and defects or even omissions
concerning them in the attestation clause can be safely disregarded. But the total number of
pages, and whether all persons required to sign did so in the presence of each other must
substantially appear in the attestation clause, being the only check against perjury in the probate
proceedings.12 (Emphasis supplied)

Hence, the CA properly sustained the disallowance of the will. Moreover, it correctly ruled that
Richard pursued the wrong mode of appeal as Section 2(a), Rule 41 of the Rules of Court
explicitly provides that in special proceedings, as in this case, the appeal shall be made by record
on appeal.

WHEREFORE, premises considered, the petition is DENIED.

SO ORDERED.

18. G.R. No. 145545 June 30, 2008

PAZ SAMANIEGO-CELADA, petitioner,

vs.
LUCIA D. ABENA, respondent.

DECISION

QUISUMBING, J.:

This is a petition for review under Rule 45 of the 1997 Rules of Civil Procedure seeking to
reverse the Decision1 dated October 13, 2000 of the Court of Appeals in CA-G.R. CV No.
41756, which affirmed the Decision2 dated March 2, 1993 of the Regional Trial Court (RTC),
Branch 66, Makati City. The RTC had declared the last will and testament of Margarita S.
Mayores probated and designated respondent Lucia D. Abena as the executor of her will. It also
ordered the issuance of letters testamentary in favor of respondent.

The facts are as follows:

Petitioner Paz Samaniego-Celada was the first cousin of decedent Margarita S. Mayores
(Margarita) while respondent was the decedent’s lifelong companion since 1929.

On April 27, 1987, Margarita died single and without any ascending nor descending heirs as her
parents, grandparents and siblings predeceased her. She was survived by her first cousins
Catalina Samaniego-Bombay, Manuelita Samaniego Sajonia, Feliza Samaniego, and petitioner.

Before her death, Margarita executed a Last Will and Testament3 on February 2, 1987 where she
bequeathed one-half of her undivided share of a real property located at Singalong Manila,
consisting of 209.8 square meters, and covered by Transfer Certificate of Title (TCT) No. 1343
to respondent, Norma A. Pahingalo, and Florentino M. Abena in equal shares or one-third
portion each. She likewise bequeathed one-half of her undivided share of a real property located
at San Antonio Village, Makati, consisting of 225 square meters, and covered by TCT No. 68920
to respondent, Isabelo M. Abena, and Amanda M. Abena in equal shares or one-third portion
each. Margarita also left all her personal properties to respondent whom she likewise designated
as sole executor of her will.

On August 11, 1987, petitioner filed a petition for letters of administration of the estate of
Margarita before the RTC of Makati. The case was docketed as SP Proc. No. M-1531.

On October 27, 1987, respondent filed a petition for probate of the will of Margarita before the
RTC of Makati. The case was docketed as SP Proc. No. M-1607 and consolidated with SP Proc.
No. M-1531.

On March 2, 1993, the RTC rendered a decision declaring the last will and testament of
Margarita probated and respondent as the executor of the will. The dispositive portion of the
decision states:

In view of the foregoing, judgment is hereby rendered:

1) declaring the will as probated;

2) declaring Lucia Abena as the executor of the will who will serve as such without a
bond as stated in paragraph VI of the probated will;

3) ordering the issuance of letters testamentary in favor of Lucia Abena.

So ordered.4
Petitioner appealed the RTC decision to the Court of Appeals. But the Court of Appeals, in a
decision dated October 13, 2000, affirmed in toto the RTC ruling. The dispositive portion of the
Court of Appeals’ decision states:

WHEREFORE, foregoing premises considered, the appeal having no merit in fact and in
law, is hereby ORDERED DISMISSED and the appealed Decision of the trial court
AFFIRMED IN TOTO, with cost to oppositors-appellants.

SO ORDERED.5

Hence, the instant petition citing the following issues:

I.

WHETHER OR NOT THE COURT OF APPEALS COMMITTED A REVERSIBLE

ERROR IN NOT INVALIDATING THE WILL SINCE IT DID NOT CONFORM TO
THE FORMALITIES REQUIRED BY LAW;

II.

WHETHER OR NOT THE COURT OF APPEALS COMMITTED ERROR IN NOT

INVALIDATING THE WILL BECAUSE IT WAS PROCURED THROUGH UNDUE
INFLUENCE AND PRESSURE[;] AND

III.

WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN NOT

DECLARING PETITIONER, HER SIBLINGS AND COUSIN AS THE LEGAL HEIRS
OF MARGARITA S. MAYORES AND IN NOT ISSUING LETTERS OF
ADMINISTRATION TO HER.6

Briefly stated, the issues are (1) whether the Court of Appeals erred in not declaring the will
invalid for failure to comply with the formalities required by law, (2) whether said court erred in
not declaring the will invalid because it was procured through undue influence and pressure, and
(3) whether it erred in not declaring petitioner and her siblings as the legal heirs of Margarita,
and in not issuing letters of administration to petitioner.

Petitioner, in her Memorandum,7 argues that Margarita’s will failed to comply with the
formalities required under Article 8058 of the Civil Code because the will was not signed by the
testator in the presence of the instrumental witnesses and in the presence of one another. She also
argues that the signatures of the testator on pages A, B, and C of the will are not the same or
similar, indicating that they were not signed on the same day. She further argues that the will was
procured through undue influence and pressure because at the time of execution of the will,
Margarita was weak, sickly, jobless and entirely dependent upon respondent and her nephews for
support, and these alleged handicaps allegedly affected her freedom and willpower to decide on
her own. Petitioner thus concludes that Margarita’s total dependence on respondent and her
nephews compelled her to sign the will. Petitioner likewise argues that the Court of Appeals
should have declared her and her siblings as the legal heirs of Margarita since they are her only
living collateral relatives in accordance with Articles 10099 and 101010 of the Civil Code.

Respondent, for her part, argues in her Memorandum11 that the petition for review raises
questions of fact, not of law and as a rule, findings of fact of the Court of Appeals are final and
conclusive and cannot be reviewed on appeal to the Supreme Court. She also points out that
although the Court of Appeals at the outset opined there was no compelling reason to review the
petition, the Court of Appeals proceeded to tackle the assigned errors and rule that the will was
validly executed, sustaining the findings of the trial court that the formalities required by law
were duly complied with. The Court of Appeals also concurred with the findings of the trial
court that the testator, Margarita, was of sound mind when she executed the will.

After careful consideration of the parties’ contentions, we rule in favor of respondent.

We find that the issues raised by petitioner concern pure questions of fact, which may not be the
subject of a petition for review on certiorari under Rule 45 of the Rules of Civil Procedure.

The issues that petitioner is raising now i.e., whether or not the will was signed by the testator in
the presence of the witnesses and of one another, whether or not the signatures of the witnesses
on the pages of the will were signed on the same day, and whether or not undue influence was
exerted upon the testator which compelled her to sign the will, are all questions of fact.

This Court does not resolve questions of fact in a petition for review under Rule 45 of the 1997
Rules of Civil Procedure. Section 112 of Rule 45 limits this Court’s review to questions of law
only.

Well-settled is the rule that the Supreme Court is not a trier of facts. When supported by
substantial evidence, the findings of fact of the Court of Appeals are conclusive and binding on
the parties and are not reviewable by this Court, unless the case falls under any of the following
recognized exceptions:

(1) When the conclusion is a finding grounded entirely on speculation, surmises and
conjectures;

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

(3) Where there is a grave abuse of discretion;

(4) When the judgment is based on a misapprehension of facts;

(5) When the findings of fact are conflicting;

(6) When the Court of Appeals, in making its findings, went beyond the issues of the case
and the same is contrary to the admissions of both appellant and appellee;
 (7) When the findings are contrary to those of the trial court;

(8) When the findings of fact are conclusions without citation of specific evidence on
which they are based;

(9) When the facts set forth in the petition as well as in the petitioners’ main and reply
briefs are not disputed by the respondents; and

(10) When the findings of fact of the Court of Appeals are premised on the supposed
absence of evidence and contradicted by the evidence on record.13

We find that this case does not involve any of the abovementioned exceptions.

Nonetheless, a review of the findings of the RTC as upheld by the Court of Appeals, reveal that
petitioner’s arguments lack basis. The RTC correctly held:

With [regard] to the contention of the oppositors [Paz Samaniego-Celada, et al.] that the
testator [Margarita Mayores] was not mentally capable of making a will at the time of the
execution thereof, the same is without merit. The oppositors failed to establish, by
preponderance of evidence, said allegation and contradict the presumption that the
testator was of sound mind (See Article 800 of the Civil Code). In fact, witness for the
oppositors, Dr. Ramon Lamberte, who, in some occasions, attended to the testator months
before her death, testified that Margarita Mayores could engage in a normal conversation
and he even stated that the illness of the testator does not warrant hospitalization…. Not
one of the oppositor’s witnesses has mentioned any instance that they observed act/s of
the testator during her lifetime that could be construed as a manifestation of mental
incapacity. The testator may be admitted to be physically weak but it does not necessarily
follow that she was not of sound mind. [The] testimonies of contestant witnesses are pure
aforethought.

Anent the contestants’ submission that the will is fatally defective for the reason that its
attestation clause states that the will is composed of three (3) pages while in truth and in
fact, the will consists of two (2) pages only because the attestation is not a part of the
notarial will, the same is not accurate. While it is true that the attestation clause is not a
part of the will, the court, after examining the totality of the will, is of the considered
opinion that error in the number of pages of the will as stated in the attestation clause is
not material to invalidate the subject will. It must be noted that the subject instrument is
consecutively lettered with pages A, B, and C which is a sufficient safeguard from the
possibility of an omission of some of the pages. The error must have been brought about
by the honest belief that the will is the whole instrument consisting of three (3) pages
inclusive of the attestation clause and the acknowledgement. The position of the court is
in consonance with the "doctrine of liberal interpretation" enunciated in Article 809 of
the Civil Code which reads:

"In the absence of bad faith, forgery or fraud, or undue [and] improper
pressure and influence, defects and imperfections in the form of attestation
 or in the language used therein shall not render the will invalid if it is proved
that the will was in fact executed and attested in substantial compliance with
all the requirements of Article 805."

The court also rejects the contention of the oppositors that the signatures of the testator
were affixed on different occasions based on their observation that the signature on the
first page is allegedly different in size, texture and appearance as compared with the
signatures in the succeeding pages. After examination of the signatures, the court does
not share the same observation as the oppositors. The picture (Exhibit "H-3") shows that
the testator was affixing her signature in the presence of the instrumental witnesses and
the notary. There is no evidence to show that the first signature was procured earlier than
February 2, 1987.

Finally, the court finds that no pressure nor undue influence was exerted on the testator to
execute the subject will. In fact, the picture reveals that the testator was in a good mood
and smiling with the other witnesses while executing the subject will (See Exhibit "H").

In fine, the court finds that the testator was mentally capable of making the will at the
time of its execution, that the notarial will presented to the court is the same notarial will
that was executed and that all the formal requirements (See Article 805 of the Civil Code)
in the execution of a will have been substantially complied with in the subject notarial
will.14 (Emphasis supplied.)

Thus, we find no reason to disturb the abovementioned findings of the RTC. Since, petitioner
and her siblings are not compulsory heirs of the decedent under Article 88715 of the Civil Code
and as the decedent validly disposed of her properties in a will duly executed and probated,
petitioner has no legal right to claim any part of the decedent’s estate.

WHEREFORE, the petition is DENIED. The assailed Decision dated October 13, 2000 of the
Court of Appeals in CA-G.R. CV No. 41756 is AFFIRMED.

Costs against petitioner.

SO ORDERED.

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

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

LABRADOR. SAGRADO LABRADOR (Deceased), substituted by ROSITA LABRADOR,
ENRICA LABRADOR, and CRISTOBAL LABRADOR, petitioners-appellants,
vs.
COURT OF APPEALS, 1 GAUDENCIO LABRADOR, and JESUS LABRADOR,
respondents-appellees.
Benjamin C. Santos Law Offices for petitioners.
Rodrigo V. Fontelera for private respondents.

PARAS, J.:

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

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

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

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

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

After both parties had rested and submitted their respective evidence, the trial court rendered a
joint decision dated February 28, 1985, allowing the probate of the holographic will and
declaring null and void the Deed of Absolute sale. The court a quo had also directed the
respondents (the defendants in Civil Case No. 934-I) to reimburse to the petitioners the sum of
P5,000.00 representing the redemption price for the property paid by the plaintiff-petitioner
Sagrado with legal interest thereon from December 20, 1976, when it was paid to vendee a retro.

Respondents appealed the joint decision to the Court of Appeals, which on March 10, 1988
modified said joint decision of the court a quo by denying the allowance of the probate of the
will for being undated and reversing the order of reimbursement. Petitioners' Motion for
Reconsideration of the aforesaid decision was denied by the Court of Appeals, in the resolution
of June 13, 1988. Hence, this petition.

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

THE COURT OF APPEALS ERRED IN NOT ALLOWING AND APPROVING THE

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

II

THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER OF THE

LOWER COURT DIRECTING THE REIMBURSEMENT OF THE FIVE THOUSAND
PESOS REPRESENTING THE REDEMPTION PRICE WAS ERRONEOUS.

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

ENGLISH INTERPRETATION OF THE WILL OF THE

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

I — First Page

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

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

II — Second Page

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

Now, this is the final disposition that I am making in writing and it is this that should be
followed and complied with in order that any differences or troubles may be forestalled
and nothing will happen along these troubles among my children, and that they will be in
good relations among themselves, brothers and sisters;

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

III — THIRD PAGE

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

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

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

The will has been dated in the hand of the testator himself in perfect compliance with Article
810.1âwphi1 It is worthy of note to quote the first paragraph of the second page of the
holographic will, viz:

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

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

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

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

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

SO ORDERED.

REQUIREMENTS OF PROBATE

1. G.R. No. L-48840 December 29, 1943

ERNESTO M. GUEVARA, petitioner-appellant,

vs.
ROSARIO GUEVARA and her husband PEDRO BUISON, respondent-appellees.

Primacias, Abad, Mencias & Castillo for appellant.

Pedro C. Quinto for appellees.
OZAETA, J.:

Ernesto M. Guevarra and Rosario Guevara, ligitimate son and natural daughter, respectively, of
the deceased Victorino L. Guevara, are litigating here over their inheritance from the latter. The
action was commenced on November 12, 1937, by Rosario Guevara to recover from Ernesto
Guevara what she claims to be her strict ligitime as an acknowledged natural daughter of the
deceased — to wit, a portion of 423,492 square meters of a large parcel of land described in
original certificate of title No. 51691 of the province of Pangasinan, issued in the name of
Ernesto M. Guervara — and to order the latter to pay her P6,000 plus P2,000 a year as damages
for withholding such legitime from her. The defendant answered the complaint contending that
whatever right or rights the plaintiff might have had, had been barred by the operation of law.

It appears that on August 26, 1931, Victorino L. Guevara executed a will (exhibit A), apparently
with all the formalities of the law, wherein he made the following bequests: To his stepdaughter
Candida Guevara, a pair of earrings worth P150 and a gold chain worth P40; to his son Ernesto
M. Guevara, a gold ring worth P180 and all the furniture, pictures, statues, and other religious
objects found in the residence of the testator in Poblacion Sur, Bayambang, Pangasinan; "a mi
hija Rosario Guevara," a pair of earrings worth P120; to his stepson Piuo Guevara, a ring worth
P120; and to his wife by second marriage, Angustia Posadas, various pieces of jewelry worth
P1,020.

He also made the following devises: "A mis hijos Rosario Guevara y Ernesto M. Guevara y a
mis hijastros, Vivencio, Eduviges, Dionisia, Candida y Pio, apellidados Guevara," a residential
lot with its improvements situate in the town of Bayambang, Pangasinan, having an area of 960
square meters and assessed at P540; to his wife Angustia Posadas he confirmed the donation
propter nuptias theretofore made by him to her of a portion of 25 hectares of the large parcel of
land of 259-odd hectares described in plan Psu-66618. He also devised to her a portion of 5
hectares of the same parcel of land by way of complete settlement of her usufructurary
right.1awphil.net

He set aside 100 hectares of the same parcel of land to be disposed of either by him during his
lifetime or by his attorney-in-fact Ernesto M. Guevara in order to pay all his pending debts and to
degray his expenses and those of his family us to the time of his death.

The remainder of said parcel of land his disposed of in the following manner:

(d). — Toda la porcion restante de mi terreno arriba descrito, de la extension superficial

aproximada de ciento veintinueve (129) hectareas setenta (70) areas, y veiticinco (25)
centiares, con todas sus mejoras existentes en la misma, dejo y distribuyo, pro-indiviso, a
mis siguientes herederos como sigue:

A mi hijo legitimo, Ernesto M. Guevara, ciento ocho (108) hectareas, ocho (8) areas y
cincuenta y cuatro (54) centiareas, hacia la parte que colinda al Oeste de las cien (100)
hectareas referidas en el inciso (a) de este parrafo del testamento, como su propiedad
 absoluta y exclusiva, en la cual extension superficial estan incluidas cuarenta y tres (43)
hectareas, veintitres (23) areas y cuarenta y dos (42) centiareas que le doy en concepto de
mejora.

A mi hija natural reconocida, Rosario Guevara, veintiun (21) hectareas, sesenta y un (61)
areas y setenta y un (71) centiareas, que es la parte restante.

Duodecimo. — Nombro por la presente como Albacea Testamentario a mi hijo Ernesto

M. Guevara, con relevacion de fianza. Y una vez legalizado este testamento, y en cuanto
sea posible, es mi deseo, que los herederos y legatarios aqui nombrados se repartan
extrajudicialmente mis bienes de conformidad con mis disposiciones arriba consignadas.

Subsequently, and on July 12, 1933, Victorino L. Guevarra executed whereby he conveyed to
him the southern half of the large parcel of land of which he had theretofore disposed by the will
above mentioned, inconsideration of the sum of P1 and other valuable considerations, among
which were the payment of all his debts and obligations amounting to not less than P16,500, his
maintenance up to his death, and the expenses of his last illness and funeral expenses. As to the
northern half of the same parcel of land, he declared: "Hago constar tambien que reconozco a mi
referido hijo Ernesto M. guevara como dueño de la mitad norte de la totalidad y conjunto de los
referidos terrenos por haberlos comprado de su propio peculio del Sr. Rafael T. Puzon a quien
habia vendido con anterioridad."

On September 27, 1933, final decree of registration was issued in land registration case No.
15174 of the Court of First Instance of Pangasinan, and pursuant thereto original certificate of
title No. 51691 of the same province was issued on October 12 of the same year in favor of
Ernesto M. Guevara over the whole parcel of land described in the deed of sale above referred to.
The registration proceeding had been commenced on November 1, 1932, by Victorino L.
Guevara and Ernesto M. Guevara as applicants, with Rosario, among others, as oppositor; but
before the trial of the case Victorino L. Guevara withdrew as applicant and Rosario Guevara and
her co-oppositors also withdrew their opposition, thereby facilitating the issuance of the title in
the name of Ernesto M. Guevara alone.

On September 27, 1933, Victorino L. Guevarra died. His last will and testament, however, was
never presented to the court for probate, nor has any administration proceeding ever been
instituted for the settlement of his estate. Whether the various legatees mentioned in the will have
received their respective legacies or have even been given due notice of the execution of said
will and of the dispositions therein made in their favor, does not affirmatively appear from the
record of this case. Ever since the death of Victorino L. Guevara, his only legitimate son Ernesto
M. Guevara appears to have possessed the land adjudicated to him in the registration proceeding
and to have disposed of various portions thereof for the purpose of paying the debts left by his
father.

In the meantime Rosario Guevara, who appears to have had her father's last will and testament in
her custody, did nothing judicially to invoke the testamentary dispositions made therein in her
favor, whereby the testator acknowledged her as his natural daughter and, aside from certain
legacies and bequests, devised to her a portion of 21.6171 hectares of the large parcel of land
described in the will. But a little over four years after the testor's demise, she (assisted by her
husband) commenced the present action against Ernesto M. Guevara alone for the purpose
hereinbefore indicated; and it was only during the trial of this case that she presented the will to
the court, not for the purpose of having it probated but only to prove that the deceased Victirino
L. Guevara had acknowledged her as his natural daughter. Upon that proof of acknowledgment
she claimed her share of the inheritance from him, but on the theory or assumption that he died
intestate, because the will had not been probated, for which reason, she asserted, the betterment
therein made by the testator in favor of his legitimate son Ernesto M. Guevara should be
disregarded. Both the trial court and the Court of appeals sustained that theory.

Two principal questions are before us for determination: (1) the legality of the procedure adopted
by the plaintiff (respondent herein) Rosario Guevara; and (2) the efficacy of the deed of sale
exhibit 2 and the effect of the certificate of title issued to the defendant (petitioner herein)
Ernesto M. Guevara.

We cannot sanction the procedure adopted by the respondent Rosario Guevara, it being in our
opinion in violation of procedural law and an attempt to circumvent and disregard the last will
and testament of the decedent. The Code of Civil Procedure, which was in force up to the time
this case was decided by the trial court, contains the following pertinent provisions:

Sec. 625. Allowance Necessary, and Conclusive as to Execution. — No will shall pass
either the real or personal estate, unless it is proved and allowed in the Court of First
Instance, or by appeal to the Supreme Court; and the allowance by the court of a will of
real and personal estate shall be conclusive as to its due execution.

Sec. 626. Custodian of Will to Deliver. — The person who has the custody of a will shall,
within thirty days after he knows of the death of the testator, deliver the will into the
court which has jurisdiction, or to the executor named in the will.

Sec. 627. Executor to Present Will and Accept or Refuse Trust. — A person named as
executor in a will, shall within thirty days after he knows of the death of the testor, or
within thirty days after he knows that he is named executor, if he obtained such
knowledge after knowing of the death of the testor, present such will to the court which
has jurisdiction, unless the will has been otherwise returned to said court, and shall,
within such period, signify to the court his acceptance of the trust, or make known in
writing his refusal to accept it.

Sec. 628. Penalty. — A person who neglects any of the duties required in the two
proceeding sections, unless he gives a satisfactory excuse to the court, shall be subject to
a fine not exceeding one thousand dollars.

Sec. 629. Person Retaining Will may be Committed. — If a person having custody of a
will after the death of the testator neglects without reasonable cause to deliver the same to
the court having jurisdiction, after notice by the court so to do, he may be committed to
 the prison of the province by a warrant issued by the court, and there kept in close
confinement until he delivers the will.

The foregoing provisions are now embodied in Rule 76 of the new Rules of Court, which took
effect on July 1, 1940.

The proceeding for the probate of a will is one in rem, with notice by publication to the whole
world and with personal notice to each of the known heirs, legatees, and devisees of the testator
(section 630, C. c. P., and sections 3 and 4, Rule 77). Altho not contested (section 5, Rule 77),
the due execution of the will and the fact that the testator at the time of its execution was of
sound and disposing mind and not acting under duress, menace, and undue influence or fraud,
must be proved to the satisfaction of the court, and only then may the will be legalized and given
effect by means of a certificate of its allowance, signed by the judge and attested by the seal of
the court; and when the will devises real property, attested copies thereof and of the certificate of
allowance must be recorded in the register of deeds of the province in which the land lies.
(Section 12, Rule 77, and section 624, C. C. P.)

It will readily be seen from the above provisions of the law that the presentation of a will to the
court for probate is mandatory and its allowance by the court is essential and indispensable to its
efficacy. To assure and compel the probate of will, the law punishes a person who neglects his
duty to present it to the court with a fine not exceeding P2,000, and if he should persist in not
presenting it, he may be committed to prision and kept there until he delivers the will.

The Court of Appeals took express notice of these requirements of the law and held that a will,
unless probated, is ineffective. Nevertheless it sanctioned the procedure adopted by the
respondent for the following reasons:

The majority of the Court is of the opinion that if this case is dismissed ordering the filing
of testate proceedings, it would cause injustice, incovenience, delay, and much expense to
the parties, and that therefore, it is preferable to leave them in the very status which they
themselves have chosen, and to decide their controversy once and for all, since, in a
similar case, the Supreme Court applied that same criterion (Leaño vs. Leaño, supra),
which is now sanctioned by section 1 of Rule 74 of the Rules of Court. Besides, section 6
of Rule 124 provides that, if the procedure which the court ought to follow in the exercise
of its jurisdiction is not specifically pointed out by the Rules of Court, any suitable
process or mode of procedure may be adopted which appears most consistent to the spirit
of the said Rules. Hence, we declare the action instituted by the plaintiff to be in
accordance with law.

Let us look into the validity of these considerations. Section 1 of Rule 74 provides as follows:

Section 1. Extrajudicial settlement by agreement between heirs. — If the decedent left no

debts and the heirs and legatees are all of age, or the minors are represented by their
judicial guardians, the parties may, without securing letters of administration, divide the
estate among themselves as they see fit by means of a public instrument filed in the office
of the register of deeds, and should they disagree, they may do so in an ordinary action of
 partition. If there is only one heir or one legatee, he may adjudicate to himself the entire
estate by means of an affidavit filed in the office of the register of deeds. It shall be
presumed that the decedent left no debts if no creditor files a petition for letters of
administration within two years after the death of the decedent.

That is a modification of section 596 of the Code of Civil Procedure, which reads as follows:

Sec. 596. Settlement of Certain Intestates Without Legal Proceedings. — Whenever all
the heirs of a person who died intestate are of lawful age and legal capacity and there are
no debts due from the estate, or all the debts have been paid the heirs may, by agreement
duly executed in writing by all of them, and not otherwise, apportion and divide the estate
among themselves, as they may see fit, without proceedings in court.

The implication is that by the omission of the word "intestate" and the use of the word "legatees"
in section 1 of Rule 74, a summary extrajudicial settlement of a deceased person's estate, whether
he died testate or intestate, may be made under the conditions specified. Even if we give
retroactive effect to section 1 of Rule 74 and apply it here, as the Court of Appeals did, we do not
believe it sanctions the nonpresentation of a will for probate and much less the nullification of
such will thru the failure of its custodian to present it to the court for probate; for such a result is
precisely what Rule 76 sedulously provides against. Section 1 of Rule 74 merely authorizes the
extrajudicial or judicial partition of the estate of a decedent "without securing letter of
administration." It does not say that in case the decedent left a will the heirs and legatees may
divide the estate among themselves without the necessity of presenting the will to the court for
probate. The petition to probate a will and the petition to issue letters of administration are two
different things, altho both may be made in the same case. the allowance of a will precedes the
issuance of letters testamentary or of administration (section 4, Rule 78). One can have a will
probated without necessarily securing letters testamentary or of administration. We hold that
under section 1 of Rule 74, in relation to Rule 76, if the decedent left a will and no debts and the
heirs and legatees desire to make an extrajudicial partition of the estate, they must first present
that will to the court for probate and divide the estate in accordance with the will. They may not
disregard the provisions of the will unless those provisions are contrary to law. Neither may they
so away with the presentation of the will to the court for probate, because such suppression of the
will is contrary to law and public policy. The law enjoins the probate of the will and public
policy requires it, because unless the will is probated and notice thereof given to the whole
world, the right of a person to dispose of his property by will may be rendered nugatory, as is
attempted to be done in the instant case. Absent legatees and devisees, or such of them as may
have no knowledge of the will, could be cheated of their inheritance thru the collusion of some of
the heirs who might agree to the partition of the estate among themselves to the exclusion of
others.

In the instant case there is no showing that the various legatees other than the present litigants
had received their respective legacies or that they had knowledge of the existence and of the
provisions of the will. Their right under the will cannot be disregarded, nor may those rights be
obliterated on account of the failure or refusal of the custodian of the will to present it to the
court for probate.
Even if the decedent left no debts and nobdy raises any question as to the authenticity and due
execution of the will, none of the heirs may sue for the partition of the estate in accordance with
that will without first securing its allowance or probate by the court, first, because the law
expressly provides that "no will shall pass either real or personal estate unless it is proved and
allowed in the proper court"; and, second, because the probate of a will, which is a proceeding in
rem, cannot be dispensed with the substituted by any other proceeding, judicial or extrajudicial,
without offending against public policy designed to effectuate the testator's right to dispose of his
property by will in accordance with law and to protect the rights of the heirs and legatees under
the will thru the means provided by law, among which are the publication and the personal
notices to each and all of said heirs and legatees. Nor may the court approve and allow the will
presented in evidence in such an action for partition, which is one in personam, any more than it
could decree the registration under the Torrens system of the land involved in an ordinary action
for reinvindicacion or partition.

We therefore believe and so hold that section 1 of Rule 74, relied upon by the Court of Appeals,
does not sanction the procedure adopted by the respondent.

The case of Leaño vs. Leaño (25 Phil., 180), cited by the Court of Appeals, like section 1 of Rule
74, sanctions the extrajudicial partition by the heirs of the properties left by a decedent, but not
the nonpresentation of a will for probate. In that case one Paulina Ver executed a will on October
11, 1902, and died on November 1, 1902. Her will was presented for probate on November 10,
1902, and was approved and allowed by the Court on August 16, 1904. In the meantime, and on
November 10, 1902, the heirs went ahead and divided the properties among themselves and
some of them subsequently sold and disposed of their shares to third persons. It does not
affirmatively appear in the decision in that case that the partition made by the heirs was not in
accordance with the will or that they in any way disregarded the will. In closing the case by its
order dated September 1, 1911, the trial court validated the partition, and one of the heirs,
Cunegunda Leaño, appealed. In deciding the appeal this Court said:

The principal assignment of error is that the lower court committed an error in deciding
that the heirs and legatees of the estate of Dña. Paulina Ver had voluntarily divided the
estate among themselves.

In resolving that question this Court said:

In view of the positive finding of the judge of the lower court that there had been a
voluntary partition of the estate among the heirs and legatees, and in the absence of
positive proof to the contrary, we must conclude that the lower court had some evidence
to support its conclusion.

Thus it will be seen that as a matter of fact no question of law was raised and decided in that
case. That decision cannot be relied upon as an authority for the unprecedented and unheard of
procedure adopted by the respondent whereby she seeks to prove her status as an acknowledged
natural child of the decedent by his will and attempts to nullify and circumvent the testamentary
dispositions made by him by not presenting the will to the court for probate and by claiming her
legitime as an acknowledged natural child on the basis of intestacy; and that in the face of
express mandatory provisions of the law requiring her to present the will to the court for probate.

In the subsequent case of Riosa vs. Rocha (1926), 48 Phil. 737, this Court departed from the
procedure sanctioned by the trial court and impliedly approved by this Court in the Leaño case,
by holding that an extrajudicial partition is not proper in testate succession. In the Riosa case the
Court, speaking thru Chief Justice Avanceña, held:

1. EXTRAJUDICIAL PARTITION; NOT PROPER IN TESTATE SUCCESSION. —

Section 596 of the Code of Civil Procedure, authorizing the heirs of a person who dies
intestate to make extrajudicial partition of the property of the deceased, without going
into any court of justice, makes express reference to intestate succession, and therefore
excludes testate succession.

2. ID.; EFFECTS OF; TESTATE SUCCESSION. — In the instant case, which is a

testate succession, the heirs made an extrajudicial partition of the estate and at the same
time instituted proceeding for the probate of the will and the administration of the estate.
When the time came for making the partition, they submitted to the court the extrajudicial
partition previously made by them, which the court approved. Held: That for the purposes
of the reservation and the rights and obligations created thereby, in connection with the
relatives benefited, the property must not be deemed transmitted to the heirs from the
time the extrajudicial partition was made, but from the time said partition was approved
by the court. (Syllabus.)

The Court of Appeals also cites section 6 of Rule 124, which provides that if the procedure
which the court ought to follow in the exercise of its jurisdiction is not specifically pointed out
by the Rules of Court, any suitable process for mode of proceeding may be adopted which
appears most conformable to the spirit of the said Rules. That provision is not applicable here for
the simple reason that the procedure which the court ought to follow in the exercise of its
jurisdiction is specifically pointed out and prescribed in detail by Rules 74, 76, and 77 of the
Rules of Court.

The Court of Appeals also said "that if this case is dismissed, ordering the filing of testate
proceedings, it would cause injustice, inconvenience, delay, and much expense to the parties."
We see no injustice in requiring the plaintiff not to violate but to comply with the law. On the
contrary, an injustice might be committed against the other heirs and legatees mentioned in the
will if the attempt of the plaintiff to nullify said will by not presenting it to the court for probate
should be sanctioned. As to the inconvenience, delay, and expense, the plaintiff herself is to
blame because she was the custodian of the will and she violated the duty imposed upon her by
sections 2, 4, and 5 of Rule 76, which command her to deliver said will to the court on pain of a
fine not exceeding P2,000 and of imprisonment for contempt of court. As for the defendant, he is
not complaining of inconvenience, delay, and expense, but on the contrary he is insisting that the
procedure prescribed by law be followed by the plaintiff.

Our conclusion is that the Court of Appeals erred in declaring the action instituted by the
plaintiff to be in accordance with law. It also erred in awarding relief to the plaintiff in this action
on the basis of intestacy of the decedent notwithstanding the proven existence of a will left by
him and solely because said will has not been probated due to the failure of the plaintiff as
custodian thereof to comply with the duty imposed upon her by the law.

It is apparent that the defendant Ernesto M. Guevara, who was named executor in said will, did
not take any step to have it presented to the court for probate and did not signify his acceptance
of the trust or refusal to accept it as required by section 3 of Rule 76 (formerly section 627 of the
Code of Civil Procedure), because his contention is that said will, insofar as the large parcel of
land in litigation is concerned, has been superseded by the deed of sale exhibit 2 and by the
subsequent issuance of the Torrens certificate of title in his favor.

II

This brings us to the consideration of the second question, referring to the efficacy of the deed of
sale exhibit 2 and the effect of the certificate of titled issued to the defendant Ernesto M.
Guevara. So that the parties may not have litigated here in vain insofar as that question is
concerned, we deem it proper to decide it now and obviate the necessity of a new action.

The deed of sale exhibit 2 executed by and between Victorino L. Guevara and Ernesto M.
Guevara before a notary public on July 12, 1933, may be divided into two parts: (a) insofar as it
disposes of and conveys to Ernesto M. Guevara the southern half of Victorino L. Guevara's
hacienda of 259-odd hectares in consideration of P1 and other valuable considerations therein
mentioned; and (b) insofar as it declares that Ernesto M. Guevara became the owner of the
northern half of the same hacienda by repurchasing it with his own money from Rafael T. Puzon.

A. As to the conveyance of the southern half of the hacienda to Ernesto M. Guevara in

consideration of the latter's assumption of the obligation to pay all the debts of the deceased, the
Court of Appeals found it to be valid and efficacious because: "(a) it has not been proven that the
charges imposed as a condition is [are] less than the value of the property; and (b) neither has it
been proven that the defendant did not comply with the conditions imposed upon him in the deed
of transfer." As a matter of fact the Court of Appeals found" "It appears that the defendant has
been paying the debts left by his father. To accomplish this, he had to alienate considerable
portions of the above-mentioned land. And we cannot brand such alienation as anomalous unless
it is proven that they have exceeded the value of what he has acquired by virtue of the deed of
July 12, 1933, and that of his corresponding share in the inheritance." The finding of the Court of
Appeals on this aspect of the case is final and conclusive upon the respondent, who did not
appeal therefrom.

B. With regard to the northern half of the hacienda, the findings of fact and of law made by the
Court of Appeals are as follows:

The defendant has tried to prove that with his own money, he bought from Rafael Puzon
one-half of the land in question, but the Court a quo, after considering the evidence,
found it not proven; we hold that such conclusion is well founded. The acknowledgment
by the deceased, Victorino L. Guevara, of the said transactions, which was inserted
incidentally in the document of July 12, 1933, is clearly belied by the fact that the money
 paid to Rafael Puzon came from Silvestre P. Coquia, to whom Victorino L. Guevara had
sold a parcel of land with the right of repurchase. The defendant, acting for his father,
received the money and delivered it to Rafael Puzon to redeem the land in question, and
instead of executing a deed of redemption in favor of Victorino L. Guevara, the latter
executed a deed of sale in favor of the defendant.

The plaintiff avers that she withdrew her opposition to the registration of the land in the
name of the defendant, because of the latter's promise that after paying all the debt of
their father, he would deliver to her and to the widow their corresponding shares. As their
father then was still alive, there was no reason to require the delivery of her share and that
was why she did not insist on her opposition, trusting on the reliability and sincerity of
her brother's promise. The evidence shows that such promise was really made. The
registration of land under the Torrens system does not have the effect of altering the laws
of succession, or the rights of partition between coparceners, joint tenants, and other
cotenants nor does it change or affect in any other way any other rights and liabilities
created by law and applicable to unregistered land (sec. 70, Land Registration Law). The
plaintiff is not, then, in estoppel, nor can the doctrine of res judicata be invoked against
her claim. Under these circumstances, she has the right to compel the defendant to deliver
her corresponding share in the estate left by the deceased, Victorino L. Guevara.

In his tenth to fourteenth assignments of error the petitioner assails the foregoing findings of the
Court of Appeals. But the findings of fact made by said court are final and not reviewable by us
on certiorari. The Court of Appeals found that the money with which the petitioner repurchased
the northern half of the land in question from Rafael Puzon was not his own but his father's, it
being the proceeds of the sale of a parcel of land made by the latter to Silvestre P. Coquia. Said
court also found that the respondent withdrew her opposition to the registration of the land in the
name of the petitioner upon the latter's promise that after paying all the debts of their father he
would deliver to her and to the widow their corresponding shares. From these facts, it results that
the interested parties consented to the registration of the land in question in the name of Ernesto
M. Guevara alone subject to the implied trust on account of which he is under obligation to
deliver and convey to them their corresponding shares after all the debts of the original owner of
said land had been paid. Such finding does not constitute a reversal of the decision and decree of
registration, which merely confirmed the petitioner's title; and in the absence of any intervening
innocent third party, the petitioner may be compelled to fulfill the promise by virtue of which he
acquired his title. That is authorized by section 70 of the Land Registration Act, cited by the
Court of Appeals, and by the decision of this Court in Severino vs. Severino, 44 Phil., 343, and
the cases therein cited.

Upon this phase of the litigation, we affirm the finding of the Court of Appeals that the northern
half of the land described in the will exhibit A and in original certificate of title No. 51691 still
belongs to the estate of the deceased Victorino L. Guevara. In the event the petitioner Ernesto M.
Guevara has alienated any portion thereof, he is under obligation to compensate the estate with
an equivalent portion from the southern half of said land that has not yet been sold. In other
words, to the estate of Victorino L. Guevara still belongs one half of the total area of the land
described in said original certificate of title, to be taken from such portions as have not yet been
sold by the petitioner, the other half having been lawfully acquired by the latter in consideration
of his assuming the obligation to pay all the debts of the deceased.

Wherefore, that part of the decision of the Court of Appeals which declares in effect that
notwithstanding exhibit 2 and the issuance of original certificate of title No. 51691 in the name
of Ernesto M. Guevara, one half of the land described in said certificate of title belongs to the
estate of Victorino L. Guevara and the other half to Ernesto M. Guevara in consideration of the
latter's assumption of the obligation to pay all the debts of the deceased, is hereby affirmed; but
the judgment of said court insofar as it awards any relief to the respondent Rosario Guevara in
this action is hereby reversed and set aside, and the parties herein are hereby ordered to present
the document exhibit A to the proper court for probate in accordance with law, without prejudice
to such action as the provincial fiscal of Pangasinan may take against the responsible party or
parties under section 4 of Rule 76. After the said document is approved and allowed by the court
as the last will and testament of the deceased Victorino L. Guevara, the heirs and legatees therein
named may take such action, judicial or extrajudicial, as may be necessary to partition the estate
of the testator, taking into consideration the pronouncements made in part II of this opinion. No
finding as to costs in any of the three instances.

2. G.R. Nos. 140371-72 November 27, 2006

DY YIENG SEANGIO, BARBARA D. SEANGIO and VIRGINIA D. SEANGIO,

Petitioners,
vs.
HON. AMOR A. REYES, in her capacity as Presiding Judge, Regional Trial Court,
National Capital Judicial Region, Branch 21, Manila, ALFREDO D. SEANGIO,
ALBERTO D. SEANGIO, ELISA D. SEANGIO-SANTOS, VICTOR D. SEANGIO,
ALFONSO D. SEANGIO, SHIRLEY D. SEANGIO-LIM, BETTY D. SEANGIO-OBAS
and JAMES D. SEANGIO, Respondents.

DECISION

AZCUNA, J.:

This is a petition for certiorari1 with application for the issuance of a writ of preliminary
injunction and/or temporary restraining order seeking the nullification of the orders, dated
August 10, 1999 and October 14, 1999, of the Regional Trial Court of Manila, Branch 21 (the
RTC), dismissing the petition for probate on the ground of preterition, in the consolidated cases,
docketed as SP. Proc. No. 98-90870 and SP. Proc. No. 99-93396, and entitled, "In the Matter of
the Intestate Estate of Segundo C. Seangio v. Alfredo D. Seangio, et al." and "In the Matter of
the Probate of the Will of Segundo C. Seangio v. Dy Yieng Seangio, Barbara D. Seangio and
Virginia Seangio."

The facts of the cases are as follows:

On September 21, 1988, private respondents filed a petition for the settlement of the intestate
estate of the late Segundo Seangio, docketed as Sp. Proc. No. 98–90870 of the RTC, and praying
for the appointment of private respondent Elisa D. Seangio–Santos as special administrator and
guardian ad litem of petitioner Dy Yieng Seangio.

Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed the petition. They
contended that: 1) Dy Yieng is still very healthy and in full command of her faculties; 2) the
deceased Segundo executed a general power of attorney in favor of Virginia giving her the
power to manage and exercise control and supervision over his business in the Philippines; 3)
Virginia is the most competent and qualified to serve as the administrator of the estate of
Segundo because she is a certified public accountant; and, 4) Segundo left a holographic will,
dated September 20, 1995, disinheriting one of the private respondents, Alfredo Seangio, for
cause. In view of the purported holographic will, petitioners averred that in the event the
decedent is found to have left a will, the intestate proceedings are to be automatically suspended
and replaced by the proceedings for the probate of the will.

On April 7, 1999, a petition for the probate of the holographic will of Segundo, docketed as SP.
Proc. No. 99–93396, was filed by petitioners before the RTC. They likewise reiterated that the
probate proceedings should take precedence over SP. Proc. No. 98–90870 because testate
proceedings take precedence and enjoy priority over intestate proceedings.2

The document that petitioners refer to as Segundo’s holographic will is quoted, as follows:

Kasulatan sa pag-aalis ng mana

Tantunin ng sinuman

Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A Flores St., Ermita, Manila at
nagtatalay ng maiwanag na pag-iisip at disposisyon ay tahasan at hayagang inaalisan ko ng lahat
at anumang mana ang paganay kong anak na si Alfredo Seangio dahil siya ay naging lapastangan
sa akin at isan beses siya ng sasalita ng masama harapan ko at mga kapatid niya na si Virginia
Seangio labis kong kinasama ng loob ko at sasabe rin ni Alfredo sa akin na ako nasa ibabaw
gayon gunit daratin ang araw na ako nasa ilalim siya at siya nasa ibabaw.

Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin pagalan para makapagutang na
kuarta siya at kanya asawa na si Merna de los Reyes sa China Bangking Corporation na millon
pesos at hindi ng babayad at hindi ng babayad ito ay nagdulot sa aking ng malaking kahihiya sa
mga may-ari at stockholders ng China Banking.

At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na mga custome[r] ng Travel
Center of the Philippines na pinagasiwaan ko at ng anak ko si Virginia.

Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak ko at hayanan kong
inaalisan ng lahat at anoman mana na si Alfredo at si Alfredo Seangio ay hindi ko siya anak at
hindi siya makoha mana.
Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng Manila sa harap ng tatlong
saksi. 3

(signed)

Segundo Seangio

Nilagdaan sa harap namin

(signed)

Dy Yieng Seangio (signed)

Unang Saksi ikalawang saksi

(signed)

ikatlong saksi

On May 29, 1999, upon petitioners’ motion, SP. Proc. No. 98–90870 and SP. Proc. No. 99–
93396 were consolidated.4

On July 1, 1999, private respondents moved for the dismissal of the probate proceedings5
primarily on the ground that the document purporting to be the holographic will of Segundo does
not contain any disposition of the estate of the deceased and thus does not meet the definition of
a will under Article 783 of the Civil Code. According to private respondents, the will only shows
an alleged act of disinheritance by the decedent of his eldest son, Alfredo, and nothing else; that
all other compulsory heirs were not named nor instituted as heir, devisee or legatee, hence, there
is preterition which would result to intestacy. Such being the case, private respondents
maintained that while procedurally the court is called upon to rule only on the extrinsic validity
of the will, it is not barred from delving into the intrinsic validity of the same, and ordering the
dismissal of the petition for probate when on the face of the will it is clear that it contains no
testamentary disposition of the property of the decedent.

Petitioners filed their opposition to the motion to dismiss contending that: 1) generally, the
authority of the probate court is limited only to a determination of the extrinsic validity of the
will; 2) private respondents question the intrinsic and not the extrinsic validity of the will; 3)
disinheritance constitutes a disposition of the estate of a decedent; and, 4) the rule on preterition
does not apply because Segundo’s will does not constitute a universal heir or heirs to the
exclusion of one or more compulsory heirs.6

On August 10, 1999, the RTC issued its assailed order, dismissing the petition for probate
proceedings:

A perusal of the document termed as "will" by oppositors/petitioners Dy Yieng Seangio, et al.,

clearly shows that there is preterition, as the only heirs mentioned thereat are Alfredo and
Virginia. [T]he other heirs being omitted, Article 854 of the New Civil Code thus applies.
However, insofar as the widow Dy Yieng Seangio is concerned, Article 854 does not apply, she
not being a compulsory heir in the direct line.

As such, this Court is bound to dismiss this petition, for to do otherwise would amount to an
abuse of discretion. The Supreme Court in the case of Acain v. Intermediate Appellate Court
[155 SCRA 100 (1987)] has made its position clear: "for … respondents to have tolerated the
probate of the will and allowed the case to progress when, on its face, the will appears to be
intrinsically void … would have been an exercise in futility. It would have meant a waste of
time, effort, expense, plus added futility. The trial court could have denied its probate outright or
could have passed upon the intrinsic validity of the testamentary provisions before the extrinsic
validity of the will was resolved (underscoring supplied).

WHEREFORE, premises considered, the Motion to Suspend Proceedings is hereby DENIED for
lack of merit. Special Proceedings No. 99–93396 is hereby DISMISSED without pronouncement
as to costs.

SO ORDERED.7

Petitioners’ motion for reconsideration was denied by the RTC in its order dated October 14,
1999.

Petitioners contend that:

THE RESPONDENT JUDGE ACTED IN EXCESS OF HER JURISDICTION OR WITH

GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION AND DECIDED A QUESTION OF LAW NOT IN ACCORD WITH LAW
AND JURISPRUDENCE IN ISSUING THE QUESTIONED ORDERS, DATED 10 AUGUST
1999 AND 14 OCTOBER 1999 (ATTACHMENTS "A" AND "B" HEREOF) CONSIDERING
THAT:

THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING WITH SECTIONS 3 AND 4

OF RULE 76 OF THE RULES OF COURT ON THE PROPER PROCEDURE FOR SETTING
THE CASE FOR INITIAL HEARING FOR THE ESTABLISHMENT OF THE
JURISDICTIONAL FACTS, DISMISSED THE TESTATE CASE ON THE ALLEGED
GROUND THAT THE TESTATOR’S WILL IS VOID ALLEGEDLY BECAUSE OF THE
EXISTENCE OF PRETERITION, WHICH GOES INTO THE INTRINSIC VALIDITY OF
THE WILL, DESPITE THE FACT THAT IT IS A SETTLED RULE THAT THE
AUTHORITY OF PROBATE COURTS IS LIMITED ONLY TO A DETERMINATION OF
THE EXTRINSIC VALIDITY OF THE WILL, I.E., THE DUE EXECUTION THEREOF, THE
TESTATOR’S TESTAMENTARY CAPACITY AND THE COMPLIANCE WITH THE
REQUISITES OR SOLEMNITIES PRESCRIBED BY LAW;

II
EVEN ASSUMING ARGUENDO THAT THE RESPONDENT JUDGE HAS THE
AUTHORITY TO RULE UPON THE INTRINSIC VALIDITY OF THE WILL OF THE
TESTATOR, IT IS INDUBITABLE FROM THE FACE OF THE TESTATOR’S WILL THAT
NO PRETERITON EXISTS AND THAT THE WILL IS BOTH INTRINSICALLY AND
EXTRINSICALLY VALID; AND,

III

RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE PROCEEDINGS IN THE

INTESTATE CASE CONSIDERING THAT IT IS A SETTLED RULE THAT TESTATE
PROCEEDINGS TAKE PRECEDENCE OVER INTESTATE PROCEEDINGS.

Petitioners argue, as follows:

First, respondent judge did not comply with Sections 3 and 4 of Rule 76 of the Rules of Court
which respectively mandate the court to: a) fix the time and place for proving the will when all
concerned may appear to contest the allowance thereof, and cause notice of such time and place
to be published three weeks successively previous to the appointed time in a newspaper of
general circulation; and, b) cause the mailing of said notice to the heirs, legatees and devisees of
the testator Segundo;

Second, the holographic will does not contain any institution of an heir, but rather, as its title
clearly states, Kasulatan ng Pag-Aalis ng Mana, simply contains a disinheritance of a
compulsory heir. Thus, there is no preterition in the decedent’s will and the holographic will on
its face is not intrinsically void;

Third, the testator intended all his compulsory heirs, petitioners and private respondents alike,
with the sole exception of Alfredo, to inherit his estate. None of the compulsory heirs in the
direct line of Segundo were preterited in the holographic will since there was no institution of an
heir;

Fourth, inasmuch as it clearly appears from the face of the holographic will that it is both
intrinsically and extrinsically valid, respondent judge was mandated to proceed with the hearing
of the testate case; and,

Lastly, the continuation of the proceedings in the intestate case will work injustice to petitioners,
and will render nugatory the disinheritance of Alfredo.

The purported holographic will of Segundo that was presented by petitioners was dated, signed
and written by him in his own handwriting. Except on the ground of preterition, private
respondents did not raise any issue as regards the authenticity of the document.

The document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably showed Segundo’s

intention of excluding his eldest son, Alfredo, as an heir to his estate for the reasons that he cited
therein. In effect, Alfredo was disinherited by Segundo.
For disinheritance to be valid, Article 916 of the Civil Code requires that the same must be
effected through a will wherein the legal cause therefor shall be specified. With regard to the
reasons for the disinheritance that were stated by Segundo in his document, the Court believes
that the incidents, taken as a whole, can be considered a form of maltreatment of Segundo by his
son, Alfredo, and that the matter presents a sufficient cause for the disinheritance of a child or
descendant under Article 919 of the Civil Code:

Article 919. The following shall be sufficient causes for the disinheritance of children and
descendants, legitimate as well as illegitimate:

(1) When a child or descendant has been found guilty of an attempt against the life of the
testator, his or her spouse, descendants, or ascendants;

(2) When a child or descendant has accused the testator of a crime for which the law
prescribes imprisonment for six years or more, if the accusation has been found
groundless;

(3) When a child or descendant has been convicted of adultery or concubinage with the
spouse of the testator;

(4) When a child or descendant by fraud, violence, intimidation, or undue influence

causes the testator to make a will or to change one already made;

(5) A refusal without justifiable cause to support the parents or ascendant who disinherit
such child or descendant;

(6) Maltreatment of the testator by word or deed, by the child or descendant;8

(7) When a child or descendant leads a dishonorable or disgraceful life;

(8) Conviction of a crime which carries with it the penalty of civil interdiction.

Now, the critical issue to be determined is whether the document executed by Segundo can be
considered as a holographic will.

A holographic will, as provided under Article 810 of the Civil Code, must be entirely written,
dated, and signed by the hand of the testator himself. It is subject to no other form, and may be
made in or out of the Philippines, and need not be witnessed.

Segundo’s document, although it may initially come across as a mere disinheritance instrument,
conforms to the formalities of a holographic will prescribed by law. It is written, dated and
signed by the hand of Segundo himself. An intent to dispose mortis causa[9] can be clearly
deduced from the terms of the instrument, and while it does not make an affirmative disposition
of the latter’s property, the disinheritance of Alfredo, nonetheless, is an act of disposition in
itself. In other words, the disinheritance results in the disposition of the property of the testator
Segundo in favor of those who would succeed in the absence of Alfredo.10
Moreover, it is a fundamental principle that the intent or the will of the testator, expressed in the
form and within the limits prescribed by law, must be recognized as the supreme law in
succession. All rules of construction are designed to ascertain and give effect to that intention. It
is only when the intention of the testator is contrary to law, morals, or public policy that it cannot
be given effect.11

Holographic wills, therefore, being usually prepared by one who is not learned in the law, as
illustrated in the present case, should be construed more liberally than the ones drawn by an
expert, taking into account the circumstances surrounding the execution of the instrument and the
intention of the testator.12 In this regard, the Court is convinced that the document, even if
captioned as Kasulatan ng Pag-Aalis ng Mana, was intended by Segundo to be his last
testamentary act and was executed by him in accordance with law in the form of a holographic
will. Unless the will is probated,13 the disinheritance cannot be given effect.14

With regard to the issue on preterition,15 the Court believes that the compulsory heirs in the
direct line were not preterited in the will. It was, in the Court’s opinion, Segundo’s last
expression to bequeath his estate to all his compulsory heirs, with the sole exception of Alfredo.
Also, Segundo did not institute an heir16 to the exclusion of his other compulsory heirs. The mere
mention of the name of one of the petitioners, Virginia, in the document did not operate to
institute her as the universal heir. Her name was included plainly as a witness to the altercation
between Segundo and his son, Alfredo.1âwphi1

Considering that the questioned document is Segundo’s holographic will, and that the law favors
testacy over intestacy, the probate of the will cannot be dispensed with. Article 838 of the Civil
Code provides that no will shall pass either real or personal property unless it is proved and
allowed in accordance with the Rules of Court. Thus, unless the will is probated, the right of a
person to dispose of his property may be rendered nugatory.17

In view of the foregoing, the trial court, therefore, should have allowed the holographic will to be
probated. It is settled that testate proceedings for the settlement of the estate of the decedent take
precedence over intestate proceedings for the same purpose.18

WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court of Manila,
Branch 21, dated August 10, 1999 and October 14, 1999, are set aside. Respondent judge is
directed to reinstate and hear SP Proc. No. 99-93396 for the allowance of the holographic will of
Segundo Seangio. The intestate case or SP. Proc. No. 98-90870 is hereby suspended until the
termination of the aforesaid testate proceedings.

No costs.

SO ORDERED.

3. G.R. No. 168156 December 6, 2006

HEIRS OF ROSENDO LASAM, Represented by Rogelio Lasam and Atty. Edward P.
Llonillo, petitioners,
vs.
VICENTA UMENGAN, respondent.

DECISION

CALLEJO, SR., J.:

Before the Court is the petition for review on certiorari filed by the Heirs of Rosendo Lasam,
represented by Rogelio M. Lasam and Atty. Edward P. Llonillo, seeking the reversal of the
Decision1 dated February 16, 2005 of the Court of Appeals (CA) in CA-G.R. SP No. 80032. The
assailed decision reversed and set aside the decision of the Regional Trial Court (RTC) of
Tuguegarao City, Cagayan and dismissed, for lack of merit, the complaint for unlawful detainer
file by the said heirs against respondent Vicenta Umengan.

The RTC decision affirmed that of the Municipal Trial Court in Cities (MTCC) of the same city,
Branch III, which had rendered judgment in favor of the heirs of Rosendo Lasam and directed
the ejectment of respondent Vicenta Umengan from the lot subject of litigation.

The present petition likewise seeks the reversal of the CA Resolution dated May 17, 2005
denying the motion for reconsideration filed by the heirs of Rosendo Lasam.

As culled from the records, the backdrop of the present case is as follows –

The lot subject of the unlawful detainer case is situated in Tuguegarao City, Cagayan. It is the
eastern half portion of Lot No. 5427 and Lot No. 990. The first lot, Lot No. 5427 containing an
area of 1,037 square meters, is covered by Original Certificate of Title (OCT) No. 196. The
second lot, Lot No. 990 containing an area of 118 sq m, is covered by OCT No. 1032. These lots
are registered in the names of the original owners, spouses Pedro Cuntapay and Leona Bunagan.

In an instrument denominated as Deed of Confirmation and acknowledged before a notary public

on June 14, 1979, the heirs of the said spouses conveyed the ownership of Lots Nos. 990 and
5427 in favor of their two children, Irene Cuntapay and Isabel Cuntapay. In another instrument
entitled Partition Agreement and acknowledged before a notary public on December 28, 1979, it
was agreed that the eastern half portion (subject lot) of Lots Nos. 990 and 5427 shall belong to
the heirs of Isabel Cuntapay. On the other hand, the remaining portion thereof (the west portion)
shall belong to the heirs of Irene Cuntapay. The subject lot (eastern half portion) has an area of
554 sq m.
Isabel Cuntapay had four children by her first husband, Domingo Turingan, namely: Abdon,
Sado (deceased), Rufo and Maria. When Domingo Turingan passed away, Isabel Cuntapay
remarried Mariano Lasam. She had two other children by him, namely: Trinidad and Rosendo.

Sometime in January 2001, the heirs of Rosendo Lasam (son of Isabel Cuntapay by her second
husband) filed with the MTCC a complaint for unlawful detainer against Vicenta Umengan, who
was then occupying the subject lot. Vicenta Umengan is the daughter of Abdon Turingan (son of
Isabel Cuntapay by her first husband).

In their complaint, the heirs of Rosendo Lasam alleged that they are the owners of the subject lot,
having inherited it from their father. Rosendo Lasam was allegedly the sole heir of the deceased
Pedro Cuntapay through Isabel Cuntapay. During his lifetime, Rosendo Lasam allegedly
temporarily allowed Vicenta Umengan to occupy the subject lot sometime in 1955. The latter
and her husband allegedly promised that they would vacate the subject lot upon demand.
However, despite written notice and demand by the heirs of Rosendo Lasam, Vicenta Umengan
allegedly unlawfully refused to vacate the subject lot and continued to possess the same.
Accordingly, the heirs of Rosendo Lasam were constrained to institute the action for ejectment.

In her Answer with Counterclaim, Vicenta Umengan specifically denied the material allegations
in the complaint. She countered that when Isabel Cuntapay passed away, the subject lot was
inherited by her six children by her first and second marriages through intestate succession. Each
of the six children allegedly had a pro indiviso share of 1/6 of the subject lot.

It was further alleged by Vicenta Umengan that her father, Abdon Turingan, purchased the
respective 1/6 shares in the subject lot of his siblings Maria and Sado. These conveyances were
allegedly evidenced by the Deed of Sale dated March 3, 1975, appearing as Doc. No. 88, Page
No. 36, Book No. XIV, series of 1975 of the notarial book of Atty. Pedro Lagui.

Prior thereto, Rufo already sold his 1/6 share in the subject lot to Vicenta Umengan and her
husband as evidenced by the Deed of Sale dated June 14, 1961, appearing as Doc. No. 539, Page
No. 41, Book No. V, series of 1961 of the notarial book of Atty. Pedro Lagui. Also on June 14,
1961, Abdon donated his 1/6 share in the subject lot to her daughter Vicenta Umengan as
evidenced by the Deed of Donation appearing as Doc. No. 538, Page No. 41, Book No. V, series
of 1961 of the notarial book of the same notary public.

According to Vicenta Umengan, the children of Isabel Cuntapay by her second husband
(Rosendo and Trinidad Lasam) own only 2/6 portion of the subject lot. She thus prayed that the
complaint for ejectment be dismissed and that the heirs of Rosendo Lasam be ordered to pay her
damages.

The MTCC rendered judgment in favor of the heirs of Rosendo Lasam and directed the
ejectment of Vicenta Umengan. In so ruling, the MTCC gave credence to the newly discovered
last will and testament (entitled Testamento Abierto) purportedly executed by Isabel Cuntapay
where she bequeathed the subject lot to her son, Rosendo Lasam, thus:
 x x x my share 1/5th (one-fifth) of the Cuntapay heirs, bordered on the North by Sr. Elia
Canapi; to the South, by Calle Aguinaldo; to the East, by Calle P. Burgos and the West,
by the late Don Luis Alonso; on the property which is my share stands a house of light
materials where I presently reside; this 1/5th (one-fifth) share of my inheritance from the
Cuntapays I leave to my son Rosendo Lasam and also the aforementioned house of light
material x x x2

The MTCC reasoned that the heirs of Rosendo Lasam anchored their claim over the subject lot
on the last will and testament of Isabel Cuntapay while Vicenta Umengan hinged hers on
intestate succession and legal conveyances. Citing jurisprudence3 and Article 10804 of the Civil
Code, the MTCC opined that testacy was favored and that intestacy should be avoided and the
wishes of the testator should prevail. It observed that the last will and testament of Isabel
Cuntapay was not yet probated as required by law; nonetheless, the institution of a probate
proceeding was not barred by prescription.

With the finding that the subject lot was already bequeathed by Isabel Cuntapay to Rosendo
Lasam, the MTCC held that the siblings Abdon, Sado, Rufo and Maria Turingan no longer had
any share therein. Consequently, they could not convey to Vicenta Umengan what they did not
own. On the issue then of who was entitled to possession of the subject lot, the MTCC ruled in
favor of the heirs of Rosendo Lasam as it found that Vicenta Umengan’s possession thereof was
by mere tolerance. The dispositive portion of the MTCC decision reads:

WHEREFORE, in the light of the foregoing considerations, this Court Resolve[d] to

order the EJECTMENT of VICENTA T. UMENGAN and in her place INSTITUTE THE
HEIRS OF ROSENDO LASAM.

It is further ordered the defendant shall pay the Heirs of Rosendo Lasam the sum of
P500.00 pesos representing the monthly rental of the land from August 2000 to the time
this case shall have been terminated.

Ordering the defendant to pay the plaintiffs the amount of P20,000.00 attorney’s fees plus
cost of this litigation.

So Ordered.5

On appeal, the RTC affirmed in toto the decision of the MTCC. The RTC echoed the reasoning
of the MTCC that the testamentary disposition of the property of Isabel Cuntapay should be
respected, and that the heirs of Rosendo Lasam have a better right to possess the subject lot.

Undaunted, Vicenta Umengan filed an appeal with the CA. She argued that the MTCC had no
jurisdiction over the case as it involved the recovery of ownership of the subject lot, not merely
recovery of possession or unlawful detainer. She also assailed the RTC’s and the MTCC’s
holding that the purported Testamento Abierto of Isabel Cuntapay prevails over Vicenta
Umengan’s muniments of title and, consequently, the heirs of Rosendo Lasam have a better right
to the subject lot than Vicenta Umengan.
In the assailed Decision dated February 16, 2005, the CA reversed and set aside the decision of
the RTC. The appellate court preliminarily upheld the jurisdiction of the MTCC over the subject
matter as it found that the allegations in the complaint made out a case for unlawful detainer. The
heirs of Rosendo Lasam in their complaint, according to the CA, only sought for Vicenta
Umengan to vacate and surrender possession of the subject lot. The CA also rejected the
contention of the heirs of Rosendo Lasam that the issue of ownership of the subject lot had
already been settled in another case, Civil Case No. 4917, before RTC (Branch 3) of Tuguegarao
City. The CA stated that the trial court’s order dismissing the said case was not a "judgment on
the merits" as to constitute res judicata.

However, the CA declared that the RTC, as well as the MTCC, erred in ruling that, by virtue of
the purported last will and testament of Isabel Cuntapay, the heirs of Rosendo Lasam have a
better right to the subject lot over Vicenta Umengan. The CA explained that the said last will and
testament did not comply with the formal requirements of the law on wills.6

Specifically, the CA found that the pages of the purported last will and testament were not
numbered in accordance with the law. Neither did it contain the requisite attestation clause.
Isabel Cuntapay as testator and the witnesses to the will did not affix their respective signatures
on the second page thereof. The said instrument was likewise not acknowledged before a notary
public by the testator and the witnesses. The CA even raised doubts as to its authenticity, noting
that while Isabel Cuntapay died in 1947 and the heirs of Rosendo Lasam claimed that they
discovered the same only in 1997, a date – May 19, 1956 – appears on the last page of the
purported will. The CA opined that if this was the date of execution, then the will was obviously
spurious. On the other hand, if this was the date of its discovery, then the CA expressed
bafflement as to why the heirs of Rosendo Lasam, through their mother, declared in the Partition
Agreement dated December 28, 1979 that Isabel Cuntapay died intestate.

It was observed by the CA that as against these infirmities in the claim of the heirs of Rosendo
Lasam, Vicenta Umengan presented a Deed of Sale and a Deed of Donation to justify her
possession of the subject lot. The CA noted that she has also possessed the subject property since
1955. Such prior possession, the CA held, gave Vicente Umengan the right to remain in the
subject lot until a person with a better right lawfully ejects her. The heirs of Rosendo Lasam do
not have such a better right. The CA stressed that the ruling on the issue of physical possession
does not affect the title to the subject lot nor constitute a binding and conclusive adjudication on
the merits on the issue of ownership. The parties are not precluded from filing the appropriate
action to directly contest the ownership of or the title to the subject lot.

The decretal portion of the assailed decision of the CA reads:

WHEREFORE, premises considered, the appeal is GRANTED. The August 29, 2003
decision of the RTC, Branch 1, Tuguegarao City, Cagayan in Civil Case No. 5924 is
hereby REVERSED and SET ASIDE. Private respondents’ complaint for unlawful
detainer against petitioner is dismissed for lack of merit.

SO ORDERED.7
The heirs of Rosendo Lasam sought the reconsideration thereof but their motion was denied by
the CA in its Resolution dated May 17, 2005.

The heirs of Rosendo Lasam (petitioners) now come to the Court alleging that the CA committed
reversible error in setting aside the decision of the RTC, which had affirmed that of the MTCC,
and dismissing their complaint for unlawful detainer against respondent Vicenta Umengan.

Petitioners argue that the CA erred when it held, on one hand, that the MTCC had jurisdiction
over the subject matter of the complaint as the allegations therein make out a case for unlawful
detainer but, on the other hand, proceeded to discuss the validity of the last will and testament of
Isabel Cuntapay.

Petitioners insist that respondent is holding the subject lot by mere tolerance and that they, as the
heirs of Rosendo Lasam who was the rightful owner of the subject lot, have a better right thereto.
It was allegedly error for the CA to declare the last will and testament of Isabel Cuntapay as null
and void for its non-compliance with the formal requisites of the law on wills. The said matter
cannot be resolved in an unlawful detainer case, which only involves the issue of material or
physical possession of the disputed property. In any case, they maintain that the said will
complied with the formal requirements of the law.

It was allegedly also erroneous for the CA to consider in respondent’s favor the deed of sale and
deed of donation covering portions of the subject lot, when these documents had already been
passed upon by the RTC (Branch 3) of Tuguegarao City in Civil Case No. 4917 when it
dismissed the respondent’s complaint for partition of the subject lot. The said order allegedly
constituted res judicata and may no longer be reviewed by the CA.

Petitioners emphasize that in an unlawful detainer case, the only issue to be resolved is who
among the parties is entitled to the physical or material possession of the property in dispute. On
this point, the MTCC held (and the same was affirmed by the RTC) that petitioners have a better
right since the "merely tolerated" possession of the respondent had already expired upon the
petitioners’ formal demand on her to vacate. In support of this claim, they point to the affidavit
of Heliodoro Turingan, full brother of the respondent, attesting that the latter’s possession of the
subject lot was by mere tolerance of Rosendo Lasam who inherited the same from Isabel
Cuntapay.

According to petitioners, respondent’s predecessors-in-interest from whom she derived her claim
over the subject lot by donation and sale could not have conveyed portions thereof to her, as she
had claimed, because until the present, it is still covered by OCT Nos. 196 and 1032 under the
names of Pedro and Leona Cuntapay. Their respective estates have not been settled up to now.

It is also the contention of petitioners that the CA should have dismissed outright respondent’s
petition filed therewith for failure to comply with the technical requirements of the Rules of
Court. Specifically, the petition was not allegedly properly verified, lacked statement of material
dates and written explanation on why personal service was not made.
This last contention of petitioners deserves scant consideration. The technical requirements for
filing an appeal are not sacrosanct. It has been held that while the requirements for perfecting an
appeal must be strictly followed as they are considered indispensable interdictions against
needless delays and for orderly discharge of judicial business, the law does admit of exceptions
when warranted by circumstances.8 In the present case, the CA cannot be faulted in choosing to
overlook the technical defects of respondent’s appeal. After all, technicality should not be
allowed to stand in the way of equitably and completely resolving the rights and obligations of
the parties.9

The Court shall now resolve the substantive issues raised by petitioners.

It is well settled that in ejectment suits, the only issue for resolution is the physical or material
possession of the property involved, independent of any claim of ownership by any of the party
litigants. However, the issue of ownership may be provisionally ruled upon for the sole purpose
of determining who is entitled to possession de facto.10

In the present case, petitioners base their claim of right to possession on the theory that their
father, Rosendo Lasam, was the sole owner of the subject lot by virtue of the newly discovered
last will and testament of Isabel Cuntapay bequeathing the same to him. Respondent is allegedly
holding the subject lot by mere tolerance of Rosendo Lasam and, upon the petitioners’ formal
demand on her to vacate the same, respondent’s right to possess it has expired.

On the other hand, respondent hinges her claim of possession on the legal conveyances made to
her by the children of Isabel Cuntapay by her first husband, namely, Maria, Rufo, Sado and
Abdon. These conveyances were made through the sale and donation by the said siblings of their
respective portions in the subject lot to respondent as evidenced by the pertinent deeds.

The CA correctly held that, as between the respective claims of petitioners and respondent, the
latter has a better right to possess the subject lot.

As earlier stated, petitioners rely on the last will and testament of Isabel Cuntapay that they had
allegedly newly discovered. On the basis of this instrument, the MTCC and RTC ruled that
petitioners have a better right to the possession of the subject lot because, following the law on
succession, it should be respected and should prevail over intestate succession.

However, contrary to the ruling of the MTCC and RTC, the purported last will and testament of
Isabel Cuntapay could not properly be relied upon to establish petitioners’ right to possess the
subject lot because, without having been probated, the said last will and testament could not be
the source of any right.

Article 838 of the Civil Code is instructive:

Art. 838. No will shall pass either real or personal property unless it is proved and
allowed in accordance with the Rules of Court.
 The testator himself may, during his lifetime, petition the court having jurisdiction for the
allowance of his will. In such case, the pertinent provisions of the Rules of Court for the
allowance of wills after the testator’s death shall govern.

The Supreme Court shall formulate such additional Rules of Court as may be necessary
for the allowance of wills on petition of the testator.

Subject to the right of appeal, the allowance of the will, either during the lifetime of the
testator or after his death, shall be conclusive as to its due execution.

In Cañiza v. Court of Appeals,11 the Court ruled that: "[a] will is essentially ambulatory; at any
time prior to the testator’s death, it may be changed or revoked; and until admitted to probate, it
has no effect whatever and no right can be claimed thereunder, the law being quite explicit: ‘No
will shall pass either real or personal property unless it is proved and allowed in accordance with
the Rules of Court.’"12

Dr. Tolentino, an eminent authority on civil law, also explained that "[b]efore any will can have
force or validity it must be probated. To probate a will means to prove before some officer or
tribunal, vested by law with authority for that purpose, that the instrument offered to be proved is
the last will and testament of the deceased person whose testamentary act it is alleged to be, and
that it has been executed, attested and published as required by law, and that the testator was of
sound and disposing mind. It is a proceeding to establish the validity of the will."13 Moreover,
the presentation of the will for probate is mandatory and is a matter of public policy.14

Following the above truisms, the MTCC and RTC, therefore, erroneously ruled that petitioners
have a better right to possess the subject lot on the basis of the purported last will and testament
of Isabel Cuntapay, which, to date, has not been probated. Stated in another manner, Isabel
Cuntapay’s last will and testament, which has not been probated, has no effect whatever and
petitioners cannot claim any right thereunder.

Hence, the CA correctly held that, as against petitioners’ claim, respondent has shown a better
right of possession over the subject lot as evidenced by the deeds of conveyances executed in her
favor by the children of Isabel Cuntapay by her first marriage.

Contrary to the claim of petitioners, the dismissal of respondent’s action for partition in Civil
Case No. 4917 before the RTC (Branch 3) of Tuguegarao City does not constitute res judicata on
the matter of the validity of the said conveyances or even as to the issue of the ownership of the
subject lot. The order dismissing respondent’s action for partition in Civil Case No. 4917 stated
thus:

For resolution is a motion to dismiss based on defendants’ [referring to the petitioners

herein] affirmative defenses consisting inter alia in the discovery of a last will and
testament of Isabel Cuntapay, the original owner of the land in dispute.

xxx
 It appears, however, that the last will and testament of the late Isabel Cuntapay has not
yet been allowed in probate, hence, there is an imperative need to petition the court for
the allowance of said will to determine once and for all the proper legitimes of legatees
and devisees before any partition of the property may be judicially adjudicated.

It is an elementary rule in law that testate proceedings take precedence over any other
action especially where the will evinces the intent of the testator to dispose of his whole
estate.

With the discovery of the will of the late Isabel Cuntapay in favor of the defendants, the
Court can order the filing of a petition for the probate of the same by the interested party.

WHEREFORE, in light of the foregoing considerations, let the above-entitled case be as

it is hereby DISMISSED.

SO ORDERED.15

For there to be res judicata, the following elements must be present: (1) finality of the former
judgment; (2) the court which rendered it had jurisdiction over the subject matter and the parties;
(3) it must be a judgment on the merits; and (4) there must be, between the first and second
actions, identity of parties, subject matter and causes of action.16 The third requisite, i.e., that the
former judgment must be a judgment on the merits, is not present between the action for partition
and the complaint a quo for unlawful detainer. As aptly observed by the CA:

Our reading of the Orders (dated June 16, 1997 and October 13, 1997) in Civil Case No.
4917 reveals that the RTC, Branch 3, Tuguegarao, Cagayan, dismissed the complaint for
partition because of the discovery of the alleged last will and testament of Isabel
Cuntapay. The court did not declare respondents [referring to the petitioners herein] the
owners of the disputed property. It simply ordered them to petition the court for the
allowance of the will to determine the proper legitimes of the heirs prior to any partition.
Instead of filing the appropriate petition for the probate of Isabel Cuntapay’s will, the
respondents filed the present complaint for unlawful detainer. Viewed from this
perspective, we have no doubt that the court’s Orders cited by the respondents are not
"judgments on the merits" that would result in the application of the principle of res
judicata. Where the trial court merely refrained from proceeding with the case and
granted the motion to dismiss with some clarification without conducting a trial on the
merits, there is no res judicata.17

Further, it is not quite correct for petitioners to contend that the children of Isabel Cuntapay by
her first marriage could not have conveyed portions of the subject lot to respondent, as she had
claimed, because until the present, it is still covered by OCT Nos. 196 and 1032 under the names
of Pedro and Leona Cuntapay. To recall, it was already agreed by the heirs of the said spouses in
a Partition Agreement dated December 28, 1979 that the subject lot would belong to Isabel
Cuntapay. The latter died leaving her six children by both marriages as heirs. Considering that
her purported last will and testament has, as yet, no force and effect for not having been
probated, her six children are deemed to be co-owners of the subject lot having their respective
pro indiviso shares. The conveyances made by the children of Isabel Cuntapay by her first
marriage of their respective pro indiviso shares in the subject lot to respondent are valid because
the law recognizes the substantive right of heirs to dispose of their ideal share in the co-heirship
and/co-ownership among the heirs. The Court had expounded the principle in this wise:

This Court had the occasion to rule that there is no doubt that an heir can sell whatever
right, interest, or participation he may have in the property under administration. This is a
matter which comes under the jurisdiction of the probate court.

The right of an heir to dispose of the decedent’s property, even if the same is under
administration, is based on the Civil Code provision stating that the possession of
hereditary property is deemed transmitted to the heir without interruption and from the
moment of the death of the decedent, in case the inheritance is accepted. Where there are
however, two or more heirs, the whole estate of the decedent is, before its partition,
owned in common by such heirs.

The Civil Code, under the provisions of co-ownership, further qualifies this right.
Although it is mandated that each co-owner shall have the full ownership of his part and
of the fruits and benefits pertaining thereto, and thus may alienate, assign or mortgage it,
and even substitute another person in its enjoyment, 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 other words,
the law does not prohibit a co-owner from selling, alienating or mortgaging his ideal
share in the property held in common.

As early as 1942, this Court has recognized said right of an heir to dispose of property
under administration. In the case of Teves de Jakosalem vs. Rafols, et al., it was said that
the sale made by an heir of his share in an inheritance, subject to the result of the pending
administration, in no wise, stands in the way of such administration. The Court then
relied on the provision of the old Civil Code, Article 440 and Article 399 which are still
in force as Article 533 and Article 493, respectively, in the new Civil Code. The Court
also cited the words of a noted civilist, Manresa: "Upon the death of a person, each of his
heirs ‘becomes the undivided owner of the whole estate left with respect to the part or
portion which might be adjudicated to him, a community of ownership being thus formed
among the co-owners of the estate which remains undivided.’"18

Contrary to the assertion of petitioners, therefore, the conveyances made by the children of Isabel
Cuntapay by her first marriage to respondent are valid insofar as their pro indiviso shares are
concerned. Moreover, the CA justifiably held that these conveyances, as evidenced by the deed
of donation and deed of sale presented by respondent, coupled with the fact that she has been in
possession of the subject lot since 1955, establish that respondent has a better right to possess the
same as against petitioners whose claim is largely based on Isabel Cuntapay’s last will and
testament which, to date, has not been probated; hence, has no force and effect and under which
no right can be claimed by petitioners. Significantly, the probative value of the other evidence
relied upon by petitioners to support their claim, which was the affidavit of Heliodoro Turingan,
was not passed upon by the MTCC and the RTC. Their respective decisions did not even
mention the same.

In conclusion, it is well to stress the CA’s admonition that –

x x x our ruling on the issue of physical possession does not affect title to the property
nor constitute a binding and conclusive adjudication on the merits on the issue of
ownership. The parties are not precluded from filing the appropriate action directly
contesting the ownership of or the title to the property.19

Likewise, it is therefore in this context that the CA’s finding on the validity of Isabel Cuntapay’s
last will and testament must be considered. Such is merely a provisional ruling thereon for the
sole purpose of determining who is entitled to possession de facto.

WHEREFORE, premises considered, the petition is DENIED. The assailed Decision dated
February 16, 2005 and the Resolution dated May 17, 2005 of the Court of Appeals in CA-G.R.
SP No. 80032 are AFFIRMED.

SO ORDERED.

4. G.R. No. L-29300 June 21, 1978

PEDRO D. H. GALLANOSA, CORAZON GRECIA-GALLONOSA and ADOLFO

FORTAJADA, the deceased Pedro Gallanosa being substituted by his legal heirs,
namely his above-named widow and his children, ISIDRO GALLANOSA and LEDY
GALLANOSA, and grandchildren named IMELDA TECLA GALLANOSA and
ROSARIO BRIGIDA GALLANOSA, children of the late SIKATUNA GALLANOSA,
son of Pedro D.H. GALLONOSA, petitioners,
vs.
HON. UBALDO Y. ARCANGEL, Judge of Branch I of the Court of First Instance of
Sorsogon and FLORENTINO G. HITOSIS, CASIANO G. HITOSIS, TEOTIMO G.
HITOSIS, VICTORIO G. HITOSIS, EMILIA G. HITOSIS VDA. DE CRUZ, JOAQUIN R.
HITOSIS VDA. DE CRUZ, JOAQUIN R. HITOSIS, FLORENTINO R. HITOSIS,
VIRGINIA R. MITOSIS, DEBORAH R. HITOSIS, EDILBERTO R. HITOSIS, LEONOR
R. HITOSIS, NORMA R. HITOSIS-VILLANUEVA, LEONCIO R. HITOSIS, minors
ANGEL R. HITOSIS and RODOLFO R. HITOSIS, represented by their legal
guardian and mother LOURDES RELUCIO VDA. DE HITOSIS, PETRONA HITOSIS-
BALBIDO, MODESTO HITOSIS-GACILO, CLETO HITOSIS, AGUSTIN HITOSIS-
FORTES, TOMASA HITOSIS-BANARES VDA. DE BORRAS, CONRADA HITOSIS-
BANARES FRANCHE, RESTITUTO HITOSIS-BANARES, DAMIAN HITOSIS-
BANARES, FIDEL HITOSIS-BANARES, SUSANA HITOSIS-BANARES RODRIGUEZ,
JOSE HITOSIS, LOLITA HITOSIS-BANEGA, minors MILAGROS HITOSIS-BANEGA,
ALICIA HITOSIS-BANEGA AND ELISA HITOSIS-BANEGA, represented by their
legal guardian and father ERNESTO BANEGA, FELICITAS HITOSIS-PENAFLOR,
GENOVEVA HITOSIS-ADRIATICO, MANUEL HITOSIS, PEDRO HITOSIS, LIBRATA
HITOSIS-BALMES, JUANITA HITOSIS-GABITO VDA. DE GABAS, MAURA
HITOSIS-GABITO VDA. DE GANOLA and LEONA HITOSIS-GABITO GAMBA,
respondents.

Haile Frivaldo for petitioners.

Joaquin R Mitosis for private respondents.

AQUINO, J.:

In this special civil action of certiorari, filed on July 29, 1968, the petitioners seek to
annul the orders of respondent Judge dated May 3 trial June 17, 1968, wherein he
reconsidered his order of January 10, 1968, dismissing, on the ground of prescription,
the complaint in Civil Case No. 2233 of the Court of First Instance of Sorsogon.

The case involves the sixty-one parcels of land in Sorsogon left by Florentino Hitosis,
with an estimated value of P50,000, trial claims for damages exceeding one million
pesos. The undisputed facts are as follows:

1. Florentino Hitosis executed a will in the Bicol dialect on June 19, 1938 when he was
eighty years old. He died on May 26, 1939 at Irosin, Sorsogon. A childless widower, he
as survived by his brother, Leon Hitosis. His other brothers, named Juan, Tito
(Juancito), Leoncio (Aloncio) trial Apolonio and only sister, Teodora, were all dead.

2. On June 24, 1939 a petition for the probate of his will was filed in the Court of First
Instance of Sorsogon (Special Proceeding No. 3171). The notice of hearing was duly
published. In that will, Florentino bequeathed his one-half share in the conjugal estate to
his second wife, Tecla Dollentas, and, should Tecla predecease him, as was the case,
his one-half share would be assigned to the spouses Pedro Gallanosa and Corazon
Grecia, the reason being that Pedro, Tecla's son by her first marriage, grew up under
the care of Florentino; he had treated Pedro as his foster child, and Pedro has rendered
services to Florentino and Tecla. Florentino likewise bequeathed his separate properties
consisting of three parcels of abaca land and parcel of riceland to his protege
(sasacuyang ataman), Adolfo Fortajada, a minor.

3. Opposition to the probate of the will was registered by the testator's legal heirs,
namely, his surviving brother, Leon, trial his nephews trial nieces. After a hearing,
wherein the oppositors did not present any evidence in support of their opposition,
Judge Pablo S. Rivera, in his decision of October 27, 1939, admitted the will to probate
and appointed Gallanosa as executor. Judge Rivera specifically found that the testator
executed his last will "gozando de buena salud y facultades mentales y no obrando en
virtud de amenaza, fraude o influencia indebida."
4. On October 24, 1941, the testamentary heirs, the Gallanosa spouses trial Adolfo
Fortajada, submitted a project of partition covering sixty-one parcels of land located in
various parts of Sorsogon, large cattle trial several pieces of personal property which
were distributed in accordance with Florentino's will. The heirs assumed the obligations
of the estate amounting to P7,129.27 in the portion of P2,376.42 for Adolfo Fortajada
and P4,752.85 for the Gallanosa spouses. The project of partition was approved by
Judge Doroteo Amador in his order of March 13, 1943, thus confirming the heirs'
possession of their respective shares. The testator's legal heirs did not appeal from the
decree of probate trial from the order of partition trial distribution.

5. On February 20, 1952, Leon Hitosis trial the heirs of Florentino's deceased brothers
trial sisters instituted an action in the Court of First Instance of Sorsogon against Pedro
Gallanosa for the recovery of the said sixty-one parcels of land. They alleged that they,
by themselves or through their predecessors-in-interest, had been in continuous
possession of those lands en concepto de dueño trial that Gallanosa entered those
lands in 1951 trial asserted ownership over the lands. They prayed that they be
declared the owners of the lands trial that they be restored to the possession thereof.
They also claimed damages (Civil Case No. 696).

6. Gallanosa moved to dismiss the above complaint for lack of cause of action trial on
the ground of bar by the prior judgment in the probate proceeding. Judge Anatolio C.
Mañalac dismiss the complaint on the ground of res judicata in his order of August 14,
1952 wherein he said:

It also appears that the plaintiffs and/or their predecessors-in-interest had

intervened in the testate proceedings in Civil Case No. 3171 of this Court
for- the purpose of contesting the probate of the will of (the) late Florentino
Hitosis; trial had their opposition prospered trial the will denied of probate,
the proceedings would have been converted into one of intestacy (Art. 960
Civil Code) and the settlement of the estate of the said deceased would
have been made in accordance with the provisions of law governing legal
or intestate succession ... , in which case the said plaintiffs, as the nearest
of kin or legal heirs of said Florentino Mitosis, would have succeeded to
the ownership and possession of the 61 parcels of land in question
forming part of his estate (art. 1003, Civil Code).

However, the derision of the Court was adverse to them, when it their
opposition trial ordered the probate of his will. From this decision (Annex
K) legalizing the said will, the oppositors did not file any appeal within the
period fixed by law, despite the fact that they were duly notified thereof, so
that the said decision had become final trial it now constitutes a bar to any
action that the plaintiffs may institute for the purpose of a redetermination
of their rights to inherit the properties of the late Florentino Hitosis.

In other words, the said decision of this Court in Civil Case special ) No.
3171, in which the herein plaintiffs or their predecessors-in-interest had
 intervened as parties oppositors, constitutes a final judicial determination
of the issue that the said plaintiffs, as ordinary heirs, have no legal rights
to succeed to any of the properties of the late Florentino Hitosis;
consequently, their present claim to the ownership trial possession of the
61 parcels of land in question is without any legal merit or basis.

7. The plaintiffs did not appeal from that order of dismissal which should have set the
matter at rest. But the same plaintiffs or oppositors to the probate of the will, trial their
heirs, with a persistence befitting a more meritorious case, filed on September 21, 1967,
or fifteen years after the dismissal of Civil Case No. 696 trial twenty-eight years after the
probate of the will another action in the same court against the Gallanosa spouses trial
Adolfo Fortajada for the "annulment" of the will of Florentino Hitosis trial and for the
recovery of the same sixty-one parcels of land. They prayed for the appointment of a
receiver.

8. As basis of their complaint, they alleged that the Gallanosa spouses, through fraud
trial deceit, caused the execution trial simulation of the document purporting to be the
last will trial testament of Florentino Hitosis. While in their 1952 complaint the game
plaintiffs alleged that they were in possession of the lands in question, in their 1967
complaint they admitted that since 1939, or from the death of Florentino Hitosis, the
defendants (now the petitioners) have been in possession of the disputed lands (Par.
XIV of the complaint, p. 70, Rollo in Civil Case No. 555, Gubat Branch, which was
transferred to Branch I in Sorsogon town where Special Proceeding No. 3171 trial Civil
Case No. 696 were decided trial which was re-docketed as Civil Case No. 2233).

9. As already stated, that 1967 complaint, upon motion of the defendants, now the
petitioners, was dismissed by respondent Judge. The plaintiffs filed a motion for
reconsideration Respondent Judge. granted it trial set aside the order of dismissal. He
denied defendants' motion for the reconsideration of his order setting aside that
dismissal order.

The petitioners or the defendants below contend in this certiorari case that the lower
court has no jurisdiction to set aside the 1939 decree of probate trial the 1952 order of
dismissal in Civil Case No. 696 trial that it acted with grave abuse of discretion in not
dismissing private respondents' 1967 complaint.

The issue is whether, under the facts set forth above, the private respondents have a
cause of action the "annulment" of the will of Florentino Hitosis trial for the recovery of
the sixty-one parcels of land adjudicated under that will to the petitioners.

We hold that the lower court committed a grave abuse of discretion in reconsideration
its order of dismissal trial in ignoring the 1939 testamentary case trial the 1952 Civil
Case No. 696 which is the same as the instant 1967 case.
A rudimentary knowledge of substantive law trial procedure is sufficient for an ordinary
lawyer to conclude upon a causal perusal of the 1967 complaint that it is baseless trial
unwarranted.

What the plaintiffs seek is the "annulment" of a last will trial testament duly probated in
1939 by the lower court itself. The proceeding is coupled with an action to recover the
lands adjudicated to the defendants by the same court in 1943 by virtue of the probated
will, which action is a resuscitation of The complaint of the same parties that the same
court dismissed in 1952.

It is evident from the allegations of the complaint trial from defendants' motion to dismiss
that plaintiffs' 1967 action is barred by res judicata, a double-barrelled defense, trial by
prescription, acquisitive trial extinctive, or by what are known in the jus civile trial the jus
gentium as usucapio, longi temporis possesio and praescriptio (See Ramos vs. Ramos,
L-19872, December 3, 1974, 61 SCRA 284).

Our procedural law does not sanction an action for the "annulment" of a will. In order
that a will may take effect, it has to be probated, legalized or allowed in the proper
testamentary proceeding. The probate of the will is mandatory (Art. 838, Civil Code;
sec. 1, Rule 75, formerly sec. 1, Rule 76, Rules of Court; Guevara vs. Guevara, 74 Phil.
479; Guevara vs. Guevara, 98 Phil. 249).

The testamentary proceeding is a special proceeding for the settlement of the testator's
estate. A special proceeding is distinct trial different from an ordinary action (Secs. 1
trial 2, Rule 2 trial sec. 1, Rule 72, Rules of Court).

We say that the defense of res judicata, as a ground for the dismissal of plaintiffs' 1967
complaint, is a two-pronged defense because (1) the 1939 trial 1943 decrees of probate
trial distribution in Special Proceeding No. 3171 trial (2) the 1952 order of dismissal in
Civil Case No. 696 of the lower court constitute bars by former judgment, Rule 39 of the
Rules of Court provides:

SEC. 49. Effect of judgments. — The effect of a judgment or final order

rendered by a court or judge of the Philippines, having jurisdiction to
pronounce the judgment or order, may be as follows:

(a) In case of a judgment or order against a specific thing, or in respect to

the probate of a will or the administration of the estate of a deceased
person, or in respect to the personal, political, or legal condition or status
of a particular person or his relationship to another, the judgment or order
is conclusive upon the title to the thing the will or administration, or the
condition, status or relationship of the person; however, the probate of a
will or granting of letters of administration shall only be prima facie
evidence of the death of the testator or intestate;
 (b) In other cases the judgment or order is, with respect to the matter
directly adjudged or as to any other matter that could have been raised in
relation thereto, conclusive between the parties trial their successors in
interest by title subsequent to the commencement of the action or special
proceeding, litigating of the same thing trial under the same title trial in the
same capacity;

(c) In any other litigation between the same parties or their successors in
interest, that only is deemed to have been adjudged in a former judgment
which appears upon its face to have been so adjudged, or which was
actually trial necessarily included therein or necessary thereto.

The 1939 decree of probate is conclusive as to the due execution or formal validity of
the will (Sec. 625, Act 190, sec. 1, Rule 76, now sec. 1, Rule 75, Rules of Court; Last
par. of art. 838, Civil Code).

That means that the testator was of sound trial disposing mind at the time when he
executed the will and was not acting under duress, menace, fraud, or undue influence;
that the will was signed by him in the presence of the required number of witnesses,
and that the will is genuine trial is not a forgery. Accordingly, these facts cannot again
be questioned in a subsequent proceeding, not even in a criminal action for the forgery
of the will. (3 Moran's Comments on the Rules of Court, 1970 Edition, p. 395; Manahan
vs. Manahan, 58 Phil. 448).

After the finality of the allowance of a will, the issue as to the voluntariness of its
execution cannot be raised anymore (Santos vs. De Buenaventura, L-22797,
September 22, 1966, 18 SCRA 47).

In Austria vs. Ventenilla, 21 Phil. 180, a "petition for annulment of a will" was not
entertained after the decree of probate had become final. That case is summarized as
follows:

Wills; Probate; Alledged Fraudulent Will; Appeal.— V. died. His will was
admitted to probate without objection. No appeal was taken from said
order. It was admitted that due trial legal notice had been given to all
parties. Fifteen months after the date of said order, a motion was
presented in the lower court to have said will declared null and void, for
the reason that fraud had been practised upon the deceased in the
making of his will.

Held: That under section 625 of Act No. 190, the only time given parties
who are displeased with the order admitting to probate a will, for an appeal
is the time given for appeals in ordinary actions; but without deciding
whether or not an order admitting a will to probate will be opened for fraud,
after the time allowed for an appeal has expired, when no appeal is taken
from an order probating a will, the heirs can not, in subsequent litigation in
 the same proceedings, raise questions relating to its due execution. The
probate of a will is conclusive as to its due execution trial as to the
testamentary capacity of The testator. (See Austria vs. Heirs of Ventenilla.
99 Phil. 1069).

On the other hand, the 1943 decree of adjudication rendered by the trial court in the
testate proceeding for the settlement of the estate of Florentino Hitosis, having been
rendered in a proceeding in rem, is under the abovequoted section 49(a), binding upon
the whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estate of Johnson, 39 Phil.
156; De la Cerna vs. Potot, 120 Phil. 1361, 1364; McMaster vs. Hentry Reissmann &
Co., 68 Phil. 142).

It is not only the 1939 probate proceeding that can be interposed as res judicata with
respect to private respondents' complaint, The 1952 order of dismissal rendered by
Judge Mañalac in Civil Case No. 696, a judgment in personam was an adjudication on
the merits (Sec. 4, Rule 30, old Rules of Court). It constitutes a bar by former judgment
under the aforequoted section 49(b) (Anticamara vs. Ong, L-29689. April 14, 1978).

The plaintiffs or private respondents did not even bother to ask for the annulment of the
testamentary proceeding trial the proceeding in Civil Case No. 696. Obviously, they
realized that the final adjudications in those cases have the binding force of res judicata
and that there is no ground, nor is it timely, to ask for the nullification of the final orders
trial judgments in those two cases.

It is a fundamental concept in the organization of every jural system, a principle of public

policy, that, at the risk of occasional errors, judgments of courts should become final at
some definite date fixed by law. Interest rei publicae ut finis sit litum. "The very object for
which the courts were constituted was to put an end to controversies." (Dy Cay vs.
Crossfield and O'Brien, 38 Phil. 521: Peñalosa vs. Tuason, 22 Phil, 303; De la Cerna vs.
Potot, supra).

After the period for seeking relief from a final order or judgment under Rule 38 of the
Rules of Court has expired, a final judgment or order can be set aside only on the
grounds of (a) lack of jurisdiction or lack of due process of law or (b) that the judgment
was obtained by means of extrinsic or collateral fraud. In the latter case, the period for
annulling the judgment is four years from the discovery of the fraud (2 Moran's
Comments on the Rules of Court, 1970 Edition, pp. 245-246; Mauricio vs. Villanueva,
106 Phil. 1159).

To hurdle over the obstacle of prescription, the trial court, naively adopting the theory of
plaintiffs' counsel, held that the action for the recovery of the lands had not prescribed
because the rule in article 1410 of the Civil Code, that "the action or defense for the
declaration of the inexistence of a contract does not prescribe", applies to wills.

That ruling is a glaring error. Article 1410 cannot possibly apply to last wills trial
testaments. The trial court trial plaintiffs' counsel relied upon the case of Dingle vs.
Guillermo, 48 0. G. 4410, allegedly decided by this Court, which cited the ruling in
Tipton vs. Velasco, 6 Phil. 67, that mere lapse of time cannot give efficacy to void
contracts, a ruling elevated to the category of a codal provision in article 1410. The
Dingle case was decided by the Court of Appeals. Even the trial court did not take pains
to verify the misrepresentation of plaintiffs' counsel that the Dingle case was decided by
this Court. An elementary knowledge of civil law could have alerted the trial court to the
egregious error of plaintiffs' counsel in arguing that article 1410 applies to wills.

WHEREFORE, the lower court's orders of May 3 trial June 17, 1968 are reversed trial
set aside trial its order of dismissal dated January 10, 1968 is affirmed. Costs against
the private respondents.

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 indiviso share. 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. 15 This 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. 19 And 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.1âwphi1.nêt

SO ORDERED.
6. 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.

7. G.R. No. L-20234 December 23, 1964

PAULA DE LA CERNA, ET AL., petitioners,

vs.
MANUELA REBACA POTOT, ET AL., and THE HONORABLE COURT OF APPEALS,
respondents.

Philip M. Alo and Crispin M. Menchavez for petitioners.

Nicolas Jumapao for respondents.

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

Appeal by Paula de la Cerna and others from a decision of the Court of Appeals, Sixth Division
(C.A.-G.R. No. 23763-R) reversing that of the Court of First Instance of Cebu (Civ. Case No. R-
3819) and ordering the dismissal of an action for partition.

The factual background appears in the following portion of the decision of the Court of Appeals
(Petition, Annex A, pp. 2-4):

It appears that on May 9, 1939, the spouses, Bernabe de la Serna and Gervasia Rebaca,
executed a joint last will and testament in the local dialect whereby they willed that "our
two parcels of land acquired during our marriage together with all improvements thereon
shall be given to Manuela Rebaca, our niece, whom we have nurtured since childhood,
because God did not give us any child in our union, Manuela Rebaca being married to
Nicolas Potot", and that "while each of the testators is yet living, he or she will continue
to enjoy the fruits of the two lands aforementioned", the said two parcels of land being
covered by Tax No. 4676 and Tax No. 6677, both situated in sitio Bucao, barrio Lugo,
municipality of Borbon, province of Cebu. Bernabe dela Serna died on August 30, 1939,
and the aforesaid will was submitted to probate by said Gervasia and Manuela before the
Court of First Instance of Cebu which, after due publication as required by law and there
being no opposition, heard the evidence, and, by Order of October 31, 1939; in Special
Proceedings No. 499, "declara legalizado el documento Exhibit A como el testamento y
ultima voluntad del finado Bernabe de la Serna con derecho por parte du su viuda
superstite Gervasia Rebaca y otra testadora al propio tiempo segun el Exhibit A de gozar
de los frutos de los terranos descritos en dicho documents; y habido consideracion de la
cuantia de dichos bienes, se decreta la distribucion sumaria de los mismos en favor de la
logataria universal Manuela Rebaca de Potot previa prestacion por parte de la misma de
una fianza en la sum de P500.00 para responder de cualesquiera reclamaciones que se
presentare contra los bienes del finado Bernabe de la Serna de los años desde esta fecha"
(Act Esp. 499, Testamentaria Finado Bernabe de la Serna) Upon the death of Gervasia
Rebaca on October 14, 1952, another petition for the probate of the same will insofar as
 Gervasia was concerned was filed on November 6, 1952, being Special Proceedings No.
1016-R of the same Court of First Instance of Cebu, but for failure of the petitioner,
Manuela R. Potot and her attorney, Manuel Potot to appear, for the hearing of said
petition, the case was dismissed on March 30, 1954 Spec. Proc. No. 1016-R, In the matter
of the Probate of the Will of Gervasia Rebaca).

The Court of First Instance ordered the petition heard and declared the testament null and void,
for being executed contrary to the prohibition of joint wills in the Civil Code (Art. 669, Civil
Code of 1889 and Art. 818, Civil Code of the Philippines); but on appeal by the testamentary
heir, the Court of Appeals reversed, on the ground that the decree of probate in 1939 was issued
by a court of probate jurisdiction and conclusive on the due execution of the testament. Further,
the Court of Appeals declared that:

... . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code). prohibits the
making of a will jointly by two or more persons either for their reciprocal benefit or for
the benefit of a third person. However, this form of will has long been sanctioned by use,
and the same has continued to be used; and when, as in the present case, one such joint
last will and testament has been admitted to probate by final order of a Court of
competent jurisdiction, there seems to be no alternative except to give effect to the
provisions thereof that are not contrary to law, as was done in the case of Macrohon vs.
Saavedra, 51 Phil. 267, wherein our Supreme Court gave effect to the provisions of the
joint will therein mentioned, saying, "assuming that the joint will in question is valid."

Whence this appeal by the heirs intestate of the deceased husband, Bernabe de la Cerna.

The appealed decision correctly held that the final decree of probate, entered in 1939 by the
Court of First Instance of Cebu (when the testator, Bernabe de la Cerna, died), has conclusive
effect as to his last will and testament despite the fact that even then the Civil Code already
decreed the invalidity of joint wills, whether in favor of the joint testators, reciprocally, or in
favor of a third party (Art. 669, old Civil Code). The error thus committed by the probate court
was an error of law, that should have been corrected by appeal, but which did not affect the
jurisdiction of the probate court, nor the conclusive effect of its final decision, however
erroneous. A final judgment rendered on a petition for the probate of a will is binding upon the
whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estates of Johnson, 39 Phil. 156); and
public policy and sound practice demand that at the risk of occasional errors judgment of courts
should become final at some definite date fixed by law. Interest rei publicae ut finis set litium
(Dy Cay vs. Crossfield, 38 Phil, 521, and other cases cited in 2 Moran, Comments on the Rules
of Court (1963 Ed., p. 322).

Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded by the 1939
decree admitting his will to probate. The contention that being void the will cannot be validated,
overlooks that the ultimate decision on Whether an act is valid or void rests with the courts, and
here they have spoken with finality when the will was probated in 1939. On this court, the
dismissal of their action for partition was correct.
But the Court of Appeals should have taken into account also, to avoid future misunderstanding,
that the probate decree in 1989 could only affect the share of the deceased husband, Bernabe de
la Cerna. It could not include the disposition of the share of the wife, Gervasia Rebaca, who was
then still alive, and over whose interest in the conjugal properties the probate court acquired no
jurisdiction, precisely because her estate could not then be in issue. Be it remembered that prior
to the new Civil Code, a will could not be probated during the testator's lifetime.

It follows that the validity of the joint will, in so far as the estate of the wife was concerned, must
be, on her death, reexamined and adjudicated de novo, since a joint will is considered a separate
will of each testator. Thus regarded, the holding of the court of First Instance of Cebu that the
joint will is one prohibited by law was correct as to the participation of the deceased Gervasia
Rebaca in the properties in question, for the reasons extensively discussed in our decision in
Bilbao vs. Bilbao, 87 Phil. 144, that explained the previous holding in Macrohon vs. Saavedra,
51 Phil. 267.

Therefore, the undivided interest of Gervasia Rebaca should pass upon her death to her heirs
intestate, and not exclusively to the testamentary heir, unless some other valid will in her favor is
shown to exist, or unless she be the only heir intestate of said Gervasia.

It is unnecessary to emphasize that the fact that joint wills should be in common usage could not
make them valid when our Civil Codes consistently invalidated them, because laws are only
repealed by other subsequent laws, and no usage to the contrary may prevail against their
observance (Art. 5, Civ. Code of 1889; Art. 7, Civil Code of the Philippines of 1950).

WITH THE FOREGOING MODIFICATION, the judgment of the Court of Appeals in CA-G.R.
No. 23763-R is affirmed. No Costs.

8. G.R. No. 174489 April 11, 2012

ANTONIO B. BALTAZAR, SEBASTIAN M. BALTAZAR, ANTONIO L.

MANGALINDAN, ROSIE M. MATEO, NENITA A. PACHECO, VIRGILIO REGALA,
JR., and RAFAEL TITCO, Petitioners,
vs.
LORENZO LAXA, Respondent.

DECISION

DEL CASTILLO, J.:

It is incumbent upon those who oppose the probate of a will to clearly establish that the decedent
was not of sound and disposing mind at the time of the execution of said will. Otherwise, the
state is duty-bound to give full effect to the wishes of the testator to distribute his estate in the
manner provided in his will so long as it is legally tenable.1
Before us is a Petition for Review on Certiorari2 of the June 15, 2006 Decision3 of the Court of
Appeals (CA) in CA-G.R. CV No. 80979 which reversed the September 30, 2003 Decision4 of
the Regional Trial Court (RTC), Branch 52, Guagua, Pampanga in Special Proceedings No. G-
1186. The assailed CA Decision granted the petition for probate of the notarial will of Paciencia
Regala (Paciencia), to wit:

WHEREFORE, premises considered, finding the appeal to be impressed with merit, the decision
in SP. PROC. NO. G-1186 dated 30 September 2003, is hereby SET ASIDE and a new one
entered GRANTING the petition for the probate of the will of PACIENCIA REGALA.

SO ORDERED.5

Also assailed herein is the August 31, 2006 CA Resolution6 which denied the Motion for
Reconsideration thereto.

Petitioners call us to reverse the CA’s assailed Decision and instead affirm the Decision of the
RTC which disallowed the notarial will of Paciencia.

Factual Antecedents

Paciencia was a 78 year old spinster when she made her last will and testament entitled "Tauli
Nang Bilin o Testamento Miss Paciencia Regala"7 (Will) in the Pampango dialect on September
13, 1981. The Will, executed in the house of retired Judge Ernestino G. Limpin (Judge Limpin),
was read to Paciencia twice. After which, Paciencia expressed in the presence of the instrumental
witnesses that the document is her last will and testament. She thereafter affixed her signature at
the end of the said document on page 38 and then on the left margin of pages 1, 2 and 4 thereof.9

The witnesses to the Will were Dra. Maria Lioba A. Limpin (Dra. Limpin), Francisco Garcia
(Francisco) and Faustino R. Mercado (Faustino). The three attested to the Will’s due execution
by affixing their signatures below its attestation clause10 and on the left margin of pages 1, 2 and
4 thereof,11 in the presence of Paciencia and of one another and of Judge Limpin who acted as
notary public.

Childless and without any brothers or sisters, Paciencia bequeathed all her properties to
respondent Lorenzo R. Laxa (Lorenzo) and his wife Corazon F. Laxa and their children Luna
Lorella Laxa and Katherine Ross Laxa, thus:

xxxx

Fourth - In consideration of their valuable services to me since then up to the present by the
spouses LORENZO LAXA and CORAZON F. LAXA, I hereby BEQUEATH, CONVEY and
GIVE all my properties enumerated in parcels 1 to 5 unto the spouses LORENZO R. LAXA and
CORAZON F. LAXA and their children, LUNA LORELLA LAXA and KATHERINE LAXA,
and the spouses Lorenzo R. Laxa and Corazon F. Laxa both of legal age, Filipinos, presently
residing at Barrio Sta. Monica, [Sasmuan], Pampanga and their children, LUNA LORELLA and
KATHERINE ROSS LAXA, who are still not of legal age and living with their parents who
would decide to bequeath since they are the children of the spouses;

xxxx

[Sixth] - Should other properties of mine may be discovered aside from the properties mentioned
in this last will and testament, I am also bequeathing and giving the same to the spouses Lorenzo
R. Laxa and Corazon F. Laxa and their two children and I also command them to offer masses
yearly for the repose of my soul and that of D[ñ]a Nicomeda Regala, Epifania Regala and their
spouses and with respect to the fishpond situated at San Antonio, I likewise command to fulfill
the wishes of D[ñ]a Nicomeda Regala in accordance with her testament as stated in my
testament. x x x12

The filial relationship of Lorenzo with Paciencia remains undisputed. Lorenzo is Paciencia’s
nephew whom she treated as her own son. Conversely, Lorenzo came to know and treated
Paciencia as his own mother.13 Paciencia lived with Lorenzo’s family in Sasmuan, Pampanga
and it was she who raised and cared for Lorenzo since his birth. Six days after the execution of
the Will or on September 19, 1981, Paciencia left for the United States of America (USA).
There, she resided with Lorenzo and his family until her death on January 4, 1996.

In the interim, the Will remained in the custody of Judge Limpin.

More than four years after the death of Paciencia or on April 27, 2000, Lorenzo filed a petition14
with the RTC of Guagua, Pampanga for the probate of the Will of Paciencia and for the issuance
of Letters of Administration in his favor, docketed as Special Proceedings No. G-1186.

There being no opposition to the petition after its due publication, the RTC issued an Order on
June 13, 200015 allowing Lorenzo to present evidence on June 22, 2000. On said date, Dra.
Limpin testified that she was one of the instrumental witnesses in the execution of the last will
and testament of Paciencia on September 13, 1981.16 The Will was executed in her father’s
(Judge Limpin) home office, in her presence and of two other witnesses, Francisco and
Faustino.17 Dra. Limpin positively identified the Will and her signatures on all its four pages.18
She likewise positively identified the signature of her father appearing thereon.19 Questioned by
the prosecutor regarding Judge Limpin’s present mental fitness, Dra. Limpin testified that her
father had a stroke in 1991 and had to undergo brain surgery.20 The judge can walk but can no
longer talk and remember her name. Because of this, Dra. Limpin stated that her father can no
longer testify in court.21

The following day or on June 23, 2000, petitioner Antonio Baltazar (Antonio) filed an
opposition22 to Lorenzo’s petition. Antonio averred that the properties subject of Paciencia’s
Will belong to Nicomeda Regala Mangalindan, his predecessor-in-interest; hence, Paciencia had
no right to bequeath them to Lorenzo.23

Barely a month after or on July 20, 2000, Antonio, now joined by petitioners Sebastian M.
Baltazar, Virgilio Regala, Jr., Nenita A. Pacheco, Felix B. Flores, Rafael Titco, Rosie M. Mateo
(Rosie) and Antonio L. Mangalindan filed a Supplemental Opposition24 contending that
Paciencia’s Will was null and void because ownership of the properties had not been transferred
and/or titled to Paciencia before her death pursuant to Article 1049, paragraph 3 of the Civil
Code.25 Petitioners also opposed the issuance of Letters of Administration in Lorenzo’s favor
arguing that Lorenzo was disqualified to be appointed as such, he being a citizen and resident of
the USA.26 Petitioners prayed that Letters of Administration be instead issued in favor of
Antonio.27

Later still on September 26, 2000, petitioners filed an Amended Opposition28 asking the RTC to
deny the probate of Paciencia’s Will on the following grounds: the Will was not executed and
attested to in accordance with the requirements of the law; that Paciencia was mentally incapable
to make a Will at the time of its execution; that she was forced to execute the Will under duress
or influence of fear or threats; that the execution of the Will had been procured by undue and
improper pressure and influence by Lorenzo or by some other persons for his benefit; that the
signature of Paciencia on the Will was forged; that assuming the signature to be genuine, it was
obtained through fraud or trickery; and, that Paciencia did not intend the document to be her
Will. Simultaneously, petitioners filed an Opposition and Recommendation29 reiterating their
opposition to the appointment of Lorenzo as administrator of the properties and requesting for
the appointment of Antonio in his stead.

On January 29, 2001, the RTC issued an Order30 denying the requests of both Lorenzo and
Antonio to be appointed administrator since the former is a citizen and resident of the USA while
the latter’s claim as a co-owner of the properties subject of the Will has not yet been established.

Meanwhile, proceedings on the petition for the probate of the Will continued. Dra. Limpin was
recalled for cross-examination by the petitioners. She testified as to the age of her father at the
time the latter notarized the Will of Paciencia; the living arrangements of Paciencia at the time of
the execution of the Will; and the lack of photographs when the event took place. 31

Aside from Dra. Limpin, Lorenzo and Monico Mercado (Monico) also took the witness stand.
Monico, son of Faustino, testified on his father’s condition. According to him his father can no
longer talk and express himself due to brain damage. A medical certificate was presented to the
court to support this allegation. 32

For his part, Lorenzo testified that: from 1944 until his departure for the USA in April 1980, he
lived in Sasmuan, Pampanga with his family and his aunt, Paciencia; in 1981 Paciencia went to
the USA and lived with him and his family until her death in January 1996; the relationship
between him and Paciencia was like that of a mother and child since Paciencia took care of him
since birth and took him in as an adopted son; Paciencia was a spinster without children, and
without brothers and sisters; at the time of Paciencia’s death, she did not suffer from any mental
disorder and was of sound mind, was not blind, deaf or mute; the Will was in the custody of
Judge Limpin and was only given to him after Paciencia’s death through Faustino; and he was
already residing in the USA when the Will was executed.33 Lorenzo positively identified the
signature of Paciencia in three different documents and in the Will itself and stated that he was
familiar with Paciencia’s signature because he accompanied her in her transactions.34 Further,
Lorenzo belied and denied having used force, intimidation, violence, coercion or trickery upon
Paciencia to execute the Will as he was not in the Philippines when the same was executed.35
On cross-examination, Lorenzo clarified that Paciencia informed him about the Will shortly after
her arrival in the USA but that he saw a copy of the Will only after her death.36

As to Francisco, he could no longer be presented in court as he already died on May 21, 2000.

For petitioners, Rosie testified that her mother and Paciencia were first cousins.37 She claimed to
have helped in the household chores in the house of Paciencia thereby allowing her to stay
therein from morning until evening and that during the period of her service in the said
household, Lorenzo’s wife and his children were staying in the same house.38 She served in the
said household from 1980 until Paciencia’s departure for the USA on September 19, 1981.39

On September 13, 1981, Rosie claimed that she saw Faustino bring "something" for Paciencia to
sign at the latter’s house.40 Rosie admitted, though, that she did not see what that "something"
was as same was placed inside an envelope.41 However, she remembered Paciencia instructing
Faustino to first look for money before she signs them.42 A few days after or on September 16,
1981, Paciencia went to the house of Antonio’s mother and brought with her the said
envelope.43 Upon going home, however, the envelope was no longer with Paciencia.44 Rosie
further testified that Paciencia was referred to as "magulyan" or "forgetful" because she would
sometimes leave her wallet in the kitchen then start looking for it moments later.45 On cross
examination, it was established that Rosie was neither a doctor nor a psychiatrist, that her
conclusion that Paciencia was "magulyan" was based on her personal assessment,46 and that it
was Antonio who requested her to testify in court.47

In his direct examination, Antonio stated that Paciencia was his aunt.48 He identified the Will
and testified that he had seen the said document before because Paciencia brought the same to his
mother’s house and showed it to him along with another document on September 16, 1981.49
Antonio alleged that when the documents were shown to him, the same were still unsigned.50
According to him, Paciencia thought that the documents pertained to a lease of one of her rice
lands,51 and it was he who explained that the documents were actually a special power of
attorney to lease and sell her fishpond and other properties upon her departure for the USA, and a
Will which would transfer her properties to Lorenzo and his family upon her death.52 Upon
hearing this, Paciencia allegedly uttered the following words: "Why will I never [return], why
will I sell all my properties?" Who is Lorenzo? Is he the only [son] of God? I have other relatives
[who should] benefit from my properties. Why should I die already?"53 Thereafter, Antonio
advised Paciencia not to sign the documents if she does not want to, to which the latter
purportedly replied, "I know nothing about those, throw them away or it is up to you. The more I
will not sign them."54 After which, Paciencia left the documents with Antonio. Antonio kept the
unsigned documents

and eventually turned them over to Faustino on September 18, 1981.55

Ruling of the Regional Trial Court

On September 30, 2003, the RTC rendered its Decision56 denying the petition thus:
WHEREFORE, this court hereby (a) denies the petition dated April 24, 2000; and (b) disallows
the notarized will dated September 13, 1981 of Paciencia Regala.

SO ORDERED.57

The trial court gave considerable weight to the testimony of Rosie and concluded that at the time
Paciencia signed the Will, she was no longer possessed of sufficient reason or strength of mind
to have testamentary capacity.58

Ruling of the Court of Appeals

On appeal, the CA reversed the RTC Decision and granted the probate of the Will of Paciencia.
The appellate court did not agree with the RTC’s conclusion that Paciencia was of unsound mind
when she executed the Will. It ratiocinated that "the state of being ‘magulyan’ does not make a
person mentally unsound so [as] to render [Paciencia] unfit for executing a Will."59 Moreover,
the oppositors in the probate proceedings were not able to overcome the presumption that every
person is of sound mind. Further, no concrete circumstances or events were given to prove the
allegation that Paciencia was tricked or forced into signing the Will.60

Petitioners moved for reconsideration61 but the motion was denied by the CA in its
Resolution62 dated August 31, 2006.

Hence, this petition.

Issues

Petitioners come before this Court by way of Petition for Review on Certiorari ascribing upon
the CA the following errors:

I.

THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED WHEN IT

ALLOWED THE PROBATE OF PACIENCIA’S WILL DESPITE RESPONDENT’S
UTTER FAILURE TO COMPLY WITH SECTION 11, RULE 76 OF THE RULES OF
COURT;

II.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN MAKING

CONCLUSIONS NOT IN ACCORDANCE WITH THE EVIDENCE ON RECORD;

III.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT

PETITIONERS FAILED TO PROVE THAT PACIENCIA WAS NOT OF SOUND
MIND AT THE TIME THE WILL WAS ALLEGEDLY EXECUTED63
The pivotal issue is whether the authenticity and due execution of the notarial Will was
sufficiently established to warrant its allowance for probate.

Our Ruling

We deny the petition.

Faithful compliance with the formalities laid down by law is apparent from the face of the Will.

Courts are tasked to determine nothing more than the extrinsic validity of a Will in probate
proceedings.64 This is expressly provided for in Rule 75, Section 1 of the Rules of Court, which
states:

Rule 75

Production of Will. Allowance of Will Necessary.

Section 1. Allowance necessary. Conclusive as to execution. – No will shall pass either real or
personal estate unless it is proved and allowed in the proper court. Subject to the right of appeal,
such allowance of the will shall be conclusive as to its due execution.

Due execution of the will or its extrinsic validity pertains to whether the testator, being of sound
mind, freely executed the will in accordance with the formalities prescribed by law.65 These
formalities are enshrined in Articles 805 and 806 of the New Civil Code, to wit:

Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testator's name written by some other person in his presence, and by his
express direction, and attested and subscribed by three or more credible witnesses in the presence
of the testator and of one another.

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

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

If the attestation clause is in a language not known to the witnesses, it shall be interpreted to
them.
Art. 806. Every will must be acknowledged before a notary public by the testator and the
witnesses. The notary public shall not be required to retain a copy of the will, or file another with
the Office of the Clerk of Court.

Here, a careful examination of the face of the Will shows faithful compliance with the
formalities laid down by law. The signatures of the testatrix, Paciencia, her instrumental
witnesses and the notary public, are all present and evident on the Will. Further, the attestation
clause explicitly states the critical requirement that the testatrix and her instrumental witnesses
signed the Will in the presence of one another and that the witnesses attested and subscribed to
the Will in the presence of the testator and of one another. In fact, even the petitioners acceded
that the signature of Paciencia in the Will may be authentic although they question her state of
mind when she signed the same as well as the voluntary nature of said act.

The burden to prove that Paciencia was of unsound mind at the time of the execution of the will
lies on the shoulders of the petitioners.

Petitioners, through their witness Rosie, claim that Paciencia was "magulyan" or forgetful so
much so that it effectively stripped her of testamentary capacity. They likewise claimed in their
Motion for Reconsideration66 filed with the CA that Paciencia was not only "magulyan" but was
actually suffering from paranoia.67

We are not convinced.

We agree with the position of the CA that the state of being forgetful does not necessarily make a
person mentally unsound so as to render him unfit to execute a Will.68 Forgetfulness is not
equivalent to being of unsound mind. Besides, Article 799 of the New Civil Code states:

Art. 799. To be of sound mind, it is not necessary that the testator be in full possession of all his
reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease,
injury or other cause.

It shall be sufficient if the testator was able at the time of making the will to know the nature of
the estate to be disposed of, the proper objects of his bounty, and the character of the
testamentary act.

In this case, apart from the testimony of Rosie pertaining to Paciencia’s forgetfulness, there is no
substantial evidence, medical or otherwise, that would show that Paciencia was of unsound mind
at the time of the execution of the Will. On the other hand, we find more worthy of credence Dra.
Limpin’s testimony as to the soundness of mind of Paciencia when the latter went to Judge
Limpin’s house and voluntarily executed the Will. "The testimony of subscribing witnesses to a
Will concerning the testator’s mental condition is entitled to great weight where they are truthful
and intelligent."69 More importantly, a testator is presumed to be of sound mind at the time of
the execution of the Will and the burden to prove otherwise lies on the oppositor. Article 800 of
the New Civil Code states:
Art. 800. The law presumes that every person is of sound mind, in the absence of proof to the
contrary.

The burden of proof that the testator was not of sound mind at the time of making his
dispositions is on the person who opposes the probate of the will; but if the testator, one month,
or less, before making his will was publicly known to be insane, the person who maintains the
validity of the will must prove that the testator made it during a lucid interval.

Here, there was no showing that Paciencia was publicly known to be insane one month or less
before the making of the Will. Clearly, thus, the burden to prove that Paciencia was of unsound
mind lies upon the shoulders of petitioners. However and as earlier mentioned, no substantial
evidence was presented by them to prove the same, thereby warranting the CA’s finding that
petitioners failed to discharge such burden.

Furthermore, we are convinced that Paciencia was aware of the nature of her estate to be
disposed of, the proper objects of her bounty and the character of the testamentary act. As aptly
pointed out by the CA:

A scrutiny of the Will discloses that [Paciencia] was aware of the nature of the document she
executed. She specially requested that the customs of her faith be observed upon her death. She
was well aware of how she acquired the properties from her parents and the properties she is
bequeathing to LORENZO, to his wife CORAZON and to his two (2) children. A third child was
born after the execution of the will and was not included therein as devisee.70

Bare allegations of duress or influence of fear or threats, undue and improper influence and
pressure, fraud and trickery cannot be used as basis to deny the probate of a will.

An essential element of the validity of the Will is the willingness of the testator or testatrix to
execute the document that will distribute his/her earthly possessions upon his/her death.
Petitioners claim that Paciencia was forced to execute the Will under duress or influence of fear
or threats; that the execution of the Will had been procured by undue and improper pressure and
influence by Lorenzo or by some other persons for his benefit; and that assuming Paciencia’s
signature to be genuine, it was obtained through fraud or trickery. These are grounded on the
alleged conversation between Paciencia and Antonio on September 16, 1981 wherein the former
purportedly repudiated the Will and left it unsigned.

We are not persuaded.

We take into consideration the unrebutted fact that Paciencia loved and treated Lorenzo as her
own son and that love even extended to Lorenzo’s wife and children. This kind of relationship is
not unusual. It is in fact not unheard of in our culture for old maids or spinsters to care for and
raise their nephews and nieces and treat them as their own children. Such is a prevalent and
accepted cultural practice that has resulted in many family discords between those favored by the
testamentary disposition of a testator and those who stand to benefit in case of intestacy.
In this case, evidence shows the acknowledged fact that Paciencia’s relationship with Lorenzo
and his family is different from her relationship with petitioners. The very fact that she cared for
and raised Lorenzo and lived with him both here and abroad, even if the latter was already
married and already has children, highlights the special bond between them. This unquestioned
relationship between Paciencia and the devisees tends to support the authenticity of the said
document as against petitioners’ allegations of duress, influence of fear or threats, undue and
improper influence, pressure, fraud, and trickery which, aside from being factual in nature, are
not supported by concrete, substantial and credible evidence on record. It is worth stressing that
bare arguments, no matter how forceful, if not based on concrete and substantial evidence cannot
suffice to move the Court to uphold said allegations.71 Furthermore, "a purported will is not [to
be] denied legalization on dubious grounds. Otherwise, the very institution of testamentary
succession will be shaken to its foundation, for even if a will has been duly executed in fact,
whether x x x it will be probated would have to depend largely on the attitude of those interested
in [the estate of the deceased]."72

Court should be convinced by the evidence presented before it that the Will was duly executed.

Petitioners dispute the authenticity of Paciencia’s Will on the ground that Section 11 of Rule 76
of the Rules of Court was not complied with. It provides:

RULE 76

Allowance or Disallowance of Will

Section 11. Subscribing witnesses produced or accounted for where will contested. – If the will
is contested, all the subscribing witnesses, and the notary in the case of wills executed under the
Civil Code of the Philippines, if present in the Philippines and not insane, must be produced and
examined, and the death, absence, or insanity of any of them must be satisfactorily shown to the
court. If all or some of such witnesses are present in the Philippines but outside the province
where the will has been filed, their deposition must be taken. If any or all of them testify against
the due execution of the will, or do not remember having attested to it, or are otherwise of
doubtful credibility, the will may nevertheless, be allowed if the court is satisfied from the
testimony of other witnesses and from all the evidence presented that the will was executed and
attested in the manner required by law.

If a holographic will is contested, the same shall be allowed if at least three (3) witnesses who
know the handwriting of the testator explicitly declare that the will and the signature are in the
handwriting of the testator; in the absence of any competent witnesses, and if the court deem it
necessary, expert testimony may be resorted to. (Emphasis supplied.)

They insist that all subscribing witnesses and the notary public should have been presented in
court since all but one witness, Francisco, are still living.

We cannot agree with petitioners.

We note that the inability of Faustino and Judge Limpin to appear and testify before the court
was satisfactorily explained during the probate proceedings. As testified to by his son, Faustino
had a heart attack, was already bedridden and could no longer talk and express himself due to
brain damage. To prove this, said witness presented the corresponding medical certificate. For
her part, Dra. Limpin testified that her father, Judge Limpin, suffered a stroke in 1991 and had to
undergo brain surgery. At that time, Judge Limpin could no longer talk and could not even
remember his daughter’s name so that Dra. Limpin stated that given such condition, her father
could no longer testify. It is well to note that at that point, despite ample opportunity, petitioners
neither interposed any objections to the testimonies of said witnesses nor challenged the same on
cross examination. We thus hold that for all intents and purposes, Lorenzo was able to
satisfactorily account for the incapacity and failure of the said subscribing witness and of the
notary public to testify in court. Because of this the probate of Paciencia’s Will may be allowed
on the basis of Dra. Limpin’s testimony proving her sanity and the due execution of the Will, as
well as on the proof of her handwriting. It is an established rule that "[a] testament may not be
disallowed just because the attesting witnesses declare against its due execution; neither does it
have to be necessarily allowed just because all the attesting witnesses declare in favor of its
legalization; what is decisive is that the court is convinced by evidence before it, not necessarily
from the attesting witnesses, although they must testify, that the will was or was not duly
executed in the manner required by law."73 1âwphi1

Moreover, it bears stressing that "[i]rrespective x x x of the posture of any of the parties as
regards the authenticity and due execution of the will x x x in question, it is the mandate of the
law that it is the evidence before the court and/or [evidence that] ought to be before it that is
controlling."74 "The very existence of [the Will] is in itself prima facie proof that the supposed
[testatrix] has willed that [her] estate be distributed in the manner therein provided, and it is
incumbent upon the state that, if legally tenable, such desire be given full effect independent of
the attitude of the parties affected thereby."75 This, coupled with Lorenzo’s established
relationship with Paciencia, the evidence and the testimonies of disinterested witnesses, as
opposed to the total lack of evidence presented by petitioners apart from their self-serving
testimonies, constrain us to tilt the balance in favor of the authenticity of the Will and its
allowance for probate.

WHEREFORE, the petition is DENIED. The Decision dated June 15, 2006 and the Resolution
dated August 31, 2006 of the Court of Appeals in CA-G.R. CV No. 80979 are AFFIRMED.

SO ORDERED.

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

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

GAN, petitioner-appellant,
vs.
ILDEFONSO YAP, oppositor-appellee.
Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for appellant.
Arturo M. Tolentino for appellee.

BENGZON, J.:

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

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

Nobyembre 5, 1951.

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

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

Vicente Esguerra, Sr. 5 Bahagi

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

At ang aking lahat ng ibang kayamanan sa Maynila at iba panglugar ay aking

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

(Lagda) Felicidad E. Alto-Yap.

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

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

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

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

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

From the oppositor's proof it appears that Felicidad Esguerra had been suffering from heart
disease for several years before her death; that she had been treated by prominent physicians, Dr.
Agerico Sison, Dr. Agustin Liboro and others; that in May 1950 husband and wife journeyed to
the United States wherein for several weeks she was treated for the disease; that thereafter she
felt well and after visiting interesting places, the couple returned to this country in August 1950.
However, her ailment recurred, she suffered several attacks, the most serious of which happened
in the early morning of the first Monday of November 1951 (Nov. 5). The whole household was
surprised and alarmed, even the teachers of the Harvardian Colleges occupying the lower floors
and of by the Yap spouses. Physician's help was hurriedly called, and Dr. Tanjuaquio arrived at
about 8:00 a.m., found the patient hardly breathing, lying in bed, her head held high by her
husband. Injections and oxygen were administered. Following the doctor's advice the patient
stayed in bed, and did nothing the whole day, her husband and her personal attendant, Mrs.
Bantique, constantly at her side. These two persons swore that Mrs. Felicidad Esguerra Yap
made no will, and could have made no will on that day.
The trial judge refused to credit the petitioner's evidence for several reasons, the most important
of which were these: (a) if according to his evidence, the decedent wanted to keep her will a
secret, so that her husband would not know it, it is strange she executed it in the presence of
Felina Esguerra, knowing as she did that witnesses were unnecessary; (b) in the absence of a
showing that Felina was a confidant of the decedent it is hard to believe that the latter would
have allowed the former to see and read the will several times; (c) it is improbable that the
decedent would have permitted Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte to
read her will, when she precisely wanted its contents to remain a secret during her lifetime; (d) it
is also improbable that her purpose being to conceal the will from her husband she would carry it
around, even to the hospital, in her purse which could for one reason or another be opened by her
husband; (e) if it is true that the husband demanded the purse from Felina in the U.S.T. Hospital
and that the will was there, it is hard to believe that he returned it without destroying the will, the
theory of the petitioner being precisely that the will was executed behind his back for fear he will
destroy it.

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

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

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

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

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

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

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

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

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

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

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

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

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

Spanish commentators agree that one of the greatest objections to the holographic will is that it
may be lost or stolen4 — an implied admission that such loss or theft renders it useless..

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

If testimonial evidence of holographic wills be permitted, one more objectionable feature —

feasibility of forgery — would be added to the several objections to this kind of wills listed by
Castan, Sanchez Roman and Valverde and other well-known Spanish Commentators and
teachers of Civil Law.10

One more fundamental difference: in the case of a lost will, the three subscribing witnesses
would be testifying to a fact which they saw, namely the act of the testator of subscribing the
will; whereas in the case of a lost holographic will, the witnesses would testify as to their opinion
of the handwriting which they allegedly saw, an opinion which can not be tested in court, nor
directly contradicted by the oppositors, because the handwriting itself is not at hand.

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

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

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

Judgment affirmed, with costs against petitioner.

10. G.R. No. L-58509 December 7, 1982

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

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

Luciano A. Joson for petitioner-appellant.

Cesar Paralejo for oppositor-appellee.

RELOVA, J.:

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

As found by the Court of Appeals:

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

(1) Appellant was estopped from claiming that the deceased left a will by
failing to produce the will within twenty days of the death of the testator as
required by Rule 75, section 2 of the Rules of Court;
(2) The alleged copy of the alleged holographic will did not contain a
disposition of property after death and was not intended to take effect after
death, and therefore it was not a will

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

(4 ) The deceased did not leave any will, holographic or otherwise,

executed and attested as required by law.

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

On November 13, 1978, following the consolidation of the cases, the

appellees moved again to dismiss the petition for the probate of the will.
They argued that:

(1) The alleged holographic was not a last will but merely an instruction as
to the management and improvement of the schools and colleges founded
by decedent Ricardo B. Bonilla; and

(2) Lost or destroyed holographic wills cannot be proved by secondary

evidence unlike ordinary wills.

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

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

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

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

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

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

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

I. THE LOWER COURT ERRED IN HOLDING THAT A LOST

HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY THEREOF;

II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT

HAS DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC
WILL;

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

The only question here is whether a holographic will which was lost or cannot be found
can be proved by means of a photostatic copy. Pursuant to Article 811 of the Civil Code,
probate of holographic wills is the allowance of the will by the court after its due
execution has been proved. The probate may be uncontested or not. If uncontested, at
least one Identifying witness is required and, if no witness is available, experts may be
resorted to. If contested, at least three Identifying witnesses are required. However, if
the holographic will has been lost or destroyed and no other copy is available, the will
can not be probated because the best and only evidence is the handwriting of the
testator in said will. It is necessary that there be a comparison between sample
handwritten statements of the testator and the handwritten will. But, a photostatic copy
or xerox copy of the holographic will may be allowed because comparison can be made
with the standard writings of the testator. In the case of Gam vs. Yap, 104 PHIL. 509,
the Court ruled that "the execution and the contents of a lost or destroyed holographic
will may not be proved by the bare testimony of witnesses who have seen and/or read
such will. The will itself must be presented; otherwise, it shall produce no effect. The law
regards the document itself as material proof of authenticity." But, in Footnote 8 of said
decision, it says that "Perhaps it may be proved by a photographic or photostatic copy.
Even a mimeographed or carbon copy; or by other similar means, if any, whereby the
authenticity of the handwriting of the deceased may be exhibited and tested before the
probate court," Evidently, the photostatic or xerox copy of the lost or destroyed
holographic will may be admitted because then the authenticity of the handwriting of the
deceased can be determined by the probate court.
WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's
motion for reconsideration dated August 9, 1979, of the Order dated July 23, 1979,
dismissing her petition to approve the will of the late Ricardo B. Bonilla, is hereby SET
ASIDE.

SO ORDERED.

11. G.R. No. L-14003 August 5, 1960

FEDERICO AZAOLA, petitioner-appellant,

vs.
CESARIO SINGSON, oppositor-appellee.

F. Lavides and L.B. Alcuaz for appellant.

Vicente J. Cuna and P.S. Singson for appellee.

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

This appeal, taken on points of law from a decision rendered on 15 January 1958 by the Court of
First Instance of Quezon City in its Special Proceedings No. Q-2640, involves the determination
of the quantity of evidence required for the probate of a holographic will.

The established facts are thus summarized in the decision appealed from (Rec. App. pp. 22-24):

"Briefly speaking, the following facts were established by the petitioner; that on
September 9, 1957, Fortunata S. Vda. de Yance died at 13 Luskot, Quezon City, known
to be the last residence of said testatrix; that Francisco Azaola, petitioner herein for
probate of the holographic will, submitted the said holographic will (Exh. C) whereby
Maria Milagros Azaola was made the sole heir as against the nephew of deceased Cesario
Singson; that witness Francisco Azaola testified that he saw the holographic will (Exh. C)
one month, more or less, before the death of the testatrix, as the same was handed to him
and his wife; that the witness testified also that he recognized all the signatures appearing
in the holographic will (Exh. C) as the handwriting of the testatrix and to reinforce said
statement, witness presented the mortgage (Exh. E), the special power of the attorney
(Exh. F), and the general power of attorney (Exh. F-1), besides the deeds of sale (Exhs. G
and G-1) including an affidavit (Exh. G-2), and that there were further exhibited in court
two residence certificates (Exhs. H and H-1) to show the signatures of the testatrix, for
comparison purposes; that said witness, Azaola, testified that the penmanship appearing
in the aforesaid documentary evidence is in the handwriting of the testatrix as well as the
signatures appearing in the aforesaid documentary evidence is in the handwriting of the
testatrix as well as the signatures appearing therein are the signatures of the testatrix; that
said witness, in answer to a question of his counsel admitted that the holographic will was
handed to him by the testatrix. "apparently it must have been written by her" (t.s.n., p.
11). However, on page 16 on the same transcript of the stenographic notes, when the
 same witness was asked by counsel if he was familiar with the penmanship and
handwriting of the deceased Fortunata Vda. de Yance, he answered positively in the
affirmative and when he was asked again whether the penmanship referred to in the
previous answer as appearing in the holographic will (Exh. C) was hers (testatrix'), he
answered, "I would definitely say it is hers"; that it was also established in the
proceedings that the assessed value of the property of the deceased in Luskot, Quezon
City, is in the amount of P7,000.00.

The opposition to the probate was on the ground that (1) the execution of the will was procured
by undue and improper pressure and influence on the part of the petitioner and his wife, and (2)
that the testatrix did not seriously intend the instrument to be her last will, and that the same was
actually written either on the 5th or 6th day of August 1957 and not on November 20, 1956 as
appears on the will.

The probate was denied on the ground that under Article 811 of the Civil Code, the proponent
must present three witnesses who could declare that the will and the signature are in the writing
of the testatrix, the probate being contested; and because the lone witness presented by the
proponent "did not prove sufficiently that the body of the will was written in the handwriting of
the testatrix."

The proponent appealed, urging: first, that he was not bound to produce more than one witness
because the will's authenticity was not questioned; and second, that Article 811 does not
mandatorily require the production of three witnesses to identify the handwriting and signature
of a holographic will, even if its authenticity should be denied by the adverse party.

Article 811 of the Civil Code of the Philippines is to the following effect:

ART. 811. In the probate of a holographic will, it shall be necessary that at least one
witness who knows the handwriting and signature of the testator explicitly declare that
the will and the signature are in the handwriting of the testator. If the will is contested, at
least three of such witnesses shall be required.

In the absence of any competent witnesses referred to in the preceding paragraph, and if
the court deems it necessary, expert testimony may be resorted to. (691a).

We agree with the appellant that since the authenticity of the will was not contested, he was not
required to produce more than one witness; but 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 a holographic will, none being required by law (Art. 810,
new Civil Code), it becomes obvious that the existence of witness 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
so express) "that the will and the signature are in the handwriting of the testator". There may be
no available witness of the testator's hand; or even if so familiarized, the witnesses may be
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 seen, the law foresees the possibility that no qualified witness may 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. Delfinado, 45 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742). But it
can not be ignored that the requirement can be considered mandatory only in the 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 Article 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 ill 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.

Commenting on analogous provisions of Article 691 of the Spanish Civil Code of 1889, the
noted Commentator, Mucuis Scaevola (Vol. 12, 2nd Ed., p.421), sagely remarks:

La manera como esta concebida la redaccion del ultimo apartado de dicho precepto
induce la conclusion de que siempre o por lo menos, en la mayor parte de los casos, el
Juez debe acudir al criterio pericial para que le ilustre acerca de la autenticidad del
testamento olografo, aunque ya esten insertas en los autos del expediente las
declaraciones testificales. La prudencia con que el Juez debe de proceder en resoluciones
de transcendencia asi lo exige, y la indole delicada y peligrosa del testamento olografo lo
hace necesario para mayor garantia de todos los interes comprometidos en aquel.

En efecto, el cotejo pericial de letras puede ser una confirmacion facultativa del dicho
profano de los testigos y un modo de desvanecer las ultimas dudas que pudieran ocurrir al
Juez acerca de la autenticidad que trata de averigaur y declarar. Para eso se ha escrito la
frase del citado ultimo apartado, (siempre que el Juez lo estime conveniente), haya
 habido o no testigos y dudaran o no estos respecto de los extremos por que son
preguntados.

El arbitrio judicial en este caso debe formarse con independencia de los sucesos y de su
significacion, para responder debidamente de las resoluciones que haya de dictar.

And because the law leaves it to the trial court if experts are still needed, no unfavourable
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.

Our conclusion is that the rule of the first paragraph of Article 811 of the Civil Code is merely
directory and is not mandatory.

Considering, however, that this is the first occasion in which this Court has been called upon to
construe the import of said article, the interest of justice would be better served, in our opinion,
by giving the parties ample opportunity to adduce additional evidence, including expert
witnesses, should the Court deem them necessary.

In view of the foregoing, the decision appealed from is set aside, and the records ordered
remanded to the Court of origin, with instructions to hold a new trial in conformity with this
opinion. But evidence already on record shall not be retaken. No costs.

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.1âwphi1.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.1âwphi1.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,31 ruling 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, 1978,35 the 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

No costs.

SO ORDERED.

13. G.R. No. L-27952 February 15, 1982

TESTATE ESTATE OF JOSE EUGENIO RAMIREZ, MARIA LUISA PALACIOS,

Administratrix, petitioner-appellee,
vs.
MARCELLE D. VDA. DE RAMIREZ, ET AL., oppositors, JORGE and ROBERTO
RAMIREZ, legatees, oppositors- appellants.

ABAD SANTOS, J.:

The main issue in this appeal is the manner of partitioning the testate estate of Jose
Eugenio Ramirez among the principal beneficiaries, namely: his widow Marcelle
Demoron de Ramirez; his two grandnephews Roberto and Jorge Ramirez; and his
companion Wanda de Wrobleski.

The task is not trouble-free because the widow Marcelle is a French who lives in Paris,
while the companion Wanda is an Austrian who lives in Spain. Moreover, the testator
provided for substitutions.

Jose Eugenio Ramirez, a Filipino national, died in Spain on December 11, 1964, with
only his widow as compulsory heir. His will was admitted to probate by the Court of First
Instance of Manila, Branch X, on July 27, 1965. Maria Luisa Palacios was appointed
administratrix of the estate. In due time she submitted an inventory of the estate as
follows:

INVENTARIO

Una sexta parte (1/6) proindiviso de un te

rreno, con sus mejoras y edificaciones, situadoen

la Escolta, Manila............................................................. P500,000.00

 Una sexta parte (1/6) proindiviso de dos

parcelas de terreno situadas en Antipolo, Rizal................... 658.34

Cuatrocientos noventa y uno (491) acciones

de la 'Central Azucarera de la Carlota a P17.00

por accion ................................................................................8,347.00

Diez mil ochocientos seize (10,806) acciones

de la 'Central Luzon Milling Co.', disuelta y en

liquidacion a P0.15 por accion ..............................................1,620.90

Cuenta de Ahorros en el Philippine Trust

Co.............................................................................................. 2,350.73

TOTAL.............................................................. P512,976.97

MENOS:

Deuda al Banco de las Islas Filipinas, garan-

tizada con prenda de las acciones de La Carlota ......... P 5,000,00

VALOR LIQUIDO........................................... P507,976.97

The testamentary dispositions are as follows:

A.—En nuda propiedad, a D. Roberto y D. Jorge Ramirez, ambas

menores de edad, residentes en Manila, I.F., calle 'Alright, No. 1818,
Malate, hijos de su sobrino D. Jose Ma. Ramirez, con sustitucion vulgar a
favor de sus respectivos descendientes, y, en su defecto, con sustitucion
vulgar reciprocal entre ambos.

El precedente legado en nuda propiedad de la participacion indivisa de la

finca Santa Cruz Building, lo ordena el testador a favor de los legatarios
nombrados, en atencion a que dicha propiedad fue creacion del querido
padre del otorgante y por ser aquellos continuadores del apellido
Ramirez,

B.—Y en usufructo a saber: —

 a. En cuanto a una tercera parte, a favor de la esposa del testador, Da.
Marcelle Ramirez, domiciliada en IE PECO, calle del General Gallieni No.
33, Seine Francia, con sustitucion vulgar u fideicomisaria a favor de Da.
Wanda de Wrobleski, de Palma de Mallorca, Son Rapina Avenida de los
Reyes 13,

b.—Y en cuanto a las dos terceras partes restantes, a favor de la

nombrada Da. Wanda de Nrobleski con sustitucion vulgar v fideicomisaria
a saber:—

En cuanto a la mitad de dichas dos terceras partes, a favor de D. Juan

Pablo Jankowski, de Son Rapina Palma de Mallorca; y encuanto a la
mitad restante, a favor de su sobrino, D. Horace V. Ramirez, San Luis
Building, Florida St. Ermita, Manila, I.F.

A pesar de las sustituciones fideiconiisarias precedentemente ordinadas,

las usufiructuarias nombradas conjuntamente con los nudo propietarios,
podran en cualquier memento vender a tercero los bienes objeto
delegado, sin intervencion alguna de los titulares fideicomisaarios.

On June 23, 1966, the administratrix submitted a project of partition as follows: the
property of the deceased is to be divided into two parts. One part shall go to the widow
'en pleno dominio" in satisfaction of her legitime; the other part or "free portion" shall go
to Jorge and Roberto Ramirez "en nuda propriedad." Furthermore, one third (1/3) of the
free portion is charged with the widow's usufruct and the remaining two-thirds (2/3) with
a usufruct in favor of Wanda.

Jorge and Roberto opposed the project of partition on the grounds: (a) that the
provisions for vulgar substitution in favor of Wanda de Wrobleski with respect to the
widow's usufruct and in favor of Juan Pablo Jankowski and Horacio V. Ramirez, with
respect to Wanda's usufruct are invalid because the first heirs Marcelle and Wanda)
survived the testator; (b) that the provisions for fideicommissary substitutions are also
invalid because the first heirs are not related to the second heirs or substitutes within
the first degree, as provided in Article 863 of the Civil Code; (c) that the grant of a
usufruct over real property in the Philippines in favor of Wanda Wrobleski, who is an
alien, violates Section 5, Article III of the Philippine Constitution; and that (d) the
proposed partition of the testator's interest in the Santa Cruz (Escolta) Building between
the widow Marcelle and the appellants, violates the testator's express win to give this
property to them Nonetheless, the lower court approved the project of partition in its
order dated May 3, 1967. It is this order which Jorge and Roberto have appealed to this
Court.

1. The widow's legitime.

The appellant's do not question the legality of giving Marcelle one-half of the estate in
full ownership. They admit that the testator's dispositions impaired his widow's legitime.
Indeed, under Art. 900 of the Civil Code "If the only survivor is the widow or widower,
she or he shall be entitled to one-half of the hereditary estate." And since Marcelle alone
survived the deceased, she is entitled to one-half of his estate over which he could
impose no burden, encumbrance, condition or substitution of any kind whatsoever. (Art.
904, par. 2, Civil Code.)

It is the one-third usufruct over the free portion which the appellants question and
justifiably so. It appears that the court a quo approved the usufruct in favor of Marcelle
because the testament provides for a usufruct in her favor of one-third of the estate. The
court a quo erred for Marcelle who is entitled to one-half of the estate "en pleno
dominio" as her legitime and which is more than what she is given under the will is not
entitled to have any additional share in the estate. To give Marcelle more than her
legitime will run counter to the testator's intention for as stated above his dispositions
even impaired her legitime and tended to favor Wanda.

2. The substitutions.

It may be useful to recall that "Substitution is the appoint- judgment of another heir so
that he may enter into the inheritance in default of the heir originally instituted." (Art.
857, Civil Code. And that there are several kinds of substitutions, namely: simple or
common, brief or compendious, reciprocal, and fideicommissary (Art. 858, Civil Code.)
According to Tolentino, "Although the Code enumerates four classes, there are really
only two principal classes of substitutions: the simple and the fideicommissary. The
others are merely variations of these two." (111 Civil Code, p. 185 [1973].)

The simple or vulgar is that provided in Art. 859 of the Civil Code which reads:

ART. 859. The testator may designate one or more persons to substitute
the heir or heirs instituted in case such heir or heirs should die before him,
or should not wish, or should be incapacitated to accept the inheritance.

A simple substitution, without a statement of the cases to which it refers,

shall comprise the three mentioned in the preceding paragraph, unless the
testator has otherwise provided.

The fideicommissary substitution is described in the Civil Code as follows:

ART. 863. A fideicommissary substitution by virtue of which the fiduciary

or first heir instituted is entrusted with the obligation to preserve and to
transmit to a second heir the whole or part of inheritance, shall be valid
and shall take effect, provided such substitution does not go beyond one
degree from the heir originally instituted, and provided further that the
fiduciary or first heir and the second heir are living at time of the death of
the testator.
It will be noted that the testator provided for a vulgar substitution in respect of the
legacies of Roberto and Jorge Ramirez, the appellants, thus: con sustitucion vulgar a
favor de sus respectivos descendientes, y, en su defecto, con substitution vulgar
reciprocal entre ambos.

The appellants do not question the legality of the substitution so provided. The
appellants question the sustitucion vulgar y fideicomisaria a favor de Da. Wanda de
Wrobleski" in connection with the one-third usufruct over the estate given to the widow
Marcelle However, this question has become moot because as We have ruled above,
the widow is not entitled to any usufruct.

The appellants also question the sustitucion vulgar y fideicomisaria in connection with
Wanda's usufruct over two thirds of the estate in favor of Juan Pablo Jankowski and
Horace v. Ramirez.

They allege that the substitution in its vulgar aspect as void because Wanda survived
the testator or stated differently because she did not predecease the testator. But dying
before the testator is not the only case for vulgar substitution for it also includes refusal
or incapacity to accept the inheritance as provided in Art. 859 of the Civil Code, supra.
Hence, the vulgar substitution is valid.

As regards the substitution in its fideicommissary aspect, the appellants are correct in
their claim that it is void for the following reasons:

(a) The substitutes (Juan Pablo Jankowski and Horace V. Ramirez) are not related to
Wanda, the heir originally instituted. Art. 863 of the Civil Code validates a
fideicommissary substitution "provided such substitution does not go beyond one
degree from the heir originally instituted."

What is meant by "one degree" from the first heir is explained by Tolentino as follows:

Scaevola Maura, and Traviesas construe "degree" as designation,

substitution, or transmission. The Supreme Court of Spain has decidedly
adopted this construction. From this point of view, there can be only one
tranmission or substitution, and the substitute need not be related to the
first heir. Manresa, Morell and Sanchez Roman, however, construe the
word "degree" as generation, and the present Code has obviously
followed this interpretation. by providing that the substitution shall not go
beyond one degree "from the heir originally instituted." The Code thus
clearly indicates that the second heir must be related to and be one
generation from the first heir.

From this, it follows that the fideicommissary can only be either a child or a
parent of the first heir. These are the only relatives who are one
generation or degree from the fiduciary (Op. cit., pp. 193-194.)
(b) There is no absolute duty imposed on Wanda to transmit the usufruct to the
substitutes as required by Arts. 865 and 867 of the Civil Code. In fact, the appellee
admits "that the testator contradicts the establishment of a fideicommissary substitution
when he permits the properties subject of the usufruct to be sold upon mutual
agreement of the usufructuaries and the naked owners." (Brief, p. 26.)

3. The usufruct of Wanda.

The appellants claim that the usufruct over real properties of the estate in favor of
Wanda is void because it violates the constitutional prohibition against the acquisition of
lands by aliens.

The 1935 Constitution which is controlling provides as follows:

SEC. 5. Save in cases of hereditary succession, no private agricultural

land shall be transferred or assigned except to individuals, corporations, or
associations qualified to acquire or hold lands of the public domain in the
Philippines. (Art. XIII.)

The court a quo upheld the validity of the usufruct given to Wanda on the ground that
the Constitution covers not only succession by operation of law but also testamentary
succession. We are of the opinion that the Constitutional provision which enables aliens
to acquire private lands does not extend to testamentary succession for otherwise the
prohibition will be for naught and meaningless. Any alien would be able to circumvent
the prohibition by paying money to a Philippine landowner in exchange for a devise of a
piece of land.

This opinion notwithstanding, We uphold the usufruct in favor of Wanda because a

usufruct, albeit a real right, does not vest title to the land in the usufructuary and it is the
vesting of title to land in favor of aliens which is proscribed by the Constitution.

IN VIEW OF THE FOREGOING, the estate of Jose Eugenio Ramirez is hereby ordered
distributed as follows:

One-half (1/2) thereof to his widow as her legitime;

One-half (1/2) thereof which is the free portion to Roberto and Jorge Ramirez in naked
ownership and the usufruct to Wanda de Wrobleski with a simple substitution in favor of
Juan Pablo Jankowski and Horace V. Ramirez.

The distribution herein ordered supersedes that of the court a quo. No special
pronouncement as to costs.

SO ORDERED.
14. G.R. Nos. L-27860 and L-27896 March 29, 1974
PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, Administrator of the Testate Estate of Charles Newton Hodges (Sp. Proc. No.
1672 of the Court of First Instance of Iloilo), petitioner,
vs.
THE HONORABLE VENICIO ESCOLIN, Presiding Judge of the Court of First Instance of Iloilo, Branch II, and AVELINA A. MAGNO,
respondents.

G.R. Nos. L-27936 & L-27937 March 29, 1974

TESTATE ESTATE OF THE LATE LINNIE JANE HODGES (Sp. Proc. No. 1307). TESTATE ESTATE OF THE LATE CHARLES NEWTON
HODGES (Sp. Proc. No. 1672). PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, administrator-appellant,
vs.
LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL, SALVADOR GUZMAN, BELCESAR CAUSING, FLORENIA BARRIDO,
PURIFICACION CORONADO, GRACIANO LUCERO, ARITEO THOMAS JAMIR, MELQUIADES BATISANAN, PEPITO IYULORES,
ESPERIDION PARTISALA, WINIFREDO ESPADA, ROSARIO ALINGASA, ADELFA PREMAYLON, SANTIAGO PACAONSIS, and
AVELINA A. MAGNO, the last as Administratrix in Sp. Proc. No. 1307, appellees, WESTERN INSTITUTE OF TECHNOLOGY, INC.,
movant-appellee.

San Juan, Africa, Gonzales and San Agustin for Philippine Commercial and Industrial Bank.

Manglapus Law Office, Antonio Law Office and Rizal R. Quimpo for private respondents and appellees Avelina A. Magno, etc., et al.

BARREDO, J.:p

Certiorari and prohibition with preliminary injunction; certiorari to "declare all acts of the respondent court in the Testate Estate of Linnie Jane
Hodges (Sp. Proc. No. 1307 of the Court of First Instance of Iloilo) subsequent to the order of December 14, 1957 as null and void for having
been issued without jurisdiction"; prohibition to enjoin the respondent court from allowing, tolerating, sanctioning, or abetting private
respondent Avelina A. Magno to perform or do any acts of administration, such as those enumerated in the petition, and from exercising any
authority or power as Regular Administratrix of above-named Testate Estate, by entertaining manifestations, motion and pleadings filed by
her and acting on them, and also to enjoin said court from allowing said private respondent to interfere, meddle or take part in any manner in
the administration of the Testate Estate of Charles Newton Hodges (Sp. Proc. No. 1672 of the same court and branch); with prayer for
preliminary injunction, which was issued by this Court on August 8, 1967 upon a bond of P5,000; the petition being particularly directed
against the orders of the respondent court of October 12, 1966 denying petitioner's motion of April 22, 1966 and its order of July 18, 1967
denying the motion for reconsideration of said order.

Related to and involving basically the same main issue as the foregoing petition, thirty-three (33) appeals from different orders of the same
respondent court approving or otherwise sanctioning the acts of administration of the respondent Magno on behalf of the testate Estate of
Mrs. Hodges.

THE FACTS

On May 23, 1957, Linnie Jane Hodges died in Iloilo City leaving a will executed on November 22, 1952 pertinently providing as follows:

FIRST: I direct that all my just debts and funeral expenses be first paid out of my estate.

SECOND: I give, devise and bequeath all of the rest, residue and remainder of my estate, both personal and real,
wherever situated, or located, to my beloved husband, Charles Newton Hodges, to have and to hold unto him, my said
husband, during his natural lifetime.

THIRD: I desire, direct and provide that my husband, Charles Newton Hodges, shall have the right to manage, control,
use and enjoy said estate during his lifetime, and he is hereby given the right to make any changes in the physical
properties of said estate, by sale or any part thereof which he may think best, and the purchase of any other or
additional property as he may think best; to execute conveyances with or without general or special warranty,
conveying in fee simple or for any other term or time, any property which he may deem proper to dispose of; to lease
any of the real property for oil, gas and/or other minerals, and all such deeds or leases shall pass the absolute fee
simple title to the interest so conveyed in such property as he may elect to sell. All rents, emoluments and income from
said estate shall belong to him, and he is further authorized to use any part of the principal of said estate as he may
need or desire. It is provided herein, however, that he shall not sell or otherwise dispose of any of the improved
property now owned by us located at, in or near the City of Lubbock, Texas, but he shall have the full right to lease,
manage and enjoy the same during his lifetime, above provided. He shall have the right to subdivide any farm land and
sell lots therein. and may sell unimproved town lots.
 FOURTH: At the death of my said husband, Charles Newton Hodges, I give, devise and bequeath all of the rest,
residue and remainder of my estate, both real and personal, wherever situated or located, to be equally divided among
my brothers and sisters, share and share alike, namely:

Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Saddie Rascoe, Era Roman and Nimroy Higdon.

FIFTH: In case of the death of any of my brothers and/or sisters named in item Fourth, above, prior to the death of my
husband, Charles Newton Hodges, then it is my will and bequest that the heirs of such deceased brother or sister shall
take jointly the share which would have gone to such brother or sister had she or he survived.

SIXTH: I nominate and appoint my said husband, Charles Newton Hodges, to be executor of this, my last will and
testament, and direct that no bond or other security be required of him as such executor.

SEVENTH: It is my will and bequest that no action be had in the probate court, in the administration of my estate, other
than that necessary to prove and record this will and to return an inventory and appraisement of my estate and list of
claims. (Pp. 2-4, Petition.)

This will was subsequently probated in aforementioned Special Proceedings No. 1307 of respondent court on June 28, 1957, with the
widower Charles Newton Hodges being appointed as Executor, pursuant to the provisions thereof.

Previously, on May 27, 1957, the said widower (hereafter to be referred to as Hodges) had been appointed Special Administrator, in which
capacity he filed a motion on the same date as follows:

URGENT EX-PARTE MOTION TO ALLOW OR AUTHORIZE PETITIONER TO CONTINUE THE BUSINESS IN

WHICH HE WAS ENGAGED AND TO PERFORM ACTS WHICH HE HAD BEEN DOING WHILE DECEASED WAS
LIVING

Come petitioner in the above-entitled special proceedings, thru his undersigned attorneys, to the Hon. Court, most respectfully states:

1. — That Linnie Jane Hodges died leaving her last will and testament, a copy of which is attached to the petition for
probate of the same.

2. — That in said last will and testament herein petitioner Charles Newton Hodges is directed to have the right to
manage, control use and enjoy the estate of deceased Linnie Jane Hodges, in the same way, a provision was placed in
paragraph two, the following: "I give, devise and bequeath all of the rest, residue and remainder of my estate, to my
beloved husband, Charles Newton Hodges, to have and (to) hold unto him, my said husband, during his natural
lifetime."

3. — That during the lifetime of Linnie Jane Hodges, herein petitioner was engaged in the business of buying and
selling personal and real properties, and do such acts which petitioner may think best.

4. — That deceased Linnie Jane Hodges died leaving no descendants or ascendants, except brothers and sisters and
herein petitioner as executor surviving spouse, to inherit the properties of the decedent.

5. — That the present motion is submitted in order not to paralyze the business of petitioner and the deceased,
especially in the purchase and sale of properties. That proper accounting will be had also in all these transactions.

WHEREFORE, it is most respectfully prayed that, petitioner C. N. Hodges (Charles Newton Hodges) be allowed or
authorized to continue the business in which he was engaged and to perform acts which he had been doing while
deceased Linnie Jane Hodges was living.

City of Iloilo, May 27, 1957. (Annex "D", Petition.)

which the respondent court immediately granted in the following order:

It appearing in the urgent ex-parte motion filed by petitioner C. N. Hodges, that the business in which said petitioner
and the deceased were engaged will be paralyzed, unless and until the Executor is named and appointed by the Court,
the said petitioner is allowed or authorized to continue the business in which he was engaged and to perform acts
which he had been doing while the deceased was living.

SO ORDERED.

City of Iloilo May 27, 1957. (Annex "E", Petition.)

Under date of December 11, 1957, Hodges filed as such Executor another motion thus:

MOTION TO APPROVE ALL SALES, CONVEYANCES, LEASES, MORTGAGES THAT THE EXECUTOR HAD MADE
FURTHER AND SUBSEQUENT TRANSACTIONS WHICH THE EXECUTOR MAY DO IN ACCORDANCE WITH THE
LAST WISH OF THE DECEASED LINNIE JANE HODGES.

Comes the Executor in the above-entitled proceedings, thru his undersigned attorney, to the Hon. Court, most
respectfully states:

1. — That according to the last will and testament of the deceased Linnie Jane Hodges, the executor as the surviving
spouse and legatee named in the will of the deceased; has the right to dispose of all the properties left by the
deceased, portion of which is quoted as follows:

Second: I give, devise and bequeath all of the rest, residue and remainder of my estate, both personal and real,
wherever situated, or located, to my beloved husband, Charles Newton Hodges, to have and to hold unto him, my said
husband, during his natural lifetime.

Third: I desire, direct and provide that my husband, Charles Newton Hodges, shall have the right to manage, control,
use and enjoy said estate during his lifetime, and he is hereby given the right to make any changes in the physical
properties of said estate, by sale or any part thereof which he may think best, and the purchase of any other or
additional property as he may think best; to execute conveyances with or without general or special warranty,
conveying in fee simple or for any other term or time, any property which he may deem proper to dispose of; to lease
any of the real property for oil, gas and/or other minerals, and all such deeds or leases shall pass the absolute fee
simple title to the interest so conveyed in such property as he may elect to sell. All rents, emoluments and income from
said estate shall belong to him, and he is further authorized to use any part of the principal of said estate as he may
need or desire. ...

2. — That herein Executor, is not only part owner of the properties left as conjugal, but also, the successor to all the
properties left by the deceased Linnie Jane Hodges. That during the lifetime of herein Executor, as Legatee has the
right to sell, convey, lease or dispose of the properties in the Philippines. That inasmuch as C.N. Hodges was and is
engaged in the buy and sell of real and personal properties, even before the death of Linnie Jane Hodges, a motion to
authorize said C.N. Hodges was filed in Court, to allow him to continue in the business of buy and sell, which motion
was favorably granted by the Honorable Court.

3. — That since the death of Linnie Jane Hodges, Mr. C.N. Hodges had been buying and selling real and personal
properties, in accordance with the wishes of the late Linnie Jane Hodges.

4. — That the Register of Deeds for Iloilo, had required of late the herein Executor to have all the sales, leases,
conveyances or mortgages made by him, approved by the Hon. Court.

5. — That it is respectfully requested, all the sales, conveyances leases and mortgages executed by the Executor, be
approved by the Hon. Court. and subsequent sales conveyances, leases and mortgages in compliances with the
wishes of the late Linnie Jane Hodges, and within the scope of the terms of the last will and testament, also be
approved;

6. — That the Executor is under obligation to submit his yearly accounts, and the properties conveyed can also be
accounted for, especially the amounts received.

WHEREFORE, it is most respectfully prayed that, all the sales, conveyances, leases, and mortgages executed by the
Executor, be approved by the Hon. Court, and also the subsequent sales, conveyances, leases, and mortgages in
consonance with the wishes of the deceased contained in her last will and testament, be with authorization and
approval of the Hon. Court.

City of Iloilo, December 11, 1967.

(Annex "G", Petition.)

which again was promptly granted by the respondent court on December 14, 1957 as follows:

ORDER

As prayed for by Attorney Gellada, counsel for the Executor for the reasons stated in his motion dated December 11,
1957, which the Court considers well taken all the sales, conveyances, leases and mortgages of all properties left by
the deceased Linnie Jane Hodges executed by the Executor Charles N. Hodges are hereby APPROVED. The said
Executor is further authorized to execute subsequent sales, conveyances, leases and mortgages of the properties left
 by the said deceased Linnie Jane Hodges in consonance with the wishes conveyed in the last will and testament of the
latter.

So ordered.

Iloilo City. December 14, 1957.

(Annex "H", Petition.)

On April 14, 1959, in submitting his first statement of account as Executor for approval, Hodges alleged:

Pursuant to the provisions of the Rules of Court, herein executor of the deceased, renders the following account of his
administration covering the period from January 1, 1958 to December 31, 1958, which account may be found in detail
in the individual income tax return filed for the estate of deceased Linnie Jane Hodges, to wit:

That a certified public accountant has examined the statement of net worth of the estate of Linnie Jane Hodges, the
assets and liabilities, as well as the income and expenses, copy of which is hereto attached and made integral part of
this statement of account as Annex "A".

IN VIEW OF THE FOREGOING, it is most respectfully prayed that, the statement of net worth of the estate of Linnie
Jane Hodges, the assets and liabilities, income and expenses as shown in the individual income tax return for the
estate of the deceased and marked as Annex "A", be approved by the Honorable Court, as substantial compliance with
the requirements of the Rules of Court.

That no person interested in the Philippines of the time and place of examining the herein accounts be given notice, as
herein executor is the only devisee or legatee of the deceased, in accordance with the last will and testament already
probated by the Honorable court.

City of Iloilo April 14, 1959.

(Annex "I", Petition.)

The respondent court approved this statement of account on April 21, 1959 in its order worded thus:

Upon petition of Atty. Gellada, in representation of the Executor, the statement of net worth of the estate of Linnie Jane
Hodges, assets and liabilities, income and expenses as shown in the individual income tax return for the estate of the
deceased and marked as Annex "A" is approved.

SO ORDERED.

City of Iloilo April 21, 1959.

(Annex "J", Petition.)

His accounts for the periods January 1, 1959 to December 31, 1959 and January 1, 1960 to December 31, 1960 were submitted likewise
accompanied by allegations identical mutatis mutandis to those of April 14, 1959, quoted above; and the respective orders approving the
same, dated July 30, 1960 and May 2, 1961, were substantially identical to the above-quoted order of April 21, 1959. In connection with the
statements of account just mentioned, the following assertions related thereto made by respondent-appellee Magno in her brief do not
appear from all indications discernible in the record to be disputable:

Under date of April 14, 1959, C.N. Hodges filed his first "Account by the Executor" of the estate of Linnie Jane Hodges.
In the "Statement of Networth of Mr. C.N. Hodges and the Estate of Linnie Jane Hodges" as of December 31, 1958
annexed thereto, C.N. Hodges reported that the combined conjugal estate earned a net income of P328,402.62,
divided evenly between him and the estate of Linnie Jane Hodges. Pursuant to this, he filed an "individual income tax
return" for calendar year 1958 on the estate of Linnie Jane Hodges reporting, under oath, the said estate as having
earned income of P164,201.31, exactly one-half of the net income of his combined personal assets and that of the
estate of Linnie Jane Hodges. (p. 91, Appellee's Brief.)

xxx xxx xxx

Under date of July 21, 1960, C.N. Hodges filed his second "Annual Statement of Account by the Executor" of the estate
of Linnie Jane Hodges. In the "Statement of Networth of Mr. C.N. Hodges and the Estate of Linnie Jane Hodges" as of
December 31, 1959 annexed thereto, C.N. Hodges reported that the combined conjugal estate earned a net income of
 P270,623.32, divided evenly between him and the estate of Linnie Jane Hodges. Pursuant to this, he filed an
"individual income tax return" for calendar year 1959 on the estate of Linnie Jane Hodges reporting, under oath, the
said estate as having earned income of P135,311.66, exactly one-half of the net income of his combined personal
assets and that of the estate of Linnie Jane Hodges. (pp. 91-92. Appellee's Brief.)

xxx xxx xxx

Under date of April 20, 1961, C.N. Hodges filed his third "Annual Statement of Account by the Executor for the Year
1960" of the estate of Linnie Jane Hodges. In the "Statement of Net Worth of Mr. C.N. Hodges and the Estate of Linnie
Jane Hodges" as of December 31, 1960 annexed thereto, C.N. Hodges reported that the combined conjugal estate
earned a net income of P314,857.94, divided evenly between him and the estate of Linnie Jane Hodges. Pursuant to
this, he filed an "individual income tax return" for calendar year 1960 on the estate of Linnie Jane Hodges reporting,
under oath, the said estate as having earned income of P157,428.97, exactly one-half of the net income of his
combined personal assets and that of the estate of Linnie Jane Hodges. (Pp. 92-93, Appellee's Brief.)

Likewise the following:

In the petition for probate that he (Hodges) filed, he listed the seven brothers and sisters of Linnie Jane as her "heirs"
(see p. 2, Green ROA). The order of the court admitting the will to probate unfortunately omitted one of the heirs, Roy
Higdon (see p. 14, Green ROA). Immediately, C.N. Hodges filed a verified motion to have Roy Higdon's name included
as an heir, stating that he wanted to straighten the records "in order the heirs of deceased Roy Higdon may not think or
believe they were omitted, and that they were really and are interested in the estate of deceased Linnie Jane Hodges. .

As an executor, he was bound to file tax returns for the estate he was administering under American law. He did file
such as estate tax return on August 8, 1958. In Schedule "M" of such return, he answered "Yes" to the question as to
whether he was contemplating "renouncing the will". On the question as to what property interests passed to him as the
surviving spouse, he answered:

"None, except for purposes of administering the Estate, paying debts, taxes and other legal
charges. It is the intention of the surviving husband of deceased to distribute the remaining
property and interests of the deceased in their Community estate to the devisees and legatees
named in the will when the debts, liabilities, taxes and expenses of administration are finally
determined and paid."

Again, on August 9, 1962, barely four months before his death, he executed an "affidavit" wherein he ratified and
confirmed all that he stated in Schedule "M" of his estate tax returns as to his having renounced what was given him by
his wife's will.1

As appointed executor, C.N. Hodges filed an "Inventory" dated May 12, 1958. He listed all the assets of his conjugal
partnership with Linnie Jane Hodges on a separate balance sheet and then stated expressly that her estate which has
come into his possession as executor was "one-half of all the items" listed in said balance sheet. (Pp. 89-90, Appellee's
Brief.)

Parenthetically, it may be stated, at this juncture, that We are taking pains to quote wholly or at least, extensively from some of the pleadings
and orders whenever We feel that it is necessary to do so for a more comprehensive and clearer view of the important and decisive issues
raised by the parties and a more accurate appraisal of their respective positions in regard thereto.

The records of these cases do not show that anything else was done in the above-mentioned Special Proceedings No. 1307 until December
26, 1962, when on account of the death of Hodges the day before, the same lawyer, Atty. Leon P. Gellada, who had been previously acting
as counsel for Hodges in his capacity as Executor of his wife's estate, and as such had filed the aforequoted motions and manifestations,
filed the following:

URGENT EX-PARTE MOTION FOR THE APPOINTMENT OF A

SPECIAL ADMINISTRATRIX

COMES the undersigned attorney for the Executor in the above-entitled proceedings, to the Honorable Court, most
respectfully states:

1. That in accordance with the Last Will and Testament of Linnie Jane Hodges (deceased), her husband, Charles
Newton Hodges was to act as Executor, and in fact, in an order issued by this Hon. Court dated June 28, 1957, the
said Charles Newton Hodges was appointed Executor and had performed the duties as such.

2. That last December 22, 1962, the said Charles Newton Hodges was stricken ill, and brought to the Iloilo Mission
Hospital for treatment, but unfortunately, he died on December 25, 1962, as shown by a copy of the death certificate
hereto attached and marked as Annex "A".
 3. That in accordance with the provisions of the last will and testament of Linnie Jane Hodges, whatever real and
personal properties that may remain at the death of her husband Charles Newton Hodges, the said properties shall be
equally divided among their heirs. That there are real and personal properties left by Charles Newton Hodges, which
need to be administered and taken care of.

4. That the estate of deceased Linnie Jane Hodges, as well as that of Charles Newton Hodges, have not as yet been
determined or ascertained, and there is necessity for the appointment of a general administrator to liquidate and
distribute the residue of the estate to the heirs and legatees of both spouses. That in accordance with the provisions of
Section 2 of Rule 75 of the Rules of Court, the conjugal partnership of Linnie Jane Hodges and Charles Newton
Hodges shall be liquidated in the testate proceedings of the wife.

5. That the undersigned counsel, has perfect personal knowledge of the existence of the last will and testament of
Charles Newton Hodges, with similar provisions as that contained in the last will and testament of Linnie Jane Hodges.
However, said last will and testament of Charles Newton Hodges is kept inside the vault or iron safe in his office, and
will be presented in due time before this honorable Court.

6. That in the meantime, it is imperative and indispensable that, an Administratrix be appointed for the estate of Linnie
Jane Hodges and a Special Administratrix for the estate of Charles Newton Hodges, to perform the duties required by
law, to administer, collect, and take charge of the goods, chattels, rights, credits, and estate of both spouses, Charles
Newton Hodges and Linnie Jane Hodges, as provided for in Section 1 and 2, Rule 81 of the Rules of Court.

7. That there is delay in granting letters testamentary or of administration, because the last will and testament of
deceased, Charles Newton Hodges, is still kept in his safe or vault, and in the meantime, unless an administratrix
(and,) at the same time, a Special Administratrix is appointed, the estate of both spouses are in danger of being lost,
damaged or go to waste.

8. That the most trusted employee of both spouses Linnie Jane Hodges and C.N. Hodges, who had been employed for
around thirty (30) years, in the person of Miss Avelina Magno, (should) be appointed Administratrix of the estate of
Linnie Jane Hodges and at the same time Special Administratrix of the estate of Charles Newton Hodges. That the said
Miss Avelina Magno is of legal age, a resident of the Philippines, the most fit, competent, trustworthy and well-qualified
person to serve the duties of Administratrix and Special Administratrix and is willing to act as such.

9. That Miss Avelina Magno is also willing to file bond in such sum which the Hon. Court believes reasonable.

WHEREFORE, in view of all the foregoing, it is most respectfully prayed that, Miss AVELINA A. MAGNO be
immediately appointed Administratrix of the estate of Linnie Jane Hodges and as Special Administratrix of the estate of
Charles Newton Hodges, with powers and duties provided for by law. That the Honorable Court fix the reasonable bond
of P1,000.00 to be filed by Avelina A. Magno.

(Annex "O", Petition.)

which respondent court readily acted on in its order of even date thus: .

For the reasons alleged in the Urgent Ex-parte Motion filed by counsel for the Executor dated December 25, 1962,
which the Court finds meritorious, Miss AVELINA A. MAGNO, is hereby appointed Administratrix of the estate of Linnie
Jane Hodges and as Special Administratrix of the estate of Charles Newton Hodges, in the latter case, because the
last will of said Charles Newton Hodges is still kept in his vault or iron safe and that the real and personal properties of
both spouses may be lost, damaged or go to waste, unless a Special Administratrix is appointed.

Miss Avelina A. Magno is required to file bond in the sum of FIVE THOUSAND PESOS (P5,000.00), and after having
done so, let letters of Administration be issued to her." (Annex "P", Petition.)

On December 29, 1962, however, upon urgent ex-parte petition of respondent Magno herself, thru Atty. Gellada,
Harold, R. Davies, "a representative of the heirs of deceased Charles Newton Hodges (who had) arrived from the
United States of America to help in the administration of the estate of said deceased" was appointed as Co-Special
Administrator of the estate of Hodges, (pp. 29-33, Yellow - Record on Appeal) only to be replaced as such co-special
administrator on January 22, 1963 by Joe Hodges, who, according to the motion of the same attorney, is "the nephew
of the deceased (who had) arrived from the United States with instructions from the other heirs of the deceased to
administer the properties or estate of Charles Newton Hodges in the Philippines, (Pp. 47-50, id.)

Meanwhile, under date of January 9, 1963, the same Atty. Gellada filed in Special Proceedings 1672 a petition for the probate of the will of
Hodges,2 with a prayer for the issuance of letters of administration to the same Joe Hodges, albeit the motion was followed on February 22,
1963 by a separate one asking that Atty. Fernando Mirasol be appointed as his co-administrator. On the same date this latter motion was
filed, the court issued the corresponding order of probate and letters of administration to Joe Hodges and Atty. Mirasol, as prayed for.
At this juncture, again, it may also be explained that just as, in her will, Mrs. Hodges bequeathed her whole estate to her husband "to have
and to hold unto him, my said husband, during his natural lifetime", she, at the same time or in like manner, provided that "at the death of my
said husband — I give devise and bequeath all of the rest, residue and remainder of my estate, both real and personal, wherever situated or
located, to be equally divided among my brothers and sisters, share and share alike —". Accordingly, it became incumbent upon Hodges, as
executor of his wife's will, to duly liquidate the conjugal partnership, half of which constituted her estate, in order that upon the eventuality of
his death, "the rest, residue and remainder" thereof could be determined and correspondingly distributed or divided among her brothers and
sisters. And it was precisely because no such liquidation was done, furthermore, there is the issue of whether the distribution of her estate
should be governed by the laws of the Philippines or those of Texas, of which State she was a national, and, what is more, as already stated,
Hodges made official and sworn statements or manifestations indicating that as far as he was concerned no "property interests passed to
him as surviving spouse — "except for purposes of administering the estate, paying debts, taxes and other legal charges" and it was the
intention of the surviving husband of the deceased to distribute the remaining property and interests of the deceased in their Community
Estate to the devisees and legatees named in the will when the debts, liabilities, taxes and expenses of administration are finally determined
and paid", that the incidents and controversies now before Us for resolution arose. As may be observed, the situation that ensued upon the
death of Hodges became rather unusual and so, quite understandably, the lower court's actuations presently under review are apparently
wanting in consistency and seemingly lack proper orientation.

Thus, We cannot discern clearly from the record before Us the precise perspective from which the trial court proceeded in issuing its
questioned orders. And, regretably, none of the lengthy briefs submitted by the parties is of valuable assistance in clearing up the matter.

To begin with, We gather from the two records on appeal filed by petitioner, as appellant in the appealed cases, one with green cover and
the other with a yellow cover, that at the outset, a sort of modus operandi had been agreed upon by the parties under which the respective
administrators of the two estates were supposed to act conjointly, but since no copy of the said agreement can be found in the record before
Us, We have no way of knowing when exactly such agreement was entered into and under what specific terms. And while reference is made
to said modus operandi in the order of September 11, 1964, on pages 205-206 of the Green Record on Appeal, reading thus:

The present incident is to hear the side of administratrix, Miss Avelina A. Magno, in answer to the charges contained in
the motion filed by Atty. Cesar Tirol on September 3, 1964. In answer to the said charges, Miss Avelina A. Magno,
through her counsel, Atty. Rizal Quimpo, filed a written manifestation.

After reading the manifestation here of Atty. Quimpo, for and in behalf of the administratrix, Miss Avelina A. Magno, the
Court finds that everything that happened before September 3, 1964, which was resolved on September 8, 1964, to the
satisfaction of parties, was simply due to a misunderstanding between the representative of the Philippine Commercial
and Industrial Bank and Miss Magno and in order to restore the harmonious relations between the parties, the Court
ordered the parties to remain in status quo as to their modus operandi before September 1, 1964, until after the Court
can have a meeting with all the parties and their counsels on October 3, as formerly agreed upon between counsels,
Attys. Ozaeta, Gibbs and Ozaeta, Attys. Tirol and Tirol and Atty. Rizal Quimpo.

In the meantime, the prayers of Atty. Quimpo as stated in his manifestation shall not be resolved by this Court until
October 3, 1964.

SO ORDERED.

there is nothing in the record indicating whatever happened to it afterwards, except that again, reference thereto was made in the appealed
order of October 27, 1965, on pages 292-295 of the Green Record on Appeal, as follows:

On record is an urgent motion to allow PCIB to open all doors and locks in the Hodges Office at 206-208 Guanco
Street, Iloilo City, to take immediate and exclusive possession thereof and to place its own locks and keys for security
purposes of the PCIB dated October 27, 1965 thru Atty. Cesar Tirol. It is alleged in said urgent motion that
Administratrix Magno of the testate estate of Linnie Jane Hodges refused to open the Hodges Office at 206-208
Guanco Street, Iloilo City where PCIB holds office and therefore PCIB is suffering great moral damage and prejudice
as a result of said act. It is prayed that an order be issued authorizing it (PCIB) to open all doors and locks in the said
office, to take immediate and exclusive possession thereof and place thereon its own locks and keys for security
purposes; instructing the clerk of court or any available deputy to witness and supervise the opening of all doors and
locks and taking possession of the PCIB.

A written opposition has been filed by Administratrix Magno of even date (Oct. 27) thru counsel Rizal Quimpo stating
therein that she was compelled to close the office for the reason that the PCIB failed to comply with the order of this
Court signed by Judge Anacleto I. Bellosillo dated September 11, 1964 to the effect that both estates should remain in
status quo to their modus operandi as of September 1, 1964.

To arrive at a happy solution of the dispute and in order not to interrupt the operation of the office of both estates, the
Court aside from the reasons stated in the urgent motion and opposition heard the verbal arguments of Atty. Cesar
Tirol for the PCIB and Atty. Rizal Quimpo for Administratix Magno.

After due consideration, the Court hereby orders Magno to open all doors and locks in the Hodges Office at 206-208
Guanco Street, Iloilo City in the presence of the PCIB or its duly authorized representative and deputy clerk of court
Albis of this branch not later than 7:30 tomorrow morning October 28, 1965 in order that the office of said estates could
operate for business.
 Pursuant to the order of this Court thru Judge Bellosillo dated September 11, 1964, it is hereby ordered:

(a) That all cash collections should be deposited in the joint account of the estates of Linnie Jane Hodges and estates
of C.N. Hodges;

(b) That whatever cash collections that had been deposited in the account of either of the estates should be withdrawn
and since then deposited in the joint account of the estate of Linnie Jane Hodges and the estate of C.N. Hodges;

(c) That the PCIB should countersign the check in the amount of P250 in favor of Administratrix Avelina A. Magno as
her compensation as administratrix of the Linnie Jane Hodges estate chargeable to the testate estate of Linnie Jane
Hodges only;

(d) That Administratrix Magno is hereby directed to allow the PCIB to inspect whatever records, documents and papers
she may have in her possession in the same manner that Administrator PCIB is also directed to allow Administratrix
Magno to inspect whatever records, documents and papers it may have in its possession;

(e) That the accountant of the estate of Linnie Jane Hodges shall have access to all records of the transactions of both
estates for the protection of the estate of Linnie Jane Hodges; and in like manner the accountant or any authorized
representative of the estate of C.N. Hodges shall have access to the records of transactions of the Linnie Jane Hodges
estate for the protection of the estate of C.N. Hodges.

Once the estates' office shall have been opened by Administratrix Magno in the presence of the PCIB or its duly
authorized representative and deputy clerk Albis or his duly authorized representative, both estates or any of the
estates should not close it without previous consent and authority from this court.

SO ORDERED.

As may be noted, in this order, the respondent court required that all collections from the properties in the name of Hodges should be
deposited in a joint account of the two estates, which indicates that seemingly the so-called modus operandi was no longer operative, but
again there is nothing to show when this situation started.

Likewise, in paragraph 3 of the petitioner's motion of September 14, 1964, on pages 188-201 of the Green Record on Appeal, (also found on
pp. 83-91 of the Yellow Record on Appeal) it is alleged that:

3. On January 24, 1964 virtually all of the heirs of C.N. Hodges, Joe Hodges and Fernando P. Mirasol acting as the two
co-administrators of the estate of C.N. Hodges, Avelina A. Magno acting as the administratrix of the estate of Linnie
Jane Hodges and Messrs. William Brown and Ardell Young acting for all of the Higdon family who claim to be the sole
beneficiaries of the estate of Linnie Jane Hodges and various legal counsel representing the aforementioned parties
entered into an amicable agreement, which was approved by this Honorable Court, wherein the parties thereto agreed
that certain sums of money were to be paid in settlement of different claims against the two estates and that the assets
(to the extent they existed) of both estates would be administered jointly by the PCIB as administrator of the estate of
C.N. Hodges and Avelina A. Magno as administratrix of the estate of Linnie Jane Hodges, subject, however, to the
aforesaid October 5, 1963 Motion, namely, the PCIB's claim to exclusive possession and ownership of one hundred
percent (100%) (or, in the alternative, seventy-five percent (75%) of all assets owned by C.N. Hodges or Linnie Jane
Hodges situated in the Philippines. On February 1, 1964 (pp. 934-935, CFI Rec., S.P. No. 1672) this Honorable Court
amended its order of January 24, 1964 but in no way changed its recognition of the afore-described basic demand by
the PCIB as administrator of the estate of C.N. Hodges to one hundred percent (100%) of the assets claimed by both
estates.

but no copy of the mentioned agreement of joint administration of the two estates exists in the record, and so, We are not informed as to
what exactly are the terms of the same which could be relevant in the resolution of the issues herein.

On the other hand, the appealed order of November 3, 1965, on pages 313-320 of the Green Record on Appeal, authorized payment by
respondent Magno of, inter alia, her own fees as administratrix, the attorney's fees of her lawyers, etc., as follows:

Administratrix Magno thru Attys. Raul S. Manglapus and Rizal. R. Quimpo filed a Manifestation and Urgent Motion
dated June 10, 1964 asking for the approval of the Agreement dated June 6, 1964 which Agreement is for the purpose
of retaining their services to protect and defend the interest of the said Administratrix in these proceedings and the
same has been signed by and bears the express conformity of the attorney-in-fact of the late Linnie Jane Hodges, Mr.
James L. Sullivan. It is further prayed that the Administratrix of the Testate Estate of Linnie Jane Hodges be directed to
pay the retailers fee of said lawyers, said fees made chargeable as expenses for the administration of the estate of
Linnie Jane Hodges (pp. 1641-1642, Vol. V, Sp. 1307).

An opposition has been filed by the Administrator PCIB thru Atty. Herminio Ozaeta dated July 11, 1964, on the ground
that payment of the retainers fee of Attys. Manglapus and Quimpo as prayed for in said Manifestation and Urgent
Motion is prejudicial to the 100% claim of the estate of C. N. Hodges; employment of Attys. Manglapus and Quimpo is
premature and/or unnecessary; Attys. Quimpo and Manglapus are representing conflicting interests and the estate of
Linnie Jane Hodges should be closed and terminated (pp. 1679-1684, Vol, V, Sp. 1307).

Atty. Leon P. Gellada filed a memorandum dated July 28, 1964 asking that the Manifestation and Urgent Motion filed
by Attys. Manglapus and Quimpo be denied because no evidence has been presented in support thereof. Atty.
Manglapus filed a reply to the opposition of counsel for the Administrator of the C. N. Hodges estate wherein it is
claimed that expenses of administration include reasonable counsel or attorney's fees for services to the executor or
administrator. As a matter of fact the fee agreement dated February 27, 1964 between the PCIB and the law firm of
Ozaeta, Gibbs & Ozaeta as its counsel (Pp. 1280-1284, Vol. V, Sp. 1307) which stipulates the fees for said law firm
has been approved by the Court in its order dated March 31, 1964. If payment of the fees of the lawyers for the
administratrix of the estate of Linnie Jane Hodges will cause prejudice to the estate of C. N. Hodges, in like manner the
very agreement which provides for the payment of attorney's fees to the counsel for the PCIB will also be prejudicial to
the estate of Linnie Jane Hodges (pp. 1801-1814, Vol. V, Sp. 1307).

Atty. Herminio Ozaeta filed a rejoinder dated August 10, 1964 to the reply to the opposition to the Manifestation and
Urgent Motion alleging principally that the estates of Linnie Jane Hodges and C. N. Hodges are not similarly situated
for the reason that C. N. Hodges is an heir of Linnie Jane Hodges whereas the latter is not an heir of the former for the
reason that Linnie Jane Hodges predeceased C. N. Hodges (pp. 1839-1848, Vol. V, Sp. 1307); that Attys. Manglapus
and Quimpo formally entered their appearance in behalf of Administratrix of the estate of Linnie Jane Hodges on June
10, 1964 (pp. 1639-1640, Vol. V, Sp. 1307).

Atty. Manglapus filed a manifestation dated December 18, 1964 stating therein that Judge Bellosillo issued an order
requiring the parties to submit memorandum in support of their respective contentions. It is prayed in this manifestation
that the Manifestation and Urgent Motion dated June 10, 1964 be resolved (pp. 6435-6439, Vol. VII, Sp. 1307).

Atty. Roman Mabanta, Jr. for the PCIB filed a counter- manifestation dated January 5, 1965 asking that after the
consideration by the court of all allegations and arguments and pleadings of the PCIB in connection therewith (1) said
manifestation and urgent motion of Attys. Manglapus and Quimpo be denied (pp. 6442-6453, Vol. VII, Sp. 1307). Judge
Querubin issued an order dated January 4, 1965 approving the motion dated June 10, 1964 of the attorneys for the
administratrix of the estate of Linnie Jane Hodges and agreement annexed to said motion. The said order further
states: "The Administratrix of the estate of Linnie Jane Hodges is authorized to issue or sign whatever check or checks
may be necessary for the above purpose and the administrator of the estate of C. N. Hodges is ordered to countersign
the same. (pp. 6518-6523, Vol VII, Sp. 1307).

Atty. Roman Mabanta, Jr. for the PCIB filed a manifestation and motion dated January 13, 1965 asking that the order of
January 4, 1965 which was issued by Judge Querubin be declared null and void and to enjoin the clerk of court and the
administratrix and administrator in these special proceedings from all proceedings and action to enforce or comply with
the provision of the aforesaid order of January 4, 1965. In support of said manifestation and motion it is alleged that the
order of January 4, 1965 is null and void because the said order was never delivered to the deputy clerk Albis of
Branch V (the sala of Judge Querubin) and the alleged order was found in the drawer of the late Judge Querubin in his
office when said drawer was opened on January 13, 1965 after the death of Judge Querubin by Perfecto Querubin, Jr.,
the son of the judge and in the presence of Executive Judge Rovira and deputy clerk Albis (Sec. 1, Rule 36, New Civil
Code) (Pp. 6600-6606, Vol. VIII, Sp. 1307).

Atty. Roman Mabanta, Jr. for the PCIB filed a motion for reconsideration dated February 23, 1965 asking that the order
dated January 4, 1964 be reversed on the ground that:

1. Attorneys retained must render services to the estate not to the personal heir;

2. If services are rendered to both, fees should be pro-rated between them;

3. Attorneys retained should not represent conflicting interests; to the prejudice of the other heirs not represented by
said attorneys;

4. Fees must be commensurate to the actual services rendered to the estate;

5. There must be assets in the estate to pay for said fees (Pp. 6625-6636, Vol. VIII, Sp. 1307).

Atty. Quimpo for Administratrix Magno of the estate of Linnie Jane Hodges filed a motion to submit dated July 15, 1965
asking that the manifestation and urgent motion dated June 10, 1964 filed by Attys. Manglapus and Quimpo and other
incidents directly appertaining thereto be considered submitted for consideration and approval (pp. 6759-6765, Vol.
VIII, Sp. 1307).

Considering the arguments and reasons in support to the pleadings of both the Administratrix and the PCIB, and of
Atty. Gellada, hereinbefore mentioned, the Court believes that the order of January 4, 1965 is null and void for the
reason that the said order has not been filed with deputy clerk Albis of this court (Branch V) during the lifetime of Judge
Querubin who signed the said order. However, the said manifestation and urgent motion dated June 10, 1964 is being
 treated and considered in this instant order. It is worthy to note that in the motion dated January 24, 1964 (Pp. 1149-
1163, Vol. V, Sp. 1307) which has been filed by Atty. Gellada and his associates and Atty. Gibbs and other lawyers in
addition to the stipulated fees for actual services rendered. However, the fee agreement dated February 27, 1964,
between the Administrator of the estate of C. N. Hodges and Atty. Gibbs which provides for retainer fee of P4,000
monthly in addition to specific fees for actual appearances, reimbursement for expenditures and contingent fees has
also been approved by the Court and said lawyers have already been paid. (pp. 1273-1279, Vol. V, Sp. Proc. 1307 pp.
1372-1373, Vol. V, Sp. Proc. 1307).

WHEREFORE, the order dated January 4, 1965 is hereby declared null and void.

The manifestation and motion dated June 10, 1964 which was filed by the attorneys for the administratrix of the testate
estate of Linnie Jane Hodges is granted and the agreement annexed thereto is hereby approved.

The administratrix of the estate of Linnie Jane Hodges is hereby directed to be needed to implement the approval of
the agreement annexed to the motion and the administrator of the estate of C. N. Hodges is directed to countersign the
said check or checks as the case may be.

SO ORDERED.

thereby implying somehow that the court assumed the existence of independent but simultaneous administrations.

Be that as it may, again, it appears that on August 6, 1965, the court, acting on a motion of petitioner for the approval of deeds of sale
executed by it as administrator of the estate of Hodges, issued the following order, also on appeal herein:

Acting upon the motion for approval of deeds of sale for registered land of the PCIB, Administrator of the Testate
Estate of C. N. Hodges in Sp. Proc. 1672 (Vol. VII, pp. 2244-2245), dated July 16, 1965, filed by Atty. Cesar T. Tirol in
representation of the law firms of Ozaeta, Gibbs and Ozaeta and Tirol and Tirol and the opposition thereto of Atty. Rizal
R. Quimpo (Vol. VIII, pp. 6811-6813) dated July 22, 1965 and considering the allegations and reasons therein stated,
the court believes that the deeds of sale should be signed jointly by the PCIB, Administrator of the Testate Estate of C.
N. Hodges and Avelina A. Magno, Administratrix of the Testate Estate of Linnie Jane Hodges and to this effect the
PCIB should take the necessary steps so that Administratrix Avelina A. Magno could sign the deeds of sale.

SO ORDERED. (p. 248, Green Record on Appeal.)

Notably this order required that even the deeds executed by petitioner, as administrator of the Estate of Hodges, involving properties
registered in his name, should be co-signed by respondent Magno.3 And this was not an isolated instance.

In her brief as appellee, respondent Magno states:

After the lower court had authorized appellee Avelina A. Magno to execute final deeds of sale pursuant to contracts to
sell executed by C. N. Hodges on February 20, 1963 (pp. 45-46, Green ROA), motions for the approval of final deeds
of sale (signed by appellee Avelina A. Magno and the administrator of the estate of C. N. Hodges, first Joe Hodges,
then Atty. Fernando Mirasol and later the appellant) were approved by the lower court upon petition of appellee
Magno's counsel, Atty. Leon P. Gellada, on the basis of section 8 of Rule 89 of the Revised Rules of Court.
Subsequently, the appellant, after it had taken over the bulk of the assets of the two estates, started presenting these
motions itself. The first such attempt was a "Motion for Approval of Deeds of Sale for Registered Land and
Cancellations of Mortgages" dated July 21, 1964 filed by Atty. Cesar T. Tirol, counsel for the appellant, thereto
annexing two (2) final deeds of sale and two (2) cancellations of mortgages signed by appellee Avelina A. Magno and
D. R. Paulino, Assistant Vice-President and Manager of the appellant (CFI Record, Sp. Proc. No. 1307, Vol. V, pp.
1694-1701). This motion was approved by the lower court on July 27, 1964. It was followed by another motion dated
August 4, 1964 for the approval of one final deed of sale again signed by appellee Avelina A. Magno and D. R. Paulino
(CFI Record, Sp. Proc. No. 1307. Vol. V, pp. 1825-1828), which was again approved by the lower court on August 7,
1964. The gates having been opened, a flood ensued: the appellant subsequently filed similar motions for the approval
of a multitude of deeds of sales and cancellations of mortgages signed by both the appellee Avelina A. Magno and the
appellant.

A random check of the records of Special Proceeding No. 1307 alone will show Atty. Cesar T. Tirol as having
presented for court approval deeds of sale of real properties signed by both appellee Avelina A. Magno and D. R.
Paulino in the following numbers: (a) motion dated September 21, 1964 — 6 deeds of sale; (b) motion dated November
4, 1964 — 1 deed of sale; (c) motion dated December 1, 1964 — 4 deeds of sale; (d) motion dated February 3, 1965
— 8 deeds of sale; (f) motion dated May 7, 1965 — 9 deeds of sale. In view of the very extensive landholdings of the
Hodges spouses and the many motions filed concerning deeds of sale of real properties executed by C. N. Hodges the
lower court has had to constitute special separate expedientes in Special Proceedings Nos. 1307 and 1672 to include
mere motions for the approval of deeds of sale of the conjugal properties of the Hodges spouses.
 As an example, from among the very many, under date of February 3, 1965, Atty. Cesar T. Tirol, as counsel for the
appellant, filed "Motion for Approval of Deeds of Sale for Registered Land and Cancellations of Mortgages" (CFI
Record, Sp. Proc. No. 1307, Vol. VIII, pp. 6570-6596) the allegations of which read:

"1. In his lifetime, the late C. N. Hodges executed "Contracts to Sell" real property, and the prospective buyers under
said contracts have already paid the price and complied with the terms and conditions thereof;

"2. In the course of administration of both estates, mortgage debtors have already paid their debts secured by chattel
mortgages in favor of the late C. N. Hodges, and are now entitled to release therefrom;

"3. There are attached hereto documents executed jointly by the Administratrix in Sp. Proc. No. 1307 and the
Administrator in Sp. Proc. No. 1672, consisting of deeds of sale in favor —

Fernando Cano, Bacolod City, Occ. Negros

Fe Magbanua, Iloilo City
Policarpio M. Pareno, La Paz, Iloilo City
Rosario T. Libre, Jaro, Iloilo City
Federico B. Torres, Iloilo City
Reynaldo T. Lataquin, La Paz, Iloilo City
Anatolio T. Viray, Iloilo City
Benjamin Rolando, Jaro, Iloilo City

and cancellations of mortgages in favor of —

Pablo Manzano, Oton, Iloilo

Ricardo M. Diana, Dao, San Jose, Antique
Simplicio Tingson, Iloilo City
Amado Magbanua, Pototan, Iloilo
Roselia M. Baes, Bolo, Roxas City
William Bayani, Rizal Estanzuela, Iloilo City
Elpidio Villarete, Molo, Iloilo City
Norma T. Ruiz, Jaro, Iloilo City

"4. That the approval of the aforesaid documents will not reduce the assets of the estates so as to
prevent any creditor from receiving his full debt or diminish his dividend."

And the prayer of this motion is indeed very revealing:

"WHEREFORE, it is respectfully prayed that, under Rule 89, Section 8 of the Rules of Court, this honorable court
approve the aforesaid deeds of sale and cancellations of mortgages." (Pp. 113-117, Appellee's Brief.)

None of these assertions is denied in Petitioner's reply brief.

Further indicating lack of concrete perspective or orientation on the part of the respondent court and its hesitancy to clear up matters
promptly, in its other appealed order of November 23, 1965, on pages 334-335 of the Green Record on Appeal, said respondent court
allowed the movant Ricardo Salas, President of appellee Western Institute of Technology (successor of Panay Educational Institutions, Inc.),
one of the parties with whom Hodges had contracts that are in question in the appeals herein, to pay petitioner, as Administrator of the estate
of Hodges and/or respondent Magno, as Administrator of the estate of Mrs. Hodges, thus:

Considering that in both cases there is as yet no judicial declaration of heirs nor distribution of properties to
whomsoever are entitled thereto, the Court believes that payment to both the administrator of the testate estate of C. N.
Hodges and the administratrix of the testate estate of Linnie Jane Hodges or to either one of the two estates is proper
and legal.

WHEREFORE, movant Ricardo T. Salas can pay to both estates or either of them.

SO ORDERED.

(Pp. 334-335, Green Record on Appeal.)

On the other hand, as stated earlier, there were instances when respondent Magno was given authority to act alone. For instance, in the
other appealed order of December 19, 1964, on page 221 of the Green Record on Appeal, the respondent court approved payments made
by her of overtime pay to some employees of the court who had helped in gathering and preparing copies of parts of the records in both
estates as follows:
 Considering that the expenses subject of the motion to approve payment of overtime pay dated December 10, 1964,
are reasonable and are believed by this Court to be a proper charge of administration chargeable to the testate estate
of the late Linnie Jane Hodges, the said expenses are hereby APPROVED and to be charged against the testate
estate of the late Linnie Jane Hodges. The administrator of the testate estate of the late Charles Newton Hodges is
hereby ordered to countersign the check or checks necessary to pay the said overtime pay as shown by the bills
marked Annex "A", "B" and "C" of the motion.

SO ORDERED.

(Pp. 221-222, Green Record on Appeal.)

Likewise, the respondent court approved deeds of sale executed by respondent Magno alone, as Administratrix of the estate of Mrs. Hodges,
covering properties in the name of Hodges, pursuant to "contracts to sell" executed by Hodges, irrespective of whether they were executed
by him before or after the death of his wife. The orders of this nature which are also on appeal herein are the following:

1. Order of March 30, 1966, on p. 137 of the Green Record on Appeal, approving the deed of sale executed by respondent Magno in favor of
appellee Lorenzo Carles on February 24, 1966, pursuant to a "contract to sell" signed by Hodges on June 17, 1958, after the death of his
wife, which contract petitioner claims was cancelled by it for failure of Carles to pay the installments due on January 7, 1965.

2. Order of April 5, 1966, on pp. 139-140, id., approving the deed of sale executed by respondent Magno in favor of appellee Salvador
Guzman on February 28, 1966 pursuant to a "contract to sell" signed by Hodges on September 13, 1960, after the death of his wife, which
contract petitioner claims it cancelled on March 3, 1965 in view of failure of said appellee to pay the installments on time.

3. Order of April 20, 1966, on pp. 167-168, id., approving the deed of sale executed by respondent Magno in favor of appellee Purificacion
Coronado on March 28, 1966 pursuant to a "contract to sell" signed by Hodges on August 14, 1961, after the death of his wife.

4. Order of April 20, 1966, on pp. 168-169, id., approving the deed of sale executed by respondent Magno in favor of appellee Florenia
Barrido on March 28, 1966, pursuant to a "contract to sell" signed by Hodges on February 21, 1958, after the death of his wife.

5. Order of June 7, 1966, on pp. 184-185, id., approving the deed of sale executed by respondent Magno in favor of appellee Belcezar
Causing on May 2, 1966, pursuant to a "contract to sell" signed by Hodges on February 10, 1959, after the death of his wife.

6. Order of June 21, 1966, on pp. 211-212, id., approving the deed of sale executed by respondent Magno in favor of appellee Artheo
Thomas Jamir on June 3, 1966, pursuant to a "contract to sell" signed by Hodges on May 26, 1961, after the death of his wife.

7. Order of June 21, 1966, on pp. 212-213, id., approving the deed of sale executed by respondent Magno in favor of appellees Graciano
Lucero and Melquiades Batisanan on June 6 and June 3, 1966, respectively, pursuant to "contracts to sell" signed by Hodges on June 9,
1959 and November 27, 1961, respectively, after the death of his wife.

8. Order of December 2, 1966, on pp. 303-304, id., approving the deed of sale executed by respondent Magno in favor of appellees
Espiridion Partisala, Winifredo Espada and Rosario Alingasa on September 6, 1966, August 17, 1966 and August 3, 1966, respectively,
pursuant to "contracts to sell" signed by Hodges on April 20, 1960, April 18, 1960 and August 25, 1958, respectively, that is, after the death
of his wife.

9. Order of April 5, 1966, on pp. 137-138, id., approving the deed of sale executed by respondent Magno in favor of appellee Alfredo
Catedral on March 2, 1966, pursuant to a "contract to sell" signed by Hodges on May 29, 1954, before the death of his wife, which contract
petitioner claims it had cancelled on February 16, 1966 for failure of appellee Catedral to pay the installments due on time.

10. Order of April 5, 1966, on pp. 138-139, id., approving the deed of sale executed by respondent Magno in favor of appellee Jose Pablico
on March 7, 1966, pursuant to a "contract to sell" signed by Hodges on March 7, 1950, after the death of his wife, which contract petitioner
claims it had cancelled on June 29, 1960, for failure of appellee Pablico to pay the installments due on time.

11. Order of December 2, 1966, on pp. 303-304, id., insofar as it approved the deed of sale executed by respondent Magno in favor of
appellee Pepito Iyulores on September 6, 1966, pursuant to a "contract to sell" signed by Hodges on February 5, 1951, before the death of
his wife.

12. Order of January 3, 1967, on pp. 335-336, id., approving three deeds of sale executed by respondent Magno, one in favor of appellees
Santiago Pacaonsis and two in favor of appellee Adelfa Premaylon on December 5, 1966 and November 3, 1966, respectively, pursuant to
separate "promises to sell" signed respectively by Hodges on May 26, 1955 and January 30, 1954, before the death of his wife, and October
31, 1959, after her death.

In like manner, there were also instances when respondent court approved deeds of sale executed by petitioner alone and without the
concurrence of respondent Magno, and such approvals have not been the subject of any appeal. No less than petitioner points this out on
pages 149-150 of its brief as appellant thus:
 The points of fact and law pertaining to the two abovecited assignments of error have already been discussed
previously. In the first abovecited error, the order alluded to was general, and as already explained before, it was, as
admitted by the lower court itself, superseded by the particular orders approving specific final deeds of sale executed
by the appellee, Avelina A. Magno, which are subject of this appeal, as well as the particular orders approving specific
final deeds of sale executed by the appellant, Philippine Commercial and Industrial Bank, which were never appealed
by the appellee, Avelina A. Magno, nor by any party for that matter, and which are now therefore final.

Now, simultaneously with the foregoing incidents, others of more fundamental and all embracing significance developed. On October 5,
1963, over the signature of Atty. Allison J. Gibbs in representation of the law firm of Ozaeta, Gibbs & Ozaeta, as counsel for the co-
administrators Joe Hodges and Fernando P. Mirasol, the following self-explanatory motion was filed:

URGENT MOTION FOR AN ACCOUNTING AND DELIVERY TO ADMINISTRATION OF THE

ESTATE OF C. N. HODGES OF ALL OF THE ASSETS OF THE CONJUGAL PARTNERSHIP
OF THE DECEASED LINNIE JANE HODGES AND C N. HODGES EXISTING AS OF MAY 23,
1957 PLUS ALL THE RENTS, EMOLUMENTS AND INCOME THEREFROM.

COMES NOW the co-administrator of the estate of C. N. Hodges, Joe Hodges, through his undersigned attorneys in
the above-entitled proceedings, and to this Honorable Court respectfully alleges:

(1) On May 23, 1957 Linnie Jane Hodges died in Iloilo City.

(2) On June 28, 1957 this Honorable Court admitted to probate the Last Will and Testament of the deceased Linnie
Jane Hodges executed November 22, 1952 and appointed C. N. Hodges as Executor of the estate of Linnie Jane
Hodges (pp. 24-25, Rec. Sp. Proc. 1307).

(3) On July 1, 1957 this Honorable Court issued Letters Testamentary to C. N. Hodges in the Estate of Linnie Jane
Hodges (p. 30, Rec. Sp. Proc. 1307).

(4) On December 14, 1957 this Honorable Court, on the basis of the following allegations in a Motion dated December
11, 1957 filed by Leon P. Gellada as attorney for the executor C. N. Hodges:

"That herein Executor, (is) not only part owner of the properties left as conjugal, but also, the
successor to all the properties left by the deceased Linnie Jane Hodges."

(p. 44, Rec. Sp. Proc. 1307; emphasis supplied.)

issued the following order:

"As prayed for by Attorney Gellada, counsel for the Executory, for the reasons stated in his
motion dated December 11, 1957 which the court considers well taken, all the sales,
conveyances, leases and mortgages of all properties left by the deceased Linnie Jane Hodges
are hereby APPROVED. The said executor is further authorized to execute subsequent sales,
conveyances, leases and mortgages of the properties left by the said deceased Linnie Jane
Hodges in consonance with the wishes contained in the last will and testament of the latter."

(p. 46, Rec. Sp. Proc. 1307; emphasis supplied.)

(5) On April 21, 1959 this Honorable Court approved the inventory and accounting submitted by C. N. Hodges through
his counsel Leon P. Gellada on April 14, 1959 wherein he alleged among other things

"That no person interested in the Philippines of the time and place of examining the herein
account, be given notice, as herein executor is the only devisee or legatee of the deceased, in
accordance with the last will and testament already probated by the Honorable Court."

(pp. 77-78, Rec. Sp. Proc. 1307; emphasis supplied.).

(6) On July 30, 1960 this Honorable Court approved the "Annual Statement of Account" submitted by C. N. Hodges
through his counsel Leon P. Gellada on July 21, 1960 wherein he alleged among other things:

"That no person interested in the Philippines of the time and place of examining the herein
account, be given notice as herein executor is the only devisee or legatee of the deceased Linnie
Jane Hodges, in accordance with the last will and testament of the deceased, already probated
by this Honorable Court."
 (pp. 81-82. Rec. Sp. Proc. 1307; emphasis supplied.)

(7) On May 2, 1961 this Honorable court approved the "Annual Statement of Account By The Executor for the Year
1960" submitted through Leon P. Gellada on April 20, 1961 wherein he alleged:

That no person interested in the Philippines be given notice, of the time and place of examining
the herein account, as herein Executor is the only devisee or legatee of the deceased Linnie Jane
Hodges, in accordance with the last will and testament of the deceased, already probated by this
Honorable Court.

(pp. 90-91. Rec. Sp. Proc. 1307; emphasis supplied.)

(8) On December 25, 1962, C.N. Hodges died.

(9) On December 25, 1962, on the Urgent Ex-parte Motion of Leon P. Gellada filed only in Special Proceeding No.
1307, this Honorable Court appointed Avelina A. Magno

"Administratrix of the estate of Linnie Jane Hodges and as Special Administratrix of the estate of Charles Newton
Hodges, in the latter case, because the last will of said Charles Newton Hodges is still kept in his vault or iron safe and
that the real and personal properties of both spouses may be lost, damaged or go to waste, unless a Special
Administratrix is appointed."

(p. 100. Rec. Sp. Proc. 1307)

(10) On December 26, 1962 Letters of Administration were issued to Avelina Magno pursuant to this Honorable Court's
aforesaid Order of December 25, 1962

"With full authority to take possession of all the property of said deceased in any province or
provinces in which it may be situated and to perform all other acts necessary for the preservation
of said property, said Administratrix and/or Special Administratrix having filed a bond satisfactory
to the Court."

(p. 102, Rec. Sp. Proc. 1307)

(11) On January 22, 1963 this Honorable Court on petition of Leon P. Gellada of January 21, 1963 issued Letters of
Administration to:

(a) Avelina A. Magno as Administratrix of the estate of Linnie Jane Hodges;

(b) Avelina A. Magno as Special Administratrix of the Estate of Charles Newton Hodges; and

(c) Joe Hodges as Co-Special Administrator of the Estate of Charles Newton Hodges.

(p. 43, Rec. Sp. Proc. 1307)

(12) On February 20, 1963 this Honorable Court on the basis of a motion filed by Leon P. Gellada as legal counsel on
February 16, 1963 for Avelina A. Magno acting as Administratrix of the Estate of Charles Newton Hodges (pp. 114-116,
Sp. Proc. 1307) issued the following order:

"... se autoriza a aquella (Avelina A. Magno) a firmar escrituras de venta definitiva de

propiedades cubiertas por contratos para vender, firmados, en vida, por el finado Charles Newton
Hodges, cada vez que el precio estipulado en cada contrato este totalmente pagado. Se autoriza
igualmente a la misma a firmar escrituras de cancelacion de hipoteca tanto de bienes reales
como personales cada vez que la consideracion de cada hipoteca este totalmente pagada.

"Cada una de dichas escrituras que se otorguen debe ser sometida para la aprobacion de este
Juzgado."

(p. 117, Sp. Proc. 1307).

[Par 1 (c), Reply to Motion For Removal of Joe Hodges]

 (13) On September l6, 1963 Leon P. Gellada, acting as attorney for Avelina A. Magno as Administratrix of the estate of
Linnie Jane Hodges, alleges:

3. — That since January, 1963, both estates of Linnie Jane Hodges and Charles Newton Hodges
have been receiving in full, payments for those "contracts to sell" entered into by C. N. Hodges
during his lifetime, and the purchasers have been demanding the execution of definite deeds of
sale in their favor.

4. — That hereto attached are thirteen (13) copies deeds of sale executed by the Administratrix
and by the co-administrator (Fernando P. Mirasol) of the estate of Linnie Jane Hodges and
Charles Newton Hodges respectively, in compliance with the terms and conditions of the
respective "contracts to sell" executed by the parties thereto."

(14) The properties involved in the aforesaid motion of September 16, 1963 are all registered in the name of the
deceased C. N. Hodges.

(15) Avelina A. Magno, it is alleged on information and belief, has been advertising in the newspaper in Iloilo thusly:

For Sale

Testate Estate of Linnie Jane Hodges and Charles Newton Hodges.

All Real Estate or Personal Property will be sold on First Come First Served Basis.

Avelina A.
Magno
Administra
trix

(16) Avelina A. Magno, it is alleged on information and belief, has paid and still is paying sums of money to sundry
persons.

(17) Joe Hodges through the undersigned attorneys manifested during the hearings before this Honorable Court on
September 5 and 6, 1963 that the estate of C. N. Hodges was claiming all of the assets belonging to the deceased
spouses Linnie Jane Hodges and C. N. Hodges situated in Philippines because of the aforesaid election by C. N.
Hodges wherein he claimed and took possession as sole owner of all of said assets during the administration of the
estate of Linnie Jane Hodges on the ground that he was the sole devisee and legatee under her Last Will and
Testament.

(18) Avelina A. Magno has submitted no inventory and accounting of her administration as Administratrix of the estate
of Linnie Jane Hodges and Special Administratrix of the estate of C. N. Hodges. However, from manifestations made
by Avelina A. Magno and her legal counsel, Leon P. Gellada, there is no question she will claim that at least fifty per
cent (50%) of the conjugal assets of the deceased spouses and the rents, emoluments and income therefrom belong to
the Higdon family who are named in paragraphs Fourth and Fifth of the Will of Linnie Jane Hodges (p. 5, Rec. Sp.
Proc. 1307).

WHEREFORE, premises considered, movant respectfully prays that this Honorable Court, after due hearing, order:

(1) Avelina A. Magno to submit an inventory and accounting of all of the funds, properties and assets of any character
belonging to the deceased Linnie Jane Hodges and C. N. Hodges which have come into her possession, with full
details of what she has done with them;

(2) Avelina A. Magno to turn over and deliver to the Administrator of the estate of C. N. Hodges all of the funds,
properties and assets of any character remaining in her possession;

(3) Pending this Honorable Court's adjudication of the aforesaid issues, Avelina A. Magno to stop, unless she first
secures the conformity of Joe Hodges (or his duly authorized representative, such as the undersigned attorneys) as the
Co-administrator and attorney-in-fact of a majority of the beneficiaries of the estate of C. N. Hodges:

(a) Advertising the sale and the sale of the properties of the estates:

(b) Employing personnel and paying them any compensation.

 (4) Such other relief as this Honorable Court may deem just and equitable in the premises. (Annex "T", Petition.)

Almost a year thereafter, or on September 14, 1964, after the co-administrators Joe Hodges and Fernando P. Mirasol were replaced by
herein petitioner Philippine Commercial and Industrial Bank as sole administrator, pursuant to an agreement of all the heirs of Hodges
approved by the court, and because the above motion of October 5, 1963 had not yet been heard due to the absence from the country of
Atty. Gibbs, petitioner filed the following:

MANIFESTATION AND MOTION, INCLUDING MOTION TO SET FOR HEARING AND

RESOLVE "URGENT MOTION FOR AN ACCOUNTING AND DELIVERY TO
ADMINISTRATORS OF THE ESTATE OF C. N. HODGES OF ALL THE ASSETS OF THE
CONJUGAL PARTNERSHIP OF THE DECEASED LINNIE JANE HODGES AND C. N. HODGES
EXISTING AS OF MAY 23, 1957 PLUS ALL OF THE RENTS, EMOLUMENTS AND INCOME
THEREFROM OF OCTOBER 5, 1963.

COMES NOW Philippine Commercial and Industrial Bank (hereinafter referred to as PCIB), the administrator of the
estate of C. N. Hodges, deceased, in Special Proceedings No. 1672, through its undersigned counsel, and to this
Honorable Court respectfully alleges that:

1. On October 5, 1963, Joe Hodges acting as the co-administrator of the estate of C. N. Hodges filed, through the
undersigned attorneys, an "Urgent Motion For An Accounting and Delivery To Administrator of the Estate of C. N.
Hodges of all Of The Assets Of The Conjugal Partnership of The Deceased Linnie Jane Hodges and C. N. Hodges
Existing as Of May, 23, 1957 Plus All Of The Rents, Emoluments and Income Therefrom" (pp. 536-542, CFI Rec. S. P.
No. 1672).

2. On January 24, 1964 this Honorable Court, on the basis of an amicable agreement entered into on January 23, 1964
by the two co-administrators of the estate of C. N. Hodges and virtually all of the heirs of C. N. Hodges (p. 912, CFI
Rec., S. P. No. 1672), resolved the dispute over who should act as administrator of the estate of C. N. Hodges by
appointing the PCIB as administrator of the estate of C. N. Hodges (pp. 905-906, CFI Rec. S. P. No. 1672) and issuing
letters of administration to the PCIB.

3. On January 24, 1964 virtually all of the heirs of C. N. Hodges, Joe Hodges and Fernando P. Mirasol acting as the
two co-administrators of the estate of C. N. Hodges, Avelina A. Magno acting as the administratrix of the estate of
Linnie Jane Hodges, and Messrs. William Brown and Ardel Young Acting for all of the Higdon family who claim to be
the sole beneficiaries of the estate of Linnie Jane Hodges and various legal counsel representing the aforenamed
parties entered into an amicable agreement, which was approved by this Honorable Court, wherein the parties thereto
agreed that certain sums of money were to be paid in settlement of different claims against the two estates and that the
assets (to the extent they existed)of both estates would be administrated jointly by the PCIB as administrator of the
estate of C. N. Hodges and Avelina A. Magno as administratrix of the estate of Linnie Jane Hodges, subject, however,
to the aforesaid October 5, 1963 Motion, namely, the PCIB's claim to exclusive possession and ownership of one-
hundred percent (10017,) (or, in the alternative, seventy-five percent [75%] of all assets owned by C. N. Hodges or
Linnie Jane Hodges situated in the Philippines. On February 1, 1964 (pp. 934-935, CFI Rec., S. P. No. 1672) this
Honorable Court amended its order of January 24, 1964 but in no way changes its recognition of the aforedescribed
basic demand by the PCIB as administrator of the estate of C. N. Hodges to one hundred percent (100%) of the assets
claimed by both estates.

4. On February 15, 1964 the PCIB filed a "Motion to Resolve" the aforesaid Motion of October 5, 1963. This Honorable
Court set for hearing on June 11, 1964 the Motion of October 5, 1963.

5. On June 11, 1964, because the undersigned Allison J. Gibbs was absent in the United States, this Honorable Court
ordered the indefinite postponement of the hearing of the Motion of October 5, 1963.

6. Since its appointment as administrator of the estate of C. N. Hodges the PCIB has not been able to properly carry
out its duties and obligations as administrator of the estate of C. N. Hodges because of the following acts, among
others, of Avelina A. Magno and those who claim to act for her as administratrix of the estate of Linnie Jane Hodges:

(a) Avelina A. Magno illegally acts as if she is in exclusive control of all of the assets in the
Philippines of both estates including those claimed by the estate of C. N. Hodges as evidenced in
part by her locking the premises at 206-208 Guanco Street, Iloilo City on August 31, 1964 and
refusing to reopen same until ordered to do so by this Honorable Court on September 7, 1964.

(b) Avelina A. Magno illegally acts as though she alone may decide how the assets of the estate
of C.N. Hodges should be administered, who the PCIB shall employ and how much they may be
paid as evidenced in party by her refusal to sign checks issued by the PCIB payable to the
undersigned counsel pursuant to their fee agreement approved by this Honorable Court in its
order dated March 31, 1964.
 (c) Avelina A. Magno illegally gives access to and turns over possession of the records and
assets of the estate of C.N. Hodges to the attorney-in-fact of the Higdon Family, Mr. James L.
Sullivan, as evidenced in part by the cashing of his personal checks.

(d) Avelina A. Magno illegally refuses to execute checks prepared by the PCIB drawn to pay
expenses of the estate of C. N. Hodges as evidenced in part by the check drawn to reimburse the
PCIB's advance of P48,445.50 to pay the 1964 income taxes reported due and payable by the
estate of C.N. Hodges.

7. Under and pursuant to the orders of this Honorable Court, particularly those of January 24 and February 1, 1964,
and the mandate contained in its Letters of Administration issued on January 24, 1964 to the PCIB, it has

"full authority to take possession of all the property of the deceased C. N.

Hodges

"and to perform all other acts necessary for the preservation of said property." (p. 914, CFI Rec.,
S.P. No. 1672.)

8. As administrator of the estate of C. N. Hodges, the PCIB claims the right to the immediate exclusive possession and
control of all of the properties, accounts receivables, court cases, bank accounts and other assets, including the
documentary records evidencing same, which existed in the Philippines on the date of C. N. Hodges' death, December
25, 1962, and were in his possession and registered in his name alone. The PCIB knows of no assets in the Philippines
registered in the name of Linnie Jane Hodges, the estate of Linnie Jane Hodges, or, C. N. Hodges, Executor of the
Estate of Linnie Jane Hodges on December 25, 1962. All of the assets of which the PCIB has knowledge are either
registered in the name of C. N. Hodges, alone or were derived therefrom since his death on December 25, 1962.

9. The PCIB as the current administrator of the estate of C. N. Hodges, deceased, succeeded to all of the rights of the
previously duly appointed administrators of the estate of C. N. Hodges, to wit:

(a) On December 25, 1962, date of C. N. Hodges' death, this Honorable Court appointed Miss
Avelina A. Magno simultaneously as:

(i) Administratrix of the estate of Linnie Jane Hodges (p. 102, CFI Rec., S.P. No. 1307) to replace
the deceased C. N. Hodges who on May 28, 1957 was appointed Special Administrator (p. 13.
CFI Rec. S.P. No. 1307) and on July 1, 1957 Executor of the estate of Linnie Jane Hodges (p. 30,
CFI Rec., S. P. No. 1307).

(ii) Special Administratrix of the estate of C. N. Hodges (p. 102, CFI Rec., S.P. No. 1307).

(b) On December 29, 1962 this Honorable Court appointed Harold K. Davies as co-special
administrator of the estate of C.N. Hodges along with Avelina A. Magno (pp. 108-111, CFI Rec.,
S. P. No. 1307).

(c) On January 22, 1963, with the conformity of Avelina A. Magno, Harold K. Davies resigned in
favor of Joe Hodges (pp. 35-36, CFI Rec., S.P. No. 1672) who thereupon was appointed on
January 22, 1963 by this Honorable Court as special co-administrator of the estate of C.N.
Hodges (pp. 38-40 & 43, CFI Rec. S.P. No. 1672) along with Miss Magno who at that time was
still acting as special co-administratrix of the estate of C. N. Hodges.

(d) On February 22, 1963, without objection on the part of Avelina A. Magno, this Honorable
Court appointed Joe Hodges and Fernando P. Mirasol as co-administrators of the estate of C.N.
Hodges (pp. 76-78, 81 & 85, CFI Rec., S.P. No. 1672).

10. Miss Avelina A. Magno, pursuant to the orders of this Honorable Court of December 25, 1962, took possession of
all Philippine Assets now claimed by the two estates. Legally, Miss Magno could take possession of the assets
registered in the name of C. N. Hodges alone only in her capacity as Special Administratrix of the Estate of C.N.
Hodges. With the appointment by this Honorable Court on February 22, 1963 of Joe Hodges and Fernando P. Mirasol
as the co-administrators of the estate of C.N. Hodges, they legally were entitled to take over from Miss Magno the full
and exclusive possession of all of the assets of the estate of C.N. Hodges. With the appointment on January 24, 1964
of the PCIB as the sole administrator of the estate of C.N. Hodges in substitution of Joe Hodges and Fernando P.
Mirasol, the PCIB legally became the only party entitled to the sole and exclusive possession of all of the assets of the
estate of C. N. Hodges.

11. The PCIB's predecessors submitted their accounting and this Honorable Court approved same, to wit:
 (a) The accounting of Harold K. Davies dated January 18, 1963 (pp. 16-33, CFI Rec. S.P. No.
1672); which shows or its face the:

(i) Conformity of Avelina A. Magno acting as "Administratrix of the Estate of Linnie Jane Hodges
and Special Administratrix of the Estate of C. N. Hodges";

(ii) Conformity of Leslie Echols, a Texas lawyer acting for the heirs of C.N. Hodges; and

(iii) Conformity of William Brown, a Texas lawyer acting for the Higdon family who claim to be the
only heirs of Linnie Jane Hodges (pp. 18, 25-33, CFI Rec., S. P. No. 1672).

Note: This accounting was approved by this Honorable Court on January 22, 1963 (p. 34, CFI Rec., S. P. No. 1672).

(b) The accounting of Joe Hodges and Fernando P. Mirasol as of January 23, 1964, filed
February 24, 1964 (pp. 990-1000, CFI Rec. S.P. No. 1672 and pp. 1806-1848, CFI Rec. S.P. No.
1307).

Note: This accounting was approved by this Honorable Court on March 3, 1964.

(c) The PCIB and its undersigned lawyers are aware of no report or accounting submitted by
Avelina A. Magno of her acts as administratrix of the estate of Linnie Jane Hodges or special
administratrix of the estate of C.N. Hodges, unless it is the accounting of Harold K. Davies as
special co-administrator of the estate of C.N. Hodges dated January 18, 1963 to which Miss
Magno manifested her conformity (supra).

12. In the aforesaid agreement of January 24, 1964, Miss Avelina A. Magno agreed to receive P10,000.00

"for her services as administratrix of the estate of Linnie Jane Hodges"

and in addition she agreed to be employed, starting February 1, 1964, at

"a monthly salary of P500.00 for her services as an employee of both estates."

24 ems.

13. Under the aforesaid agreement of January 24, 1964 and the orders of this Honorable Court of same date, the PCIB
as administrator of the estate of C. N. Hodges is entitled to the exclusive possession of all records, properties and
assets in the name of C. N. Hodges as of the date of his death on December 25, 1962 which were in the possession of
the deceased C. N. Hodges on that date and which then passed to the possession of Miss Magno in her capacity as
Special Co-Administratrix of the estate of C. N. Hodges or the possession of Joe Hodges or Fernando P. Mirasol as co-
administrators of the estate of C. N. Hodges.

14. Because of Miss Magno's refusal to comply with the reasonable request of PCIB concerning the assets of the
estate of C. N. Hodges, the PCIB dismissed Miss Magno as an employee of the estate of C. N. Hodges effective
August 31, 1964. On September 1, 1964 Miss Magno locked the premises at 206-208 Guanco Street and denied the
PCIB access thereto. Upon the Urgent Motion of the PCIB dated September 3, 1964, this Honorable Court on
September 7, 1964 ordered Miss Magno to reopen the aforesaid premises at 206-208 Guanco Street and permit the
PCIB access thereto no later than September 8, 1964.

15. The PCIB pursuant to the aforesaid orders of this Honorable Court is again in physical possession of all of the
assets of the estate of C. N. Hodges. However, the PCIB is not in exclusive control of the aforesaid records, properties
and assets because Miss Magno continues to assert the claims hereinabove outlined in paragraph 6, continues to use
her own locks to the doors of the aforesaid premises at 206-208 Guanco Street, Iloilo City and continues to deny the
PCIB its right to know the combinations to the doors of the vault and safes situated within the premises at 206-208
Guanco Street despite the fact that said combinations were known to only C. N. Hodges during his lifetime.

16. The Philippine estate and inheritance taxes assessed the estate of Linnie Jane Hodges were assessed and paid on
the basis that C. N. Hodges is the sole beneficiary of the assets of the estate of Linnie Jane Hodges situated in the
Philippines. Avelina A. Magno and her legal counsel at no time have questioned the validity of the aforesaid
assessment and the payment of the corresponding Philippine death taxes.

17. Nothing further remains to be done in the estate of Linnie Jane Hodges except to resolve the aforesaid Motion of
October 5, 1963 and grant the PCIB the exclusive possession and control of all of the records, properties and assets of
the estate of C. N. Hodges.
 18. Such assets as may have existed of the estate of Linnie Jane Hodges were ordered by this Honorable Court in
special Proceedings No. 1307 to be turned over and delivered to C. N. Hodges alone. He in fact took possession of
them before his death and asserted and exercised the right of exclusive ownership over the said assets as the sole
beneficiary of the estate of Linnie Jane Hodges.

WHEREFORE, premises considered, the PCIB respectfully petitions that this Honorable court:

(1) Set the Motion of October 5, 1963 for hearing at the earliest possible date with notice to all interested parties;

(2) Order Avelina A. Magno to submit an inventory and accounting as Administratrix of the Estate of Linnie Jane
Hodges and Co-Administratrix of the Estate of C. N. Hodges of all of the funds, properties and assets of any character
belonging to the deceased Linnie Jane Hodges and C. N. Hodges which have come into her possession, with full
details of what she has done with them;

(3) Order Avelina A. Magno to turn over and deliver to the PCIB as administrator of the estate of C. N. Hodges all of the
funds, properties and assets of any character remaining in her possession;

(4) Pending this Honorable Court's adjudication of the aforesaid issues, order Avelina A. Magno and her
representatives to stop interferring with the administration of the estate of C. N. Hodges by the PCIB and its duly
authorized representatives;

(5) Enjoin Avelina A. Magno from working in the premises at 206-208 Guanco Street, Iloilo City as an employee of the
estate of C. N. Hodges and approve her dismissal as such by the PCIB effective August 31, 1964;

(6) Enjoin James L. Sullivan, Attorneys Manglapus and Quimpo and others allegedly representing Miss Magno from
entering the premises at 206-208 Guanco Street, Iloilo City or any other properties of C. N. Hodges without the express
permission of the PCIB;

(7) Order such other relief as this Honorable Court finds just and equitable in the premises. (Annex "U" Petition.)

On January 8, 1965, petitioner also filed a motion for "Official Declaration of Heirs of Linnie Jane Hodges Estate" alleging:

COMES NOW Philippine Commercial and Industrial Bank (hereinafter referred to as PCIB), as administrator of the estate of the late C. N.
Hodges, through the undersigned counsel, and to this Honorable Court respectfully alleges that:

1. During their marriage, spouses Charles Newton Hodges and Linnie Jane Hodges, American citizens originally from
the State of Texas, U.S.A., acquired and accumulated considerable assets and properties in the Philippines and in the
States of Texas and Oklahoma, United States of America. All said properties constituted their conjugal estate.

2. Although Texas was the domicile of origin of the Hodges spouses, this Honorable Court, in its orders dated March 31
and December 12, 1964 (CFI Record, Sp. Proc. No. 1307, pp. ----; Sp. Proc. No. 1672, p. ----), conclusively found and
categorically ruled that said spouses had lived and worked for more than 50 years in Iloilo City and had, therefore,
acquired a domicile of choice in said city, which they retained until the time of their respective deaths.

3. On November 22, 1952, Linnie Jane Hodges executed in the City of Iloilo her Last Will and Testament, a copy of
which is hereto attached as Annex "A". The bequests in said will pertinent to the present issue are the second, third,
and fourth provisions, which we quote in full hereunder.

SECOND: I give, devise and bequeath all of the rest, residue and remainder of my estate, both
personal and real, wherever situated, or located, to my husband, Charles Newton Hodges, to
have and to hold unto him, my said husband during his natural lifetime.

THIRD: I desire, direct and provide that my husband, Charles Newton Hodges, shall have the
right to manage, control, use and enjoy said estate during his lifetime, and he is hereby given the
right to make any changes in the physical properties of said estate by sale of any part thereof
which he think best, and the purchase of any other or additional property as he may think best; to
execute conveyances with or without general or special warranty, conveying in fee simple or for
any other term or time, any property which he may deem proper to dispose of; to lease any of the
real property for oil, gas and/or other minerals, and all such deeds or leases shall pass the
absolute fee simple title to the interest so conveyed in such property as he may elect to sell. All
rents, emoluments and income from said estate shall belong to him, and he is further authorized
to use any part of the principal of said estate as he may need or desire. It is provided herein,
however, that he shall not sell or otherwise dispose of any of the improved property now owned
by us located at, in or near the City of Lubbock, Texas, but he shall have the full right to lease,
 manage and enjoy the same during his lifetime, as above provided. He shall have the right to
sub-divide any farmland and sell lots therein, and may sell unimproved town lots.

FOURTH: At the death of my said husband, Charles Newton Hodges, I give, devise and
bequeath all of the rest, residue and remainder of my estate both real and personal, wherever
situated or located, to be equally divided among my brothers and sisters, share and share alike,
namely:

"Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie Rascoe, Era Boman and
Nimray Higdon."

4. On November 14, 1953, C. N. Hodges executed in the City of Iloilo his Last Will and Testament, a copy of which is
hereto attached as Annex "B ". In said Will, C. N. Hodges designated his wife, Linnie Jane Hodges, as his beneficiary
using the identical language she used in the second and third provisos of her Will, supra.

5. On May 23, 1957 Linnie Jane Hodges died in Iloilo City, predeceasing her husband by more than five (5) years. At
the time of her death, she had no forced or compulsory heir, except her husband, C. N. Hodges. She was survived also
by various brothers and sisters mentioned in her Will (supra), which, for convenience, we shall refer to as the
HIGDONS.

6. On June 28, 1957, this Honorable Court admitted to probate the Last Will and Testament of the deceased Linnie
Jane Hodges (Annex "A"), and appointed C. N. Hodges as executor of her estate without bond. (CFI Record, Sp. Proc.
No. 1307, pp. 24-25). On July 1, 1957, this Honorable Court issued letters testamentary to C. N. Hodges in the estate
of Linnie Jane Hodges. (CFI Record, Sp. Proc. No. 1307, p. 30.)

7. The Will of Linnie Jane Hodges, with respect to the order of succession, the amount of successional rights, and the
intrinsic of its testamentary provisions, should be governed by Philippine laws because:

(a) The testatrix, Linnie Jane Hodges, intended Philippine laws to govern her Will;

(b) Article 16 of the Civil Code provides that "the national law of the person whose succession is
under consideration, whatever may be the nature of the property and regardless of the country
wherein said property may be found", shall prevail. However, the Conflict of Law of Texas, which
is the "national law" of the testatrix, Linnie Jane Hodges, provide that the domiciliary law
(Philippine law — see paragraph 2, supra) should govern the testamentary dispositions and
successional rights over movables (personal properties), and the law of the situs of the property
(also Philippine law as to properties located in the Philippines) with regards immovable (real
properties). Thus applying the "Renvoi Doctrine", as approved and applied by our Supreme Court
in the case of "In The Matter Of The Testate Estate of Eduard E. Christensen", G.R. No.
L-16749, promulgated January 31, 1963, Philippine law should apply to the Will of Linnie Jane
Hodges and to the successional rights to her estate insofar as her movable and immovable
assets in the Philippines are concerned. We shall not, at this stage, discuss what law should
govern the assets of Linnie Jane Hodges located in Oklahoma and Texas, because the only
assets in issue in this motion are those within the jurisdiction of this motion Court in the two
above-captioned Special Proceedings.

8. Under Philippine and Texas law, the conjugal or community estate of spouses shall, upon dissolution, be divided
equally between them. Thus, upon the death of Linnie Jane Hodges on May 23, 1957, one-half (1/2) of the entirety of
the assets of the Hodges spouses constituting their conjugal estate pertained automatically to Charles Newton Hodges,
not by way of inheritance, but in his own right as partner in the conjugal partnership. The other one-half (1/2) portion of
the conjugal estate constituted the estate of Linnie Jane Hodges. This is the only portion of the conjugal estate capable
of inheritance by her heirs.

9. This one-half (1/2) portion of the conjugal assets pertaining to Linnie Jane Hodges cannot, under a clear and specific
provision of her Will, be enhanced or increased by income, earnings, rents, or emoluments accruing after her death on
May 23, 1957. Linnie Jane Hodges' Will provides that "all rents, emoluments and income from said estate shall belong
to him (C. N. Hodges) and he is further authorized to use any part of the principal of said estate as he may need or
desire." (Paragraph 3, Annex "A".) Thus, by specific provision of Linnie Jane Hodges' Will, "all rents, emoluments and
income" must be credited to the one-half (1/2) portion of the conjugal estate pertaining to C. N. Hodges. Clearly,
therefore, the estate of Linnie Jane Hodges, capable of inheritance by her heirs, consisted exclusively of no more than
one-half (1/2) of the conjugal estate, computed as of the time of her death on May 23, 1957.

10. Articles 900, 995 and 1001 of the New Civil Code provide that the surviving spouse of a deceased leaving no
ascendants or descendants is entitled, as a matter of right and by way of irrevocable legitime, to at least one-half (1/2)
of the estate of the deceased, and no testamentary disposition by the deceased can legally and validly affect this right
of the surviving spouse. In fact, her husband is entitled to said one-half (1/2) portion of her estate by way of legitime.
(Article 886, Civil Code.) Clearly, therefore, immediately upon the death of Linnie Jane Hodges, C. N. Hodges was the
owner of at least three-fourths (3/4) or seventy-five (75%) percent of all of the conjugal assets of the spouses, (1/2 or
50% by way of conjugal partnership share and 1/4 or 25% by way of inheritance and legitime) plus all "rents,
emoluments and income" accruing to said conjugal estate from the moment of Linnie Jane Hodges' death (see
paragraph 9, supra).

11. The late Linnie Jane Hodges designated her husband C.N. Hodges as her sole and exclusive heir with full authority
to do what he pleased, as exclusive heir and owner of all the assets constituting her estate, except only with regards
certain properties "owned by us, located at, in or near the City of Lubbock, Texas". Thus, even without relying on our
laws of succession and legitime, which we have cited above, C. N. Hodges, by specific testamentary designation of his
wife, was entitled to the entirely to his wife's estate in the Philippines.

12. Article 777 of the New Civil Code provides that "the rights of the successor are transmitted from the death of the
decedent". Thus, title to the estate of Linnie Jane Hodges was transmitted to C. N. Hodges immediately upon her death
on May 23, 1957. For the convenience of this Honorable Court, we attached hereto as Annex "C" a graph of how the
conjugal estate of the spouses Hodges should be divided in accordance with Philippine law and the Will of Linnie Jane
Hodges.

13. In his capacity as sole heir and successor to the estate of Linnie Jane Hodges as above-stated, C. N. Hodges,
shortly after the death of Linnie Jane Hodges, appropriated to himself the entirety of her estate. He operated all the
assets, engaged in business and performed all acts in connection with the entirety of the conjugal estate, in his own
name alone, just as he had been operating, engaging and doing while the late Linnie Jane Hodges was still alive. Upon
his death on December 25, 1962, therefore, all said conjugal assets were in his sole possession and control, and
registered in his name alone, not as executor, but as exclusive owner of all said assets.

14. All these acts of C. N. Hodges were authorized and sanctioned expressly and impliedly by various orders of this
Honorable Court, as follows:

(a) In an Order dated May 27, 1957, this Honorable Court ruled that C. N. Hodges "is allowed or authorized to continue
the business in which he was engaged, and to perform acts which he had been doing while the deceased was living."
(CFI Record, Sp. Proc. No. 1307, p. 11.)

(b) On December 14, 1957, this Honorable Court, on the basis of the following fact, alleged in the verified Motion dated
December 11, 1957 filed by Leon P. Gellada as attorney for the executor C. N. Hodges:

That herein Executor, (is) not only part owner of the properties left as conjugal, but also, the successor to all the
properties left by the deceased Linnie Jane Hodges.' (CFI Record, Sp. Proc. No. 1307, p. 44; emphasis supplied.)

issued the following order:

"As prayed for by Attorney Gellada, counsel for the Executor, for the reasons stated in his motion dated December 11,
1957, which the Court considers well taken, all the sales, conveyances, leases and mortgages of all the properties left
by the deceased Linnie Jane Hodges executed by the Executor, Charles Newton Hodges are hereby APPROVED. The
said Executor is further authorized to execute subsequent sales, conveyances, leases and mortgages of the properties
left by the said deceased Linnie Jane Hodges in consonance with the wishes contained in the last will and testament of
the latter." (CFI Record. Sp. Proc. No. 1307, p. 46; emphasis supplied.)

24 ems

(c) On April 21, 1959, this Honorable Court approved the verified inventory and accounting submitted by C. N. Hodges
through his counsel Leon P. Gellada on April 14, 1959 wherein he alleged among other things,

"That no person interested in the Philippines of the time and place of examining the herein
account, be given notice, as herein executor is the only devisee or legatee of the deceased, in
accordance with the last will and testament already probated by the Honorable Court." (CFI
Record, Sp. Proc. No. 1307, pp. 77-78; emphasis supplied.)

(d) On July 20, 1960, this Honorable Court approved the verified "Annual Statement of Account" submitted by C. N.
Hodges through his counsel Leon P. Gellada on July 21, 1960 wherein he alleged, among other things.

"That no person interested in the Philippines of the time and place of examining the herein
account, be given notice as herein executor is the only devisee or legatee of the deceased Linnie
Jane Hodges, in accordance with the last will and testament ofthe deceased, already probated by
this Honorable Court." (CFI Record, Sp. Proc. No. 1307, pp. 81-82; emphasis supplied.)

(e) On May 2, 1961, this Honorable Court approved the verified "Annual Statement of Account By The Executor For the
Year 1960" submitted through Leon P. Gellada on April 20, 1961 wherein he alleged:
"That no person interested in the Philippines be given notice, ofthe time and place of examining the herein account, as
herein executor is the only devisee or legatee of the deceased Linnie Jane Hodges, in accordance with the last will and
testament ofthe deceased, already probated by this Honorable Court." (CFI Record, Sp. Proc. No. 1307, pp. 90-91;
emphasis supplied.)

15. Since C. N. Hodges was the sole and exclusive heir of Linnie Jane Hodges, not only by law, but in accordance with
the dispositions of her will, there was, in fact, no need to liquidate the conjugal estate of the spouses. The entirely of
said conjugal estate pertained to him exclusively, therefore this Honorable Court sanctioned and authorized, as above-
stated, C. N. Hodges to manage, operate and control all the conjugal assets as owner.

16. By expressly authorizing C. N. Hodges to act as he did in connection with the estate of his wife, this Honorable
Court has (1) declared C. N. Hodges as the sole heir of the estate of Linnie Jane Hodges, and (2) delivered and
distributed her estate to C. N. Hodges as sole heir in accordance with the terms and conditions of her Will. Thus,
although the "estate of Linnie Jane Hodges" still exists as a legal and juridical personality, it had no assets or properties
located in the Philippines registered in its name whatsoever at the time of the death of C. N. Hodges on December 25,
1962.

17. The Will of Linnie Jane Hodges (Annex "A"), fourth paragraph, provides as follows:

"At the death of my said husband, Charles Newton Hodges, I give, devise and bequeath all of the
rest, residue and remainder of my estate both real and personal, wherever situated or located, to
be equally divided among my brothers and sisters, share and share alike, namely:

"Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie Rascoe,
Era Boman and Nimray Higdon."

Because of the facts hereinabove set out there is no "rest, residue and remainder", at least to the extent of the
Philippine assets, which remains to vest in the HIGDONS, assuming this proviso in Linnie Jane Hodges' Will is valid
and binding against the estate of C. N. Hodges.

18. Any claims by the HIGDONS under the above-quoted provision of Linnie Jane Hodges' Will is without merit
because said provision is void and invalid at least as to the Philippine assets. It should not, in anyway, affect the rights
of the estate of C. N. Hodges or his heirs to the properties, which C. N. Hodges acquired by way of inheritance from his
wife Linnie Jane Hodges upon her death.

(a) In spite of the above-mentioned provision in the Will of Linnie Jane Hodges, C. N. Hodges
acquired, not merely a usufructuary right, but absolute title and ownership to her estate. In a
recent case involving a very similar testamentary provision, the Supreme Court held that the heir
first designated acquired full ownership of the property bequeathed by the will, not mere
usufructuary rights. (Consolacion Florentino de Crisologo, et al., vs. Manuel Singson, G. R. No. L-
13876, February 28, 1962.)

(b) Article 864, 872 and 886 of the New Civil Code clearly provide that no charge, condition or
substitution whatsoever upon the legitime can be imposed by a testator. Thus, under the
provisions of Articles 900, 995 and 1001 of the New Civil Code, the legitime of a surviving spouse
is 1/2 of the estate of the deceased spouse. Consequently, the above-mentioned provision in the
Will of Linnie Jane Hodges is clearly invalid insofar as the legitime of C. N. Hodges was
concerned, which consisted of 1/2 of the 1/2 portion of the conjugal estate, or 1/4 of the entire
conjugal estate of the deceased.

(c) There are generally only two kinds of substitution provided for and authorized by our Civil
Code (Articles 857-870), namely, (1) simple or common substitution, sometimes referred to as
vulgar substitution (Article 859), and (2) fideicommissary substitution (Article 863). All other
substitutions are merely variations of these. The substitution provided for by paragraph four of the
Will of Linnie Jane Hodges is not fideicommissary substitution, because there is clearly no
obligation on the part of C. N. Hodges as the first heir designated, to preserve the properties for
the substitute heirs. (Consolacion Florentino de Crisologo et al. vs. Manuel Singson, G. R. No.
L-13876.) At most, it is a vulgar or simple substitution. However, in order that a vulgar or simple
substitution can be valid, three alternative conditions must be present, namely, that the first
designated heir (1) should die before the testator; or (2) should not wish to accept the inheritance;
or (3) should be incapacitated to do so. None of these conditions apply to C. N. Hodges, and,
therefore, the substitution provided for by the above-quoted provision of the Will is not authorized
by the Code, and, therefore, it is void. Manresa, commenting on these kisses of substitution,
meaningfully stated that: "... cuando el testador instituyeun primer heredero, y por fallecimiento
de este nombra otro u otros, ha de entenderse que estas segundas designaciones solo han de
llegar a tener efectividad en el caso de que el primer instituido muera antes que el testador, fuera
o no esta su verdadera intencion. ...". (6 Manresa, 7 a ed., pag. 175.) In other words, when
another heir is designated to inherit upon the death of a first heir, the second designation can
 have effect only in case the first instituted heir dies before the testator, whether or not that was
the true intention of said testator. Since C. N. Hodges did not die before Linnie Jane Hodges, the
provision for substitution contained in Linnie Jane Hodges' Willis void.

(d) In view of the invalidity of the provision for substitution in the Will, C. N. Hodges' inheritance to
the entirety of the Linnie Jane Hodges estate is irrevocable and final.

19. Be that as it may, at the time of C. N. Hodges' death, the entirety of the conjugal estate appeared and was
registered in him exclusively as owner. Thus, the presumption is that all said assets constituted his estate. Therefore —

(a) If the HIGDONS wish to enforce their dubious rights as substituted heirs to 1/4 of the conjugal estate (the other 1/4
is covered by the legitime of C. N. Hodges which can not be affected by any testamentary disposition), their remedy, if
any, is to file their claim against the estate of C. N. Hodges, which should be entitled at the present time to full custody
and control of all the conjugal estate of the spouses.

(b) The present proceedings, in which two estates exist under separate administration, where the administratrix of the
Linnie Jane Hodges estate exercises an officious right to object and intervene in matters affecting exclusively the C. N.
Hodges estate, is anomalous.

WHEREFORE, it is most respectfully prayed that after trial and reception of evidence, this Honorable Court declare:

1. That the estate of Linnie Jane Hodges was and is composed exclusively of one-half (1/2) share in the conjugal
estate of the spouses Hodges, computed as of the date of her death on May 23, 1957;

2. That the other half of the conjugal estate pertained exclusively to C. N. Hodges as his share as partner in the
conjugal partnership;

3. That all "rents, emoluments and income" of the conjugal estate accruing after Linnie Jane Hodges' death pertains to
C. N. Hodges;

4. That C. N. Hodges was the sole and exclusive heir of the estate of Linnie Jane Hodges;

5. That, therefore, the entire conjugal estate of the spouses located in the Philippines, plus all the "rents, emoluments
and income" above-mentioned, now constitutes the estate of C. N. Hodges, capable of distribution to his heirs upon
termination of Special Proceedings No. 1672;

6. That PCIB, as administrator of the estate of C. N. Hodges, is entitled to full and exclusive custody, control and
management of all said properties; and

7. That Avelina A. Magno, as administratrix of the estate of Linnie Jane Hodges, as well as the HIGDONS, has no right
to intervene or participate in the administration of the C. N. Hodges estate.

PCIB further prays for such and other relief as may be deemed just and equitable in the premises."

(Record, pp. 265-277)

Before all of these motions of petitioner could be resolved, however, on December 21, 1965, private respondent Magno filed her own "Motion
for the Official Declaration of Heirs of the Estate of Linnie Jane Hodges" as follows:

COMES NOW the Administratrix of the Estate of Linnie Jane Hodges and, through undersigned counsel, unto this
Honorable Court most respectfully states and manifests:

1. That the spouses Charles Newton Hodges and Linnie Jane Hodges were American citizens who died at the City of
Iloilo after having amassed and accumulated extensive properties in the Philippines;

2. That on November 22, 1952, Linnie Jane Hodges executed a last will and testament (the original of this will now
forms part of the records of these proceedings as Exhibit "C" and appears as Sp. Proc. No. 1307, Folio I, pp. 17-18);

3. That on May 23, 1957, Linnie Jane Hodges died at the City of Iloilo at the time survived by her husband, Charles
Newton Hodges, and several relatives named in her last will and testament;
4. That on June 28, 1957, a petition therefor having been priorly filed and duly heard, this Honorable Court issued an
order admitting to probate the last will and testament of Linnie Jane Hodges (Sp. Proc. No. 1307, Folio I, pp. 24-25, 26-
28);

5. That the required notice to creditors and to all others who may have any claims against the decedent, Linnie Jane
Hodges has already been printed, published and posted (Sp. Proc. No. 1307, Folio I. pp. 34-40) and the reglamentary
period for filing such claims has long ago lapsed and expired without any claims having been asserted against the
estate of Linnie Jane Hodges, approved by the Administrator/Administratrix of the said estate, nor ratified by this
Honorable Court;

6. That the last will and testament of Linnie Jane Hodges already admitted to probate contains an institution of heirs in
the following words:

"SECOND: I give, devise and bequeath all of the rest, residue and remainder of my estate, both
personal and real, wherever situated or located, to my beloved husband, Charles Newton Hodges
to have and to hold unto him, my said husband, during his natural lifetime.

THIRD: I desire, direct and provide that my husband, Charles Newton Hodges, shall have the
right to manage, control, use and enjoy said estate during his lifetime, and, he is hereby given the
right to make any changes in the physical properties of said estate, by sale of any part thereof
which he may think best, and the purchase of any other or additional property as he may think
best; to execute conveyances with or without general or special warranty, conveying in fee simple
or for any other term or time, any property which he may deem proper to dispose of; to lease any
of the real property for oil, gas and/or other minerals, and all such deeds or leases shall pass the
absolute fee simple title to the interest so conveyed in such property as he elect to sell. All rents,
emoluments and income from said estate shall belong to him, and he is further authorized to use
any part of the principal of said estate as he may need or desire. It is provided herein, however,
that he shall not sell or otherwise dispose of any of the improved property now owned by us
located at, in or near the City of Lubbock Texas, but he shall have the full right to lease, manage
and enjoy the same during his lifetime, above provided. He shall have the right to subdivide any
farm land and sell lots therein, and may sell unimproved town lots.

FOURTH: At the death of my said husband, Charles Newton Hodges, I give, devise and
bequeath all of the rest, residue and remainder of my estate, both real and personal, wherever
situated or located, to be equally divided among my brothers and sisters, share and share alike,
namely:

Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie Rascoe, Era Boman and
Nimroy Higdon.

FIFTH: In case of the death of any of my brothers and/or sisters named in item Fourth, above,
prior to the death of my husband, Charles Newton Hodges, then it is my will and bequest that the
heirs of such deceased brother or sister shall take jointly the share which would have gone to
such brother or sister had she or he survived."

7. That under the provisions of the last will and testament already above-quoted, Linnie Jane Hodges gave a life-estate
or a usufruct over all her estate to her husband, Charles Newton Hodges, and a vested remainder-estate or the naked
title over the same estate to her relatives named therein;

8. That after the death of Linnie Jane Hodges and after the admission to probate of her last will and testament, but
during the lifetime of Charles Newton Hodges, the said Charles Newton Hodges with full and complete knowledge of
the life-estate or usufruct conferred upon him by the will since he was then acting as Administrator of the estate and
later as Executor of the will of Linnie Jane Hodges, unequivocably and clearly through oral and written declarations and
sworn public statements, renounced, disclaimed and repudiated his life-estate and usufruct over the estate of Linnie
Jane Hodges;

9. That, accordingly, the only heirs left to receive the estate of Linnie Jane Hodges pursuant to her last will and
testament, are her named brothers and sisters, or their heirs, to wit: Esta Higdon, Emma Howell, Leonard Higdon, Aline
Higdon and David Higdon, the latter two being the wife and son respectively of the deceased Roy Higdon, Sadie
Rascoe Era Boman and Nimroy Higdon, all of legal ages, American citizens, with residence at the State of Texas,
United States of America;

10. That at the time of the death of Linnie Jane Hodges on May 23, 1957, she was the co-owner (together with her
husband Charles Newton Hodges) of an undivided one-half interest in their conjugal properties existing as of that date,
May 23, 1957, which properties are now being administered sometimes jointly and sometimes separately by the
Administratrix of the estate of Linnie Jane Hodges and/or the Administrator of the estate of C. N. Hodges but all of
which are under the control and supervision of this Honorable Court;
 11. That because there was no separation or segregation of the interests of husband and wife in the combined conjugal
estate, as there has been no such separation or segregation up to the present, both interests have continually earned
exactly the same amount of "rents, emoluments and income", the entire estate having been continually devoted to the
business of the spouses as if they were alive;

12. That the one-half interest of Linnie Jane Hodges in the combined conjugal estate was earning "rents, emoluments
and income" until her death on May 23, 1957, when it ceased to be saddled with any more charges or expenditures
which are purely personal to her in nature, and her estate kept on earning such "rents, emoluments and income" by
virtue of their having been expressly renounced, disclaimed and repudiated by Charles Newton Hodges to whom they
were bequeathed for life under the last will and testament of Linnie Jane Hodges;

13. That, on the other hand, the one-half interest of Charles Newton Hodges in the combined conjugal estate existing
as of May 23, 1957, while it may have earned exactly the same amount of "rents, emoluments and income" as that of
the share pertaining to Linnie Jane Hodges, continued to be burdened by charges, expenditures, and other dispositions
which are purely personal to him in nature, until the death of Charles Newton Hodges himself on December 25, 1962;

14. That of all the assets of the combined conjugal estate of Linnie Jane Hodges and Charles Newton Hodges as they
exist today, the estate of Linnie Jane Hodges is clearly entitled to a portion more than fifty percent (50%) as compared
to the portion to which the estate of Charles Newton Hodges may be entitled, which portions can be exactly determined
by the following manner:

a. An inventory must be made of the assets of the combined conjugal estate as they existed on
the death of Linnie Jane Hodges on May 23, 1957 — one-half of these assets belong to the
estate of Linnie Jane Hodges;

b. An accounting must be made of the "rents, emoluments and income" of all these assets —
again one-half of these belong to the estate of Linnie Jane Hodges;

c. Adjustments must be made, after making a deduction of charges, disbursements and other
dispositions made by Charles Newton Hodges personally and for his own personal account from
May 23, 1957 up to December 25, 1962, as well as other charges, disbursements and other
dispositions made for him and in his behalf since December 25, 1962 up to the present;

15. That there remains no other matter for disposition now insofar as the estate of Linnie Jane Hodges is concerned
but to complete the liquidation of her estate, segregate them from the conjugal estate, and distribute them to her heirs
pursuant to her last will and testament.

WHEREFORE, premises considered, it is most respectfully moved and prayed that this Honorable Court, after a
hearing on the factual matters raised by this motion, issue an order:

a. Declaring the following persons, to wit: Esta Higdon, Emma Howell, Leonard Higdon, Aline Higdon, David Higdon,
Sadie Rascoe, Era Boman and Nimroy Higdon, as the sole heirs under the last will and testament of Linnie Jane
Hodges and as the only persons entitled to her estate;

b. Determining the exact value of the estate of Linnie Jane Hodges in accordance with the system enunciated in
paragraph 14 of this motion;

c. After such determination ordering its segregation from the combined conjugal estate and its delivery to the
Administratrix of the estate of Linnie Jane Hodges for distribution to the heirs to whom they properly belong and
appertain.

(Green Record on Appeal, pp. 382-391)

whereupon, instead of further pressing on its motion of January 8, 1965 aforequoted, as it had been doing before, petitioner withdrew the
said motion and in addition to opposing the above motion of respondent Magno, filed a motion on April 22, 1966 alleging in part that:

1. That it has received from the counsel for the administratrix of the supposed estate of Linnie Jane Hodges a notice to
set her "Motion for Official Declaration of Heirs of the Estate of Linnie Jane Hodges";

2. That before the aforesaid motion could be heard, there are matters pending before this Honorable Court, such as:

a. The examination already ordered by this Honorable Court of documents relating to the
allegation of Avelina Magno that Charles Newton Hodges "through ... written declarations and
sworn public statements, renounced, disclaimed and repudiated life-estate and usufruct over the
estate of Linnie Jane Hodges';
 b. That "Urgent Motion for An Accounting and Delivery to the Estate of C. N. Hodges of All the
Assets of the Conjugal Partnership of the Deceased Linnie Jane Hodges and C. N. Hodges
Existing as of May 23, 1957 Plus All the Rents, Emoluments and Income Therefrom";

c. Various motions to resolve the aforesaid motion;

d. Manifestation of September 14, 1964, detailing acts of interference of Avelina Magno under
color of title as administratrix of the Estate of Linnie Jane Hodges;

which are all prejudicial, and which involve no issues of fact, all facts involved therein being matters of record, and
therefore require only the resolution of questions of law;

3. That whatever claims any alleged heirs or other persons may have could be very easily threshed out in the Testate
Estate of Charles Newton Hodges;

4. That the maintenance of two separate estate proceedings and two administrators only results in confusion and is
unduly burdensome upon the Testate Estate of Charles Newton Hodges, particularly because the bond filed by Avelina
Magno is grossly insufficient to answer for the funds and property which she has inofficiously collected and held, as
well as those which she continues to inofficiously collect and hold;

5. That it is a matter of record that such state of affairs affects and inconveniences not only the estate but also third-
parties dealing with it;" (Annex "V", Petition.)

and then, after further reminding the court, by quoting them, of the relevant allegations of its earlier motion of September 14, 1964, Annex U,
prayed that:

1. Immediately order Avelina Magno to account for and deliver to the administrator of the Estate of C. N. Hodges all the
assets of the conjugal partnership of the deceased Linnie Jane Hodges and C. N. Hodges, plus all the rents,
emoluments and income therefrom;

2. Pending the consideration of this motion, immediately order Avelina Magno to turn over all her collections to the
administrator Philippine Commercial & Industrial Bank;

3. Declare the Testate Estate of Linnie Jane Hodges (Sp. Proc. No. 1307) closed;

4. Defer the hearing and consideration of the motion for declaration of heirs in the Testate Estate of Linnie Jane
Hodges until the matters hereinabove set forth are resolved.
(Prayer, Annex "V" of Petition.)

On October 12, 1966, as already indicated at the outset of this opinion, the respondent court denied the foregoing motion, holding thus:

ORDER

On record is a motion (Vol. X, Sp. 1672, pp. 4379-4390) dated April 22, 1966 of administrator PCIB praying that (1)
Immediately order Avelina Magno to account for and deliver to the administrator of the estate of C. N. Hodges all
assets of the conjugal partnership of the deceased Linnie Jane Hodges and C. N. Hodges, plus all the rents,
emoluments and income therefrom; (2) Pending the consideration of this motion, immediately order Avelina Magno to
turn over all her collections to the administrator PCIB; (3) Declare the Testate Estate of Linnie Jane Hodges (Sp. Proc.
No. 1307) closed; and (4) Defer the hearing and consideration of the motion for declaration of heirs in the Testate
Estate of Linnie Jane Hodges until the matters hereinabove set forth are resolved.

This motion is predicated on the fact that there are matters pending before this court such as (a) the examination
already ordered by this Honorable Court of documents relating to the allegation of Avelina Magno that Charles Newton
Hodges thru written declaration and sworn public statements renounced, disclaimed and repudiated his life-estate and
usufruct over the estate of Linnie Jane Hodges (b) the urgent motion for accounting and delivery to the estate of C. N.
Hodges of all the assets of the conjugal partnership of the deceased Linnie Jane Hodges and C. N. Hodges existing as
of May 23, 1957 plus all the rents, emoluments and income therefrom; (c) various motions to resolve the aforesaid
motion; and (d) manifestation of September 14, 1964, detailing acts of interference of Avelina Magno under color of title
as administratrix of the estate of Linnie Jane Hodges.

These matters, according to the instant motion, are all pre-judicial involving no issues of facts and only require the
resolution of question of law; that in the motion of October 5, 1963 it is alleged that in a motion dated December 11,
1957 filed by Atty. Leon Gellada as attorney for the executor C. N. Hodges, the said executor C. N. Hodges is not only
part owner of the properties left as conjugal but also the successor to all the properties left by the deceased Linnie
Jane Hodges.
 Said motion of December 11, 1957 was approved by the Court in consonance with the wishes contained in the last will
and testament of Linnie Jane Hodges.

That on April 21, 1959 this Court approved the inventory and accounting submitted by C. N. Hodges thru counsel Atty.
Leon Gellada in a motion filed on April 14, 1959 stating therein that executor C. N. Hodges is the only devisee or
legatee of Linnie Jane Hodges in accordance with the last will and testament already probated by the Court.

That on July 13, 1960 the Court approved the annual statement of accounts submitted by the executor C. N. Hodges
thru his counsel Atty. Gellada on July 21, 1960 wherein it is stated that the executor, C. N. Hodges is the only devisee
or legatee of the deceased Linnie Jane Hodges; that on May 2, 1961 the Court approved the annual statement of
accounts submitted by executor, C. N. Hodges for the year 1960 which was submitted by Atty. Gellada on April 20,
1961 wherein it is stated that executor Hodges is the only devisee or legatee of the deceased Linnie Jane Hodges;

That during the hearing on September 5 and 6, 1963 the estate of C. N. Hodges claimed all the assets belonging to the
deceased spouses Linnie Jane Hodges and C. N. Hodges situated in the Philippines; that administratrix Magno has
executed illegal acts to the prejudice of the testate estate of C. N. Hodges.

An opposition (Sp. 1672, Vol. X, pp. 4415-4421) dated April 27, 1966 of administratrix Magno has been filed asking that
the motion be denied for lack of merit and that the motion for the official declaration of heirs of the estate of Linnie Jane
Hodges be set for presentation and reception of evidence.

It is alleged in the aforesaid opposition that the examination of documents which are in the possession of administratrix
Magno can be made prior to the hearing of the motion for the official declaration of heirs of the estate of Linnie Jane
Hodges, during said hearing.

That the matters raised in the PCIB's motion of October 5, 1963 (as well as the other motion) dated September 14,
1964 have been consolidated for the purpose of presentation and reception of evidence with the hearing on the
determination of the heirs of the estate of Linnie Jane Hodges. It is further alleged in the opposition that the motion for
the official declaration of heirs of the estate of Linnie Jane Hodges is the one that constitutes a prejudicial question to
the motions dated October 5 and September 14, 1964 because if said motion is found meritorious and granted by the
Court, the PCIB's motions of October 5, 1963 and September 14, 1964 will become moot and academic since they are
premised on the assumption and claim that the only heir of Linnie Jane Hodges was C. N. Hodges.

That the PCIB and counsel are estopped from further questioning the determination of heirs in the estate of Linnie Jane
Hodges at this stage since it was PCIB as early as January 8, 1965 which filed a motion for official declaration of heirs
of Linnie Jane Hodges that the claim of any heirs of Linnie Jane Hodges can be determined only in the administration
proceedings over the estate of Linnie Jane Hodges and not that of C. N. Hodges, since the heirs of Linnie Jane Hodges
are claiming her estate and not the estate of C. N. Hodges.

A reply (Sp. 1672, Vol. X, pp. 4436-4444) dated May 11, 1966 of the PCIB has been filed alleging that the motion dated
April 22, 1966 of the PCIB is not to seek deferment of the hearing and consideration of the motion for official
declaration of heirs of Linnie Jane Hodges but to declare the testate estate of Linnie Jane Hodges closed and for
administratrix Magno to account for and deliver to the PCIB all assets of the conjugal partnership of the deceased
spouses which has come to her possession plus all rents and income.

A rejoinder (Sp. 1672, Vol. X, pp. 4458-4462) of administratrix Magno dated May 19, 1966 has been filed alleging that
the motion dated December 11, 1957 only sought the approval of all conveyances made by C. N. Hodges and
requested the Court authority for all subsequent conveyances that will be executed by C. N. Hodges; that the order
dated December 14, 1957 only approved the conveyances made by C. N. Hodges; that C. N. Hodges represented by
counsel never made any claim in the estate of Linnie Jane Hodges and never filed a motion to declare himself as the
heir of the said Linnie Jane Hodges despite the lapse of more than five (5) years after the death of Linnie Jane Hodges;
that it is further alleged in the rejoinder that there can be no order of adjudication of the estate unless there has been a
prior express declaration of heirs and so far no declaration of heirs in the estate of Linnie Jane Hodges (Sp. 1307) has
been made.

Considering the allegations and arguments in the motion and of the PCIB as well as those in the opposition and
rejoinder of administratrix Magno, the Court finds the opposition and rejoinder to be well taken for the reason that so far
there has been no official declaration of heirs in the testate estate of Linnie Jane Hodges and therefore no disposition
of her estate.

WHEREFORE, the motion of the PCIB dated April 22, 1966 is hereby DENIED.
(Annex "W", Petition)

In its motion dated November 24, 1966 for the reconsideration of this order, petitioner alleged inter alia that:

It cannot be over-stressed that the motion of December 11, 1957 was based on the fact that:
 a. Under the last will and testament of the deceased, Linnie Jane Hodges, the late Charles
Newton Hodges was the sole heir instituted insofar as her properties in the Philippines are
concerned;

b. Said last will and testament vested upon the said late Charles Newton Hodges rights over said
properties which, in sum, spell ownership, absolute and in fee simple;

c. Said late Charles Newton Hodges was, therefore, "not only part owner of the properties left as
conjugal, but also, the successor to all the properties left by the deceased Linnie Jane Hodges.

Likewise, it cannot be over-stressed that the aforesaid motion was granted by this Honorable Court "for the reasons
stated" therein.

Again, the motion of December 11, 1957 prayed that not only "all the sales, conveyances, leases, and mortgages
executed by" the late Charles Newton Hodges, but also all "the subsequent sales, conveyances, leases, and
mortgages ..." be approved and authorized. This Honorable Court, in its order of December 14, 1957, "for the reasons
stated" in the aforesaid motion, granted the same, and not only approved all the sales, conveyances, leases and
mortgages of all properties left by the deceased Linnie Jane Hodges executed by the late Charles Newton Hodges, but
also authorized "all subsequent sales, conveyances, leases and mortgages of the properties left by the said deceased
Linnie Jane Hodges. (Annex "X", Petition)

and reiterated its fundamental pose that the Testate Estate of Linnie Jane Hodges had already been factually, although not legally, closed
with the virtual declaration of Hodges and adjudication to him, as sole universal heir of all the properties of the estate of his wife, in the order
of December 14, 1957, Annex G. Still unpersuaded, on July 18, 1967, respondent court denied said motion for reconsideration and held that
"the court believes that there is no justification why the order of October 12, 1966 should be considered or modified", and, on July 19, 1967,
the motion of respondent Magno "for official declaration of heirs of the estate of Linnie Jane Hodges", already referred to above, was set for
hearing.

In consequence of all these developments, the present petition was filed on August 1, 1967 (albeit petitioner had to pay another docketing
fee on August 9, 1967, since the orders in question were issued in two separate testate estate proceedings, Nos. 1307 and 1672, in the court
below).

Together with such petition, there are now pending before Us for resolution herein, appeals from the following:

1. The order of December 19, 1964 authorizing payment by respondent Magno of overtime pay, (pp. 221, Green
Record on Appeal) together with the subsequent orders of January 9, 1965, (pp. 231-232, id.) October 27, 1965, (pp.
227, id.) and February 15, 1966 (pp. 455-456, id.) repeatedly denying motions for reconsideration thereof.

2. The order of August 6, 1965 (pp. 248, id.) requiring that deeds executed by petitioner to be co-signed by respondent
Magno, as well as the order of October 27, 1965 (pp. 276-277) denying reconsideration.

3. The order of October 27, 1965 (pp. 292-295, id.) enjoining the deposit of all collections in a joint account and the
same order of February 15, 1966 mentioned in No. 1 above which included the denial of the reconsideration of this
order of October 27, 1965.

4. The order of November 3, 1965 (pp. 313-320, id.) directing the payment of attorney's fees, fees of the respondent
administratrix, etc. and the order of February 16, 1966 denying reconsideration thereof.

5. The order of November 23, 1965 (pp. 334-335, id.) allowing appellee Western Institute of Technology to make
payments to either one or both of the administrators of the two estates as well as the order of March 7, 1966 (p. 462,
id.) denying reconsideration.

6. The various orders hereinabove earlier enumerated approving deeds of sale executed by respondent Magno in favor
of appellees Carles, Catedral, Pablito, Guzman, Coronado, Barrido, Causing, Javier, Lucero and Batisanan, (see pp.
35 to 37 of this opinion), together with the two separate orders both dated December 2, 1966 (pp. 306-308, and pp.
308-309, Yellow Record on Appeal) denying reconsideration of said approval.

7. The order of January 3, 1967, on pp. 335-336, Yellow Record on Appeal, approving similar deeds of sale executed
by respondent Magno, as those in No. 6, in favor of appellees Pacaonsis and Premaylon, as to which no motion for
reconsideration was filed.

8. Lastly, the order of December 2, 1966, on pp. 305-306, Yellow Record on Appeal, directing petitioner to surrender to
appellees Lucero, Batisanan, Javier, Pablito, Barrido, Catedral, Causing, Guzman, and Coronado, the certificates of
title covering the lands involved in the approved sales, as to which no motion for reconsideration was filed either.
Strictly speaking, and considering that the above orders deal with different matters, just as they affect distinctly different individuals or
persons, as outlined by petitioner in its brief as appellant on pp. 12-20 thereof, there are, therefore, thirty-three (33) appeals before Us, for
which reason, petitioner has to pay also thirty-one (31) more docket fees.

It is as well perhaps to state here as elsewhere in this opinion that in connection with these appeals, petitioner has assigned a total of
seventy-eight (LXXVIII) alleged errors, the respective discussions and arguments under all of them covering also the fundamental issues
raised in respect to the petition for certiorari and prohibition, thus making it feasible and more practical for the Court to dispose of all these
cases together.4

The assignments of error read thus:

I to IV

THE ORDER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEES,
PEPITO G. IYULORES, ESPIRIDION PARTISALA, WINIFREDO C. ESPADA AND ROSARIO ALINGASA,
EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE
DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE
EXECUTED BY HIM DURING HIS LIFETIME.

V to VIII

THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF THE APPELLEES, PEPITO G.
IYULORES, ESPIRIDION PARTISALA, WINIFREDO C. ESPADA AND ROSARIO ALINGASA, COVERING PARCELS
OF LAND FOR WHICH THEY HAVE NEVER PAID IN FULL IN ACCORDANCE WITH THE ORIGINAL CONTRACTS
TO SELL.

IX to XII

THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF OWNERSHIP OVER REAL PROPERTY OF THE
APPELLEES, PEPITO G. IYULORES, ESPIRIDION PARTISALA, WINIFREDO C. ESPADA AND ROSARIO
ALINGASA, WHILE ACTING AS A PROBATE COURT.

XIII to XV

THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEES
ADELFA PREMAYLON (LOT NO. 102), SANTIAGO PACAONSIS, AND ADELFA PREMAYLON (LOT NO. 104),
EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE
DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE
EXECUTED BY HIM DURING HIS LIFETIME.

XVI to XVIII

THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF THE APPELLEES ADELFA
PREMAYLON (LOT NO. 102), SANTIAGO PACAONSIS, AND ADELFA PREMAYLON (LOT NO. 104) COVERING
PARCELS OF LAND FOR WHICH THEY HAVE NEVER PAID IN FULL IN ACCORDANCE WITH THE ORIGINAL
CONTRACTS TO SELL.

XIX to XXI

THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF OWNERSHIP OVER REAL PROPERTY OF THE
APPELLEES ADELFA PREMAYLON (LOT NO. 102), SANTIAGO PACAONSIS, AND ADELFA PREMAYLON (LOT
NO. 104) WHILE ACTING AS A PROBATE COURT.

XXII to XXV

THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEES
LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL AND SALVADOR S. GUZMAN, EXECUTED BY THE
APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES
NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM DURING
HIS LIFETIME.

XXVI to XXIX
 THE LOWER COURT ERRED IN APPROVING THE FINAL DEED OF SALE EXECUTED IN FAVOR OF THE
APPELLEES, LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL AND SALVADOR S. GUZMAN
PURSUANT TO CONTRACTS TO SPELL WHICH WERE CANCELLED AND RESCINDED.

XXX to XXXIV

THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF OWNERSHIP OVER REAL PROPERTY OF THE
LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL AND SALVADOR S. GUZMAN, WHILE ACTING AS A
PROBATE COURT.

XXXV to XXXVI

THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEES,
FLORENIA BARRIDO AND PURIFICACION CORONADO, EXECUTED BY THE APPELLEE, AVELINA A. MAGNO,
COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON HODGES, AND THE
CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME.

XXXVII to XXXVIII

THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF THE APPELLEES, FLORENIA
BARRIDO AND PURIFICACION CORONADO, ALTHOUGH THEY WERE IN ARREARS IN THE PAYMENTS
AGREED UPON IN THE ORIGINAL CONTRACT TO SELL WHICH THEY EXECUTED WITH THE DECEASED,
CHARLES NEWTON HODGES, IN THE AMOUNT OF P10,680.00 and P4,428.90, RESPECTIVELY.

XXXIX to XL

THE LOWER COURT ERRED IN DEPRIVING THE DECEASED, CHARLES NEWTON HODGES, OF THE
CONTRACTUAL RIGHT, EXERCISED THROUGH HIS ADMINISTRATOR, THE INSTANT APPELLANT, TO CANCEL
THE CONTRACTS TO SELL OF THE APPELLEES, FLORENIA BARRIDO AND PURIFICACION CORONADO.

XLI to XLIII

THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEES,
GRACIANO LUCERO, ARITEO THOMAS JAMIR AND MELQUIADES BATISANAN, EXECUTED BY THE APPELLEE,
AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON
HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS
LIFETIME.

XLIV to XLVI

THE LOWER COURT ERRED IN APPROVING THE FINAL DEED OF SALE IN FAVOR OF THE APPELLEES,
GRACIANO LUCERO, ARITEO THOMAS JAMIR AND MELQUIADES BATISANAN, PURSUANT TO CONTRACTS
TO SELL EXECUTED BY THEM WITH THE DECEASED, CHARLES NEWTON HODGES, THE TERMS AND
CONDITIONS OF WHICH THEY HAVE NEVER COMPLIED WITH.

XLVII to XLIX

THE LOWER COURT ERRED IN DEPRIVING THE DECEASED, CHARLES NEWTON HODGES, OF HIS RIGHT,
EXERCISED THROUGH HIS ADMINISTRATION, THE INSTANT APPELLANT, TO CANCEL THE CONTRACTS TO
SELL OF THE APPELLEES, GRACIANO LUCERO, ARITEO THOMAS JAMIR AND MELQUIADES BATISANAN, AND
IN DETERMINING THE RIGHTS OF THE SAID APPELLEES OVER REAL PROPERTY WHILE ACTING AS A
PROBATE COURT.

THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEE,
BELCESAR CAUSING, EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND
OWNED BY THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING
WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME.

LI
 THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF THE APPELLEE, BELCESAR
CAUSING, ALTHOUGH HE WAS IN ARREARS IN THE PAYMENTS AGREED UPON IN THE ORIGINAL CONTRACT
TO SELL WHICH HE EXECUTED WITH THE DECEASED, CHARLES NEWTON HODGES, IN THE AMOUNT OF
P2,337.50.

LII

THE LOWER COURT ERRED IN APPROVING THE DEED OF SALE IN FAVOR OF THE APPELLEE, BELCESAR
CAUSING, ALTHOUGH THE SAME WAS NOT EXECUTED IN ACCORDANCE WITH THE RULES OF COURT.

LIII to LXI

THE LOWER COURT ERRED IN ORDERING THE APPELLANT, PHILIPPINE COMMERCIAL AND INDUSTRIAL
BANK TO SURRENDER THE OWNER'S DUPLICATE CERTIFICATES OF TITLE OVER THE RESPECTIVE LOTS
COVERED BY THE DEEDS OF SALE EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, IN FAVOR OF THE
OTHER APPELLEES, JOSE PABLICO, ALFREDO CATEDRAL, SALVADOR S. GUZMAN, FLRENIA BARRIDO,
PURIFICACION CORONADO, BELCESAR CAUSING, ARITEO THOMAS JAMIR, MAXIMA BATISANAN AND
GRACIANO L. LUCERO.

LXII

THE LOWER COURT ERRED IN RESOLVING THE MOTION OF THE APPELLEE, WESTERN INSTITUTE OF
TECHNOLOGY, DATED NOVEMBER 3, 1965, WITHOUT ANY COPY THEREOF HAVING BEEN SERVED UPON
THE APPELLANT, PHILIPPINE COMMERCIAL & INDUSTRIAL BANK.

LXIII

THE LOWER COURT ERRED IN HEARING AND CONSIDERING THE MOTION OF THE APPELLEE, WESTERN
INSTITUTE OF TECHNOLOGY, DATED NOVEMBER 3rd, 1965, ON NOVEMBER 23, 1965, WHEN THE NOTICE
FOR THE HEARING THEREOF WAS FOR NOVEMBER 20, 1965.

LXIV

THE LOWER COURT ERRED IN GRANTING THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY A RELIEF
OTHER THAN THAT PRAYED FOR IN ITS MOTION, DATED NOVEMBER 3, 1965, IN THE ABSENCE OF A
PRAYER FOR GENERAL RELIEF CONTAINED THEREIN.

LXV

THE LOWER COURT ERRED IN ALLOWING THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, TO
CONTINUE PAYMENTS UPON A CONTRACT TO SELL THE TERMS AND CONDITIONS OF WHICH IT HAS
FAILED TO FULFILL.

LXVI

THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF THE APPELLEE, WESTERN INSTITUTE OF
TECHNOLOGY OVER THE REAL PROPERTY SUBJECT MATTER OF THE CONTRACT TO SELL IT EXECUTED
WITH THE DECEASED, CHARLES NEWTON HODGES, WHILE ACTING AS A PROBATE COURT.

LXVII

LOWER COURT ERRED IN ALLOWING THE CONTINUATION OF PAYMENTS BY THE APPELLEE, WESTERN
INSTITUTE OF TECHNOLOGY, UPON A CONTRACT TO SELL EXECUTED BY IT AND THE DECEASED,
CHARLES NEWTON HODGES, TO A PERSON OTHER THAN HIS LAWFULLY APPOINTED ADMINISTRATOR.

LXVIII

THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF RETAINER'S FEES FROM THE SUPPOSED
ESTATE OF THE DECEASED, LINNIE JANE HODGES, WHEN THERE IS NEITHER SUCH ESTATE NOR ASSETS
THEREOF.

LXIX
 THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF RETAINER'S FEES OF LAWYERS OF ALLEGED
HEIRS TO THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES.

LXX

THE LOWER COURT ERRED IN IMPLEMENTING THE ALLEGED AGREEMENT BETWEEN THE HEIRS OF THE
SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES, AND THEIR LAWYERS.

LXXI

THE LOWER COURT ERRED IN ORDERING THE PREMATURE DISTRIBUTION OF ESTATE ASSETS TO
ALLEGED HEIRS OR BENEFICIARIES THEREOF, BY WAY OF RETAINER'S FEES.

LXXII

THE LOWER COURT ERRED IN ORDERING THAT ALL FINAL DEEDS OF SALE EXECUTED PURSUANT TO
CONTRACTS TO SELL ENTERED INTO BY THE DECEASED, CHARLES NEWTON HODGES, DURING HIS
LIFETIME, BE SIGNED JOINTLY BY THE APPELLEE, AVELINA A. MAGNO, AND THE APPELLANT, PHILIPPINE
COMMERCIAL AND INDUSTRIAL BANK, AND NOT BY THE LATTER ONLY AS THE LAWFULLY APPOINTED
ADMINISTRATOR OF HIS ESTATE.

LXXIII

THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF LEGAL EXPENSES FROM THE SUPPOSED
ESTATE OF THE DECEASED, LINNIE JANE HODGES, WHEN THERE IS NEITHER SUCH ESTATE NOR ASSETS
THEREOF.

LXXIV

THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF LEGAL EXPENSES OF LAWYERS OF ALLEGED
HEIRS TO THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES.

LXXV

THE LOWER COURT ERRED IN ORDERING THE PREMATURE DISTRIBUTION OF ESTATE ASSETS TO
ALLEGED HEIRS OR BENEFICIARIES THEREOF, BY WAY OF LEGAL EXPENSES.

LXXVI

THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF COMPENSATION TO THE PURPORTED
ADMINISTRATRIX OF THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES, THE INSTANT
APPELLEE, AVELINA A. MAGNO, WHEN THERE IS NEITHER SUCH ESTATE NOR ASSETS THEREOF.

LXXVII

THE LOWER COURT ERRED IN ORDERING THAT THE FUNDS OF THE TESTATE ESTATE OF THE DECEASED,
CHARLES NEWTON HODGES, BE PLACED IN A JOINT ACCOUNT OF THE APPELLANT, PHILIPPINE
COMMERCIAL AND INDUSTRIAL BANK, AND THE APPELLEE, AVELINA A. MAGNO, WHO IS A COMPLETE
STRANGER TO THE AFORESAID ESTATE.

LXXVIII

THE LOWER COURT ERRED IN ORDERING THAT THE APPELLEE, AVELINA A. MAGNO, BE GIVEN EQUAL
ACCESS TO THE RECORDS OF THE TESTATE ESTATE OF THE DECEASED, CHARLES NEWTON HODGES,
WHEN SHE IS A COMPLETE STRANGER TO THE AFORESAID ESTATE. (Pp. 73-83, Appellant's Brief.)

To complete this rather elaborate, and unavoidably extended narration of the factual setting of these cases, it may also be mentioned that an
attempt was made by the heirs of Mrs. Hodges to have respondent Magno removed as administratrix, with the proposed appointment of
Benito J. Lopez in her place, and that respondent court did actually order such proposed replacement, but the Court declared the said order
of respondent court violative of its injunction of August 8, 1967, hence without force and effect (see Resolution of September 8, 1972 and
February 1, 1973). Subsequently, Atty. Efrain B. Trenas, one of the lawyers of said heirs, appeared no longer for the proposed administrator
Lopez but for the heirs themselves, and in a motion dated October 26, 1972 informed the Court that a motion had been filed with respondent
court for the removal of petitioner PCIB as administrator of the estate of C. N. Hodges in Special Proceedings 1672, which removal motion
alleged that 22.968149% of the share of C. N. Hodges had already been acquired by the heirs of Mrs. Hodges from certain heirs of her
husband. Further, in this connection, in the answer of PCIB to the motion of respondent Magno to have it declared in contempt for
disregarding the Court's resolution of September 8, 1972 modifying the injunction of August 8, 1967, said petitioner annexed thereto a joint
manifestation and motion, appearing to have been filed with respondent court, informing said court that in addition to the fact that 22% of the
share of C. N. Hodges had already been bought by the heirs of Mrs. Hodges, as already stated, certain other heirs of Hodges representing
17.343750% of his estate were joining cause with the heirs of Mrs. Hodges as against PCIB, thereby making somewhat precarious, if not
possibly untenable, petitioners' continuation as administrator of the Hodges estate.

RESOLUTION OF ISSUES IN THE CERTIORARI AND

PROHIBITION CASES

As to the Alleged Tardiness

of the Present Appeals

The priority question raised by respondent Magno relates to the alleged tardiness of all the aforementioned thirty-three appeals of PCIB.
Considering, however, that these appeals revolve around practically the same main issues and that it is admitted that some of them have
been timely taken, and, moreover, their final results hereinbelow to be stated and explained make it of no consequence whether or not the
orders concerned have become final by the lapsing of the respective periods to appeal them, We do not deem it necessary to pass upon the
timeliness of any of said appeals.

II

The Propriety Here of Certiorari and

Prohibition instead of Appeal

The other preliminary point of the same respondent is alleged impropriety of the special civil action of certiorari and prohibition in view of the
existence of the remedy of appeal which it claims is proven by the very appeals now before Us. Such contention fails to take into account
that there is a common thread among the basic issues involved in all these thirty-three appeals which, unless resolved in one single
proceeding, will inevitably cause the proliferation of more or less similar or closely related incidents and consequent eventual appeals. If for
this consideration alone, and without taking account anymore of the unnecessary additional effort, expense and time which would be
involved in as many individual appeals as the number of such incidents, it is logical and proper to hold, as We do hold, that the remedy of
appeal is not adequate in the present cases. In determining whether or not a special civil action of certiorari or prohibition may be resorted to
in lieu of appeal, in instances wherein lack or excess of jurisdiction or grave abuse of discretion is alleged, it is not enough that the remedy of
appeal exists or is possible. It is indispensable that taking all the relevant circumstances of the given case, appeal would better serve the
interests of justice. Obviously, the longer delay, augmented expense and trouble and unnecessary repetition of the same work attendant to
the present multiple appeals, which, after all, deal with practically the same basic issues that can be more expeditiously resolved or
determined in a single special civil action, make the remedies of certiorari and prohibition, pursued by petitioner, preferable, for purposes of
resolving the common basic issues raised in all of them, despite the conceded availability of appeal. Besides, the settling of such common
fundamental issues would naturally minimize the areas of conflict between the parties and render more simple the determination of the
secondary issues in each of them. Accordingly, respondent Magno's objection to the present remedy of certiorari and prohibition must be
overruled.

We come now to the errors assigned by petitioner-appellant, Philippine Commercial & Industrial Bank, (PCIB, for short) in the petition as well
as in its main brief as appellant.

III

On Whether or Not There is Still Any Part of the Testate

Estate Mrs. Hodges that may be Adjudicated to her brothers
and sisters as her estate, of which respondent Magno is the
unquestioned Administratrix in special Proceedings 1307.

In the petition, it is the position of PCIB that the respondent court exceeded its jurisdiction or gravely abused its discretion in further
recognizing after December 14, 1957 the existence of the Testate Estate of Linnie Jane Hodges and in sanctioning purported acts of
administration therein of respondent Magno. Main ground for such posture is that by the aforequoted order of respondent court of said date,
Hodges was already allowed to assert and exercise all his rights as universal heir of his wife pursuant to the provisions of her will, quoted
earlier, hence, nothing else remains to be done in Special Proceedings 1307 except to formally close it. In other words, the contention of
PCIB is that in view of said order, nothing more than a formal declaration of Hodges as sole and exclusive heir of his wife and the
consequent formal unqualified adjudication to him of all her estate remain to be done to completely close Special Proceedings 1307, hence
respondent Magno should be considered as having ceased to be Administratrix of the Testate Estate of Mrs. Hodges since then.

After carefully going over the record, We feel constrained to hold that such pose is patently untenable from whatever angle it is examined.

To start with, We cannot find anywhere in respondent Order of December 14, 1957 the sense being read into it by PCIB. The tenor of said
order bears no suggestion at all to such effect. The declaration of heirs and distribution by the probate court of the estate of a decedent is its
most important function, and this Court is not disposed to encourage judges of probate proceedings to be less than definite, plain and
specific in making orders in such regard, if for no other reason than that all parties concerned, like the heirs, the creditors, and most of all the
government, the devisees and legatees, should know with certainty what are and when their respective rights and obligations ensuing from
the inheritance or in relation thereto would begin or cease, as the case may be, thereby avoiding precisely the legal complications and
consequent litigations similar to those that have developed unnecessarily in the present cases. While it is true that in instances wherein all
the parties interested in the estate of a deceased person have already actually distributed among themselves their respective shares therein
to the satisfaction of everyone concerned and no rights of creditors or third parties are adversely affected, it would naturally be almost
ministerial for the court to issue the final order of declaration and distribution, still it is inconceivable that the special proceeding instituted for
the purpose may be considered terminated, the respective rights of all the parties concerned be deemed definitely settled, and the executor
or administrator thereof be regarded as automatically discharged and relieved already of all functions and responsibilities without the
corresponding definite orders of the probate court to such effect.

Indeed, the law on the matter is specific, categorical and unequivocal. Section 1 of Rule 90 provides:

SECTION 1. When order for distribution of residue made. — When the debts, funeral charges, and expenses of
administration, the allowance to the widow and inheritance tax, if any, chargeable to the estate in accordance with law
have been paid, the court, on the application of the executor or administrator, or of a person interested in the estate,
and after hearing upon notice, shall assign the residue of the estate to the persons entitled to the same, naming them
and the proportions, or parts, to which each is entitled, and such persons may demand and recover their respective
shares from the executor or administrator, or any other person having the same in his possession. If there is a
controversy before the court as to who are the lawful heirs of the deceased person or as to the distributive shares to
which each person is entitled under the law, the controversy shall be heard and decided as in ordinary cases.

No distribution shall be allowed until the payment of the obligations above mentioned has been made or provided for,
unless the distributees, or any of them give a bond, in a sum to be fixed by the court, conditioned for the payment of
said obligations within such time as the court directs.

These provisions cannot mean anything less than that in order that a proceeding for the settlement of the estate of a deceased may be
deemed ready for final closure, (1) there should have been issued already an order of distribution or assignment of the estate of the
decedent among or to those entitled thereto by will or by law, but (2) such order shall not be issued until after it is shown that the "debts,
funeral expenses, expenses of administration, allowances, taxes, etc. chargeable to the estate" have been paid, which is but logical and
proper. (3) Besides, such an order is usually issued upon proper and specific application for the purpose of the interested party or parties,
and not of the court.

... it is only after, and not before, the payment of all debts, funeral charges, expenses of administration, allowance to
the widow, and inheritance tax shall have been effected that the court should make a declaration of heirs or of such
persons as are entitled by law to the residue. (Moran, Comments on the Rules of Court, 2nd ed., Vol. II, p. 397, citing
Capistrano vs. Nadurata, 49 Phil., 726; Lopez vs. Lopez, 37 Off. Gaz., 3091.) (JIMOGA-ON v. BELMONTE, 84 Phil.
545, 548) (p. 86, Appellee's Brief)

xxx xxx xxx

Under Section 753 of the Code of Civil Procedure, (corresponding to Section 1, Rule 90) what brings an intestate (or
testate) proceeding to a close is the order of distribution directing delivery of the residue to the persons entitled thereto
after paying the indebtedness, if any, left by the deceased. (Santiesteban vs. Santiesteban, 68 Phil. 367, 370.)

In the cases at bar, We cannot discern from the voluminous and varied facts, pleadings and orders before Us that the above indispensable
prerequisites for the declaration of heirs and the adjudication of the estate of Mrs. Hodges had already been complied with when the order of
December 14, 1957 was issued. As already stated, We are not persuaded that the proceedings leading to the issuance of said order,
constituting barely of the motion of May 27, 1957, Annex D of the petition, the order of even date, Annex E, and the motion of December 11,
1957, Annex H, all aforequoted, are what the law contemplates. We cannot see in the order of December 14, 1957, so much relied upon by
the petitioner, anything more than an explicit approval of "all the sales, conveyances, leases and mortgages of all the properties left by the
deceased Linnie Jane Hodges executed by the Executor Charles N. Hodges" (after the death of his wife and prior to the date of the motion),
plus a general advance authorization to enable said "Executor — to execute subsequent sales, conveyances, leases and mortgages of the
properties left the said deceased Linnie Jane Hodges in consonance with wishes conveyed in the last will and testament of the latter", which,
certainly, cannot amount to the order of adjudication of the estate of the decedent to Hodges contemplated in the law. In fact, the motion of
December 11, 1957 on which the court predicated the order in question did not pray for any such adjudication at all. What is more, although
said motion did allege that "herein Executor (Hodges) is not only part owner of the properties left as conjugal, but also, the successor to all
the properties left by the deceased Linnie Jane Hodges", it significantly added that "herein Executor, as Legatee (sic), has the right to sell,
convey, lease or dispose of the properties in the Philippines — during his lifetime", thereby indicating that what said motion contemplated
was nothing more than either the enjoyment by Hodges of his rights under the particular portion of the dispositions of his wife's will which
were to be operative only during his lifetime or the use of his own share of the conjugal estate, pending the termination of the proceedings. In
other words, the authority referred to in said motions and orders is in the nature of that contemplated either in Section 2 of Rule 109 which
permits, in appropriate cases, advance or partial implementation of the terms of a duly probated will before final adjudication or distribution
when the rights of third parties would not be adversely affected thereby or in the established practice of allowing the surviving spouse to
dispose of his own share of he conjugal estate, pending its final liquidation, when it appears that no creditors of the conjugal partnership
would be prejudiced thereby, (see the Revised Rules of Court by Francisco, Vol. V-B, 1970 ed. p. 887) albeit, from the tenor of said motions,
We are more inclined to believe that Hodges meant to refer to the former. In any event, We are fully persuaded that the quoted allegations of
said motions read together cannot be construed as a repudiation of the rights unequivocally established in the will in favor of Mrs. Hodges'
brothers and sisters to whatever have not been disposed of by him up to his death.
Indeed, nowhere in the record does it appear that the trial court subsequently acted upon the premise suggested by petitioner. On the
contrary, on November 23, 1965, when the court resolved the motion of appellee Western Institute of Technology by its order We have
quoted earlier, it categorically held that as of said date, November 23, 1965, "in both cases (Special Proceedings 1307 and 1672) there is as
yet no judicial declaration of heirs nor distribution of properties to whomsoever are entitled thereto." In this connection, it may be stated
further against petitioner, by way of some kind of estoppel, that in its own motion of January 8, 1965, already quoted in full on pages 54-67 of
this decision, it prayed inter alia that the court declare that "C. N. Hodges was the sole and exclusive heir of the estate of Linnie Jane
Hodges", which it would not have done if it were really convinced that the order of December 14, 1957 was already the order of adjudication
and distribution of her estate. That said motion was later withdrawn when Magno filed her own motion for determination and adjudication of
what should correspond to the brothers and sisters of Mrs. Hodges does not alter the indubitable implication of the prayer of the withdrawn
motion.

It must be borne in mind that while it is true that Mrs. Hodges bequeathed her whole estate to her husband and gave him what amounts to
full powers of dominion over the same during his lifetime, she imposed at the same time the condition that whatever should remain thereof
upon his death should go to her brothers and sisters. In effect, therefore, what was absolutely given to Hodges was only so much of his wife's
estate as he might possibly dispose of during his lifetime; hence, even assuming that by the allegations in his motion, he did intend to
adjudicate the whole estate to himself, as suggested by petitioner, such unilateral act could not have affected or diminished in any degree or
manner the right of his brothers and sisters-in-law over what would remain thereof upon his death, for surely, no one can rightly contend that
the testamentary provision in question allowed him to so adjudicate any part of the estate to himself as to prejudice them. In other words,
irrespective of whatever might have been Hodges' intention in his motions, as Executor, of May 27, 1957 and December 11, 1957, the trial
court's orders granting said motions, even in the terms in which they have been worded, could not have had the effect of an absolute and
unconditional adjudication unto Hodges of the whole estate of his wife. None of them could have deprived his brothers and sisters-in-law of
their rights under said will. And it may be added here that the fact that no one appeared to oppose the motions in question may only be
attributed, firstly, to the failure of Hodges to send notices to any of them, as admitted in the motion itself, and, secondly, to the fact that even
if they had been notified, they could not have taken said motions to be for the final distribution and adjudication of the estate, but merely for
him to be able, pending such final distribution and adjudication, to either exercise during his lifetime rights of dominion over his wife's estate
in accordance with the bequest in his favor, which, as already observed, may be allowed under the broad terms of Section 2 of Rule 109, or
make use of his own share of the conjugal estate. In any event, We do not believe that the trial court could have acted in the sense
pretended by petitioner, not only because of the clear language of the will but also because none of the interested parties had been duly
notified of the motion and hearing thereof. Stated differently, if the orders of May 27, 1957 and December 4, 1957 were really intended to be
read in the sense contended by petitioner, We would have no hesitancy in declaring them null and void.

Petitioner cites the case of Austria vs. Ventenilla, G. R. No. L-10018, September 19, 1956, (unreported but a partial digest thereof appears in
99 Phil. 1069) in support of its insistence that with the orders of May 27 and December 14, 1957, the closure of Mrs. Hodges' estate has
become a mere formality, inasmuch as said orders amounted to the order of adjudication and distribution ordained by Section 1 of Rule 90.
But the parallel attempted to be drawn between that case and the present one does not hold. There the trial court had in fact issued a clear,
distinct and express order of adjudication and distribution more than twenty years before the other heirs of the deceased filed their motion
asking that the administratrix be removed, etc. As quoted in that decision, the order of the lower court in that respect read as follows:

En orden a la mocion de la administradora, el juzgado la encuentra procedente bajo la condicion de que no se hara
entrega ni adjudicacion de los bienes a los herederos antes de que estos presten la fianza correspondiente y de
acuerdo con lo prescrito en el Art. 754 del Codigo de Procedimientos: pues, en autos no aparece que hayan sido
nombrados comisionados de avaluo y reclamaciones. Dicha fianza podra ser por un valor igual al de los bienes que
correspondan a cada heredero segun el testamento. Creo que no es obice para la terminacion del expediente el hecho
de que la administradora no ha presentado hasta ahora el inventario de los bienes; pues, segun la ley, estan exentos
de esta formalidad os administradores que son legatarios del residuo o remanente de los bienes y hayan prestado
fianza para responder de las gestiones de su cargo, y aparece en el testamento que la administradora Alejandra
Austria reune dicha condicion.

POR TODO LO EXPUESTO, el juzgado declara, 1.o: no haber lugar a la mocion de Ramon Ventenilla y otros; 2.o,
declara asimismo que los unicos herederos del finado Antonio Ventenilla son su esposa Alejandra Austria, Maria
Ventenilla, hermana del testador, y Ramon Ventenilla, Maria Ventenilla, Ramon Soriano, Eulalio Soriano, Jose
Soriano, Gabriela Ventenilla, Lorenzo Ventenilla, Felicitas Ventenilla, Eugenio Ventenilla y Alejandra Ventenilla, en
representacion de los difuntos Juan, Tomas, Catalino y Froilan, hermanos del testador, declarando, ademas que la
heredera Alejandra Austria tiene derecho al remanente de todos los bienes dejados por el finado, despues de deducir
de ellos la porcion que corresponde a cada uno de sus coherederos, conforme esta mandado en las clausulas 8.a, 9.a,
10.a, 11.a, 12.a y 13.a del testamento; 3.o, se aprueba el pago hecho por la administradora de los gastos de la ultima
enfermedad y funerales del testador, de la donacion hecha por el testador a favor de la Escuela a Publica del
Municipio de Mangatarem, y de las misas en sufragio del alma del finado; 4.o, que una vez prestada la fianza
mencionada al principio de este auto, se haga la entrega y adjudicacion de los bienes, conforme se dispone en el
testamento y se acaba de declarar en este auto; 5.o, y, finalmente, que verificada la adjudicacion, se dara por
terminada la administracion, revelandole toda responsabilidad a la administradora, y cancelando su fianza.

ASI SE ORDENA.

Undoubtedly, after the issuance of an order of such tenor, the closure of any proceedings for the settlement of the estate of a deceased
person cannot be but perfunctory.

In the case at bar, as already pointed out above, the two orders relied upon by petitioner do not appear ex-facie to be of the same tenor and
nature as the order just quoted, and, what is more, the circumstances attendant to its issuance do not suggest that such was the intention of
the court, for nothing could have been more violative of the will of Mrs. Hodges.
Indeed, to infer from Hodges' said motions and from his statements of accounts for the years 1958, 1959 and 1960, A Annexes I, K and M,
respectively, wherein he repeatedly claimed that "herein executor (being) the only devisee or legatee of the deceased, in accordance with the
last will and testament already probated," there is "no (other) person interested in the Philippines of the time and place of examining herein
account to be given notice", an intent to adjudicate unto himself the whole of his wife's estate in an absolute manner and without regard to
the contingent interests of her brothers and sisters, is to impute bad faith to him, an imputation which is not legally permissible, much less
warranted by the facts of record herein. Hodges knew or ought to have known that, legally speaking, the terms of his wife's will did not give
him such a right. Factually, there are enough circumstances extant in the records of these cases indicating that he had no such intention to
ignore the rights of his co-heirs. In his very motions in question, Hodges alleged, thru counsel, that the "deceased Linnie Jane Hodges died
leaving no descendants and ascendants, except brothers and sisters and herein petitioner, as surviving spouse, to inherit the properties of
the decedent", and even promised that "proper accounting will be had — in all these transactions" which he had submitted for approval and
authorization by the court, thereby implying that he was aware of his responsibilities vis-a-vis his co-heirs. As alleged by respondent Magno
in her brief as appellee:

Under date of April 14, 1959, C. N. Hodges filed his first "Account by the Executor" of the estate of Linnie Jane Hodges.
In the "Statement of Networth of Mr. C. N. Hodges and the Estate of Linnie Jane Hodges" as of December 31, 1958
annexed thereto, C. N. Hodges reported that the combined conjugal estate earned a net income of P328,402.62,
divided evenly between him and the estate of Linnie Jane Hodges. Pursuant to this, he filed an "individual income tax
return" for calendar year 1958 on the estate of Linnie Jane Hodges reporting, under oath, the said estate as having
earned income of P164,201.31, exactly one-half of the net income of his combined personal assets and that of the
estate of Linnie Jane Hodges. (p. 91, Appellee's Brief.)

Under date of July 21, 1960, C. N. Hodges filed his second "Annual Statement of Account by the Executor" of the
estate of Linnie Jane Hodges. In the "Statement of Networth of Mr. C. N. Hodges and the Estate of Linnie Jane
Hodges" as of December 31, 1959 annexed thereto, C. N. Hodges reported that the combined conjugal estate earned
a net income of P270,623.32, divided evenly between him and the estate of Linnie Jane Hodges. Pursuant to this, he
filed an "individual income tax return" for calendar year 1959 on the estate of Linnie Jane Hodges reporting, under oath,
the said estate as having earned income of P135,311.66, exactly one-half of the net income of his combined personal
assets and that of the estate of Linnie Jane Hodges. (pp. 91-92, id.)

Under date of April 20, 1961, C. N. Hodges filed his third "Annual Statement of Account by the Executor for the year
1960" of the estate of Linnie Jane Hodges. In the "Statement of Net Worth of Mr. C. N. Hodges and the Estate of Linnie
Jane Hodges" as of December 31, 1960 annexed thereto, C. N. Hodges reported that the combined conjugal estate
earned a net income of P314,857.94, divided of Linnie Jane Hodges. Pursuant to this, he filed an "individual evenly
between him and the estate income tax return" for calendar year 1960 on the estate of Linnie Jane Hodges reporting,
under oath, the said estate as having earned income of P157,428.97, exactly one-half of the net income of his
combined personal assets and that of the estate of Linnie Jane Hodges. (pp. 92-93, id.)

In the petition for probate that he (Hodges) filed, he listed the seven brothers and sisters of Linnie Jane as her "heirs"
(see p. 2, Green ROA). The order of the court admitting the will to probate unfortunately omitted one of the heirs, Roy
Higdon (see p. 14, Green ROA). Immediately, C. N. Hodges filed a verified motion to have Roy Higdon's name included
as an heir, stating that he wanted to straighten the records "in order (that) the heirs of deceased Roy Higdon may not
think or believe they were omitted, and that they were really and are interested in the estate of deceased Linnie Jane
Hodges".

Thus, he recognized, if in his own way, the separate identity of his wife's estate from his own share of the conjugal partnership up to the time
of his death, more than five years after that of his wife. He never considered the whole estate as a single one belonging exclusively to
himself. The only conclusion one can gather from this is that he could have been preparing the basis for the eventual transmission of his
wife's estate, or, at least, so much thereof as he would not have been able to dispose of during his lifetime, to her brothers and sisters in
accordance with her expressed desire, as intimated in his tax return in the United States to be more extensively referred to anon. And
assuming that he did pay the corresponding estate and inheritance taxes in the Philippines on the basis of his being sole heir, such payment
is not necessarily inconsistent with his recognition of the rights of his co-heirs. Without purporting to rule definitely on the matter in these
proceedings, We might say here that We are inclined to the view that under the peculiar provisions of his wife's will, and for purposes of the
applicable inheritance tax laws, Hodges had to be considered as her sole heir, pending the actual transmission of the remaining portion of
her estate to her other heirs, upon the eventuality of his death, and whatever adjustment might be warranted should there be any such
remainder then is a matter that could well be taken care of by the internal revenue authorities in due time.

It is to be noted that the lawyer, Atty. Leon P. Gellada, who signed the motions of May 27, 1957 and December 11, 1957 and the
aforementioned statements of account was the very same one who also subsequently signed and filed the motion of December 26, 1962 for
the appointment of respondent Magno as "Administratrix of the Estate of Mrs. Linnie Jane Hodges" wherein it was alleged that "in
accordance with the provisions of the last will and testament of Linnie Jane Hodges, whatever real properties that may remain at the death of
her husband, Charles Newton Hodges, the said properties shall be equally divided among their heirs." And it appearing that said attorney
was Hodges' lawyer as Executor of the estate of his wife, it stands to reason that his understanding of the situation, implicit in his allegations
just quoted, could somehow be reflective of Hodges' own understanding thereof.

As a matter of fact, the allegations in the motion of the same Atty. Gellada dated July 1, 1957, a "Request for Inclusion of the Name of Roy
Higdon in the Order of the Court dated July 19, 1957, etc.", reference to which is made in the above quotation from respondent Magno's
brief, are over the oath of Hodges himself, who verified the motion. Said allegations read:

1. — That the Hon. Court issued orders dated June 29, 1957, ordering the probate of the will.
 2. — That in said order of the Hon. Court, the relatives of the deceased Linnie Jane Hodges were enumerated.
However, in the petition as well as in the testimony of Executor during the hearing, the name Roy Higdon was
mentioned, but deceased. It was unintentionally omitted the heirs of said Roy Higdon who are his wife Aline Higdon
and son David Higdon, all of age, and residents of Quinlan, Texas, U.S.A.

3. — That to straighten the records, and in order the heirs of deceased Roy Higdon may not think or believe they were
omitted, and that they were really and are interested in the estate of deceased Linnie Jane Hodges, it is requested of
the Hon. Court to insert the names of Aline Higdon and David Higdon, wife and son of deceased Roy Higdon in the
said order of the Hon. Court dated June 29, 1957. (pars. 1 to 3, Annex 2 of Magno's Answer — Record, p. 260)

As can be seen, these italicized allegations indicate, more or less, the real attitude of Hodges in regard to the testamentary dispositions of his
wife.

In connection with this point of Hodges' intent, We note that there are documents, copies of which are annexed to respondent Magno's
answer, which purportedly contain Hodges' own solemn declarations recognizing the right of his co-heirs, such as the alleged tax return he
filed with the United States Taxation authorities, identified as Schedule M, (Annex 4 of her answer) and his supposed affidavit of
renunciation, Annex 5. In said Schedule M, Hodges appears to have answered the pertinent question thus:

2a. Had the surviving spouse the right to declare an election between (1) the provisions made in his or her favor by the
will and (11) dower, curtesy or a statutory interest? (X) Yes ( ) No

2d. Does the surviving spouse contemplate renouncing the will and electing to take dower, curtesy, or a statutory
interest? (X) Yes ( ) No

3. According to the information and belief of the person or persons filing the return, is any action described under
question 1 designed or contemplated? ( ) Yes (X) No (Annex 4, Answer — Record, p. 263)

and to have further stated under the item, "Description of property interests passing to surviving spouse" the following:

None, except for purposes of administering the Estate, paying debts, taxes and other legal charges. It is the intention of
the surviving husband of deceased to distribute the remaining property and interests of the deceased in their
Community Estate to the devisees and legatees named in the will when the debts, liabilities, taxes and expenses of
administration are finally determined and paid. (Annex 4, Answer — Record, p. 263)

In addition, in the supposed affidavit of Hodges, Annex 5, it is stated:

I, C. N. Hodges, being duly sworn, on oath affirm that at the time the United States Estate Tax Return was filed in the
Estate of Linnie Jane Hodges on August 8, 1958, I renounced and disclaimed any and all right to receive the rents,
emoluments and income from said estate, as shown by the statement contained in Schedule M at page 29 of said
return, a copy of which schedule is attached to this affidavit and made a part hereof.

The purpose of this affidavit is to ratify and confirm, and I do hereby ratify and confirm, the declaration made in
Schedule M of said return and hereby formally disclaim and renounce any right on my part to receive any of the said
rents, emoluments and income from the estate of my deceased wife, Linnie Jane Hodges. This affidavit is made to
absolve me or my estate from any liability for the payment of income taxes on income which has accrued to the estate
of Linnie Jane Hodges since the death of the said Linnie Jane Hodges on May 23, 1957. (Annex 5, Answer — Record,
p. 264)

Although it appears that said documents were not duly presented as evidence in the court below, and We cannot, therefore, rely on them for
the purpose of the present proceedings, still, We cannot close our eyes to their existence in the record nor fail to note that their tenor jibes
with Our conclusion discussed above from the circumstances related to the orders of May 27 and December 14, 1957. 5 Somehow, these
documents, considering they are supposed to be copies of their originals found in the official files of the governments of the United States
and of the Philippines, serve to lessen any possible apprehension that Our conclusion from the other evidence of Hodges' manifest intent vis-
a-vis the rights of his co-heirs is without basis in fact.

Verily, with such eloquent manifestations of his good intentions towards the other heirs of his wife, We find it very hard to believe that Hodges
did ask the court and that the latter agreed that he be declared her sole heir and that her whole estate be adjudicated to him without so much
as just annotating the contingent interest of her brothers and sisters in what would remain thereof upon his demise. On the contrary, it seems
to us more factual and fairer to assume that Hodges was well aware of his position as executor of the will of his wife and, as such, had in
mind the following admonition made by the Court in Pamittan vs. Lasam, et al., 60 Phil., 908, at pp. 913-914:

Upon the death of Bernarda in September, 1908, said lands continued to be conjugal property in the hands of the
defendant Lasam. It is provided in article 1418 of the Civil Code that upon the dissolution of the conjugal partnership,
an inventory shall immediately be made and this court in construing this provision in connection with section 685 of the
Code of Civil Procedure (prior to its amendment by Act No. 3176 of November 24, 1924) has repeatedly held that in the
event of the death of the wife, the law imposes upon the husband the duty of liquidating the affairs of the partnership
 without delay (desde luego) (Alfonso vs. Natividad, 6 Phil., 240; Prado vs. Lagera, 7 Phil., 395; De la Rama vs. De la
Rama, 7 Phil., 745; Enriquez vs. Victoria, 10 Phil., 10; Amancio vs. Pardo, 13 Phil., 297; Rojas vs. Singson Tongson,
17 Phil., 476; Sochayseng vs. Trujillo, 31 Phil., 153; Molera vs. Molera, 40 Phil., 566; Nable Jose vs. Nable Jose, 41
Phil., 713.)

In the last mentioned case this court quoted with approval the case of Leatherwood vs. Arnold (66 Texas, 414, 416,
417), in which that court discussed the powers of the surviving spouse in the administration of the community property.
Attention was called to the fact that the surviving husband, in the management of the conjugal property after the death
of the wife, was a trustee of unique character who is liable for any fraud committed by him with relation to the property
while he is charged with its administration. In the liquidation of the conjugal partnership, he had wide powers (as the
law stood prior to Act No. 3176) and the high degree of trust reposed in him stands out more clearly in view of the fact
that he was the owner of a half interest in his own right of the conjugal estate which he was charged to administer. He
could therefore no more acquire a title by prescription against those for whom he was administering the conjugal estate
than could a guardian against his ward or a judicial administrator against the heirs of estate. Section 38 of Chapter III of
the Code of Civil Procedure, with relation to prescription, provides that "this chapter shall not apply ... in the case of a
continuing and subsisting trust." The surviving husband in the administration and liquidation of the conjugal estate
occupies the position of a trustee of the highest order and is not permitted by the law to hold that estate or any portion
thereof adversely to those for whose benefit the law imposes upon him the duty of administration and liquidation. No
liquidation was ever made by Lasam — hence, the conjugal property which came into his possession on the death of
his wife in September, 1908, still remains conjugal property, a continuing and subsisting trust. He should have made a
liquidation immediately (desde luego). He cannot now be permitted to take advantage of his own wrong. One of the
conditions of title by prescription (section 41, Code of Civil Procedure) is possession "under a claim of title exclusive of
any other right". For a trustee to make such a claim would be a manifest fraud.

And knowing thus his responsibilities in the premises, We are not convinced that Hodges arrogated everything unto himself leaving nothing
at all to be inherited by his wife's brothers and sisters.

PCIB insists, however, that to read the orders of May 27 and December 14, 1957, not as adjudicatory, but merely as approving past and
authorizing future dispositions made by Hodges in a wholesale and general manner, would necessarily render the said orders void for being
violative of the provisions of Rule 89 governing the manner in which such dispositions may be made and how the authority therefor and
approval thereof by the probate court may be secured. If We sustained such a view, the result would only be that the said orders should be
declared ineffective either way they are understood, considering We have already seen it is legally impossible to consider them as
adjudicatory. As a matter of fact, however, what surges immediately to the surface, relative to PCIB's observations based on Rule 89, is that
from such point of view, the supposed irregularity would involve no more than some non-jurisdictional technicalities of procedure, which have
for their evident fundamental purpose the protection of parties interested in the estate, such as the heirs, its creditors, particularly the
government on account of the taxes due it; and since it is apparent here that none of such parties are objecting to said orders or would be
prejudiced by the unobservance by the trial court of the procedure pointed out by PCIB, We find no legal inconvenience in nor impediment to
Our giving sanction to the blanket approval and authority contained in said orders. This solution is definitely preferable in law and in equity,
for to view said orders in the sense suggested by PCIB would result in the deprivation of substantive rights to the brothers and sisters of Mrs.
Hodges, whereas reading them the other way will not cause any prejudice to anyone, and, withal, will give peace of mind and stability of
rights to the innocent parties who relied on them in good faith, in the light of the peculiar pertinent provisions of the will of said decedent.

Now, the inventory submitted by Hodges on May 12, 1958 referred to the estate of his wife as consisting of "One-half of all the items
designated in the balance sheet, copy of which is hereto attached and marked as "Annex A"." Although, regrettably, no copy of said Annex A
appears in the records before Us, We take judicial notice, on the basis of the undisputed facts in these cases, that the same consists of
considerable real and other personal kinds of properties. And since, according to her will, her husband was to be the sole owner thereof
during his lifetime, with full power and authority to dispose of any of them, provided that should there be any remainder upon his death, such
remainder would go to her brothers and sisters, and furthermore, there is no pretension, much less any proof that Hodges had in fact
disposed of all of them, and, on the contrary, the indications are rather to the effect that he had kept them more or less intact, it cannot
truthfully be said that, upon the death of Hodges, there was no more estate of Mrs. Hodges to speak of. It is Our conclusion, therefore, that
properties do exist which constitute such estate, hence Special Proceedings 1307 should not yet be closed.

Neither is there basis for holding that respondent Magno has ceased to be the Administratrix in said proceeding. There is no showing that
she has ever been legally removed as such, the attempt to replace her with Mr. Benito Lopez without authority from the Court having been
expressly held ineffective by Our resolution of September 8, 1972. Parenthetically, on this last point, PCIB itself is very emphatic in stressing
that it is not questioning said respondent's status as such administratrix. Indeed, it is not clear that PCIB has any standing to raise any
objection thereto, considering it is a complete stranger insofar as the estate of Mrs. Hodges is concerned.

It is the contention of PCIB, however, that as things actually stood at the time of Hodges' death, their conjugal partnership had not yet been
liquidated and, inasmuch as the properties composing the same were thus commingled pro indiviso and, consequently, the properties
pertaining to the estate of each of the spouses are not yet identifiable, it is PCIB alone, as administrator of the estate of Hodges, who should
administer everything, and all that respondent Magno can do for the time being is to wait until the properties constituting the remaining estate
of Mrs. Hodges have been duly segregated and delivered to her for her own administration. Seemingly, PCIB would liken the Testate Estate
of Linnie Jane Hodges to a party having a claim of ownership to some properties included in the inventory of an administrator of the estate of
a decedent, (here that of Hodges) and who normally has no right to take part in the proceedings pending the establishment of his right or
title; for which as a rule it is required that an ordinary action should be filed, since the probate court is without jurisdiction to pass with finality
on questions of title between the estate of the deceased, on the one hand, and a third party or even an heir claiming adversely against the
estate, on the other.
We do not find such contention sufficiently persuasive. As We see it, the situation obtaining herein cannot be compared with the claim of a
third party the basis of which is alien to the pending probate proceedings. In the present cases what gave rise to the claim of PCIB of
exclusive ownership by the estate of Hodges over all the properties of the Hodges spouses, including the share of Mrs. Hodges in the
community properties, were the orders of the trial court issued in the course of the very settlement proceedings themselves, more
specifically, the orders of May 27 and December 14, 1957 so often mentioned above. In other words, the root of the issue of title between the
parties is something that the court itself has done in the exercise of its probate jurisdiction. And since in the ultimate analysis, the question of
whether or not all the properties herein involved pertain exclusively to the estate of Hodges depends on the legal meaning and effect of said
orders, the claim that respondent court has no jurisdiction to take cognizance of and decide the said issue is incorrect. If it was within the
competence of the court to issue the root orders, why should it not be within its authority to declare their true significance and intent, to the
end that the parties may know whether or not the estate of Mrs. Hodges had already been adjudicated by the court, upon the initiative of
Hodges, in his favor, to the exclusion of the other heirs of his wife instituted in her will?

At this point, it bears emphasis again that the main cause of all the present problems confronting the courts and the parties in these cases
was the failure of Hodges to secure, as executor of his wife's estate, from May, 1957 up to the time of his death in December, 1962, a period
of more than five years, the final adjudication of her estate and the closure of the proceedings. The record is bare of any showing that he
ever exerted any effort towards the early settlement of said estate. While, on the one hand, there are enough indications, as already discuss
that he had intentions of leaving intact her share of the conjugal properties so that it may pass wholly to his co-heirs upon his death, pursuant
to her will, on the other hand, by not terminating the proceedings, his interests in his own half of the conjugal properties remained
commingled pro-indiviso with those of his co-heirs in the other half. Obviously, such a situation could not be conducive to ready
ascertainment of the portion of the inheritance that should appertain to his co-heirs upon his death. Having these considerations in mind, it
would be giving a premium for such procrastination and rather unfair to his co-heirs, if the administrator of his estate were to be given
exclusive administration of all the properties in question, which would necessarily include the function of promptly liquidating the conjugal
partnership, thereby identifying and segregating without unnecessary loss of time which properties should be considered as constituting the
estate of Mrs. Hodges, the remainder of which her brothers and sisters are supposed to inherit equally among themselves.

To be sure, an administrator is not supposed to represent the interests of any particular party and his acts are deemed to be objectively for
the protection of the rights of everybody concerned with the estate of the decedent, and from this point of view, it maybe said that even if
PCIB were to act alone, there should be no fear of undue disadvantage to anyone. On the other hand, however, it is evidently implicit in
section 6 of Rule 78 fixing the priority among those to whom letters of administration should be granted that the criterion in the selection of
the administrator is not his impartiality alone but, more importantly, the extent of his interest in the estate, so much so that the one assumed
to have greater interest is preferred to another who has less. Taking both of these considerations into account, inasmuch as, according to
Hodges' own inventory submitted by him as Executor of the estate of his wife, practically all their properties were conjugal which means that
the spouses have equal shares therein, it is but logical that both estates should be administered jointly by representatives of both, pending
their segregation from each other. Particularly is such an arrangement warranted because the actuations so far of PCIB evince a determined,
albeit groundless, intent to exclude the other heirs of Mrs. Hodges from their inheritance. Besides, to allow PCIB, the administrator of his
estate, to perform now what Hodges was duty bound to do as executor is to violate the spirit, if not the letter, of Section 2 of Rule 78 which
expressly provides that "The executor of an executor shall not, as such, administer the estate of the first testator." It goes without saying that
this provision refers also to the administrator of an executor like PCIB here.

We are not unmindful of the fact that under Section 2 of Rule 73, "When the marriage is dissolved by the death of the husband or wife, the
community property shall be inventoried, administered, and liquidated, and the debts thereof paid, in the testate or intestate proceedings of
the deceased spouse. If both spouses have died, the conjugal partnership shall be liquidated in the testate or intestate proceedings of
either." Indeed, it is true that the last sentence of this provision allows or permits the conjugal partnership of spouses who are both deceased
to be settled or liquidated in the testate or intestate proceedings of either, but precisely because said sentence allows or permits that the
liquidation be made in either proceeding, it is a matter of sound judicial discretion in which one it should be made. After all, the former rule
referring to the administrator of the husband's estate in respect to such liquidation was done away with by Act 3176, the pertinent provisions
of which are now embodied in the rule just cited.

Thus, it can be seen that at the time of the death of Hodges, there was already the pending judicial settlement proceeding of the estate of
Mrs. Hodges, and, more importantly, that the former was the executor of the latter's will who had, as such, failed for more than five years to
see to it that the same was terminated earliest, which was not difficult to do, since from ought that appears in the record, there were no
serious obstacles on the way, the estate not being indebted and there being no immediate heirs other than Hodges himself. Such dilatory or
indifferent attitude could only spell possible prejudice of his co-heirs, whose rights to inheritance depend entirely on the existence of any
remainder of Mrs. Hodges' share in the community properties, and who are now faced with the pose of PCIB that there is no such remainder.
Had Hodges secured as early as possible the settlement of his wife's estate, this problem would not arisen. All things considered, We are
fully convinced that the interests of justice will be better served by not permitting or allowing PCIB or any administrator of the estate of
Hodges exclusive administration of all the properties in question. We are of the considered opinion and so hold that what would be just and
proper is for both administrators of the two estates to act conjointly until after said estates have been segregated from each other.

At this juncture, it may be stated that we are not overlooking the fact that it is PCIB's contention that, viewed as a substitution, the
testamentary disposition in favor of Mrs. Hodges' brothers and sisters may not be given effect. To a certain extent, this contention is correct.
Indeed, legally speaking, Mrs. Hodges' will provides neither for a simple or vulgar substitution under Article 859 of the Civil Code nor for a
fideicommissary substitution under Article 863 thereof. There is no vulgar substitution therein because there is no provision for either (1)
predecease of the testator by the designated heir or (2) refusal or (3) incapacity of the latter to accept the inheritance, as required by Article
859; and neither is there a fideicommissary substitution therein because no obligation is imposed thereby upon Hodges to preserve the
estate or any part thereof for anyone else. But from these premises, it is not correct to jump to the conclusion, as PCIB does, that the
testamentary dispositions in question are therefore inoperative and invalid.

The error in PCIB's position lies simply in the fact that it views the said disposition exclusively in the light of substitutions covered by the Civil
Code section on that subject, (Section 3, Chapter 2, Title IV, Book III) when it is obvious that substitution occurs only when another heir is
appointed in a will "so that he may enter into inheritance in default of the heir originally instituted," (Article 857, id.) and, in the present case,
no such possible default is contemplated. The brothers and sisters of Mrs. Hodges are not substitutes for Hodges because, under her will,
they are not to inherit what Hodges cannot, would not or may not inherit, but what he would not dispose of from his inheritance; rather,
therefore, they are also heirs instituted simultaneously with Hodges, subject, however, to certain conditions, partially resolutory insofar as
Hodges was concerned and correspondingly suspensive with reference to his brothers and sisters-in-law. It is partially resolutory, since it
bequeaths unto Hodges the whole of her estate to be owned and enjoyed by him as universal and sole heir with absolute dominion over
them6 only during his lifetime, which means that while he could completely and absolutely dispose of any portion thereof inter vivos to
anyone other than himself, he was not free to do so mortis causa, and all his rights to what might remain upon his death would cease entirely
upon the occurrence of that contingency, inasmuch as the right of his brothers and sisters-in-law to the inheritance, although vested already
upon the death of Mrs. Hodges, would automatically become operative upon the occurrence of the death of Hodges in the event of actual
existence of any remainder of her estate then.

Contrary to the view of respondent Magno, however, it was not the usufruct alone of her estate, as contemplated in Article 869 of the Civil
Code, that she bequeathed to Hodges during his lifetime, but the full ownership thereof, although the same was to last also during his lifetime
only, even as there was no restriction whatsoever against his disposing or conveying the whole or any portion thereof to anybody other than
himself. The Court sees no legal impediment to this kind of institution, in this jurisdiction or under Philippine law, except that it cannot apply to
the legitime of Hodges as the surviving spouse, consisting of one-half of the estate, considering that Mrs. Hodges had no surviving
ascendants nor descendants. (Arts. 872, 900, and 904, New Civil Code.)

But relative precisely to the question of how much of Mrs. Hodges' share of the conjugal partnership properties may be considered as her
estate, the parties are in disagreement as to how Article 16 of the Civil Code7 should be applied. On the one hand, petitioner claims that
inasmuch as Mrs. Hodges was a resident of the Philippines at the time of her death, under said Article 16, construed in relation to the
pertinent laws of Texas and the principle of renvoi, what should be applied here should be the rules of succession under the Civil Code of the
Philippines, and, therefore, her estate could consist of no more than one-fourth of the said conjugal properties, the other fourth being, as
already explained, the legitime of her husband (Art. 900, Civil Code) which she could not have disposed of nor burdened with any condition
(Art. 872, Civil Code). On the other hand, respondent Magno denies that Mrs. Hodges died a resident of the Philippines, since allegedly she
never changed nor intended to change her original residence of birth in Texas, United States of America, and contends that, anyway,
regardless of the question of her residence, she being indisputably a citizen of Texas, under said Article 16 of the Civil Code, the distribution
of her estate is subject to the laws of said State which, according to her, do not provide for any legitime, hence, the brothers and sisters of
Mrs. Hodges are entitled to the remainder of the whole of her share of the conjugal partnership properties consisting of one-half thereof.
Respondent Magno further maintains that, in any event, Hodges had renounced his rights under the will in favor of his co-heirs, as allegedly
proven by the documents touching on the point already mentioned earlier, the genuineness and legal significance of which petitioner
seemingly questions. Besides, the parties are disagreed as to what the pertinent laws of Texas provide. In the interest of settling the estates
herein involved soonest, it would be best, indeed, if these conflicting claims of the parties were determined in these proceedings. The Court
regrets, however, that it cannot do so, for the simple reason that neither the evidence submitted by the parties in the court below nor their
discussion, in their respective briefs and memoranda before Us, of their respective contentions on the pertinent legal issues, of grave
importance as they are, appear to Us to be adequate enough to enable Us to render an intelligent comprehensive and just resolution. For
one thing, there is no clear and reliable proof of what in fact the possibly applicable laws of Texas are. 7* Then also, the genuineness of
documents relied upon by respondent Magno is disputed. And there are a number of still other conceivable related issues which the parties
may wish to raise but which it is not proper to mention here. In Justice, therefore, to all the parties concerned, these and all other relevant
matters should first be threshed out fully in the trial court in the proceedings hereafter to be held therein for the purpose of ascertaining and
adjudicating and/or distributing the estate of Mrs. Hodges to her heirs in accordance with her duly probated will.

To be more explicit, all that We can and do decide in connection with the petition for certiorari and prohibition are: (1) that regardless of which
corresponding laws are applied, whether of the Philippines or of Texas, and taking for granted either of the respective contentions of the
parties as to provisions of the latter,8 and regardless also of whether or not it can be proven by competent evidence that Hodges renounced
his inheritance in any degree, it is easily and definitely discernible from the inventory submitted by Hodges himself, as Executor of his wife's
estate, that there are properties which should constitute the estate of Mrs. Hodges and ought to be disposed of or distributed among her
heirs pursuant to her will in said Special Proceedings 1307; (2) that, more specifically, inasmuch as the question of what are the pertinent
laws of Texas applicable to the situation herein is basically one of fact, and, considering that the sole difference in the positions of the parties
as to the effect of said laws has reference to the supposed legitime of Hodges — it being the stand of PCIB that Hodges had such a legitime
whereas Magno claims the negative - it is now beyond controversy for all future purposes of these proceedings that whatever be the
provisions actually of the laws of Texas applicable hereto, the estate of Mrs. Hodges is at least, one-fourth of the conjugal estate of the
spouses; the existence and effects of foreign laws being questions of fact, and it being the position now of PCIB that the estate of Mrs.
Hodges, pursuant to the laws of Texas, should only be one-fourth of the conjugal estate, such contention constitutes an admission of fact,
and consequently, it would be in estoppel in any further proceedings in these cases to claim that said estate could be less, irrespective of
what might be proven later to be actually the provisions of the applicable laws of Texas; (3) that Special Proceedings 1307 for the settlement
of the testate estate of Mrs. Hodges cannot be closed at this stage and should proceed to its logical conclusion, there having been no proper
and legal adjudication or distribution yet of the estate therein involved; and (4) that respondent Magno remains and continues to be the
Administratrix therein. Hence, nothing in the foregoing opinion is intended to resolve the issues which, as already stated, are not properly
before the Court now, namely, (1) whether or not Hodges had in fact and in law waived or renounced his inheritance from Mrs. Hodges, in
whole or in part, and (2) assuming there had been no such waiver, whether or not, by the application of Article 16 of the Civil Code, and in
the light of what might be the applicable laws of Texas on the matter, the estate of Mrs. Hodges is more than the one-fourth declared above.
As a matter of fact, even our finding above about the existence of properties constituting the estate of Mrs. Hodges rests largely on a general
appraisal of the size and extent of the conjugal partnership gathered from reference made thereto by both parties in their briefs as well as in
their pleadings included in the records on appeal, and it should accordingly yield, as to which exactly those properties are, to the more
concrete and specific evidence which the parties are supposed to present in support of their respective positions in regard to the foregoing
main legal and factual issues. In the interest of justice, the parties should be allowed to present such further evidence in relation to all these
issues in a joint hearing of the two probate proceedings herein involved. After all, the court a quo has not yet passed squarely on these
issues, and it is best for all concerned that it should do so in the first instance.

Relative to Our holding above that the estate of Mrs. Hodges cannot be less than the remainder of one-fourth of the conjugal partnership
properties, it may be mentioned here that during the deliberations, the point was raised as to whether or not said holding might be
inconsistent with Our other ruling here also that, since there is no reliable evidence as to what are the applicable laws of Texas, U.S.A. "with
respect to the order of succession and to the amount of successional rights" that may be willed by a testator which, under Article 16 of the
Civil Code, are controlling in the instant cases, in view of the undisputed Texan nationality of the deceased Mrs. Hodges, these cases should
be returned to the court a quo, so that the parties may prove what said law provides, it is premature for Us to make any specific ruling now on
either the validity of the testamentary dispositions herein involved or the amount of inheritance to which the brothers and sisters of Mrs.
Hodges are entitled. After nature reflection, We are of the considered view that, at this stage and in the state of the records before Us, the
feared inconsistency is more apparent than real. Withal, it no longer lies in the lips of petitioner PCIB to make any claim that under the laws
of Texas, the estate of Mrs. Hodges could in any event be less than that We have fixed above.

It should be borne in mind that as above-indicated, the question of what are the laws of Texas governing the matters herein issue is, in the
first instance, one of fact, not of law. Elementary is the rule that foreign laws may not be taken judicial notice of and have to be proven like
any other fact in dispute between the parties in any proceeding, with the rare exception in instances when the said laws are already within
the actual knowledge of the court, such as when they are well and generally known or they have been actually ruled upon in other cases
before it and none of the parties concerned do not claim otherwise. (5 Moran, Comments on the Rules of Court, p. 41, 1970 ed.) In Fluemer
vs. Hix, 54 Phil. 610, it was held:

It is the theory of the petitioner that the alleged will was executed in Elkins West Virginia, on November 3, 1925, by Hix who had his
residence in that jurisdiction, and that the laws of West Virginia govern. To this end, there was submitted a copy of section 3868 of Acts
1882, c. 84 as found in West Virginia Code, Annotated, by Hogg Charles E., vol. 2, 1914, p. 1960, and as certified to by the Director of the
National Library. But this was far from a compliance with the law. The laws of a foreign jurisdiction do not prove themselves in our courts.
The courts of the Philippine Islands are not authorized to take judicial notice of the laws of the various States of the American Union. Such
laws must be proved as facts. (In re Estate of Johnson [1918], 39 Phil., 156.) Here the requirements of the law were not met. There was no
showing that the book from which an extract was taken was printed or published under the authority of the State of West Virginia, as
provided in section 300 of the Code of Civil Procedure. Nor was the extract from the law attested by the certificate of the officer having
charge of the original, under the seal of the State of West Virginia, as provided in section 301 of the Code of Civil Procedure. No evidence
was introduced to show that the extract from the laws of West Virginia was in force at the time the alleged will was executed."

No evidence of the nature thus suggested by the Court may be found in the records of the cases at bar. Quite to the contrary, the parties
herein have presented opposing versions in their respective pleadings and memoranda regarding the matter. And even if We took into
account that in Aznar vs. Garcia, the Court did make reference to certain provisions regarding succession in the laws of Texas, the disparity
in the material dates of that case and the present ones would not permit Us to indulge in the hazardous conjecture that said provisions have
not been amended or changed in the meantime.

On the other hand, in In re Estate of Johnson, 39 Phil. 156, We held:

Upon the other point — as to whether the will was executed in conformity with the statutes of the State of Illinois — we
note that it does not affirmatively appear from the transcription of the testimony adduced in the trial court that any
witness was examined with reference to the law of Illinois on the subject of the execution of will. The trial judge no
doubt was satisfied that the will was properly executed by examining section 1874 of the Revised Statutes of Illinois, as
exhibited in volume 3 of Starr & Curtis's Annotated Illinois Statutes, 2nd ed., p. 426; and he may have assumed that he
could take judicial notice of the laws of Illinois under section 275 of the Code of Civil Procedure. If so, he was in our
opinion mistaken. That section authorizes the courts here to take judicial notice, among other things, of the acts of the
legislative department of the United States. These words clearly have reference to Acts of the Congress of the United
States; and we would hesitate to hold that our courts can, under this provision, take judicial notice of the multifarious
laws of the various American States. Nor do we think that any such authority can be derived from the broader
language, used in the same section, where it is said that our courts may take judicial notice of matters of public
knowledge "similar" to those therein enumerated. The proper rule we think is to require proof of the statutes of the
States of the American Union whenever their provisions are determinative of the issues in any action litigated in the
Philippine courts.

Nevertheless, even supposing that the trial court may have erred in taking judicial notice of the law of Illinois on the
point in question, such error is not now available to the petitioner, first, because the petition does not state any fact
from which it would appear that the law of Illinois is different from what the court found, and, secondly, because the
assignment of error and argument for the appellant in this court raises no question based on such supposed error.
Though the trial court may have acted upon pure conjecture as to the law prevailing in the State of Illinois, its judgment
could not be set aside, even upon application made within six months under section 113 of the Code of Civil
Procedure, unless it should be made to appear affirmatively that the conjecture was wrong. The petitioner, it is true,
states in general terms that the will in question is invalid and inadequate to pass real and personal property in the State
of Illinois, but this is merely a conclusion of law. The affidavits by which the petition is accompanied contain no
reference to the subject, and we are cited to no authority in the appellant's brief which might tend to raise a doubt as to
the correctness of the conclusion of the trial court. It is very clear, therefore, that this point cannot be urged as of
serious moment.

It is implicit in the above ruling that when, with respect to certain aspects of the foreign laws concerned, the parties in a given case do not
have any controversy or are more or less in agreement, the Court may take it for granted for the purposes of the particular case before it that
the said laws are as such virtual agreement indicates, without the need of requiring the presentation of what otherwise would be the
competent evidence on the point. Thus, in the instant cases wherein it results from the respective contentions of both parties that even if the
pertinent laws of Texas were known and to be applied, the amount of the inheritance pertaining to the heirs of Mrs. Hodges is as We have
fixed above, the absence of evidence to the effect that, actually and in fact, under said laws, it could be otherwise is of no longer of any
consequence, unless the purpose is to show that it could be more. In other words, since PCIB, the petitioner-appellant, concedes that upon
application of Article 16 of the Civil Code and the pertinent laws of Texas, the amount of the estate in controversy is just as We have
determined it to be, and respondent-appellee is only claiming, on her part, that it could be more, PCIB may not now or later pretend
differently.

To be more concrete, on pages 20-21 of its petition herein, dated July 31, 1967, PCIB states categorically:

Inasmuch as Article 16 of the Civil Code provides that "intestate and testamentary successions both with respect to the
order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions,
shall be regulated by the national law of the person whose succession is under consideration, whatever may be the
nature of the property and regardless of the country wherein said property may be found", while the law of Texas (the
Hodges spouses being nationals of U.S.A., State of Texas), in its conflicts of law rules, provides that the domiciliary law
(in this case Philippine law) governs the testamentary dispositions and successional rights over movables or personal
properties, while the law of the situs (in this case also Philippine law with respect to all Hodges properties located in the
Philippines), governs with respect to immovable properties, and applying therefore the 'renvoi doctrine' as enunciated
and applied by this Honorable Court in the case of In re Estate of Christensen (G.R. No. L-16749, Jan. 31, 1963), there
can be no question that Philippine law governs the testamentary dispositions contained in the Last Will and Testament
of the deceased Linnie Jane Hodges, as well as the successional rights to her estate, both with respect to movables,
as well as to immovables situated in the Philippines.

In its main brief dated February 26, 1968, PCIB asserts:

The law governing successional rights.

As recited above, there is no question that the deceased, Linnie Jane Hodges, was an American citizen. There is also
no question that she was a national of the State of Texas, U.S.A. Again, there is likewise no question that she had her
domicile of choice in the City of Iloilo, Philippines, as this has already been pronounced by the above-cited orders of
the lower court, pronouncements which are by now res adjudicata (par. [a], See. 49, Rule 39, Rules of Court; In re
Estate of Johnson, 39 Phil. 156).

Article 16 of the Civil Code provides:

"Real property as well as personal property is subject to the law of the country where it is situated.

However, intestate and testamentary successions, both with respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the
person whose succession is under consideration, whatever may be the nature of the property and regardless of the
country wherein said property may be found."

Thus the aforecited provision of the Civil Code points towards the national law of the deceased, Linnie Jane Hodges,
which is the law of Texas, as governing succession "both with respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary provisions ...". But the law of Texas, in its conflicts of law
rules, provides that the domiciliary law governs the testamentary dispositions and successional rights over movables or
personal property, while the law of the situs governs with respect to immovable property. Such that with respect to both
movable property, as well as immovable property situated in the Philippines, the law of Texas points to the law of the
Philippines.

Applying, therefore, the so-called "renvoi doctrine", as enunciated and applied by this Honorable Court in the case of
"In re Christensen" (G.R. No. L-16749, Jan. 31, 1963), there can be no question that Philippine law governs the
testamentary provisions in the Last Will and Testament of the deceased Linnie Jane Hodges, as well as the
successional rights to her estate, both with respect to movables, as well as immovables situated in the Philippines.

The subject of successional rights.

Under Philippine law, as it is under the law of Texas, the conjugal or community property of the spouses, Charles
Newton Hodges and Linnie Jane Hodges, upon the death of the latter, is to be divided into two, one-half pertaining to
each of the spouses, as his or her own property. Thus, upon the death of Linnie Jane Hodges, one-half of the conjugal
partnership property immediately pertained to Charles Newton Hodges as his own share, and not by virtue of any
successional rights. There can be no question about this.

Again, Philippine law, or more specifically, Article 900 of the Civil Code provides:

If the only survivor is the widow or widower, she or he shall be entitled to one-half of the
hereditary estate of the deceased spouse, and the testator may freely dispose of the other half.
 If the marriage between the surviving spouse and the testator was solemnized in articulo mortis,
and the testator died within three months from the time of the marriage, the legitime of the
surviving spouse as the sole heir shall be one-third of the hereditary estate, except when they
have been living as husband and wife for more than five years. In the latter case, the legitime of
the surviving spouse shall be that specified in the preceding paragraph.

This legitime of the surviving spouse cannot be burdened by a fideicommisary substitution (Art. 864, Civil code), nor by
any charge, condition, or substitution (Art, 872, Civil code). It is clear, therefore, that in addition to one-half of the
conjugal partnership property as his own conjugal share, Charles Newton Hodges was also immediately entitled to
one-half of the half conjugal share of the deceased, Linnie Jane Hodges, or one-fourth of the entire conjugal property,
as his legitime.

One-fourth of the conjugal property therefore remains at issue.

In the summary of its arguments in its memorandum dated April 30, 1968, the following appears:

Briefly, the position advanced by the petitioner is:

a. That the Hodges spouses were domiciled legally in the Philippines (pp. 19-20, petition). This is now a matter of res
adjudicata (p. 20, petition).

b. That under Philippine law, Texas law, and the renvoi doctrine, Philippine law governs the successional rights over
the properties left by the deceased, Linnie Jane Hodges (pp. 20-21, petition).

c. That under Philippine as well as Texas law, one-half of the Hodges properties pertains to the deceased, Charles
Newton Hodges (p. 21, petition). This is not questioned by the respondents.

d. That under Philippine law, the deceased, Charles Newton Hodges, automatically inherited one-half of the remaining
one-half of the Hodges properties as his legitime (p. 21, petition).

e. That the remaining 25% of the Hodges properties was inherited by the deceased, Charles Newton Hodges, under
the will of his deceased spouse (pp. 22-23, petition). Upon the death of Charles Newton Hodges, the substitution
'provision of the will of the deceased, Linnie Jane Hodges, did not operate because the same is void (pp. 23-25,
petition).

f. That the deceased, Charles Newton Hodges, asserted his sole ownership of the Hodges properties and the probate
court sanctioned such assertion (pp. 25-29, petition). He in fact assumed such ownership and such was the status of
the properties as of the time of his death (pp. 29-34, petition).

Of similar tenor are the allegations of PCIB in some of its pleadings quoted in the earlier part of this option.

On her part, it is respondent-appellee Magno's posture that under the laws of Texas, there is no system of legitime, hence the estate of Mrs.
Hodges should be one-half of all the conjugal properties.

It is thus unquestionable that as far as PCIB is concerned, the application to these cases of Article 16 of the Civil Code in relation to the
corresponding laws of Texas would result in that the Philippine laws on succession should control. On that basis, as We have already
explained above, the estate of Mrs. Hodges is the remainder of one-fourth of the conjugal partnership properties, considering that We have
found that there is no legal impediment to the kind of disposition ordered by Mrs. Hodges in her will in favor of her brothers and sisters and,
further, that the contention of PCIB that the same constitutes an inoperative testamentary substitution is untenable. As will be recalled,
PCIB's position that there is no such estate of Mrs. Hodges is predicated exclusively on two propositions, namely: (1) that the provision in
question in Mrs. Hodges' testament violates the rules on substitution of heirs under the Civil Code and (2) that, in any event, by the orders of
the trial court of May 27, and December 14, 1957, the trial court had already finally and irrevocably adjudicated to her husband the whole free
portion of her estate to the exclusion of her brothers and sisters, both of which poses, We have overruled. Nowhere in its pleadings, briefs
and memoranda does PCIB maintain that the application of the laws of Texas would result in the other heirs of Mrs. Hodges not inheriting
anything under her will. And since PCIB's representations in regard to the laws of Texas virtually constitute admissions of fact which the other
parties and the Court are being made to rely and act upon, PCIB is "not permitted to contradict them or subsequently take a position
contradictory to or inconsistent with them." (5 Moran, id, p. 65, citing Cunanan vs. Amparo, 80 Phil. 227; Sta. Ana vs. Maliwat, L-23023, Aug.
31, 1968, 24 SCRA 1018).

Accordingly, the only question that remains to be settled in the further proceedings hereby ordered to be held in the court below is how much
more than as fixed above is the estate of Mrs. Hodges, and this would depend on (1) whether or not the applicable laws of Texas do provide
in effect for more, such as, when there is no legitime provided therein, and (2) whether or not Hodges has validly waived his whole
inheritance from Mrs. Hodges.
In the course of the deliberations, it was brought out by some members of the Court that to avoid or, at least, minimize further protracted
legal controversies between the respective heirs of the Hodges spouses, it is imperative to elucidate on the possible consequences of
dispositions made by Hodges after the death of his wife from the mass of the unpartitioned estates without any express indication in the
pertinent documents as to whether his intention is to dispose of part of his inheritance from his wife or part of his own share of the conjugal
estate as well as of those made by PCIB after the death of Hodges. After a long discussion, the consensus arrived at was as follows: (1) any
such dispositions made gratuitously in favor of third parties, whether these be individuals, corporations or foundations, shall be considered as
intended to be of properties constituting part of Hodges' inheritance from his wife, it appearing from the tenor of his motions of May 27 and
December 11, 1957 that in asking for general authority to make sales or other disposals of properties under the jurisdiction of the court,
which include his own share of the conjugal estate, he was not invoking particularly his right over his own share, but rather his right to
dispose of any part of his inheritance pursuant to the will of his wife; (2) as regards sales, exchanges or other remunerative transfers, the
proceeds of such sales or the properties taken in by virtue of such exchanges, shall be considered as merely the products of "physical
changes" of the properties of her estate which the will expressly authorizes Hodges to make, provided that whatever of said products should
remain with the estate at the time of the death of Hodges should go to her brothers and sisters; (3) the dispositions made by PCIB after the
death of Hodges must naturally be deemed as covering only the properties belonging to his estate considering that being only the
administrator of the estate of Hodges, PCIB could not have disposed of properties belonging to the estate of his wife. Neither could such
dispositions be considered as involving conjugal properties, for the simple reason that the conjugal partnership automatically ceased when
Mrs. Hodges died, and by the peculiar provision of her will, under discussion, the remainder of her share descended also automatically upon
the death of Hodges to her brothers and sisters, thus outside of the scope of PCIB's administration. Accordingly, these construction of the will
of Mrs. Hodges should be adhered to by the trial court in its final order of adjudication and distribution and/or partition of the two estates in
question.

THE APPEALS

A cursory examination of the seventy-eight assignments of error in appellant PCIB's brief would readily reveal that all of them are predicated
mainly on the contention that inasmuch as Hodges had already adjudicated unto himself all the properties constituting his wife's share of the
conjugal partnership, allegedly with the sanction of the trial court per its order of December 14, 1957, there has been, since said date, no
longer any estate of Mrs. Hodges of which appellee Magno could be administratrix, hence the various assailed orders sanctioning her
actuations as such are not in accordance with law. Such being the case, with the foregoing resolution holding such posture to be untenable
in fact and in law and that it is in the best interest of justice that for the time being the two estates should be administered conjointly by the
respective administrators of the two estates, it should follow that said assignments of error have lost their fundamental reasons for being.
There are certain matters, however, relating peculiarly to the respective orders in question, if commonly among some of them, which need
further clarification. For instance, some of them authorized respondent Magno to act alone or without concurrence of PCIB. And with respect
to many of said orders, PCIB further claims that either the matters involved were not properly within the probate jurisdiction of the trial court
or that the procedure followed was not in accordance with the rules. Hence, the necessity of dealing separately with the merits of each of the
appeals.

Indeed, inasmuch as the said two estates have until now remained commingled pro-indiviso, due to the failure of Hodges and the lower court
to liquidate the conjugal partnership, to recognize appellee Magno as Administratrix of the Testate Estate of Mrs. Hodges which is still
unsegregated from that of Hodges is not to say, without any qualification, that she was therefore authorized to do and perform all her acts
complained of in these appeals, sanctioned though they might have been by the trial court. As a matter of fact, it is such commingling pro-
indiviso of the two estates that should deprive appellee of freedom to act independently from PCIB, as administrator of the estate of Hodges,
just as, for the same reason, the latter should not have authority to act independently from her. And considering that the lower court failed to
adhere consistently to this basic point of view, by allowing the two administrators to act independently of each other, in the various instances
already noted in the narration of facts above, the Court has to look into the attendant circumstances of each of the appealed orders to be
able to determine whether any of them has to be set aside or they may all be legally maintained notwithstanding the failure of the court a quo
to observe the pertinent procedural technicalities, to the end only that graver injury to the substantive rights of the parties concerned and
unnecessary and undesirable proliferation of incidents in the subject proceedings may be forestalled. In other words, We have to determine,
whether or not, in the light of the unusual circumstances extant in the record, there is need to be more pragmatic and to adopt a rather
unorthodox approach, so as to cause the least disturbance in rights already being exercised by numerous innocent third parties, even if to do
so may not appear to be strictly in accordance with the letter of the applicable purely adjective rules.

Incidentally, it may be mentioned, at this point, that it was principally on account of the confusion that might result later from PCIB's
continuing to administer all the community properties, notwithstanding the certainty of the existence of the separate estate of Mrs. Hodges,
and to enable both estates to function in the meantime with a relative degree of regularity, that the Court ordered in the resolution of
September 8, 1972 the modification of the injunction issued pursuant to the resolutions of August 8, October 4 and December 6, 1967, by
virtue of which respondent Magno was completely barred from any participation in the administration of the properties herein involved. In the
September 8 resolution, We ordered that, pending this decision, Special Proceedings 1307 and 1672 should proceed jointly and that the
respective administrators therein "act conjointly — none of them to act singly and independently of each other for any purpose." Upon mature
deliberation, We felt that to allow PCIB to continue managing or administering all the said properties to the exclusion of the administratrix of
Mrs. Hodges' estate might place the heirs of Hodges at an unduly advantageous position which could result in considerable, if not
irreparable, damage or injury to the other parties concerned. It is indeed to be regretted that apparently, up to this date, more than a year
after said resolution, the same has not been given due regard, as may be gleaned from the fact that recently, respondent Magno has filed in
these proceedings a motion to declare PCIB in contempt for alleged failure to abide therewith, notwithstanding that its repeated motions for
reconsideration thereof have all been denied soon after they were filed.9

Going back to the appeals, it is perhaps best to begin first with what appears to Our mind to be the simplest, and then proceed to the more
complicated ones in that order, without regard to the numerical sequence of the assignments of error in appellant's brief or to the order of the
discussion thereof by counsel.

Assignments of error numbers

LXXII, LXXVII and LXXVIII.
These assignments of error relate to (1) the order of the trial court of August 6, 1965 providing that "the deeds of sale (therein referred to
involving properties in the name of Hodges) should be signed jointly by the PCIB, as Administrator of Testate Estate of C.N. Hodges, and
Avelina A. Magno, as Administratrix of the Testate Estate of Linnie Jane Hodges, and to this effect, the PCIB should take the necessary
steps so that Administratrix Avelina A. Magno could sign the deeds of sale," (p. 248, Green Rec. on Appeal) (2) the order of October 27,
1965 denying the motion for reconsideration of the foregoing order, (pp. 276-277, id.) (3) the other order also dated October 27, 1965
enjoining inter alia, that "(a) all cash collections should be deposited in the joint account of the estate of Linnie Jane Hodges and estate of C.
N. Hodges, (b) that whatever cash collections (that) had been deposited in the account of either of the estates should be withdrawn and
since then (sic) deposited in the joint account of the estate of Linnie Jane Hodges and the estate of C. N. Hodges; ... (d) (that) Administratrix
Magno — allow the PCIB to inspect whatever records, documents and papers she may have in her possession, in the same manner that
Administrator PCIB is also directed to allow Administratrix Magno to inspect whatever records, documents and papers it may have in its
possession" and "(e) that the accountant of the estate of Linnie Jane Hodges shall have access to all records of the transactions of both
estates for the protection of the estate of Linnie Jane Hodges; and in like manner, the accountant or any authorized representative of the
estate of C. N. Hodges shall have access to the records of transactions of the Linnie Jane Hodges estate for the protection of the estate of C.
N. Hodges", (pp. 292-295, id.) and (4) the order of February 15, 1966, denying, among others, the motion for reconsideration of the order of
October 27, 1965 last referred to. (pp. 455-456, id.)

As may be readily seen, the thrust of all these four impugned orders is in line with the Court's above-mentioned resolution of September 8,
1972 modifying the injunction previously issued on August 8, 1967, and, more importantly, with what We have said the trial court should have
always done pending the liquidation of the conjugal partnership of the Hodges spouses. In fact, as already stated, that is the arrangement
We are ordering, by this decision, to be followed. Stated differently, since the questioned orders provide for joint action by the two
administrators, and that is precisely what We are holding out to have been done and should be done until the two estates are separated from
each other, the said orders must be affirmed. Accordingly the foregoing assignments of error must be, as they are hereby overruled.

Assignments of error Numbers LXVIII

to LXXI and LXXIII to LXXVI.

The orders complained of under these assignments of error commonly deal with expenditures made by appellee Magno, as Administratrix of
the Estate of Mrs. Hodges, in connection with her administration thereof, albeit additionally, assignments of error Numbers LXIX to LXXI put
into question the payment of attorneys fees provided for in the contract for the purpose, as constituting, in effect, premature advances to the
heirs of Mrs. Hodges.

More specifically, assignment Number LXXIII refers to reimbursement of overtime pay paid to six employees of the court and three other
persons for services in copying the court records to enable the lawyers of the administration to be fully informed of all the incidents in the
proceedings. The reimbursement was approved as proper legal expenses of administration per the order of December 19, 1964, (pp. 221-
222, id.) and repeated motions for reconsideration thereof were denied by the orders of January 9, 1965, (pp. 231-232, id.) October 27, 1965,
(p. 277, id.) and February 15, 1966. (pp. 455-456, id.) On the other hand, Assignments Numbers LXVIII to LXXI, LXXIV and LXXV question
the trial court's order of November 3, 1965 approving the agreement of June 6, 1964 between Administratrix Magno and James L. Sullivan,
attorney-in-fact of the heirs of Mrs. Hodges, as Parties of the First Part, and Attorneys Raul Manglapus and Rizal R. Quimpo, as Parties of
the Second Part, regarding attorneys fees for said counsel who had agreed "to prosecute and defend their interests (of the Parties of the
First Part) in certain cases now pending litigation in the Court of First Instance of Iloilo —, more specifically in Special Proceedings 1307 and
1672 —" (pp. 126-129, id.) and directing Administratrix Magno "to issue and sign whatever check or checks maybe needed to implement the
approval of the agreement annexed to the motion" as well as the "administrator of the estate of C. N. Hodges — to countersign the said
check or checks as the case maybe." (pp. 313-320, id.), reconsideration of which order of approval was denied in the order of February 16,
1966, (p. 456, id.) Assignment Number LXXVI imputes error to the lower court's order of October 27, 1965, already referred to above, insofar
as it orders that "PCIB should counter sign the check in the amount of P250 in favor of Administratrix Avelina A. Magno as her compensation
as administratrix of Linnie Jane Hodges estate chargeable to the Testate Estate of Linnie Jane Hodges only." (p. 294, id.)

Main contention again of appellant PCIB in regard to these eight assigned errors is that there is no such estate as the estate of Mrs. Hodges
for which the questioned expenditures were made, hence what were authorized were in effect expenditures from the estate of Hodges. As
We have already demonstrated in Our resolution above of the petition for certiorari and prohibition, this posture is incorrect. Indeed, in
whichever way the remaining issues between the parties in these cases are ultimately resolved, 10 the final result will surely be that there are
properties constituting the estate of Mrs. Hodges of which Magno is the current administratrix. It follows, therefore, that said appellee had the
right, as such administratrix, to hire the persons whom she paid overtime pay and to be paid for her own services as administratrix. That she
has not yet collected and is not collecting amounts as substantial as that paid to or due appellant PCIB is to her credit.

Of course, she is also entitled to the services of counsel and to that end had the authority to enter into contracts for attorney's fees in the
manner she had done in the agreement of June 6, 1964. And as regards to the reasonableness of the amount therein stipulated, We see no
reason to disturb the discretion exercised by the probate court in determining the same. We have gone over the agreement, and considering
the obvious size of the estate in question and the nature of the issues between the parties as well as the professional standing of counsel,
We cannot say that the fees agreed upon require the exercise by the Court of its inherent power to reduce it.

PCIB insists, however, that said agreement of June 6, 1964 is not for legal services to the estate but to the heirs of Mrs. Hodges, or, at most,
to both of them, and such being the case, any payment under it, insofar as counsels' services would redound to the benefit of the heirs,
would be in the nature of advances to such heirs and a premature distribution of the estate. Again, We hold that such posture cannot prevail.

Upon the premise We have found plausible that there is an existing estate of Mrs. Hodges, it results that juridically and factually the interests
involved in her estate are distinct and different from those involved in her estate of Hodges and vice versa. Insofar as the matters related
exclusively to the estate of Mrs. Hodges, PCIB, as administrator of the estate of Hodges, is a complete stranger and it is without personality
to question the actuations of the administratrix thereof regarding matters not affecting the estate of Hodges. Actually, considering the
obviously considerable size of the estate of Mrs. Hodges, We see no possible cause for apprehension that when the two estates are
segregated from each other, the amount of attorney's fees stipulated in the agreement in question will prejudice any portion that would
correspond to Hodges' estate.

And as regards the other heirs of Mrs. Hodges who ought to be the ones who should have a say on the attorney's fees and other expenses
of administration assailed by PCIB, suffice it to say that they appear to have been duly represented in the agreement itself by their attorney-
in-fact, James L. Sullivan and have not otherwise interposed any objection to any of the expenses incurred by Magno questioned by PCIB in
these appeals. As a matter of fact, as ordered by the trial court, all the expenses in question, including the attorney's fees, may be paid
without awaiting the determination and segregation of the estate of Mrs. Hodges.

Withal, the weightiest consideration in connection with the point under discussion is that at this stage of the controversy among the parties
herein, the vital issue refers to the existence or non-existence of the estate of Mrs. Hodges. In this respect, the interest of respondent Magno,
as the appointed administratrix of the said estate, is to maintain that it exists, which is naturally common and identical with and inseparable
from the interest of the brothers and sisters of Mrs. Hodges. Thus, it should not be wondered why both Magno and these heirs have
seemingly agreed to retain but one counsel. In fact, such an arrangement should be more convenient and economical to both. The possibility
of conflict of interest between Magno and the heirs of Mrs. Hodges would be, at this stage, quite remote and, in any event, rather
insubstantial. Besides, should any substantial conflict of interest between them arise in the future, the same would be a matter that the
probate court can very well take care of in the course of the independent proceedings in Case No. 1307 after the corresponding segregation
of the two subject estates. We cannot perceive any cogent reason why, at this stage, the estate and the heirs of Mrs. Hodges cannot be
represented by a common counsel.

Now, as to whether or not the portion of the fees in question that should correspond to the heirs constitutes premature partial distribution of
the estate of Mrs. Hodges is also a matter in which neither PCIB nor the heirs of Hodges have any interest. In any event, since, as far as the
records show, the estate has no creditors and the corresponding estate and inheritance taxes, except those of the brothers and sisters of
Mrs. Hodges, have already been paid, 11 no prejudice can caused to anyone by the comparatively small amount of attorney's fees in
question. And in this connection, it may be added that, although strictly speaking, the attorney's fees of the counsel of an administrator is in
the first instance his personal responsibility, reimbursable later on by the estate, in the final analysis, when, as in the situation on hand, the
attorney-in-fact of the heirs has given his conformity thereto, it would be idle effort to inquire whether or not the sanction given to said fees by
the probate court is proper.

For the foregoing reasons, Assignments of Error LXVIII to LXXI and LXXIII to LXXVI should be as they are hereby overruled.

Assignments of error I to IV,

XIII to XV, XXII to XXV, XXXV
to XXX VI, XLI to XLIII and L.

These assignments of error deal with the approval by the trial court of various deeds of sale of real properties registered in the name of
Hodges but executed by appellee Magno, as Administratrix of the Estate of Mrs. Hodges, purportedly in implementation of corresponding
supposed written "Contracts to Sell" previously executed by Hodges during the interim between May 23, 1957, when his wife died, and
December 25, 1962, the day he died. As stated on pp. 118-120 of appellant's main brief, "These are: the, contract to sell between the
deceased, Charles Newton Hodges, and the appellee, Pepito G. Iyulores executed on February 5, 1961; the contract to sell between the
deceased, Charles Newton Hodges, and the appellant Esperidion Partisala, executed on April 20, 1960; the contract to sell between the
deceased, Charles Newton Hodges, and the appellee, Winifredo C. Espada, executed on April 18, 1960; the contract to sell between the
deceased, Charles Newton Hodges, and the appellee, Rosario Alingasa, executed on August 25, 1958; the contract to sell between the
deceased, Charles Newton Hodges, and the appellee, Lorenzo Carles, executed on June 17, 1958; the contract to sell between the
deceased, Charles Newton Hodges, and the appellee, Salvador S. Guzman, executed on September 13, 1960; the contract to sell between
the deceased, Charles Newton Hodges, and the appellee, Florenia Barrido, executed on February 21, 1958; the contract to sell between the
deceased, Charles Newton Hodges, and the appellee, Purificacion Coronado, executed on August 14, 1961; the contract to sell between the
deceased, Charles Newton Hodges, and the appellee, Graciano Lucero, executed on November 27, 1961; the contract to sell between the
deceased, Charles Newton Hodges, and the appellee, Ariteo Thomas Jamir, executed on May 26, 1961; the contract to sell between the
deceased, Charles Newton Hodges, and the appellee, Melquiades Batisanan, executed on June 9, 1959; the contract to sell between the
deceased, Charles Newton Hodges, and the appellee, Belcezar Causing, executed on February 10, 1959 and the contract to sell between
the deceased, Charles Newton Hodges, and the appellee, Adelfa Premaylon, executed on October 31, 1959, re Title No. 13815."

Relative to these sales, it is the position of appellant PCIB that, inasmuch as pursuant to the will of Mrs. Hodges, her husband was to have
dominion over all her estate during his lifetime, it was as absolute owner of the properties respectively covered by said sales that he
executed the aforementioned contracts to sell, and consequently, upon his death, the implementation of said contracts may be undertaken
only by the administrator of his estate and not by the administratrix of the estate of Mrs. Hodges. Basically, the same theory is invoked with
particular reference to five other sales, in which the respective "contracts to sell" in favor of these appellees were executed by Hodges before
the death of his wife, namely, those in favor of appellee Santiago Pacaonsis, Alfredo Catedral, Jose Pablico, Western Institute of Technology
and Adelfa Premaylon.

Anent those deeds of sale based on promises or contracts to sell executed by Hodges after the death of his wife, those enumerated in the
quotation in the immediately preceding paragraph, it is quite obvious that PCIB's contention cannot be sustained. As already explained
earlier, 11* all proceeds of remunerative transfers or dispositions made by Hodges after the death of his wife should be deemed as
continuing to be parts of her estate and, therefore, subject to the terms of her will in favor of her brothers and sisters, in the sense that should
there be no showing that such proceeds, whether in cash or property have been subsequently conveyed or assigned subsequently by
Hodges to any third party by acts inter vivos with the result that they could not thereby belong to him anymore at the time of his death, they
automatically became part of the inheritance of said brothers and sisters. The deeds here in question involve transactions which are exactly
of this nature. Consequently, the payments made by the appellees should be considered as payments to the estate of Mrs. Hodges which is
to be distributed and partitioned among her heirs specified in the will.
The five deeds of sale predicated on contracts to sell executed Hodges during the lifetime of his wife, present a different situation. At first
blush, it would appear that as to them, PCIB's position has some degree of plausibility. Considering, however, that the adoption of PCIB's
theory would necessarily have tremendous repercussions and would bring about considerable disturbance of property rights that have
somehow accrued already in favor of innocent third parties, the five purchasers aforenamed, the Court is inclined to take a pragmatic and
practical view of the legal situation involving them by overlooking the possible technicalities in the way, the non-observance of which would
not, after all, detract materially from what should substantially correspond to each and all of the parties concerned.

To start with, these contracts can hardly be ignored. Bona fide third parties are involved; as much as possible, they should not be made to
suffer any prejudice on account of judicial controversies not of their own making. What is more, the transactions they rely on were submitted
by them to the probate court for approval, and from already known and recorded actuations of said court then, they had reason to believe
that it had authority to act on their motions, since appellee Magno had, from time to time prior to their transactions with her, been allowed to
act in her capacity as administratrix of one of the subject estates either alone or conjointly with PCIB. All the sales in question were executed
by Magno in 1966 already, but before that, the court had previously authorized or otherwise sanctioned expressly many of her act as
administratrix involving expenditures from the estate made by her either conjointly with or independently from PCIB, as Administrator of the
Estate of Hodges. Thus, it may be said that said buyers-appellees merely followed precedents in previous orders of the court. Accordingly,
unless the impugned orders approving those sales indubitably suffer from some clearly fatal infirmity the Court would rather affirm them.

It is quite apparent from the record that the properties covered by said sales are equivalent only to a fraction of what should constitute the
estate of Mrs. Hodges, even if it is assumed that the same would finally be held to be only one-fourth of the conjugal properties of the
spouses as of the time of her death or, to be more exact, one-half of her estate as per the inventory submitted by Hodges as executor, on
May 12, 1958. In none of its numerous, varied and voluminous pleadings, motions and manifestations has PCIB claimed any possibility
otherwise. Such being the case, to avoid any conflict with the heirs of Hodges, the said properties covered by the questioned deeds of sale
executed by appellee Magno may be treated as among those corresponding to the estate of Mrs. Hodges, which would have been actually
under her control and administration had Hodges complied with his duty to liquidate the conjugal partnership. Viewing the situation in that
manner, the only ones who could stand to be prejudiced by the appealed orders referred to in the assignment of errors under discussion and
who could, therefore, have the requisite interest to question them would be only the heirs of Mrs. Hodges, definitely not PCIB.

It is of no moment in what capacity Hodges made the "contracts to sell' after the death of his wife. Even if he had acted as executor of the will
of his wife, he did not have to submit those contracts to the court nor follow the provisions of the rules, (Sections 2, 4, 5, 6, 8 and 9 of Rule 89
quoted by appellant on pp. 125 to 127 of its brief) for the simple reason that by the very orders, much relied upon by appellant for other
purposes, of May 27, 1957 and December 14, 1957, Hodges was "allowed or authorized" by the trial court "to continue the business in which
he was engaged and to perform acts which he had been doing while the deceased was living", (Order of May 27) which according to the
motion on which the court acted was "of buying and selling personal and real properties", and "to execute subsequent sales, conveyances,
leases and mortgages of the properties left by the said deceased Linnie Jane Hodges in consonance with the wishes conveyed in the last will
and testament of the latter." (Order of December 14) In other words, if Hodges acted then as executor, it can be said that he had authority to
do so by virtue of these blanket orders, and PCIB does not question the legality of such grant of authority; on the contrary, it is relying on the
terms of the order itself for its main contention in these cases. On the other hand, if, as PCIB contends, he acted as heir-adjudicatee, the
authority given to him by the aforementioned orders would still suffice.

As can be seen, therefore, it is of no moment whether the "contracts to sell" upon which the deeds in question were based were executed by
Hodges before or after the death of his wife. In a word, We hold, for the reasons already stated, that the properties covered by the deeds
being assailed pertain or should be deemed as pertaining to the estate of Mrs. Hodges; hence, any supposed irregularity attending the
actuations of the trial court may be invoked only by her heirs, not by PCIB, and since the said heirs are not objecting, and the defects pointed
out not being strictly jurisdictional in nature, all things considered, particularly the unnecessary disturbance of rights already created in favor
of innocent third parties, it is best that the impugned orders are not disturbed.

In view of these considerations, We do not find sufficient merit in the assignments of error under discussion.

Assignments of error V to VIII,

XVI to XVIII, XXVI to XXIX, XXXVII
to XXXVIII, XLIV to XLVI and LI.

All these assignments of error commonly deal with alleged non-fulfillment by the respective vendees, appellees herein, of the terms and
conditions embodied in the deeds of sale referred to in the assignments of error just discussed. It is claimed that some of them never made
full payments in accordance with the respective contracts to sell, while in the cases of the others, like Lorenzo Carles, Jose Pablico, Alfredo
Catedral and Salvador S. Guzman, the contracts with them had already been unilaterally cancelled by PCIB pursuant to automatic rescission
clauses contained in them, in view of the failure of said buyers to pay arrearages long overdue. But PCIB's posture is again premised on its
assumption that the properties covered by the deeds in question could not pertain to the estate of Mrs. Hodges. We have already held above
that, it being evident that a considerable portion of the conjugal properties, much more than the properties covered by said deeds, would
inevitably constitute the estate of Mrs. Hodges, to avoid unnecessary legal complications, it can be assumed that said properties form part of
such estate. From this point of view, it is apparent again that the questions, whether or not it was proper for appellee Magno to have
disregarded the cancellations made by PCIB, thereby reviving the rights of the respective buyers-appellees, and, whether or not the rules
governing new dispositions of properties of the estate were strictly followed, may not be raised by PCIB but only by the heirs of Mrs. Hodges
as the persons designated to inherit the same, or perhaps the government because of the still unpaid inheritance taxes. But, again, since
there is no pretense that any objections were raised by said parties or that they would necessarily be prejudiced, the contentions of PCIB
under the instant assignments of error hardly merit any consideration.

Assignments of error IX to XII, XIX

to XXI, XXX to XXIV, XXXIX to XL,
XLVII to XLIX, LII and LIII to LXI.
PCIB raises under these assignments of error two issues which according to it are fundamental, namely: (1) that in approving the deeds
executed by Magno pursuant to contracts to sell already cancelled by it in the performance of its functions as administrator of the estate of
Hodges, the trial court deprived the said estate of the right to invoke such cancellations it (PCIB) had made and (2) that in so acting, the court
"arrogated unto itself, while acting as a probate court, the power to determine the contending claims of third parties against the estate of
Hodges over real property," since it has in effect determined whether or not all the terms and conditions of the respective contracts to sell
executed by Hodges in favor of the buyers-appellees concerned were complied with by the latter. What is worse, in the view of PCIB, is that
the court has taken the word of the appellee Magno, "a total stranger to his estate as determinative of the issue".

Actually, contrary to the stand of PCIB, it is this last point regarding appellee Magno's having agreed to ignore the cancellations made by
PCIB and allowed the buyers-appellees to consummate the sales in their favor that is decisive. Since We have already held that the
properties covered by the contracts in question should be deemed to be portions of the estate of Mrs. Hodges and not that of Hodges, it is
PCIB that is a complete stranger in these incidents. Considering, therefore, that the estate of Mrs. Hodges and her heirs who are the real
parties in interest having the right to oppose the consummation of the impugned sales are not objecting, and that they are the ones who are
precisely urging that said sales be sanctioned, the assignments of error under discussion have no basis and must accordingly be as they are
hereby overruled.

With particular reference to assignments LIII to LXI, assailing the orders of the trial court requiring PCIB to surrender the respective owner's
duplicate certificates of title over the properties covered by the sales in question and otherwise directing the Register of Deeds of Iloilo to
cancel said certificates and to issue new transfer certificates of title in favor of the buyers-appellees, suffice it to say that in the light of the
above discussion, the trial court was within its rights to so require and direct, PCIB having refused to give way, by withholding said owners'
duplicate certificates, of the corresponding registration of the transfers duly and legally approved by the court.

Assignments of error LXII to LXVII

All these assignments of error commonly deal with the appeal against orders favoring appellee Western Institute of Technology. As will be
recalled, said institute is one of the buyers of real property covered by a contract to sell executed by Hodges prior to the death of his wife. As
of October, 1965, it was in arrears in the total amount of P92,691.00 in the payment of its installments on account of its purchase, hence it
received under date of October 4, 1965 and October 20, 1965, letters of collection, separately and respectively, from PCIB and appellee
Magno, in their respective capacities as administrators of the distinct estates of the Hodges spouses, albeit, while in the case of PCIB it
made known that "no other arrangement can be accepted except by paying all your past due account", on the other hand, Magno merely
said she would "appreciate very much if you can make some remittance to bring this account up-to-date and to reduce the amount of the
obligation." (See pp. 295-311, Green R. on A.) On November 3, 1965, the Institute filed a motion which, after alleging that it was ready and
willing to pay P20,000 on account of its overdue installments but uncertain whether it should pay PCIB or Magno, it prayed that it be "allowed
to deposit the aforesaid amount with the court pending resolution of the conflicting claims of the administrators." Acting on this motion, on
November 23, 1965, the trial court issued an order, already quoted in the narration of facts in this opinion, holding that payment to both or
either of the two administrators is "proper and legal", and so "movant — can pay to both estates or either of them", considering that "in both
cases (Special Proceedings 1307 and 1672) there is as yet no judicial declaration of heirs nor distribution of properties to whomsoever are
entitled thereto."

The arguments under the instant assignments of error revolve around said order. From the procedural standpoint, it is claimed that PCIB was
not served with a copy of the Institute's motion, that said motion was heard, considered and resolved on November 23, 1965, whereas the
date set for its hearing was November 20, 1965, and that what the order grants is different from what is prayed for in the motion. As to the
substantive aspect, it is contended that the matter treated in the motion is beyond the jurisdiction of the probate court and that the order
authorized payment to a person other than the administrator of the estate of Hodges with whom the Institute had contracted.

The procedural points urged by appellant deserve scant consideration. We must assume, absent any clear proof to the contrary, that the
lower court had acted regularly by seeing to it that appellant was duly notified. On the other hand, there is nothing irregular in the court's
having resolved the motion three days after the date set for hearing the same. Moreover, the record reveals that appellants' motion for
reconsideration wherein it raised the same points was denied by the trial court on March 7, 1966 (p. 462, Green R. on A.) Withal, We are not
convinced that the relief granted is not within the general intent of the Institute's motion.

Insofar as the substantive issues are concerned, all that need be said at this point is that they are mere reiterations of contentions We have
already resolved above adversely to appellants' position. Incidentally, We may add, perhaps, to erase all doubts as to the propriety of not
disturbing the lower court's orders sanctioning the sales questioned in all these appeal s by PCIB, that it is only when one of the parties to a
contract to convey property executed by a deceased person raises substantial objections to its being implemented by the executor or
administrator of the decedent's estate that Section 8 of Rule 89 may not apply and, consequently, the matter has, to be taken up in a
separate action outside of the probate court; but where, as in the cases of the sales herein involved, the interested parties are in agreement
that the conveyance be made, it is properly within the jurisdiction of the probate court to give its sanction thereto pursuant to the provisions of
the rule just mentioned. And with respect to the supposed automatic rescission clauses contained in the contracts to sell executed by
Hodges in favor of herein appellees, the effect of said clauses depend on the true nature of the said contracts, despite the nomenclature
appearing therein, which is not controlling, for if they amount to actual contracts of sale instead of being mere unilateral accepted "promises
to sell", (Art. 1479, Civil Code of the Philippines, 2nd paragraph) the pactum commissorium or the automatic rescission provision would not
operate, as a matter of public policy, unless there has been a previous notarial or judicial demand by the seller (10 Manresa 263, 2nd ed.)
neither of which have been shown to have been made in connection with the transactions herein involved.

Consequently, We find no merit in the assignments of error

Number LXII to LXVII.

SUMMARY
Considering the fact that this decision is unusually extensive and that the issues herein taken up and resolved are rather numerous and
varied, what with appellant making seventy-eight assignments of error affecting no less than thirty separate orders of the court a quo, if only
to facilitate proper understanding of the import and extent of our rulings herein contained, it is perhaps desirable that a brief restatement of
the whole situation be made together with our conclusions in regard to its various factual and legal aspects. .

The instant cases refer to the estate left by the late Charles Newton Hodges as well as that of his wife, Linnie Jane Hodges, who
predeceased him by about five years and a half. In their respective wills which were executed on different occasions, each one of them
provided mutually as follows: "I give, devise and bequeath all of the rest, residue and remainder (after funeral and administration expenses,
taxes and debts) of my estate, both real and personal, wherever situated or located, to my beloved (spouse) to have and to hold unto
(him/her) — during (his/her) natural lifetime", subject to the condition that upon the death of whoever of them survived the other, the
remainder of what he or she would inherit from the other is "give(n), devise(d) and bequeath(ed)" to the brothers and sisters of the latter.

Mrs. Hodges died first, on May 23, 1957. Four days later, on May 27, Hodges was appointed special administrator of her estate, and in a
separate order of the same date, he was "allowed or authorized to continue the business in which he was engaged, (buying and selling
personal and real properties) and to perform acts which he had been doing while the deceased was living." Subsequently, on December 14,
1957, after Mrs. Hodges' will had been probated and Hodges had been appointed and had qualified as Executor thereof, upon his motion in
which he asserted that he was "not only part owner of the properties left as conjugal, but also, the successor to all the properties left by the
deceased Linnie Jane Hodges", the trial court ordered that "for the reasons stated in his motion dated December 11, 1957, which the Court
considers well taken, ... all the sales, conveyances, leases and mortgages of all properties left by the deceased Linnie Jane Hodges
executed by the Executor, Charles Newton Hodges are hereby APPROVED. The said Executor is further authorized to execute subsequent
sales, conveyances, leases and mortgages of the properties left by the said deceased Linnie Jane Hodges in consonance with the wishes
contained in the last will and testament of the latter."

Annually thereafter, Hodges submitted to the court the corresponding statements of account of his administration, with the particularity that in
all his motions, he always made it point to urge the that "no person interested in the Philippines of the time and place of examining the herein
accounts be given notice as herein executor is the only devisee or legatee of the deceased in accordance with the last will and testament
already probated by the Honorable Court." All said accounts approved as prayed for.

Nothing else appears to have been done either by the court a quo or Hodges until December 25, 1962. Importantly to be the provision in the
will of Mrs. Hodges that her share of the conjugal partnership was to be inherited by her husband "to have and to hold unto him, my said
husband, during his natural lifetime" and that "at the death of my said husband, I give, devise and bequeath all the rest, residue and
remainder of my estate, both real and personal, wherever situated or located, to be equally divided among my brothers and sisters, share
and share alike", which provision naturally made it imperative that the conjugal partnership be promptly liquidated, in order that the "rest,
residue and remainder" of his wife's share thereof, as of the time of Hodges' own death, may be readily known and identified, no such
liquidation was ever undertaken. The record gives no indication of the reason for such omission, although relatedly, it appears therein:

1. That in his annual statement submitted to the court of the net worth of C. N. Hodges and the Estate of Linnie Jane
Hodges, Hodges repeatedly and consistently reported the combined income of the conjugal partnership and then
merely divided the same equally between himself and the estate of the deceased wife, and, more importantly, he also,
as consistently, filed corresponding separate income tax returns for each calendar year for each resulting half of such
combined income, thus reporting that the estate of Mrs. Hodges had its own income distinct from his own.

2. That when the court a quo happened to inadvertently omit in its order probating the will of Mrs. Hodges, the name of
one of her brothers, Roy Higdon then already deceased, Hodges lost no time in asking for the proper correction "in
order that the heirs of deceased Roy Higdon may not think or believe they were omitted, and that they were really
interested in the estate of the deceased Linnie Jane Hodges".

3. That in his aforementioned motion of December 11, 1957, he expressly stated that "deceased Linnie Jane Hodges
died leaving no descendants or ascendants except brothers and sisters and herein petitioner as the surviving spouse,
to inherit the properties of the decedent", thereby indicating that he was not excluding his wife's brothers and sisters
from the inheritance.

4. That Hodges allegedly made statements and manifestations to the United States inheritance tax authorities
indicating that he had renounced his inheritance from his wife in favor of her other heirs, which attitude he is supposed
to have reiterated or ratified in an alleged affidavit subscribed and sworn to here in the Philippines and in which he
even purportedly stated that his reason for so disclaiming and renouncing his rights under his wife's will was to "absolve
(him) or (his) estate from any liability for the payment of income taxes on income which has accrued to the estate of
Linnie Jane Hodges", his wife, since her death.

On said date, December 25, 1962, Hodges died. The very next day, upon motion of herein respondent and appellee, Avelina A. Magno, she
was appointed by the trial court as Administratrix of the Testate Estate of Linnie Jane Hodges, in Special Proceedings No. 1307 and as
Special Administratrix of the estate of Charles Newton Hodges, "in the latter case, because the last will of said Charles Newton Hodges is
still kept in his vault or iron safe and that the real and personal properties of both spouses may be lost, damaged or go to waste, unless
Special Administratrix is appointed," (Order of December 26, 1962, p. 27, Yellow R. on A.) although, soon enough, on December 29, 1962, a
certain Harold K. Davies was appointed as her Co-Special Administrator, and when Special Proceedings No. 1672, Testate Estate of Charles
Newton Hodges, was opened, Joe Hodges, as next of kin of the deceased, was in due time appointed as Co-Administrator of said estate
together with Atty. Fernando P. Mirasol, to replace Magno and Davies, only to be in turn replaced eventually by petitioner PCIB alone.
At the outset, the two probate proceedings appear to have been proceeding jointly, with each administrator acting together with the other,
under a sort of modus operandi. PCIB used to secure at the beginning the conformity to and signature of Magno in transactions it wanted to
enter into and submitted the same to the court for approval as their joint acts. So did Magno do likewise. Somehow, however, differences
seem to have arisen, for which reason, each of them began acting later on separately and independently of each other, with apparent
sanction of the trial court. Thus, PCIB had its own lawyers whom it contracted and paid handsomely, conducted the business of the estate
independently of Magno and otherwise acted as if all the properties appearing in the name of Charles Newton Hodges belonged solely and
only to his estate, to the exclusion of the brothers and sisters of Mrs. Hodges, without considering whether or not in fact any of said
properties corresponded to the portion of the conjugal partnership pertaining to the estate of Mrs. Hodges. On the other hand, Magno made
her own expenditures, hired her own lawyers, on the premise that there is such an estate of Mrs. Hodges, and dealth with some of the
properties, appearing in the name of Hodges, on the assumption that they actually correspond to the estate of Mrs. Hodges. All of these
independent and separate actuations of the two administrators were invariably approved by the trial court upon submission. Eventually, the
differences reached a point wherein Magno, who was more cognizant than anyone else about the ins and outs of the businesses and
properties of the deceased spouses because of her long and intimate association with them, made it difficult for PCIB to perform normally its
functions as administrator separately from her. Thus, legal complications arose and the present judicial controversies came about.

Predicating its position on the tenor of the orders of May 27 and December 14, 1957 as well as the approval by the court a quo of the annual
statements of account of Hodges, PCIB holds to the view that the estate of Mrs. Hodges has already been in effect closed with the virtual
adjudication in the mentioned orders of her whole estate to Hodges, and that, therefore, Magno had already ceased since then to have any
estate to administer and the brothers and sisters of Mrs. Hodges have no interests whatsoever in the estate left by Hodges. Mainly upon
such theory, PCIB has come to this Court with a petition for certiorari and prohibition praying that the lower court's orders allowing
respondent Magno to continue acting as administratrix of the estate of Mrs. Hodges in Special Proceedings 1307 in the manner she has
been doing, as detailed earlier above, be set aside. Additionally, PCIB maintains that the provision in Mrs. Hodges' will instituting her brothers
and sisters in the manner therein specified is in the nature of a testamentary substitution, but inasmuch as the purported substitution is not, in
its view, in accordance with the pertinent provisions of the Civil Code, it is ineffective and may not be enforced. It is further contended that, in
any event, inasmuch as the Hodges spouses were both residents of the Philippines, following the decision of this Court in Aznar vs. Garcia,
or the case of Christensen, 7 SCRA 95, the estate left by Mrs. Hodges could not be more than one-half of her share of the conjugal
partnership, notwithstanding the fact that she was citizen of Texas, U.S.A., in accordance with Article 16 in relation to Articles 900 and 872 of
the Civil Code. Initially, We issued a preliminary injunction against Magno and allowed PCIB to act alone.

At the same time PCIB has appealed several separate orders of the trial court approving individual acts of appellee Magno in her capacity as
administratrix of the estate of Mrs. Hodges, such as, hiring of lawyers for specified fees and incurring expenses of administration for different
purposes and executing deeds of sale in favor of her co-appellees covering properties which are still registered in the name of Hodges,
purportedly pursuant to corresponding "contracts to sell" executed by Hodges. The said orders are being questioned on jurisdictional and
procedural grounds directly or indirectly predicated on the principal theory of appellant that all the properties of the two estates belong
already to the estate of Hodges exclusively.

On the other hand, respondent-appellee Magno denies that the trial court's orders of May 27 and December 14, 1957 were meant to be
finally adjudicatory of the hereditary rights of Hodges and contends that they were no more than the court's general sanction of past and
future acts of Hodges as executor of the will of his wife in due course of administration. As to the point regarding substitution, her position is
that what was given by Mrs. Hodges to her husband under the provision in question was a lifetime usufruct of her share of the conjugal
partnership, with the naked ownership passing directly to her brothers and sisters. Anent the application of Article 16 of the Civil Code, she
claims that the applicable law to the will of Mrs. Hodges is that of Texas under which, she alleges, there is no system of legitime, hence, the
estate of Mrs. Hodges cannot be less than her share or one-half of the conjugal partnership properties. She further maintains that, in any
event, Hodges had as a matter of fact and of law renounced his inheritance from his wife and, therefore, her whole estate passed directly to
her brothers and sisters effective at the latest upon the death of Hodges.

In this decision, for the reasons discussed above, and upon the issues just summarized, We overrule PCIB's contention that the orders of
May 27, 1957 and December 14, 1957 amount to an adjudication to Hodges of the estate of his wife, and We recognize the present
existence of the estate of Mrs. Hodges, as consisting of properties, which, while registered in that name of Hodges, do actually correspond to
the remainder of the share of Mrs. Hodges in the conjugal partnership, it appearing that pursuant to the pertinent provisions of her will, any
portion of said share still existing and undisposed of by her husband at the time of his death should go to her brothers and sisters share and
share alike. Factually, We find that the proven circumstances relevant to the said orders do not warrant the conclusion that the court intended
to make thereby such alleged final adjudication. Legally, We hold that the tenor of said orders furnish no basis for such a conclusion, and
what is more, at the time said orders were issued, the proceedings had not yet reached the point when a final distribution and adjudication
could be made. Moreover, the interested parties were not duly notified that such disposition of the estate would be done. At best, therefore,
said orders merely allowed Hodges to dispose of portions of his inheritance in advance of final adjudication, which is implicitly permitted
under Section 2 of Rule 109, there being no possible prejudice to third parties, inasmuch as Mrs. Hodges had no creditors and all pertinent
taxes have been paid.

More specifically, We hold that, on the basis of circumstances presently extant in the record, and on the assumption that Hodges' purported
renunciation should not be upheld, the estate of Mrs. Hodges inherited by her brothers and sisters consists of one-fourth of the community
estate of the spouses at the time of her death, minus whatever Hodges had gratuitously disposed of therefrom during the period from, May
23, 1957, when she died, to December 25, 1962, when he died provided, that with regard to remunerative dispositions made by him during
the same period, the proceeds thereof, whether in cash or property, should be deemed as continuing to be part of his wife's estate, unless it
can be shown that he had subsequently disposed of them gratuitously.

At this juncture, it may be reiterated that the question of what are the pertinent laws of Texas and what would be the estate of Mrs. Hodges
under them is basically one of fact, and considering the respective positions of the parties in regard to said factual issue, it can already be
deemed as settled for the purposes of these cases that, indeed, the free portion of said estate that could possibly descend to her brothers
and sisters by virtue of her will may not be less than one-fourth of the conjugal estate, it appearing that the difference in the stands of the
parties has reference solely to the legitime of Hodges, PCIB being of the view that under the laws of Texas, there is such a legitime of one-
fourth of said conjugal estate and Magno contending, on the other hand, that there is none. In other words, hereafter, whatever might
ultimately appear, at the subsequent proceedings, to be actually the laws of Texas on the matter would no longer be of any consequence,
since PCIB would anyway be in estoppel already to claim that the estate of Mrs. Hodges should be less than as contended by it now, for
admissions by a party related to the effects of foreign laws, which have to be proven in our courts like any other controverted fact, create
estoppel.

In the process, We overrule PCIB's contention that the provision in Mrs. Hodges' will in favor of her brothers and sisters constitutes
ineffective hereditary substitutions. But neither are We sustaining, on the other hand, Magno's pose that it gave Hodges only a lifetime
usufruct. We hold that by said provision, Mrs. Hodges simultaneously instituted her brothers and sisters as co-heirs with her husband, with
the condition, however, that the latter would have complete rights of dominion over the whole estate during his lifetime and what would go to
the former would be only the remainder thereof at the time of Hodges' death. In other words, whereas they are not to inherit only in case of
default of Hodges, on the other hand, Hodges was not obliged to preserve anything for them. Clearly then, the essential elements of
testamentary substitution are absent; the provision in question is a simple case of conditional simultaneous institution of heirs, whereby the
institution of Hodges is subject to a partial resolutory condition the operative contingency of which is coincidental with that of the suspensive
condition of the institution of his brothers and sisters-in-law, which manner of institution is not prohibited by law.

We also hold, however, that the estate of Mrs. Hodges inherited by her brothers and sisters could be more than just stated, but this would
depend on (1) whether upon the proper application of the principle of renvoi in relation to Article 16 of the Civil Code and the pertinent laws of
Texas, it will appear that Hodges had no legitime as contended by Magno, and (2) whether or not it can be held that Hodges had legally and
effectively renounced his inheritance from his wife. Under the circumstances presently obtaining and in the state of the record of these cases,
as of now, the Court is not in a position to make a final ruling, whether of fact or of law, on any of these two issues, and We, therefore,
reserve said issues for further proceedings and resolution in the first instance by the court a quo, as hereinabove indicated. We reiterate,
however, that pending such further proceedings, as matters stand at this stage, Our considered opinion is that it is beyond cavil that since,
under the terms of the will of Mrs. Hodges, her husband could not have anyway legally adjudicated or caused to be adjudicated to himself
her whole share of their conjugal partnership, albeit he could have disposed any part thereof during his lifetime, the resulting estate of Mrs.
Hodges, of which Magno is the uncontested administratrix, cannot be less than one-fourth of the conjugal partnership properties, as of the
time of her death, minus what, as explained earlier, have been gratuitously disposed of therefrom, by Hodges in favor of third persons since
then, for even if it were assumed that, as contended by PCIB, under Article 16 of the Civil Code and applying renvoi the laws of the
Philippines are the ones ultimately applicable, such one-fourth share would be her free disposable portion, taking into account already the
legitime of her husband under Article 900 of the Civil Code.

The foregoing considerations leave the Court with no alternative than to conclude that in predicating its orders on the assumption, albeit
unexpressed therein, that there is an estate of Mrs. Hodges to be distributed among her brothers and sisters and that respondent Magno is
the legal administratrix thereof, the trial court acted correctly and within its jurisdiction. Accordingly, the petition for certiorari and prohibition
has to be denied. The Court feels however, that pending the liquidation of the conjugal partnership and the determination of the specific
properties constituting her estate, the two administrators should act conjointly as ordered in the Court's resolution of September 8, 1972 and
as further clarified in the dispositive portion of its decision.

Anent the appeals from the orders of the lower court sanctioning payment by appellee Magno, as administratrix, of expenses of
administration and attorney's fees, it is obvious that, with Our holding that there is such an estate of Mrs. Hodges, and for the reasons stated
in the body of this opinion, the said orders should be affirmed. This We do on the assumption We find justified by the evidence of record, and
seemingly agreed to by appellant PCIB, that the size and value of the properties that should correspond to the estate of Mrs. Hodges far
exceed the total of the attorney's fees and administration expenses in question.

With respect to the appeals from the orders approving transactions made by appellee Magno, as administratrix, covering properties
registered in the name of Hodges, the details of which are related earlier above, a distinction must be made between those predicated on
contracts to sell executed by Hodges before the death of his wife, on the one hand, and those premised on contracts to sell entered into by
him after her death. As regards the latter, We hold that inasmuch as the payments made by appellees constitute proceeds of sales of
properties belonging to the estate of Mrs. Hodges, as may be implied from the tenor of the motions of May 27 and December 14, 1957, said
payments continue to pertain to said estate, pursuant to her intent obviously reflected in the relevant provisions of her will, on the assumption
that the size and value of the properties to correspond to the estate of Mrs. Hodges would exceed the total value of all the properties covered
by the impugned deeds of sale, for which reason, said properties may be deemed as pertaining to the estate of Mrs. Hodges. And there
being no showing that thus viewing the situation, there would be prejudice to anyone, including the government, the Court also holds that,
disregarding procedural technicalities in favor of a pragmatic and practical approach as discussed above, the assailed orders should be
affirmed. Being a stranger to the estate of Mrs. Hodges, PCIB has no personality to raise the procedural and jurisdictional issues raised by it.
And inasmuch as it does not appear that any of the other heirs of Mrs. Hodges or the government has objected to any of the orders under
appeal, even as to these parties, there exists no reason for said orders to be set aside.

DISPOSITIVE PART

IN VIEW OF ALL THE FOREGOING PREMISES, judgment is hereby rendered DISMISSING the petition in G. R. Nos. L-27860 and L-
27896, and AFFIRMING, in G. R. Nos. L-27936-37 and the other thirty-one numbers hereunder ordered to be added after payment of the
corresponding docket fees, all the orders of the trial court under appeal enumerated in detail on pages 35 to 37 and 80 to 82 of this decision;
the existence of the Testate Estate of Linnie Jane Hodges, with respondent-appellee Avelina A. Magno, as administratrix thereof is
recognized, and it is declared that, until final judgment is ultimately rendered regarding (1) the manner of applying Article 16 of the Civil Code
of the Philippines to the situation obtaining in these cases and (2) the factual and legal issue of whether or not Charles Newton Hodges had
effectively and legally renounced his inheritance under the will of Linnie Jane Hodges, the said estate consists of one-fourth of the
community properties of the said spouses, as of the time of the death of the wife on May 23, 1957, minus whatever the husband had already
gratuitously disposed of in favor of third persons from said date until his death, provided, first, that with respect to remunerative dispositions,
the proceeds thereof shall continue to be part of the wife's estate, unless subsequently disposed of gratuitously to third parties by the
husband, and second, that should the purported renunciation be declared legally effective, no deductions whatsoever are to be made from
said estate; in consequence, the preliminary injunction of August 8, 1967, as amended on October 4 and December 6, 1967, is lifted, and the
resolution of September 8, 1972, directing that petitioner-appellant PCIB, as Administrator of the Testate Estate of Charles Newton Hodges,
in Special Proceedings 1672, and respondent-appellee Avelina A. Magno, as Administratrix of the Testate Estate of Linnie Jane Hodges, in
Special Proceedings 1307, should act thenceforth always conjointly, never independently from each other, as such administrators, is
reiterated, and the same is made part of this judgment and shall continue in force, pending the liquidation of the conjugal partnership of the
deceased spouses and the determination and segregation from each other of their respective estates, provided, that upon the finality of this
judgment, the trial court should immediately proceed to the partition of the presently combined estates of the spouses, to the end that the
one-half share thereof of Mrs. Hodges may be properly and clearly identified; thereafter, the trial court should forthwith segregate the
remainder of the one-fourth herein adjudged to be her estate and cause the same to be turned over or delivered to respondent for her
exclusive administration in Special Proceedings 1307, while the other one-fourth shall remain under the joint administration of said
respondent and petitioner under a joint proceedings in Special Proceedings 1307 and 1672, whereas the half unquestionably pertaining to
Hodges shall be administered by petitioner exclusively in Special Proceedings 1672, without prejudice to the resolution by the trial court of
the pending motions for its removal as administrator12; and this arrangement shall be maintained until the final resolution of the two issues of
renvoi and renunciation hereby reserved for further hearing and determination, and the corresponding complete segregation and partition of
the two estates in the proportions that may result from the said resolution.

Generally and in all other respects, the parties and the court a quo are directed to adhere henceforth, in all their actuations in Special
Proceedings 1307 and 1672, to the views passed and ruled upon by the Court in the foregoing opinion.

Appellant PCIB is ordered to pay, within five (5) days from notice hereof, thirty-one additional appeal docket fees, but this decision shall
nevertheless become final as to each of the parties herein after fifteen (15) days from the respective notices to them hereof in accordance
with the rules.

Costs against petitioner-appellant PCIB.

PRETERITION

1. G.R. No. L-23445 June 23, 1966

REMEDIOS NUGUID, petitioner and appellant,

vs.
FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and appellees.

Custodio O. Partade for petitioner and appellant.

Beltran, Beltran and Beltran for oppositors and appellees.

SANCHEZ, J.:

Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, without
descendants, legitimate or illegitimate. Surviving her were her legitimate parents, Felix Nuguid
and Paz Salonga Nuguid, and six (6) brothers and sisters, namely: Alfredo, Federico, Remedios,
Conrado, Lourdes and Alberto, all surnamed Nuguid.

On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of Rizal a
holographic will allegedly executed by Rosario Nuguid on November 17, 1951, some 11 years
before her demise. Petitioner prayed that said will be admitted to probate and that letters of
administration with the will annexed be issued to her.

On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate father and
mother of the deceased Rosario Nuguid, entered their opposition to the probate of her will.
Ground therefor, inter alia, is that by the institution of petitioner Remedios Nuguid as universal
heir of the deceased, oppositors — who are compulsory heirs of the deceased in the direct
ascending line — were illegally preterited and that in consequence the institution is void.

On August 29, 1963, before a hearing was had on the petition for probate and objection thereto,
oppositors moved to dismiss on the ground of absolute preterition.

On September 6, 1963, petitioner registered her opposition to the motion to dismiss.1äwphï1.ñët

The court's order of November 8, 1963, held that "the will in question is a complete nullity and
will perforce create intestacy of the estate of the deceased Rosario Nuguid" and dismissed the
petition without costs.

A motion to reconsider having been thwarted below, petitioner came to this Court on appeal.

1. Right at the outset, a procedural aspect has engaged our attention. The case is for the probate
of a will. The court's area of inquiry is limited — to an examination of, and resolution on, the
extrinsic validity of the will. The due execution thereof, the testatrix's testamentary capacity, and
the compliance with the requisites or solemnities by law prescribed, are the questions solely to be
presented, and to be acted upon, by the court. Said court at this stage of the proceedings — is not
called upon to rule on the intrinsic validity or efficacy of the provisions of the will, the legality
of any devise or legacy therein.1

A peculiar situation is here thrust upon us. The parties shunted aside the question of whether or
not the will should be allowed probate. For them, the meat of the case is the intrinsic validity of
the will. Normally, this comes only after the court has declared that the will has been duly
authenticated.2 But petitioner and oppositors, in the court below and here on appeal, travelled on
the issue of law, to wit: Is the will intrinsically a nullity?

We pause to reflect. If the case were to be remanded for probate of the will, nothing will be
gained. On the contrary, this litigation will be protracted. And for aught that appears in the
record, in the event of probate or if the court rejects the will, probability exists that the case will
come up once again before us on the same issue of the intrinsic validity or nullity of the will.
Result: waste of time, effort, expense, plus added anxiety. These are the practical considerations
that induce us to a belief that we might as well meet head-on the issue of the validity of the
provisions of the will in question.3 After all, there exists a justiciable controversy crying for
solution.

2. Petitioner's sole assignment of error challenges the correctness of the conclusion below that
the will is a complete nullity. This exacts from us a study of the disputed will and the applicable
statute.

Reproduced hereunder is the will:

Nov. 17, 1951

I, ROSARIO NUGUID, being of sound and disposing mind and memory, having amassed a
certain amount of property, do hereby give, devise, and bequeath all of the property which I may
have when I die to my beloved sister Remedios Nuguid, age 34, residing with me at 38-B Iriga,
Q.C. In witness whereof, I have signed my name this seventh day of November, nineteen
hundred and fifty-one.

(Sgd.) Illegible

T/ ROSARIO NUGUID

The statute we are called upon to apply in Article 854 of the Civil Code which, in part, provides:

ART. 854. The preterition or omission of one, some, or all of the compulsory heirs in the
direct line, whether living at the time of the execution of the will or born after the death
of the testator, shall annul the institution of heir; but the devises and legacies shall be
valid insofar as they are not inofficious. ...

Except for inconsequential variation in terms, the foregoing is a reproduction of Article 814 of
the Civil Code of Spain of 1889, which is similarly herein copied, thus —

Art. 814. The preterition of one or all of the forced heirs in the direct line, whether living
at the time of the execution of the will or born after the death of the testator, shall void
the institution of heir; but the legacies and betterments4 shall be valid, in so far as they are
not inofficious. ...

A comprehensive understanding of the term preterition employed in the law becomes a

necessity. On this point Manresa comments:

La pretericion consiste en omitar al heredero en el testamento. O no se le nombra siquiera

o aun nombrandole como padre, hijo, etc., no se le instituya heredero ni se le deshereda
expresamente ni se le asigna parte alguna de los bienes, resultando privado de un modo
tacito de su derecho a legitima.

Para que exista pretericion, con arreglo al articulo 814, basta que en el testamento omita
el testador a uno cualquiera de aquellos a quienes por su muerte corresponda la herencia
forzosa.

Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que la omision

sea completa; que el heredero forzoso nada reciba en el testamento.

It may now appear trite bat nonetheless helpful in giving us a clear perspective of the problem
before us, to have on hand a clear-cut definition of the word annul:

To "annul" means to abrogate, to make void ... In re Morrow's Estate, 54 A. 342, 343,
204 Pa. 484.6
 The word "annul" as used in statute requiring court to annul alimony provisions of
divorce decree upon wife's remarriage means to reduce to nothing; to annihilate;
obliterate; blot out; to make void or of no effect; to nullify; to abolish. N.J.S.A. 2:50 —
38 (now N.J.S. 2A:34-35). Madden vs. Madden, 40 A. 2d 611, 614, 136 N..J Eq. 132.7

ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect; to

nullify; to abolish; to do away with. Ex parte Mitchell, 123 W. Va. 283, 14 S.E. 2d. 771,
774.8

And now, back to the facts and the law. The deceased Rosario Nuguid left no descendants,
legitimate or illegitimate. But she left forced heirs in the direct ascending line her parents, now
oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will completely omits both of them:
They thus received nothing by the testament; tacitly, they were deprived of their legitime; neither
were they expressly disinherited. This is a clear case of preterition. Such preterition in the words
of Manresa "anulara siempre la institucion de heredero, dando caracter absoluto a este
ordenamiento referring to the mandate of Article 814, now 854 of the Civil Code.9 The one-
sentence will here institutes petitioner as the sole, universal heir — nothing more. No specific
legacies or bequests are therein provided for. It is in this posture that we say that the nullity is
complete. Perforce, Rosario Nuguid died intestate. Says Manresa:

En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir, en todo o

en parte? No se añade limitacion alguna, como en el articulo 851, en el que se expresa
que se anulara la institucion de heredero en cuanto prejudique a la legitima del
deseheredado Debe, pues, entenderse que la anulacion es completa o total, y que este
articulo como especial en el caso que le motiva rige con preferencia al 817. 10

The same view is expressed by Sanchez Roman: —

La consecuencia de la anulacion o nulidad de la institucion de heredero por pretericion de

uno, varios o todos los forzosos en linea recta, es la apertura de la sucesion intestada total
o parcial. Sera total, cuando el testador que comete la pretericion, hubiese dispuesto de
todos los bienes por titulo universal de herencia en favor de los herederos instituidos,
cuya institucion se anula, porque asi lo exige la generalidad del precepto legal del art.
814, al determinar, como efecto de la pretericion, el de que "anulara la institucion de
heredero." ... 11

Really, as we analyze the word annul employed in the statute, there is no escaping the conclusion
that the universal institution of petitioner to the entire inheritance results in totally abrogating the
will. Because, the nullification of such institution of universal heir — without any other
testamentary disposition in the will — amounts to a declaration that nothing at all was written.
Carefully worded and in clear terms, Article 854 offers no leeway for inferential interpretation.
Giving it an expansive meaning will tear up by the roots the fabric of the statute. On this point,
Sanchez Roman cites the "Memoria annual del Tribunal Supreme, correspondiente a 1908",
which in our opinion expresses the rule of interpretation, viz:
 ... El art. 814, que preceptua en tales casos de pretericion la nulidad de la institucion de
heredero, no consiente interpretacion alguna favorable a la persona instituida en el
sentido antes expuesto aun cuando parezca, y en algun caso pudiera ser, mas o menos
equitativa, porque una nulidad no significa en Derecho sino la suposicion de que el hecho
o el acto no se ha realizado, debiendo por lo tanto procederse sobre tal base o supuesto, y
consiguientemente, en un testamento donde falte la institucion, es obligado llamar a los
herederos forzosos en todo caso, como habria que llamar a los de otra clase, cuando el
testador no hubiese distribudo todos sus bienes en legados, siendo tanto mas obligada esta
consecuencia legal cuanto que, en materia de testamentos, sabido es, segun tiene
declarado la jurisprudencia, con repeticion, que no basta que sea conocida la voluntad de
quien testa si esta voluntad no aparece en la forma y en las condiciones que la ley ha
exigido para que sea valido y eficaz, por lo que constituiria una interpretacion arbitraria,
dentro del derecho positivo, reputar como legatario a un heredero cuya institucion fuese
anulada con pretexto de que esto se acomodaba mejor a la voluntad del testador, pues aun
cuando asi fuese, sera esto razon para modificar la ley, pero no autoriza a una
interpretacion contraria a sus terminos y a los principios que informan la
testamentifaccion, pues no porque parezca mejor una cosa en el terreno del Derecho
constituyente, hay razon para convereste juicio en regla de interpretacion, desvirtuando y
anulando por este procedimiento lo que el legislador quiere establecer. 12

3. We should not be led astray by the statement in Article 854 that, annullment notwithstanding,
"the devises and legacies shall be valid insofar as they are not inofficious". Legacies and devises
merit consideration only when they are so expressly given as such in a will. Nothing in Article
854 suggests that the mere institution of a universal heir in a will — void because of preterition
— would give the heir so instituted a share in the inheritance. As to him, the will is inexistent.
There must be, in addition to such institution, a testamentary disposition granting him bequests
or legacies apart and separate from the nullified institution of heir. Sanchez Roman, speaking of
the two component parts of Article 814, now 854, states that preterition annuls the institution of
the heir "totalmente por la pretericion"; but added (in reference to legacies and bequests) "pero
subsistiendo ... todas aquellas otras disposiciones que no se refieren a la institucion de heredero
... . 13 As Manresa puts it, annulment throws open to intestate succession the entire inheritance
including "la porcion libre (que) no hubiese dispuesto en virtud de legado, mejora o donacion. 14

As aforesaid, there is no other provision in the will before us except the institution of petitioner
as universal heir. That institution, by itself, is null and void. And, intestate succession ensues.

4. Petitioner's mainstay is that the present is "a case of ineffective disinheritance rather than one
of preterition". 15 From this, petitioner draws the conclusion that Article 854 "does not apply to
the case at bar". This argument fails to appreciate the distinction between pretention and
disinheritance.

Preterition "consists in the omission in the testator's will of the forced heirs or anyone of them,
either because they are not mentioned therein, or, though mentioned, they are neither instituted
as heirs nor are expressly disinherited." 16 Disinheritance, in turn, "is a testamentary disposition
depriving any compulsory heir of his share in the legitime for a cause authorized by law. " 17 In
Manresa's own words: "La privacion expresa de la legitima constituye la desheredacion. La
privacion tacita de la misma se denomina pretericion." 18 Sanchez Roman emphasizes the
distinction by stating that disinheritance "es siempre voluntaria"; preterition, upon the other
hand, is presumed to be "involuntaria". 19 Express as disinheritance should be, the same must be
supported by a legal cause specified in the will itself. 20

The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It simply omits
their names altogether. Said will rather than be labeled ineffective disinheritance is clearly one in
which the said forced heirs suffer from preterition.

On top of this is the fact that the effects flowing from preterition are totally different from those
of disinheritance. Preterition under Article 854 of the Civil Code, we repeat, "shall annul the
institution of heir". This annulment is in toto, unless in the will there are, in addition,
testamentary dispositions in the form of devises or legacies. In ineffective disinheritance under
Article 918 of the same Code, such disinheritance shall also "annul the institution of heirs", put
only "insofar as it may prejudice the person disinherited", which last phrase was omitted in the
case of preterition. 21 Better stated yet, in disinheritance the nullity is limited to that portion of
the estate of which the disinherited heirs have been illegally deprived. Manresa's expressive
language, in commenting on the rights of the preterited heirs in the case of preterition on the one
hand and legal disinheritance on the other, runs thus: "Preteridos, adquiren el derecho a todo;
desheredados, solo les corresponde un tercio o dos tercios, 22 el caso. 23

5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to receive
their legitimes, but that the institution of heir "is not invalidated," although the inheritance of the
heir so instituted is reduced to the extent of said legitimes. 24

This is best answered by a reference to the opinion of Mr. Chief Justice Moran in the Neri case
heretofore cited, viz:

But the theory is advanced that the bequest made by universal title in favor of the
children by the second marriage should be treated as legado and mejora and, accordingly,
it must not be entirely annulled but merely reduced. This theory, if adopted, will result in
a complete abrogation of Articles 814 and 851 of the Civil Code. If every case of
institution of heirs may be made to fall into the concept of legacies and betterments
reducing the bequest accordingly, then the provisions of Articles 814 and 851 regarding
total or partial nullity of the institution, would. be absolutely meaningless and will never
have any application at all. And the remaining provisions contained in said article
concerning the reduction of inofficious legacies or betterments would be a surplusage
because they would be absorbed by Article 817. Thus, instead of construing, we would be
destroying integral provisions of the Civil Code.

The destructive effect of the theory thus advanced is due mainly to a failure to distinguish
institution of heirs from legacies and betterments, and a general from a special provision.
With reference to article 814, which is the only provision material to the disposition of
this case, it must be observed that the institution of heirs is therein dealt with as a thing
separate and distinct from legacies or betterments. And they are separate and distinct not
only because they are distinctly and separately treated in said article but because they are
 in themselves different. Institution of heirs is a bequest by universal title of property that
is undetermined. Legacy refers to specific property bequeathed by a particular or special
title. ... But again an institution of heirs cannot be taken as a legacy. 25

The disputed order, we observe, declares the will in question "a complete nullity". Article 854 of
the Civil Code in turn merely nullifies "the institution of heir". Considering, however, that the
will before us solely provides for the institution of petitioner as universal heir, and nothing more,
the result is the same. The entire will is null.

Upon the view we take of this case, the order of November 8, 1963 under review is hereby
affirmed. No costs allowed. So ordered.

2. G.R. No. 72706 October 27, 1987

CONSTANTINO C. ACAIN, petitioner,

vs.
HON. INTERMEDIATE APPELLATE COURT (Third Special Cases Division),
VIRGINIA A. FERNANDEZ and ROSA DIONGSON, respondents.

PARAS, J.:

This is a petition for review on certiorari of the decision * of respondent. Court of Appeals in AC-G.R. SP No.
05744 promulgated on August 30, 1985 (Rollo, p. 108) ordering the dismissal of the petition in Special Proceedings No, 591 ACEB and its
Resolution issued on October 23, 1985 (Rollo, p. 72) denying respondents' (petitioners herein) motion for reconsideration.

The dispositive portion of the questioned decision reads as follows:

WHEREFORE, the petition is hereby granted and respondent Regional Trial Court of the Seventh Judicial Region,
Branch XIII (Cebu City), is hereby ordered to dismiss the petition in Special Proceedings No. 591 ACEB No special
pronouncement is made as to costs.

The antecedents of the case, based on the summary of the Intermediate Appellate Court, now Court of Appeals, (Rollo, pp. 108-109) are as
follows:

On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial Court of Cebu City Branch XIII, a petition for the probate of the will
of the late Nemesio Acain and for the issuance to the same petitioner of letters testamentary, docketed as Special Proceedings No. 591
ACEB (Rollo, p. 29), on the premise that Nemesio Acain died leaving a will in which petitioner and his brothers Antonio, Flores and Jose and
his sisters Anita, Concepcion, Quirina and Laura were instituted as heirs. The will allegedly executed by Nemesio Acain on February 17,
1960 was written in Bisaya (Rollo, p. 27) with a translation in English (Rollo, p. 31) submi'tted by petitioner without objection raised by private
respondents. The will contained provisions on burial rites, payment of debts, and the appointment of a certain Atty. Ignacio G. Villagonzalo as
the executor of the testament. On the disposition of the testator's property, the will provided:

THIRD: All my shares that I may receive from our properties. house, lands and money which I earned jointly with my
wife Rosa Diongson shall all be given by me to my brother SEGUNDO ACAIN Filipino, widower, of legal age and
presently residing at 357-C Sanciangko Street, Cebu City. In case my brother Segundo Acain pre-deceased me, all the
money properties, lands, houses there in Bantayan and here in Cebu City which constitute my share shall be given to
me to his children, namely: Anita, Constantino, Concepcion, Quirina, laura, Flores, Antonio and Jose, all surnamed
Acain.

Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo who are claiming to be heirs, with Constantino as the
petitioner in Special Proceedings No. 591 ACEB
After the petition was set for hearing in the lower court on June 25, 1984 the oppositors (respondents herein Virginia A. Fernandez, a legally
adopted daughter of tile deceased and the latter's widow Rosa Diongson Vda. de Acain filed a motion to dismiss on the following grounds for
the petitioner has no legal capacity to institute these proceedings; (2) he is merely a universal heir and (3) the widow and the adopted
daughter have been pretirited. (Rollo, p. 158). Said motion was denied by the trial judge.

After the denial of their subsequent motion for reconsideration in the lower court, respondents filed with the Supreme Court a petition for
certiorari and prohibition with preliminary injunction which was subsequently referred to the Intermediate Appellate Court by Resolution of the
Court dated March 11, 1985 (Memorandum for Petitioner, p. 3; Rollo, p. 159).

Respondent Intermediate Appellate Court granted private respondents' petition and ordered the trial court to dismiss the petition for the
probate of the will of Nemesio Acain in Special Proceedings No. 591 ACEB

His motion for reconsideration having been denied, petitioner filed this present petition for the review of respondent Court's decision on
December 18, 1985 (Rollo, p. 6). Respondents' Comment was filed on June 6, 1986 (Rollo, p. 146).

On August 11, 1986 the Court resolved to give due course to the petition (Rollo, p. 153). Respondents' Memorandum was filed on
September 22, 1986 (Rollo, p. 157); the Memorandum for petitioner was filed on September 29, 1986 (Rollo, p. 177).

Petitioner raises the following issues (Memorandum for petitioner, p. 4):

(A) The petition filed in AC-G.R. No. 05744 for certiorari and prohibition with preliminary injunction is not the proper
remedy under the premises;

(B) The authority of the probate courts is limited only to inquiring into the extrinsic validity of the will sought to be
probated and it cannot pass upon the intrinsic validity thereof before it is admitted to probate;

(C) The will of Nemesio Acain is valid and must therefore, be admitted to probate. The preterition mentioned in Article
854 of the New Civil Code refers to preterition of "compulsory heirs in the direct line," and does not apply to private
respondents who are not compulsory heirs in the direct line; their omission shall not annul the institution of heirs;

(D) DICAT TESTATOR ET MERIT LEX. What the testator says will be the law;

(E) There may be nothing in Article 854 of the New Civil Code, that suggests that mere institution of a universal heir in
the will would give the heir so instituted a share in the inheritance but there is a definite distinct intention of the testator
in the case at bar, explicitly expressed in his will. This is what matters and should be in violable.

(F) As an instituted heir, petitioner has the legal interest and standing to file the petition in Sp. Proc. No. 591 ACEB for
probate of the will of Nemesio Acain and

(G) Article 854 of the New Civil Code is a bill of attainder. It is therefore unconstitutional and ineffectual.

The pivotal issue in this case is whether or not private respondents have been pretirited.

Article 854 of the Civil Code provides:

Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the
time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devisees
and legacies shall be valid insofar as they are not; inofficious.

If the omitted compulsory heirs should die before the testator, the institution shall he effectual, without prejudice to the
right of representation.

Preterition consists in the omission in the testator's will of the forced heirs or anyone of them either because they are not mentioned therein,
or, though mentioned, they are neither instituted as heirs nor are expressly disinherited (Nuguid v. Nuguid, 17 SCRA 450 [1966]; Maninang v.
Court of Appeals, 114 SCRA 478 [1982]). Insofar as the widow is concerned, Article 854 of the Civil Code may not apply as she does not
ascend or descend from the testator, although she is a compulsory heir. Stated otherwise, even if the surviving spouse is a compulsory heir,
there is no preterition even if she is omitted from the inheritance, for she is not in the direct line. (Art. 854, Civil code) however, the same
thing cannot be said of the other respondent Virginia A. Fernandez, whose legal adoption by the testator has not been questioned by
petitioner (.Memorandum for the Petitioner, pp. 8-9). Under Article 39 of P.D. No. 603, known as the Child and Youth Welfare Code, adoption
gives to the adopted person the same rights and duties as if he were a legitimate child of the adopter and makes the adopted person a legal
heir of the adopter. It cannot be denied that she has totally omitted and preterited in the will of the testator and that both adopted child and
the widow were deprived of at least their legitime. Neither can it be denied that they were not expressly disinherited. Hence, this is a clear
case of preterition of the legally adopted child.
Pretention annuls the institution of an heir and annulment throws open to intestate succession the entire inheritance including "la porcion libre
(que) no hubiese dispuesto en virtual de legado mejora o donacion" Maniesa as cited in Nuguid v. Nuguid, supra; Maninang v. Court of
Appeals, 114 SCRA [1982]). The only provisions which do not result in intestacy are the legacies and devises made in the will for they should
stand valid and respected, except insofar as the legitimes are concerned.

The universal institution of petitioner together with his brothers and sisters to the entire inheritance of the testator results in totally abrogating
the will because the nullification of such institution of universal heirs-without any other testamentary disposition in the will-amounts to a
declaration that nothing at all was written. Carefully worded and in clear terms, Article 854 of the Civil Code offers no leeway for inferential
interpretation (Nuguid v. Nuguid), supra. No legacies nor devises having been provided in the will the whole property of the deceased has
been left by universal title to petitioner and his brothers and sisters. The effect of annulling the "Institution of heirs will be, necessarily, the
opening of a total intestacy (Neri v. Akutin, 74 Phil. 185 [1943]) except that proper legacies and devises must, as already stated above, be
respected.

We now deal with another matter. In order that a person may be allowed to intervene in a probate proceeding he must have an interest iii the
estate, or in the will, or in the property to be affected by it either as executor or as a claimant of the estate and an interested party is one who
would be benefited by the estate such as an heir or one who has a claim against the estate like a creditor (Sumilang v. Ramagosa, 21 SCRA
1369/1967). Petitioner is not the appointed executor, neither a devisee or a legatee there being no mention in the testamentary disposition of
any gift of an individual item of personal or real property he is called upon to receive (Article 782, Civil Code). At the outset, he appears to
have an interest in the will as an heir, defined under Article 782 of the Civil Code as a person called to the succession either by the provision
of a will or by operation of law. However, intestacy having resulted from the preterition of respondent adopted child and the universal
institution of heirs, petitioner is in effect not an heir of the testator. He has no legal standing to petition for the probate of the will left by the
deceased and Special Proceedings No. 591 A-CEB must be dismissed.

As a general rule certiorari cannot be a substitute for appeal, except when the questioned order is an oppressive exercise of j judicial
authority (People v. Villanueva, 110 SCRA 465 [1981]; Vda. de Caldito v. Segundo, 117 SCRA 573 [1982]; Co Chuan Seng v. Court of
Appeals, 128 SCRA 308 [1984]; and Bautista v. Sarmiento, 138 SCRA 587 [1985]). It is axiomatic that the remedies of certiorari and
prohibition are not available where the petitioner has the remedy of appeal or some other plain, speedy and adequate remedy in the course
of law (DD Comendador Construction Corporation v. Sayo (118 SCRA 590 [1982]). They are, however, proper remedies to correct a grave
abuse of discretion of the trial court in not dismissing a case where the dismissal is founded on valid grounds (Vda. de Bacang v. Court of
Appeals, 125 SCRA 137 [1983]).

Special Proceedings No. 591 ACEB is for the probate of a will. As stated by respondent Court, the general rule is that the probate court's
authority is limited only to the extrinsic validity of the will, the due execution thereof, the testator's testamentary capacity and the compliance
with the requisites or solemnities prescribed by law. The intrinsic validity of the will normally comes only after the Court has declared that the
will has been duly authenticated. Said court at this stage of the proceedings is not called upon to rule on the intrinsic validity or efficacy of the
provisions of the will (Nuguid v. Nuguid, 17 SCRA 449 [1966]; Sumilang v. Ramagosa, supra; Maninang v. Court of Appeals, 114 SCRA 478
[1982]; Cayetano v. Leonides, 129 SCRA 522 [1984]; and Nepomuceno v. Court of Appeals, 139 SCRA 206 [1985]).

The rule, however, is not inflexible and absolute. Under exceptional circumstances, the probate court is not powerless to do what the
situation constrains it to do and pass upon certain provisions of the will (Nepomuceno v. Court of Appeals, supra). In Nuguid v. Nuguid the
oppositors to the probate moved to dismiss on the ground of absolute preteriton The probate court acting on the motion held that the will in
question was a complete nullity and dismissed the petition without costs. On appeal the Supreme Court upheld the decision of the probate
court, induced by practical considerations. The Court said:

We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On the contrary,
this litigation will be protracted. And for aught that appears in the record, in the event of probate or if the court rejects
the will, probability exists that the case will come up once again before us on the same issue of the intrinsic validity or
nullity of the will. Result: waste of time, effort, expense, plus added anxiety. These are the practical considerations that
induce us to a belief that we might as well meet head-on the issue of the validity of the provisions of the will in question.
After all there exists a justiciable controversy crying for solution.

In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the petition by the surviving spouse was grounded on petitioner's lack
of legal capacity to institute the proceedings which was fully substantiated by the evidence during the hearing held in connection with said
motion. The Court upheld the probate court's order of dismissal.

In Cayetano v. Leonides, supra one of the issues raised in the motion to dismiss the petition deals with the validity of the provisions of the
will. Respondent Judge allowed the probate of the will. The Court held that as on its face the will appeared to have preterited the petitioner
the respondent judge should have denied its probate outright. Where circumstances demand that intrinsic validity of testamentary provisions
be passed upon even before the extrinsic validity of the will is resolved, the probate court should meet the issue. (Nepomuceno v. Court of
Appeals, supra; Nuguid v. Nuguid, supra).

In the instant case private respondents filed a motion to dismiss the petition in Sp. Proceedings No. 591 ACEB of the Regional Trial Court of
Cebu on the following grounds: (1) petitioner has no legal capacity to institute the proceedings; (2) he is merely a universal heir; and (3) the
widow and the adopted daughter have been preterited (Rollo, p. 158). It was denied by the trial court in an order dated January 21, 1985 for
the reason that "the grounds for the motion to dismiss are matters properly to be resolved after a hearing on the issues in the course of the
trial on the merits of the case (Rollo, p. 32). A subsequent motion for reconsideration was denied by the trial court on February 15, 1985
(Rollo, p. 109).
For private respondents to have tolerated the probate of the will and allowed the case to progress when on its face the will appears to be
intrinsically void as petitioner and his brothers and sisters were instituted as universal heirs coupled with the obvious fact that one of the
private respondents had been preterited would have been an exercise in futility. It would have meant a waste of time, effort, expense, plus
added futility. The trial court could have denied its probate outright or could have passed upon the intrinsic validity of the testamentary
provisions before the extrinsic validity of the will was resolved (Cayetano v. Leonides, supra; Nuquid v. Nuguid, supra. The remedies of
certiorari and prohibition were properly availed of by private respondents.

Thus, this Court ruled that where the grounds for dismissal are indubitable, the defendants had the right to resort to the more speedy, and
adequate remedies of certiorari and prohibition to correct a grave abuse of discretion, amounting to lack of jurisdiction, committed by the trial
court in not dismissing the case, (Vda. de Bacang v. Court of Appeals, supra) and even assuming the existence of the remedy of appeal, the
Court harkens to the rule that in the broader interests of justice, a petition for certiorari may be entertained, particularly where appeal would
not afford speedy and adequate relief. (Maninang Court of Appeals, supra).

PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and the questioned decision of respondent Court of Appeals
promulgated on August 30, 1985 and its Resolution dated October 23, 1985 are hereby AFFIRMED.

SO ORDERED.

3. G.R. No. L-41971 November 29, 1983

ZONIA ANA T. SOLANO, petitioner,

vs.
THE COURT OF APPEALS, BIENVENIDO S. GARCIA, and EMETERIA S. GARCIA,
respondents.

Benjamin H. Aquino for petitioner.

Alfredo Kallos for respondents.

MELENCIO HERRERA, J.:ñé+.£ªwph!1

A Petition for Review on certiorari of the Decision of the then Court of Appeals affirming
the judgment rendered by the former Court of First Instance of Albay, Branch II, in Civil
Case No. 3956, an action for Recognition.

On July 7, 1969, Bienvenido Garcia and Emeteria Garcia (GARCIAS), claiming to be

illegitimate children of Dr. Meliton SOLANO, filed an action for recognition against him.
In his Answer, SOLANO denied paternity. On February 3, 1970, during the pendency of
the suit, SOLANO died. Petitioner ZONIA Ana Solano was ordered substituted for the
DECEDENT as the only surviving heir mentioned in his Last Will and Testament
probated on March 10, 1969, or prior to his death, in Special Proceedings No. 842 of
the same Court. ZONIA entered her formal appearance as a "substitute defendant" on
March 4, 1970 claiming additionally that she was the sole heir of her father, SOLANO,
and asking that she be allowed to assume her duties as executrix of the probated Will
with the least interference from the GARCIAS who were "mere pretenders to be
illegitimate children of SOLANO".
On April 6, 1970, the GARCIAS filed their "Reply to ZONIA's Appearance and
Supplemental Cause of Action" impugning the recognition of ZONIA as an
acknowledged natural child with the prayer that she be declared instead, like them, as
an adulterous child of the DECEDENT. ZONIA did not file any responsive pleading and
the case proceeded to trial. The GARCIAS further moved for the impleading of the
SOLANO estate in addition to ZONIA, which was opposed by the latter, but which the
Trial Court granted in its Order dated April 15, 1970. 1

In the hearing of May 13, 1970, the Trial Court specified the legal issues to be treated in
the parties' respective Memoranda as: 1) the question of recognition of the GARCIAS;
2) the correct status of ZONIA, and 3) the hereditary share of each of them in view of
the probated Will. 2

On July 14, 1970, the Trial Court, presided by Judge Ezequiel S. Grageda, rendered
judgment the dispositive portion of which decrees: têñ.£îhqwâ£

WHEREFORE, judgment is hereby rendered declaring the plaintiffs

Bienvenido S. Garcia and Emeteria S. Garcia and the defendant Sonia
Ana Tuagnon as the illegitimate children of the late Dr. Meliton Solano
under the class of ADULTEROUS CHILDREN, with all the rights granted
them by law. The institution of Sonia Ana Solano as sole and universal
heir of the said deceased in the will is hereby declared null and void and
the three (3) children shall share equally the estate or one- third (1/3)
each, without prejudice to the legacy given to Trinidad Tuagnon and the
right of any creditors of the estate. No pronouncement as to costs.

Appealed to the Court of Appeals by ZONIA, said Court affirmed the judgment in toto
(CA-G.R. No. 49018).

ZONIA seeks a reversal of that affirmance in this petition, which was given due course.

At the outset, we should state that we are bound by the findings of fact of both the Trial
Court and the Appellate Court, particularly, the finding that the GARCIAS and ZONIA
are, in fact, illegitimate children of the DECEDENT. The oral testimony and the
documentary evidence of record inevitably point to that conclusion, as may be gleaned
from the following background facts: SOLANO, a resident of Tabaco, Albay, married
Pilar Riosa. The latter died. On a world tour he met a French woman, Lilly Gorand, who
became his second wife in 1928. The union was short-lived as she left him in 1929. In
the early part of 1930, SOLANO started having amorous relations with Juana Garcia,
out of which affair was born Bienvenido Garcia on March 24, 1931 (Exhibits "A" & "3");
and on November 3, 1935, Emeteria Garcia was born (Exhibits "B " & "2"). Their birth
certificates and baptismal certificates mention only the mother's name without the
father's name. The facts establish, however, that SOLANO during his lifetime
recognized the GARCIAS as his children by acts of support and provisions for their
education.
In 1935, SOLANO started living with Trinidad Tuagnon. Three children were born out of
this relation but only petitioner ZONIA Ana Tuagnon, born on July 26, 1941, is living. In
her Birth Certificate, her status was listed as "illegitimate"; her mother as Trinidad
Tuagnon; her father as "P.N.C. " (Exhibit "V"), or "padre no conocido".

During the Japanese occupation, SOLANO obtained a divorce from Lilly Gorand on
November 29, 1943 (Exhibits "R-1" and "S-1"). On December 22, 1943, SOLANO and
Trinidad Tuagnon executed an "Escritura de Reconocimiento de Unit Hija Natural"
(Exhibit "Q"; "7"), acknowledging ZONIA as a "natural child" and giving her the right to
use the name ZONIA Ana Solano y Tuagnon. The document was registered with the
Local Civil Registrar on the same date.

On January 18, 1969, SOLANO executed his "Ultima Voluntad y Testamento" (Exhibit
"11"), instituting ZONIA as his universal heir to all his personal and real properties in
Camalig, Tabaco and Malinao, all in the province of Albay, except for five parcels of
land in Bantayan, Tabaco, Albay, which were given to Trinidad Tuagnon in usufruct
Upon SOLANO's petition (Exhibit "10"), the Will was duly probated on March 10, 1969 in
Special Proceedings No. 842 of the Court of First Instance of Albay, Branch II, in a
Decision also rendered by Judge Ezequiel S. Grageda (Exhibit "12").

As above stated, these facts are not in question.

Petitioner maintains, however, that: têñ.£îhqwâ£

The Court of Appeals, as well as the trial Court, acted without jurisdiction
or in excess of jurisdiction in declaring substitute defendant Zonia Ana
Solano, now petitioner, an illegitimate child of the late Dr. Meliton Solano
in an action where private respondents, as plaintiffs in the Court below,
sought recognition as natural children of Dr. Meliton Solano.

II

The Court of Appeals, as well as the trial Court, acted without jurisdiction
or in excess of jurisdiction in ordering the division of the estate of Dr.
Meliton Solano between the petitioner and private respondents, when said
estate is under the jurisdiction and control of the probate Court in Special
Proceedings No. 842.

III

The Court of Appeals, as well as the trial Court, acted without jurisdiction
or in excess of jurisdiction in declaring nun and void the institution of heir
in the last will and testament of Dr. Meliton Solano, which was duly
 probated in special proceedings No. 842 of the Court of First Instance of
Albay, and in concluding that total intestacy resulted there from. 3

Directly challenged is the jurisdiction of the lower Court, in an action for recognition: 1)
to declare ZONIA as an illegitimate child of SOLANO; 2) to order the division of the
estate in the same action despite the pendency of Special Proceedings No. 842; and 3)
to declare null and void the institution of heir in the Last Win and Testament of
SOLANO, which was duly probated in the same Special Proceedings No. 842, and
concluding that total intestacy resulted.

It is true that the action below was basically one for recognition. However, upon notice
of SOLANO's death, the Trial Court ordered his substitution by ZONIA, "the only
surviving heir ... as of as of now" 4 In her "Appearance of Substitute Defendant Zonia
Ana T. Solano ... Sole and Universal Heir", ZONIA specifically prayed that she be 6
allowed to assume her duties as executrix and administratrix of the probated will and
testament of the late Dr. Meliton Solano, under Special Proceedings No. 842, which is
already final and executory, with least interference from the plaintiffs (GARCIAS) who
may be classified for the moment as only pretenders to be illegitimate children". In other
words, ZONIA did not only rely upon SOLANO's Answer already of record but asserted
new rights in her capacity as sole and universal heir, "executrix and administratrix, "and
challenged the right of the GARCIAS to recognition. Thus, she was not defending the
case as a mere representative of the deceased but asserted rights and defenses in her
own personal capacity. So it was that the GARCIAS filed a "Reply to Appearance of
ZONIA ... and Supplemental Cause of Action ... "vigorously denying that ZONIA was
SOLANO's sole and universal heir; that ZONIA could not legally be considered as
SOLANO's acknowledged natural child because of a legal impediment; that the
admission to probate of SOLANO's Will was merely conclusive as to its due execution;
that the supposed recognition under a notarial instrument of ZONIA as an
acknowledged natural child was fraudulent and a product of misrepresentation; that
ZONIA's recognition in the Will as an acknowledged natural child is subject to
nullification and that at most ZONIA is, like them, an adulterous child of SOLANO with
Trinidad Tuagnon.

During the trial, the GARCIAS presented evidence to prove their allegations not only in
their main complaint but also in their "Reply to Appearance and Supplemental Cause of
Action". ZONIA presented no objection to the presentation by the GARCIAS of their oral
and documentary evidence and even cross-examined their witnesses. ZONIA, for her
part, presented her own testimonial and documentary evidence, denied the relationship
of the GARCIAS' to SOLANO and presented the notarial recognition in her favor as an
acknowledged natural child by SOLANO and Trinidad Tuagnon (Exhibit "Q"). Thus, as
raised by the parties in their own pleadings and pursuant to their respective evidence
during the trial, the litigation was converted into a contest between the GARCIAS and
ZONIA precisely as to their correct status as heirs and their respective rights as such.
No error was committed by either the Trial Court or the Appellate Court, therefore, in
resolving the issue of ZONIA's status.
ZONIA additionally assails the jurisdiction of the Trial Court in declaring null and void
the institution of heir in SOLANO's will; in concluding that total intestacy resulted
therefrom; and distributing the shares of the parties in SOLANO's estate when said
estate was under the jurisdiction and control of the Probate Court in Special
Proceedings No. 842.

Normally, this would be the general rule. However, a peculiar situation is thrust upon us
here. It should be recalled that SOLANO himself instituted the petition for probate of the
Will during his lifetime. That proceeding was not one to settle the estate of a deceased
person that would be deemed terminated only upon the final distribution of the residue
of the hereditary estate. With the Will allowed to probate, the case would have
terminated except that it appears that the parties, after SOLANO's death, continued to
file pleadings therein. Secondly, upon motion of the GARCIAS, and over the objection of
ZONIA, the Trial Court ordered the impleading of the estate of SOLANO and proceeded
on that basis. In effect, therefore, the two cases were consolidated. The records further
disclose that the action for recognition (Civil Case No. 3956) and Spec. Procs. No. 842
were pending before the same Branch of the Court and before the same presiding
Judge. Thirdly, it is settled that the allowance of a Will is conclusive only as to its due
execution.5 A probate decree is not concerned with the intrinsic validity or legality of the
provisions of the Will. 6

Thus, the Trial Court and the Appellate Court had jurisdiction to conclude that, upon the
facts, the GARCIAS and ZONIA were in the same category as illegitimate children; that
ZONIA's acknowledgment as a "natural child" in a notarial document executed by
SOLANO and Trinidad Tuagnon on December 22, 1943 was erroneous because at the
time of her birth in 1941, SOLANO was still married to Lilly Gorand, his divorce having
been obtained only in 1943, and, therefore, did not have the legal capacity to contract
marriage at the time of ZONIA's conception, 7 that being compulsory heirs, the
GARCIAS were, in fact, pretended from SOLANO's Last' Will and Testament; and that
as a result of said preterition, the institution of ZONIA as sole heir by SOLANO is null
and void pursuant to Article 854 of the Civil Code. têñ.£îhqwâ£

The preterition or omission of one, some, or all of the compulsory heirs in

the direct line, whether living at the time of the execution of the will or born
after the death of the testator, shall annul the institution of heir; but the
devises and legacies shall be valid insofar as they are not inofficious. ... 8

As provided in the foregoing provision, the disposition in the Will giving the usufruct in
favor of Trinidad Tuagnon over the five parcels of land in Bantayan, Tabaco, Albay, is a
legacy, recognized in Article 563 of the Civil Code, 9 and should be respected in so far
as it is not inofficious. 10

So also did the Trial Court have jurisdiction in resolving the issue of the hereditary
shares of the GARCIAS and ZONIA. However, contrary to the conclusions of the Courts
below, holding that the entire Will is void and intestacy ensues, the pretention of the
GARCIAS should annul the institution of ZONIA as heir only insofar as the legitime of
the omitted heirs is impaired. The Will, therefore, is valid subject to that limitation. 11 It
is a plain that the intention of the testator was to favor ZONIA with certain portions of his
property, which, under the law, he had a right to dispose of by Will, so that the
disposition in her favor should be upheld as to the one-half (1/2) portion of the property
that the testator could freely dispose of. 12 Since the legitime of illegitimate children
consists of one half (1/2) of the hereditary estate, 13 the GARCIAS and ZONIA each
have a right to participation therein in the proportion of one-third (1/3) each. ZONIA's
hereditary share will, therefore, be 1/2 + (1/3 of 1/2) or 4/6 of the estate, while the
GARCIAS will respectively be entitled to 1/3 of 1/2 or 1/6 of the value of the estate.

As heretofore stated, the usufruct in favor of Trinidad Tuagnon over the properties
indicated in the Will is valid and should be respected.

The case of Nuguid vs. Nuguid, et al., 14 reiterating the ruling in Neri, et al. vs. Akutin,
et al., 15 which held that where the institution of a universal heir is null and void due to
pretention, the Will is a complete nullity and intestate succession ensues, is not
applicable herein because in the Nuguid case, only a one-sentence Will was involved
with no other provision except the institution of the sole and universal heir; there was no
specification of individual property; there were no specific legacies or bequests. It was
upon that factual setting that this Court declared: têñ.£îhqwâ£

The disputed order, we observe, declares the will in question 'a complete
nullity. Article 854 of the Civil Code in turn merely nullifies 'the institution of
heir'. Considering, however, that the will before us solely provides for the
institution of petitioner as universal heir, and nothing more, the result is the
same. The entire will is null." (at p. 459)

In contrast, in the case at bar, there is a specific bequest or legacy so that Article 854 of
the Civil Code, supra, applies merely annulling the "institution of heir".

Lastly, it should be pointed out that the jurisdiction of the Trial Court and the Appellate
Court was never questioned before either Court. ZONIA herself had gone, without
objection, to trial on the issues raised and as defined by the Trial Court. Neither had
ZONIA assigned lack of jurisdiction of the Trial Court as an error before the Appellate
Court. She should now be held estopped to repudiate that jurisdiction to which she had
voluntarily submitted, after she had received an unfavorable judgment, The leading
case of Tijam vs. Sibonghanoy, 16 on this point, declared: têñ.£îhqwâ£

A party cannot invoke the jurisdiction of a court to secure affirmative relief

against his opponent and after failing to obtain such relief, repudiate or
question the same jurisdiction. The question whether the court has
jurisdiction either of the subject matter of the action or of the parties is not
because the judgment or order of the court is valid and conclusive as an
adjudication but for the reason that such practice cannot be tolerated
obviously for reasons of public policy. After voluntarily submitting a cause
 and encountering an adverse decision on the merits, it is too late for the
loser to question the jurisdiction or power of the court.

WHEREFORE, the judgment under review is hereby modified in that the hereditary
share in the estate of the decedent of petitioner Zonia Ana T. Solano is hereby declared
to be (1/2 + (1/3 of 1/2) or 4/6 of said estate, while that of private respondents,
Bienvenido S. Garcia and Emeteria S. Garcia, shall each be (1/3 of 1/2) or (1/6) of the
estate. The usufruct in favor of Trinidad Tuagnon shall be respected. The judgment is
affirmed in all other respects. No costs.

SO ORDERED.1äwphï1.ñët

Plana, Relova and Gutierrez, Jr., JJ., concur.

Separate Opinions

TEEHANKEE, J., concurring:

The record shows that the probate proceeding (Sp. Proc. No. 842) was not one for
settlement of estate of a deceased but one instituted by the testator himself, Dr. Meliton
Solano, for the allowance of the will during his lifetime under Article 838 of the Civil
Code. Such allowance was granted and this terminated the proceeding, although as
noted in the Court's opinion, the parties continued to file some pleadings therein after
Dr. Solano's death. But the issues between the parties as to their status and hereditary
shares in view of the probated will naming petitioner as sole heir were expressly
delineated, tried and determined in the action for recognition (Civil Case No. 3956) filed
by respondents Garcias against their father Dr. Solano who was substituted by
petitioner as defendant (and sole heir of the estate under the probated will) after his
death. In effect, therefore, the two cases (assuming that the probate proceeding could
be deemed as having continued notwithstanding its termination with the allowance in
vitam of Dr. Solano's will) which were pending before the same judge and the same
branch of the trial court could be correctly said to have been. consolidated. Finally,
petitioner is now stopped, after getting an adverse verdict, from repudiating belatedly
the jurisdiction of the trial and appellate courts to which she had submitted without
question her cause.
Separate Opinions

TEEHANKEE, J., concurring:

The record shows that the probate proceeding (Sp. Proc. No. 842) was not one for
settlement of estate of a deceased but one instituted by the testator himself, Dr. Meliton
Solano, for the allowance of the will during his lifetime under Article 838 of the Civil
Code. Such allowance was granted and this terminated the proceeding, although as
noted in the Court's opinion, the parties continued to file some pleadings therein after
Dr. Solano's death. But the issues between the parties as to their status and hereditary
shares in view of the probated will naming petitioner as sole heir were expressly
delineated, tried and determined in the action for recognition (Civil Case No. 3956) filed
by respondents Garcias against their father Dr. Solano who was substituted by
petitioner as defendant (and sole heir of the estate under the probated will) after his
death. In effect, therefore, the two cases (assuming that the probate proceeding could
be deemed as having continued notwithstanding its termination with the allowance in
vitam of Dr. Solano's will) which were pending before the same judge and the same
branch of the trial court could be correctly said to have been. consolidated. Finally,
petitioner is now stopped, after getting an adverse verdict, from repudiating belatedly
the jurisdiction of the trial and appellate courts to which she had submitted without
question her cause.

4. G.R. No. 141882 March 11, 2005

J.L.T. AGRO, INC., represented by its Manager, JULIAN L. TEVES, Petitioner,

vs.
ANTONIO BALANSAG and HILARIA CADAYDAY, respondents.

DECISION

TINGA, J.:

Once again, the Court is faced with the perennial conflict of property claims between two sets of
heirs, a conflict ironically made grievous by the fact that the decedent in this case had resorted to
great lengths to allocate which properties should go to which set of heirs.

This is a Rule 45 petition assailing the Decision1 dated 30 September 1999 of the Court of
Appeals which reversed the Decision2 dated 7 May 1993 of the Regional Trial Court (RTC),
Branch 45, of Bais City, Negros Oriental.

The factual antecedents follow.

Don Julian L. Teves (Don Julian) contracted two marriages, first with Antonia Baena (Antonia),
and after her death, with Milagros Donio Teves (Milagros Donio). Don Julian had two children
with Antonia, namely: Josefa Teves Escaño (Josefa) and Emilio Teves (Emilio). He had also four
(4) children with Milagros Donio, namely: Maria Evelyn Donio Teves (Maria Evelyn), Jose
Catalino Donio Teves (Jose Catalino), Milagros Reyes Teves (Milagros Reyes) and Pedro Reyes
Teves (Pedro).3

The present controversy involves a parcel of land covering nine hundred and fifty-four (954)
square meters, known as Lot No. 63 of the Bais Cadastre, which was originally registered in the
name of the conjugal partnership of Don Julian and Antonia under Original Certificate of Title
(OCT) No. 5203 of the Registry of Deeds of Bais City. When Antonia died, the land was among
the properties involved in an action for partition and damages docketed as Civil Case No. 3443
entitled "Josefa Teves Escaño v. Julian Teves, Emilio B. Teves, et al."4 Milagros Donio, the
second wife of Don Julian, participated as an intervenor. Thereafter, the parties to the case
entered into a Compromise Agreement5 which embodied the partition of all the properties of Don
Julian.

On the basis of the compromise agreement and approving the same, the Court of First Instance
(CFI) of Negros Oriental, 12th Judicial District, rendered a Decision6 dated 31 January 1964. The
CFI decision declared a tract of land known as Hacienda Medalla Milagrosa as property owned
in common by Don Julian and his two (2) children of the first marriage. The property was to
remain undivided during the lifetime of Don Julian.7 Josefa and Emilio likewise were given other
properties at Bais, including the electric plant, the "movie property," the commercial areas, and
the house where Don Julian was living. The remainder of the properties was retained by Don
Julian, including Lot No. 63.

Paragraph 13 of the Compromise Agreement, at the heart of the present dispute, lays down the
effect of the eventual death of Don Julian vis-à-vis his heirs:

13. That in the event of death of Julian L. Teves, the properties hereinafter adjudicated to
Josefa Teves Escaňo and Emilio B. Teves, (excluding the properties comprised as
Hacienda Medalla Milagrosa together with all its accessories and accessions) shall be
understood as including not only their one-half share which they inherited from their
mother but also the legitimes and other successional rights which would correspond to
them of the other half belonging to their father, Julian L. Teves. In other words, the
properties now selected and adjudicated to Julian L. Teves (not including his share in
the Hacienda Medalla Milagrosa) shall exclusively be adjudicated to the wife in second
marriage of Julian L. Teves and his four minor children, namely, Milagros Donio Teves,
his two acknowledged natural children Milagros Reyes Teves and Pedro Reyes Teves and
his two legitimated children Maria Evelyn Donio Teves and Jose Catalino Donio Teves.
(Emphasis supplied)

On 16 November 1972, Don Julian, Emilio and Josefa executed a Deed of Assignment of Assets
with Assumption of Liabilities8 in favor of J.L.T. Agro, Inc. (petitioner). Less than a year later,
Don Julian, Josefa and Emilio also executed an instrument entitled Supplemental to the Deed of
Assignment of Assets with the Assumption of Liabilities (Supplemental Deed)9 dated 31 July
1973. This instrument which constitutes a supplement to the earlier deed of assignment
transferred ownership over Lot No. 63, among other properties, in favor of petitioner.10 On 14
April 1974, Don Julian died intestate.

On the strength of the Supplemental Deed in its favor, petitioner sought the registration of the
subject lot in its name. A court, so it appeared, issued an order11 cancelling OCT No. 5203 in the
name of spouses Don Julian and Antonia on 12 November 1979, and on the same date TCT No.
T-375 was issued in the name of petitioner.12 Since then, petitioner has been paying taxes
assessed on the subject lot.13

Meanwhile, Milagros Donio and her children had immediately taken possession over the subject
lot after the execution of the Compromise Agreement. In 1974, they entered into a yearly lease
agreement with spouses Antonio Balansag and Hilaria Cadayday, respondents herein.14 On Lot
No. 63, respondents temporarily established their home and constructed a lumber yard.
Subsequently, Milagros Donio and her children executed a Deed of Extrajudicial Partition of
Real Estate15 dated 18 March 1980. In the deed of partition, Lot No. 63 was allotted to Milagros
Donio and her two (2) children, Maria Evelyn and Jose Catalino. Unaware that the subject lot
was already registered in the name of petitioner in 1979, respondents bought Lot No. 63 from
Milagros Donio as evidenced by the Deed of Absolute Sale of Real Estate16 dated 9 November
1983.

At the Register of Deeds while trying to register the deed of absolute sale, respondents
discovered that the lot was already titled in the name of petitioner. Thus, they failed to register
the deed.17

Respondents, as vendees of Lot No. 63, filed a complaint before the RTC Branch 45 of Bais
City, seeking the declaration of nullity and cancellation of TCT No. T-375 in the name of
petitioner and the transfer of the title to Lot No. 63 in their names, plus damages.18

After hearing, the trial court dismissed the complaint filed by respondents. The dispositive
portion of the decision reads:

WHEREFORE, premises considered, by preponderance of evidence, this Court finds

judgment in favor of the defendant and against the plaintiff, and thus hereby orders:

(1) That complaint be dismissed;

(2) That plaintiffs vacate the subject land, particularly identified as Lot No. 63
registered under Transfer Certificate of Title No. T-375;

(3) That plaintiffs pay costs.

Finding no basis on the counterclaim by defendant, the same is hereby ordered

dismissed.19

The trial court ruled that the resolution of the case specifically hinged on the interpretation of
paragraph 13 of the Compromise Agreement.20 It added that the direct adjudication of the
properties listed in the Compromise Agreement was only in favor of Don Julian and his two
children by the first marriage, Josefa and Emilio.21 Paragraph 13 served only as an amplification
of the terms of the adjudication in favor of Don Julian and his two children by the first marriage.

According to the trial court, the properties adjudicated in favor of Josefa and Emilio comprised
their shares in the estate of their deceased mother Antonia, as well as their potential share in the
estate of Don Julian upon the latter’s death. Thus, upon Don Julian’s death, Josefa and Emilio
could not claim any share in his estate, except their proper share in the Hacienda Medalla
Milagrosa which was adjudicated in favor of Don Julian in the Compromise Agreement. As such,
the properties adjudicated in favor of Don Julian, except Hacienda Medalla Milagrosa, were free
from the forced legitimary rights of Josefa and Emilio, and Don Julian was under no impediment
to allocate the subject lot, among his other properties, to Milagros Donio and her four (4)
children.22

The trial court further stressed that with the use of the words "shall be," the adjudication in favor
of Milagros Donio and her four (4) children was not final and operative, as the lot was still
subject to future disposition by Don Julian during his lifetime.23 It cited paragraph 1424 of the
Compromise Agreement in support of his conclusion.25 With Lot No. 63 being the conjugal
property of Don Julian and Antonia, the trial court also declared that Milagros Donio and her
children had no hereditary rights thereto except as to the conjugal share of Don Julian, which
they could claim only upon the death of the latter.26

The trial court ruled that at the time of Don Julian’s death on 14 April 1974, Lot No. 63 was no
longer a part of his estate since he had earlier assigned it to petitioner on 31 July 1973.
Consequently, the lot could not be a proper subject of extrajudicial partition by Milagros Donio
and her children, and not being the owners they could not have sold it. Had respondents
exercised prudence before buying the subject lot by investigating the registration of the same
with the Registry of Deeds, they would have discovered that five (5) years earlier, OCT No.
5203 had already been cancelled and replaced by TCT No. T-375 in the name of petitioner, the
trial court added.27

The Court of Appeals, however, reversed the trial court’s decision. The decretal part of the
appellate decision reads:

WHEREFORE, premises considered, the decision appealed from is hereby REVERSED

and SET ASIDE and a new one is entered declaring the Transfer Certificate of Title No.
T-375 registered in the name of J.L.T. Agro, Inc. as null and void.

With costs against defendant J.L.T. Agro, Inc. represented by its Manager, Julian L.
Teves.

SO ORDERED.28

Per the appellate court, the Compromise Agreement incorporated in CFI decision dated 31
January 1964, particularly paragraph 13 thereof, determined, adjudicated and reserved to Don
Julian’s two sets of heirs their future legitimes in his estate except as regards his (Don Julian’s)
share in Hacienda Medalla Milagrosa.29 The two sets of heirs acquired full ownership and
possession of the properties respectively adjudicated to them in the CFI decision and Don Julian
himself could no longer dispose of the same, including Lot No. 63. The disposition in the CFI
decision constitutes res judicata.30 Don Julian could have disposed of only his conjugal share in
the Hacienda Medalla Milagrosa.31

The appellate court likewise emphasized that nobody in his right judgment would preterit his
legal heirs by simply executing a document like the Supplemental Deed which practically covers
all properties which Don Julian had reserved in favor of his heirs from the second marriage. It
also found out that the blanks reserved for the Book No. and Page No. at the upper right corner
of TCT No. T-375, "to identify the exact location where the said title was registered or
transferred," were not filled up, thereby indicating that the TCT is "spurious and of dubious
origin."32

Aggrieved by the appellate court’s decision, petitioner elevated it to this Court via a petition for
review on certiorari, raising pure questions of law.

Before this Court, petitioner assigns as errors the following rulings of the appellate court, to wit:
(a) that future legitime can be determined, adjudicated and reserved prior to the death of Don
Julian; (b) that Don Julian had no right to dispose of or assign Lot No. 63 to petitioner because
he reserved the same for his heirs from the second marriage pursuant to the Compromise
Agreement; (c) that the Supplemental Deed was tantamount to a preterition of his heirs from the
second marriage; and (d) that TCT No. T-375 in the name of petitioner is spurious for not
containing entries on the Book No. and Page No.33

While most of petitioner’s legal arguments have merit, the application of the appropriate
provisions of law to the facts borne out by the evidence on record nonetheless warrants the
affirmance of the result reached by the Court of Appeals in favor of respondents.

Being the key adjudicative provision, paragraph 13 of the Compromise Agreement has to be
quoted again:

13. That in the event of death of Julian L. Teves, the properties herein adjudicated to
Josefa Teves Escaño and Emilio B. Teves, (excluding the properties comprised as
Hacienda Medalla Milagrosa together with all its accessories and accessions) shall be
understood as including not only their one-half share which they inherited from their
mother but also the legitimes and other successional rights which would correspond to
them of the other half belonging to their father, Julian L.Teves. In other words, the
properties now selected and adjudicated to Julian L. Teves (not including his share
in the Hacienda Medalla Milagrosa) shall exclusively be adjudicated to the wife in
second marriage of Julian L. Teves and his four minor children, namely, Milagros
Donio Teves, his two acknowledged natural children Milagros Reyes Teves and
Pedro Reyes Teves and his two legitimated children Maria Evelyn Donio Teves and
Jose Catalino Donio Teves." (Emphasis supplied)
With the quoted paragraph as basis, the Court of Appeals ruled that the adjudication in favor of
the heirs of Don Julian from the second marriage became automatically operative upon the
approval of the Compromise Agreement, thereby vesting on them the right to validly dispose of
Lot No. 63 in favor of respondents.

Petitioner argues that the appellate court erred in holding that future legitime can be determined,
adjudicated and reserved prior to the death of Don Julian. The Court agrees. Our declaration in
Blas v. Santos34 is relevant, where we defined future inheritance as any property or right not in
existence or capable of determination at the time of the contract, that a person may in the future
acquire by succession. Article 1347 of the New Civil Code explicitly provides:

ART. 1347. All things which are not outside the commerce of men, including future
things, may be the object of a contract. All rights which are not intransmissible may also
be the object of contracts.

No contract may be entered into upon future inheritance except in cases expressly
authorized by law.

All services which are not contrary to law, morals, good customs, public order or public policy
may likewise be the object of a contract.

Well-entrenched is the rule that all things, even future ones, which are not outside the commerce
of man may be the object of a contract. The exception is that no contract may be entered into
with respect to future inheritance, and the exception to the exception is the partition inter vivos
referred to in Article 1080.35

For the inheritance to be considered "future," the succession must not have been opened at the
time of the contract.36 A contract may be classified as a contract upon future inheritance,
prohibited under the second paragraph of Article 1347, where the following requisites concur:

(1) That the succession has not yet been opened;

(2) That the object of the contract forms part of the inheritance; and

(3) That the promissor has, with respect to the object, an expectancy of a right which is
purely hereditary in nature.37

The first paragraph of Article 1080, which provides the exception to the exception and therefore
aligns with the general rule on future things, reads:

ART. 1080. Should a person make a partition of his estate by an act inter vivos, or by
will, such partition shall be respected, insofar as it does not prejudice the legitime of the
compulsory heirs.

....
In interpreting this provision, Justice Edgardo Paras advanced the opinion that if the partition is
made by an act inter vivos, no formalities are prescribed by the Article.38 The partition will of
course be effective only after death. It does not necessarily require the formalities of a will for
after all it is not the partition that is the mode of acquiring ownership. Neither will the formalities
of a donation be required since donation will not be the mode of acquiring the ownership here
after death; since no will has been made it follows that the mode will be succession (intestate
succession). Besides, the partition here is merely the physical determination of the part to be
given to each heir.39

The historical antecedent of Article 1080 of the New Civil Code is Article 105640 of the old Civil
Code. The only change in the provision is that Article 1080 now permits any person (not a
testator, as under the old law) to partition his estate by act inter vivos. This was intended to
abrogate the then prevailing doctrine that for a testator to partition his estate by an act inter vivos,
he must first make a will with all the formalities provided by law.41

Article 1056 of the old Civil Code (now Article 1080) authorizes a testator to partition inter vivos
his property, and distribute them among his heirs, and this partition is neither a donation nor a
testament, but an instrument of a special character, sui generis, which is revocable at any time
by the causante during his lifetime, and does not operate as a conveyance of title until his
death. It derives its binding force on the heirs from the respect due to the will of the owner of the
property, limited only by his creditors and the intangibility of the legitime of the forced heirs.42

The partition inter vivos of the properties of Don Julian is undoubtedly valid pursuant to Article
1347. However, considering that it would become legally operative only upon the death of Don
Julian, the right of his heirs from the second marriage to the properties adjudicated to him under
the compromise agreement was but a mere expectancy. It was a bare hope of succession to the
property of their father. Being the prospect of a future acquisition, the interest by its nature was
inchoate. It had no attribute of property, and the interest to which it related was at the time
nonexistent and might never exist.43

Evidently, at the time of the execution of the deed of assignment covering Lot No. 63 in favor of
petitioner, Don Julian remained the owner of the property since ownership over the subject lot
would only pass to his heirs from the second marriage at the time of his death. Thus, as the
owner of the subject lot, Don Julian retained the absolute right to dispose of it during his
lifetime. His right cannot be challenged by Milagros Donio and her children on the ground that it
had already been adjudicated to them by virtue of the compromise agreement.

Emerging as the crucial question in this case is whether Don Julian had validly transferred
ownership of the subject lot during his lifetime. The lower court ruled that he had done so
through the Supplemental Deed. The appellate court disagreed, holding that the Supplemental
Deed is not valid, containing as it does a prohibited preterition of Don Julian’s heirs from the
second marriage. Petitioner contends that the ruling of the Court of Appeals is erroneous. The
contention is well-founded.

Article 854 provides that the preterition or omission of one, some, or all of the compulsory heirs
in the direct line, whether living at the time of the execution of the will or born after the death of
the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar
as they are not inofficious. Manresa defines preterition as the omission of the heir in the will,
either by not naming him at all or, while mentioning him as father, son, etc., by not instituting
him as heir without disinheriting him expressly, nor assigning to him some part of the
properties.44 It is the total omission of a compulsory heir in the direct line from inheritance.45 It
consists in the silence of the testator with regard to a compulsory heir, omitting him in the
testament, either by not mentioning him at all, or by not giving him anything in the hereditary
property but without expressly disinheriting him, even if he is mentioned in the will in the latter
case.46 But there is no preterition where the testator allotted to a descendant a share less than the
legitime, since there was no total omission of a forced heir.47

In the case at bar, Don Julian did not execute a will since what he resorted to was a partition inter
vivos of his properties, as evidenced by the court approved Compromise Agreement. Thus, it is
premature if not irrelevant to speak of preterition prior to the death of Don Julian in the absence
of a will depriving a legal heir of his legitime. Besides, there are other properties which the heirs
from the second marriage could inherit from Don Julian upon his death. A couple of provisions
in the Compromise Agreement are indicative of Don Julian’s desire along this line.48 Hence, the
total omission from inheritance of Don Julian’s heirs from the second marriage, a requirement
for preterition to exist, is hardly imaginable as it is unfounded.

Despite the debunking of respondents’ argument on preterition, still the petition would ultimately
rise or fall on whether there was a valid transfer effected by Don Julian to petitioner. Notably,
Don Julian was also the president and director of petitioner, and his daughter from the first
marriage, Josefa, was the treasurer thereof. There is of course no legal prohibition against such a
transfer to a family corporation. Yet close scrutiny is in order, especially considering that such
transfer would remove Lot No. 63 from the estate from which Milagros and her children could
inherit. Both the alleged transfer deed and the title which necessarily must have emanated from it
have to be subjected to incisive and detailed examination.

Well-settled, of course, is the rule that a certificate of title serves as evidence of an indefeasible
title to the property in favor of the person whose name appears therein.49 A certificate of title
accumulates in one document a precise and correct statement of the exact status of the fee held
by its owner. The certificate, in the absence of fraud, is the evidence of title and shows exactly
the real interest of its owner.50

To successfully assail the juristic value of what a Torrens title establishes, a sufficient and
convincing quantum of evidence on the defect of the title must be adduced to overcome the
predisposition in law in favor of a holder of a Torrens title. Thus, contrary to the appellate
court’s ruling, the appearance of a mere thumbmark of Don Julian instead of his signature in the
Supplemental Deed would not affect the validity of petitioner’s title for this Court has ruled that
a thumbmark is a recognized mode of signature.51

The truth, however, is that the replacement of OCT No. 5203 in the name of Julian by T.C.T. No.
T-375 is marred by a grave irregularity which is also an illegality, as it contravenes the orthodox,
conventional and normal process established by law. And, worse still, the illegality is reflected
on the face of both titles. Where, as in this case, the transferee relies on a voluntary instrument to
secure the issuance of a new title in his name such instrument has to be presented to the Registry
of Deeds. This is evident from Sections 53 and 57 of Presidential Decree (P.D.) No. 1529 or the
Property Registration Decree. The sections read, thus:

SEC. 53. Presentation of owner’s duplicate upon entry of new certificate. – No voluntary
instrument shall be registered by the Register of Deeds unless the owner’s duplicate
certificate is presented with such instrument, except in cases expressly provided for in
this Decree or upon order of the court, for cause shown. (Emphasis supplied)

....

SEC. 57. Procedure in registration of conveyances. – An owner desiring to convey his

registered land in fee simple shall execute and register a deed of conveyance in a form
sufficient in law. The Register of Deeds shall thereafter make out in the registration book
a new certificate of title to the grantee and shall prepare and deliver to him an owner’s
duplicate certificate. The Register of Deeds shall note upon the original and duplicate
certificate the date of transfer, the volume and page of the registration book in which the
new certificate is registered and a reference by number to the last preceding certificate.
The original and the owner’s duplicate of the grantor’s certificate shall be stamped
"cancelled." The deed of conveyance shall be filed and endorsed with the number
and the place of registration of the certificate of title of the land conveyed. (Emphasis
supplied)

As petitioner bases its right to the subject lot on the Supplemental Deed, it should have presented
it to the Register of Deeds to secure the transfer of the title in its name. Apparently, it had not
done so. There is nothing on OCT No. 5203 or on the succeeding TCT No. T-375 either which
shows that it had presented the Supplemental Deed. In fact, there is absolutely no mention of a
reference to said document in the original and transfer certificates of title. It is in this regard that
the finding of the Court of Appeals concerning the absence of entries on the blanks intended for
the Book No. and Page No. gains significant relevance. Indeed, this aspect fortifies the
conclusion that the cancellation of OCT No. 5203 and the consequent issuance of TCT No. T-
375 in its place are not predicated on a valid transaction.

What appears instead on OCT No. 5203 is the following pertinent entry:

Entry No. 1374: Kind: Order: Executed in favor of J.L.T. AGRO, INC.

CONDITIONS: Lost owner’s duplicate is hereby cancelled, and null and void and a
new Certificate of Title No. 375 is issued per Order of the Court of First Instance on
file in this office.

Date of Instrument: November 12, 1979

Date of Inscription: Nov. 12, 1979 4:00 P.M.

(SGD) MANUEL C. MONTESA

 Acting Deputy Register of Deeds II
(Emphasis supplied)52

What the entry indicates is that the owner’s duplicate of OCT No. 5203 was lost, a petition for
the reconstitution of the said owner’s duplicate was filed in court, and the court issued an order
for the reconstitution of the owner’s duplicate and its replacement with a new one. But if the
entry is to be believed, the court concerned (CFI, according to the entry) issued an order for the
issuance of a new title which is TCT No. T-375 although the original of OCT No. 5203 on file
with the Registry of Deeds had not been lost.

Going by the legal, accepted and normal process, the reconstitution court may order the
reconstitution and replacement of the lost title only, nothing else. Since what was lost is the
owner’s copy of OCT No. 5203, only that owner’s copy could be ordered replaced. Thus, the
Register of Deeds exceeded his authority in issuing not just a reconstituted owner’s copy of the
original certificate of title but a new transfer certificate of title in place of the original certificate
of title. But if the court order, as the entry intimates, directed the issuance of a new transfer
certificate of title—even designating the very number of the new transfer certificate of title
itself—the order would be patently unlawful. A court cannot legally order the cancellation and
replacement of the original of the O.C.T. which has not been lost,53 as the petition for
reconstitution is premised on the loss merely of the owner’s duplicate of the OCT

Apparently, petitioner had resorted to the court order as a convenient contrivance to effect the
transfer of title to the subject lot in its name, instead of the Supplemental Deed which should be
its proper course of action. It was so constrained to do because the Supplemental Deed does not
constitute a deed of conveyance of the "registered land in fee simple" "in a form sufficient in
law," as required by Section 57 of P.D. No. 1529.

A plain reading of the pertinent provisions of the Supplemental Deed discloses that the
assignment is not supported by any consideration. The provision reads:

....

WHEREAS, in the Deed of Assignment of Assets with the Assumption of Liabilities

executed by Julian L. Teves, Emilio B. Teves and Josefa T. Escaño at Dumaguete City on
16th day of November 1972 and ratified in the City of Dumaguete before Notary Public
Lenin Victoriano, and entered in the latter’s notarial register as Doc. No. 367; Page No.
17; Book No. V; series of 1972, Julian L. Teves, Emilio B. Teves and Josefa T. Escaño,
transferred, conveyed and assigned unto J.L.T. AGRO, INC., all its assets and liabilities
as reflected in the Balance Sheet of the former as of December 31, 1971.

WHEREAS, on the compromise agreement, as mentioned in the Decision made in the

Court of First Instance of Negros Oriental, 12th Judicial District Branch II, on Dec. 31,
1964 pertaining to Civil Case No. 3443 the following properties were adjudicated to Don
Julian L. Teves. We quote.
 From the properties at Bais
Adjudicated to Don Julian L.Teves

....

Lot No. 63, Tax Dec. No. 33, Certificate of Title No. 5203, together with all
improvements. Assessed value - P2,720.00

....

WHEREAS, this Deed of Assignment is executed by the parties herein in order to effect
the registration of the transfer of the above corporation.

NOW, THEREFORE, for and in consideration of the above premises the ASSIGNOR
hereby transfers, conveys, and assigns unto J.L.T. AGRO, INC., the above described
parcel of land[s] with a fair market value of EIGHTY-FOUR THOUSAND PESOS
(P84,000.00), Philippine Currency, and which transfer, conveyance and assignment shall
become absolute upon signing.54 (Emphasis supplied)

The amount of P84,000.00 adverted to in the dispositive portion of the instrument does not
represent the consideration for the assignment made by Don Julian. Rather, it is a mere statement
of the fair market value of all the nineteen (19) properties enumerated in the instrument, of
which Lot No. 63 is just one, that were transferred by Don Julian in favor of petitioner.
Consequently, the testimony55 of petitioner’s accountant that the assignment is supported by
consideration cannot prevail over the clear provision to the contrary in the Supplemental Deed.

The Court of Appeals, on the other hand, apparently considered the 1948 mortgage which is
annotated on the back of the TCT No. T-375 as the consideration for the assignment.56 However,
the said annotation57 shows that the mortgage was actually executed in favor of Rehabilitation
Finance Corporation, not of petitioner.58 Clearly, said mortgage, executed as it was in favor of
the Rehabilitation Finance Corporation and there being no showing that petitioner itself paid off
the mortgate obligation, could not have been the consideration for the assignment to petitioner.

Article 1318 of the New Civil Code enumerates the requisites of a valid contract, namely: (1)
consent of the contracting parties; (2) object certain which is the subject matter of the contract;
and (3) Cause of the obligation which is established.

Thus, Article 1352 declares that contracts without cause, or with unlawful cause produce no
effect whatsoever. Those contracts lack an essential element and they are not only voidable but
void or inexistent pursuant to Article 1409, paragraph (2).59 The absence of the usual recital of
consideration in a transaction which normally should be supported by a consideration such as the
assignment made by Don Julian of all nineteen (19) lots he still had at the time, coupled with the
fact that the assignee is a corporation of which Don Julian himself was also the President and
Director, forecloses the application of the presumption of existence of consideration established
by law.60
Neither could the Supplemental Deed validly operate as a donation. Article 749 of the New Civil
Code is clear on the point, thus:

Art. 749. In order that the donation of the immovable may be valid, it must be made in a
public document, specifying therein the property donated and the value of the charges
which the donee must satisfy.

The acceptance may be made in the same deed of donation or in a separate public
document, but it shall not take effect unless it is done during the lifetime of the donor.

If the acceptance is made in a separate instrument, the donor shall be notified thereof in
an authentic form, and this step shall be noted in both instruments.

In Sumipat, et al v. Banga, et al.,61 this Court declared that title to immovable property does not
pass from the donor to the donee by virtue of a deed of donation until and unless it has been
accepted in a public instrument and the donor duly notified thereof. The acceptance may be made
in the very same instrument of donation. If the acceptance does not appear in the same document,
it must be made in another. Where the deed of donation fails to show the acceptance, or where
the formal notice of the acceptance, made in a separate instrument, is either not given to the
donor or else not noted in the deed of donation and in the separate acceptance, the donation is
null and void.

In the case at bar, although the Supplemental Deed appears in a public document,62 the absence
of acceptance by the donee in the same deed or even in a separate document is a glaring violation
of the requirement.

One final note. From the substantive and procedural standpoints, the cardinal objectives to write
finis to a protracted litigation and avoid multiplicity of suits are worth pursuing at all times.63
Thus, this Court has ruled that appellate courts have ample authority to rule on specific matters
not assigned as errors or otherwise not raised in an appeal, if these are indispensable or necessary
to the just resolution of the pleaded issues.64 Specifically, matters not assigned as errors on
appeal but consideration of which are necessary in arriving at a just decision and complete
resolution of the case, or to serve the interest of justice or to avoid dispensing piecemeal
justice.65

In the instant case, the correct characterization of the Supplemental Deed, i.e., whether it is valid
or void, is unmistakably determinative of the underlying controversy. In other words, the issue of
validity or nullity of the instrument which is at the core of the controversy is interwoven with the
issues adopted by the parties and the rulings of the trial court and the appellate court.66 Thus, this
Court is also resolute in striking down the alleged deed in this case, especially as it appears on its
face to be a blatant nullity.

WHEREFORE, foregoing premises considered, the Decision dated 30 September 1999 of the
Court of Appeals is hereby AFFIRMED. Costs against petitioner J.L.T. Agro, Inc.

SO ORDERED.
RESERVA TRONCAL

1. G.R. No. L-29901 August 31, 1977

IGNACIO FRIAS CHUA, DOMINADOR CHUA and REMEDIOS CHUA, petitioners,

vs.
THE COURT OF FIRST INSTANCE OF NEGROS OCCIDENTAL, BRANCH V and
SUSANA DE LA TORRE, in her capacity as Administratrix of the Intestate Estate
of Consolacion de la Torre, respondents.

Dominador G. Abaria and Primitivo Blanca for private respondent.

Rodrigo O. Delfinado for petitioners.

MARTIN, J.:

Petition for review of the decision of the respondent Court which dismissed the
complaint of petitioners in Civil Case No. 7839-A, entitled "Ignacio Frias Chua, et al. vs.
Susana de la Torre, Administratrix of the Intestate Estate of Consolacion de la Torre"

It appears that in the first marriage of Jose Frias Chua with Patricia S. Militar alias Sy
Quio he sired three children, namely: Ignacio, Lorenzo and Manuel, all surnamed Frias
Chua. When Patricia S. Militar died, Jose Frias Chua contracted a second marriage with
Consolacion de la Torre with whom he had a child by the name of Juanita Frias Chua.
Manuel Frias Chua died without leaving any issue. Then in 1929, Jose Frias Chua died
intestate leaving his widow Consolacion de la Torre and his son Juanito Frias Chua of
the second marriage and sons Ignacio Frias Chua and Lorenzo Frias Chua of his first
marriage. In Intestate Proceeding No. 4816, the lower court issued an order dated
January 15, 1931 1 adjudicating, among others, the one-half (1/2,) portion of Lot No. 399 and the sum
of P8,000.00 in favor of Jose Frias Chua's widow, Consolacion de la Torre, the other half of Lot No. 399
in favor of Juanito Frias Chua, his son in the second marriage; P3,000.00 in favor of Lorenze Frias chua;
and P1,550.00 in favor of Ignacio Frias, Chua, his sons of the first marriage. By virtue of said
adjudication, Transfer Certificate of Title No. TR-980 (14483) 2 dated April 28, 1932 was issued by the
Register of Deeds in the names of Consolacion de la Torre and Juanito Frias Chua as owners pro-
indiviso of Lot No. 399.

On February 27, 1952, Juanito Frias Chua of the second marriage died intestate without any issue. After
his death, his mother Consolacion de la Torre succeeded to his pro-indivisio share of Lot No. 399. In a
week's time or on March 6, 1952, Consolacion de la Torre executed a declaration of heirship adjudicating
in her favor the pro-indiviso share of her son Juanito as a result of which Transfer Certificate of Title No.
31796 covering the whole Lot No. 399 was issued in her name. Then on March 5, 1966, Consolacion de
la Torre died intestate leaving no direct heir either in the descending or ascending line except her brother
and sisters.
In the "Intestate Estate of Consolacion de la Torre", docketed as Sp. Proc. No. 7839-A, the petitioners
herein, Ignacio Frias Chua, of the first marriage and dominador and Remedios Chua, the supposed
legitimate children of the deceased Lorenzo Frias Chua, also of the first marriage filed the complaint a
quo 3 (subseqently segregated as a distinct suit and docketed as Civil Case No. 7839-A) on May 11, 1966
before the respondent Court of First Instance of Negros Occidental, Branch V, praying that the one-half
(1/2) portion of Lot No. 399 which formerly belonged to Juanito Frias but which passed to Consolacion de
la Torre upon the latter's death, be declaredas a reservable property for the reason that the lot in
questionn was subject to reserval troncal pursuant to Article 981 of the New Civil Code, Private
respondent as administratrix of the estate of individually the complaint of petitioners 4

On July 29, 1986, the respondent Court rendered a decision dismissing the complaint of petitioner. Hence
this instant.

The pertinent provision of reserva troncal under the New Civil Code provides:

ART. 891. The ascendant who inheritts from his descendant any property which the latter
may have acquired by gratuitous title from another ascendat, or a brother or sister, is
obliged to reserve such property as he may have acquired by operation of law for the
benefit of relatives who are within the third degree and belong to the line from which said
property came.

Persuant to the foregoing provision, in order that a property may be impressed with a reservable
character the following requisites must exist, to wit: (1) that the property was acquired by a descendant
from an asscendant or from a brother or sister by gratuitous title; (2) that said descendant died without an
issue; (3) that the property is inherited by another ascendant by operation of law; and (4) that there are
relatives within the third degree belonging to the line from which said property came. 5 In the case before
Us, all of the foregoing requisites are present. Thus, as borne out by the records, Juanoito Frias Chua of
the second marriage died intestate in 1952; he died withour leaving any issue; his pro-indiviso of 1/2
share of Lot No. 399 was acquired by his mother, Consolacion de la Torre died, Juannnito Frias Chua
who died intestate had relatives within the third degree. These relatives are Ignacio Frias Chua and
Dominador Chua and Remidios Chua, the suppose legitimate children of the deceased Lorenzo Frias
Chua, who are the petitioners herein.

The crux of the problem in instant petition is focused on the first requisit of reserva troncal — whether the
property in question was acquired by Juanito Frias Chua from his father Jose Frias Chua, gratuitously or
not. In resolving this point, the respondent Court said:

It appears from Exh. "3", which is part of Exh. "D", that the property in question was not
acquired by Consolacion de la Torre and Juanito Frias Chua gratuitously but for a
consideration, namely, that the legatees were to pay the interest and cost and other fees
resulting from Civil Case No. 5300 of this Court. As such it is undeniable that the lot in
question is not subject tot a reserva troncal, under Art. 891 of the New Civil Code, and as
such the plaintiff's complaint must fail.

We are not prepared to sustain the respondent Court's conclusion that the lot in question is not subject to
a reserva troncal under Art. 891 of the New Civil Code. It is, As explained by Manresa which this Court
quoted with approval in Cabardo v. Villanueva, 44 Phil. 186, "The transmission is gratuitous or by
gratuitous title when the recipient does not give anything in return." It matters not whether the property
transmitted be or be not subject to any prior charges; what is essential is that the transmission be made
gratuitously, or by an act of mere liberality of the person making it, without imposing any obligation on the
part of the recipient; and that the person receiving the property gives or does nothing in return; or, as ably
put by an eminent Filipino commentator, 6 "the essential thing is that the person who transmits it does so
gratuitously, from pure generosity, without requiring from the transferee any prestation." It is evident from
the record that the transmission of the property in question to Juanito Frias Chua of the second marriage
upon the death of his father Jose Frias Chua was by means of a hereditary succession and therefore
gratuitous. It is true that there is the order (Exh. "D") of the probate Court in Intestate Proceeding No.
4816 which estates in express terms;

2. — Se adjudicada pro el presente a favor de Consolacion de la Torre, viuda, mayor de

edad, y de su hiju, Juanito Frias Chua, menor de edad, todos residente de San Enrique,
Negros Occidental, I.F.,como herederos del finado Jose Frias Chua Choo, estas
propiadades:

14483

La parcela de terrenno concida por Lote No. 399 del Catsatro de la Carlota, Negros
Occidental, de 191.954 metros cuadddrados y cubierto por el Certificado de Titulo No.
11759, en partes equales pro-indiviso; por con la obligscion de pagar a las Standard Oil
Co. of New York la deuda de P3971.20, sus intereses, costas y demas gastos
resultantes del asunto civil No. 5300de este jusgado

But the obligation of paying the Standard Oil Co. of New York the amount of P3,971.20 is imposed upon
Consolacion de la Torre and Juanito Frias Chua not personally by the deceased Jose Frias Chua in his
last will and testament but by an order of the court in the Testate Proceeding No.4816 dated January 15,
1931. As long as the transmission of the property to the heirs is free from any condition imposed by the
deceased himself and the property is given out of pure generosity, itg is gratuitous. it does not matter if
later the court orders one of the heirs, in this case Juanito Frias Chua, to pay the Standare oil co. of New
York the amount of P3,971.20. This does not change the gratuitous nature of the transmission of the
property to him. This being the case the lot in question is subject to reserva troncal under Art, 891 of the
New Civil Code.

It is contented that the distribution of the shares of the estate of Jose Frias Chua to the respondent heirs
or legatees was agreed upon by the heirs in their project of partition based on the last will and testament
of Jose Frias Chua. But petitioners claim that the supposed Last Will and Testament of Jose Frias Chua
was never probated. The fact that the will was not probated was admitted in paragraph 6 of the
respondents' answer. 7 There is nothing mentioned in the decision of the trial court in Civil Case No. 7839
A which is the subject of the present appeal nor in the order of January 15, 1931 of the trial court in the
Testate Estate Proceeding No. 4816 nor in the private respondent's brief, that the Last Will and
Testament of Jose Frias Chua has ever been probated. With the foregoing, it is easy to deduce that if the
Last Will and Testament has in fact been probated there would have been no need for the testamentary
heirs to prepare a project of partition among themselves. The very will itself could be made the basis for
the adjudication of the estate as in fact they did in their project of partition with Juanito Frias Chua getting
one-half of Lot 399 by inheritance as a sone of the deceased Jose Frias Chua by the latter's second
marriage.

According to the record, Juanito Frias Chua died on February 27, 1952 without any issue. After his death
his mother Consolation de la Torre succeeded to his one-half pro-indiviso share of Lot 399. This was,
however, subject to the condition that the property was reservable in character under Art. 891 of the Civil
Code in favor of relatives within the third degree of Jose Frias Chua from whom the property came. These
relatives are the petitioner herein.

It is claimed that the complaint of petitioners to recover the one-half portion of Lot 399 which originally
belonged to Juanito Frias Chua has already prescribed when it was filed on May 11, 1966. We do not
believe so. It must be remembered that the petitioners herein are claiming as reservees did not arise until
the time the reservor, Consolacion de la Torre, died in March 1966. When the petitioners therefore filed
their complaint to recover the one-half (1/2) portion of Lot 399, they were very much in time to do so.
IN VIEW OF THE FOREGOING, the decision appealed from is hereby set aside. The petitioners Ignacio
Frias Chua, Dominador Chua and Remedios Chua are declared owners of 1/2 undivided portion of Lot
399; and the Register of Deeds of Negros Occidental is hereby ordered to cancel. Transfer Certificate of
Title No. 31796 covering Lot No. 399 issued in the name of Consolacion de la Torre and to issue a new
Certificate of Title in the names of Consolacion de la Torre, 1/2 undivided portion; Ignacio Frias Chua, 1/4
undivided portion; and Dominador Chua and Remedios Chua, 1/4 undivided portion, of said lot. Without
pronouncement as to costs.

SO ORDERED.

2. G.R. No. 83484 February 12, 1990

CELEDONIA SOLIVIO, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and CONCORDIA JAVELLANA VILLANUEVA, respondents.

Rex Suiza Castillon for petitioner.

Salas & Villareal for private respondent.

MEDIALDEA, J.:

This is a petition for review of the decision dated January 26, 1988 of the Court of Appeals in CA GR CV No. 09010 (Concordia Villanueva v.
Celedonia Solivio) affirming the decision of the trial court in Civil Case No. 13207 for partition, reconveyance of ownership and possession
and damages, the dispositive portion of which reads as follows:

WHEREFORE, judgment is hereby rendered for the plaintiff and against defendant:

a) Ordering that the estate of the late Esteban Javellana, Jr. be divided into two (2) shares: one-half for the plaintiff and
one-half for defendant. From both shares shall be equally deducted the expenses for the burial, mausoleum and
related expenditures. Against the share of defendants shall be charged the expenses for scholarship, awards,
donations and the 'Salustia Solivio Vda. de Javellana Memorial Foundation;'

b) Directing the defendant to submit an inventory of the entire estate property, including but not limited to, specific items
already mentioned in this decision and to render an accounting of the property of the estate, within thirty (30) days from
receipt of this judgment; one-half (1/2) of this produce shall belong to plaintiff;

c) Ordering defendant to pay plaintiff P5,000.00 as expenses of litigation; P10,000.00 for and as attorney's fees plus
costs.

SO ORDERED. (pp. 42-43, Rollo)

This case involves the estate of the late novelist, Esteban Javellana, Jr., author of the first post-war Filipino novel "Without Seeing the
Dawn," who died a bachelor, without descendants, ascendants, brothers, sisters, nephews or nieces. His only surviving relatives are: (1) his
maternal aunt, petitioner Celedonia Solivio, the spinster half-sister of his mother, Salustia Solivio; and (2) the private respondent, Concordia
Javellana-Villanueva, sister of his deceased father, Esteban Javellana, Sr.

He was a posthumous child. His father died barely ten (10) months after his marriage in December, 1916 to Salustia Solivio and four months
before Esteban, Jr. was born.

Salustia and her sister, Celedonia (daughter of Engracio Solivio and his second wife Josefa Fernandez), a teacher in the Iloilo Provincial
High School, brought up Esteban, Jr.

Salustia brought to her marriage paraphernal properties (various parcels of land in Calinog, Iloilo covered by 24 titles) which she had
inherited from her mother, Gregoria Celo, Engracio Solivio's first wife (p. 325, Record), but no conjugal property was acquired during her
short-lived marriage to Esteban, Sr.
On October 11, 1959, Salustia died, leaving all her properties to her only child, Esteban, Jr., including a house and lot in La Paz, Iloilo City,
where she, her son, and her sister lived. In due time, the titles of all these properties were transferred in the name of Esteban, Jr.

During his lifetime, Esteban, Jr. had, more than once, expressed to his aunt Celedonia and some close friends his plan to place his estate in
a foundation to honor his mother and to help poor but deserving students obtain a college education. Unfortunately, he died of a heart attack
on February 26,1977 without having set up the foundation.

Two weeks after his funeral, Concordia and Celedonia talked about what to do with Esteban's properties. Celedonia told Concordia about
Esteban's desire to place his estate in a foundation to be named after his mother, from whom his properties came, for the purpose of helping
indigent students in their schooling. Concordia agreed to carry out the plan of the deceased. This fact was admitted by her in her "Motion to
Reopen and/or Reconsider the Order dated April 3, 1978" which she filed on July 27, 1978 in Special Proceeding No. 2540, where she
stated:

4. That petitioner knew all along the narrated facts in the immediately preceding paragraph [that herein movant is also
the relative of the deceased within the third degree, she being the younger sister of the late Esteban Javellana, father
of the decedent herein], because prior to the filing of the petition they (petitioner Celedonia Solivio and movant
Concordia Javellana) have agreed to make the estate of the decedent a foundation, besides they have closely known
each other due to their filiation to the decedent and they have been visiting each other's house which are not far away
for (sic) each other. (p. 234, Record; Emphasis supplied.)

Pursuant to their agreement that Celedonia would take care of the proceedings leading to the formation of the foundation, Celedonia in good
faith and upon the advice of her counsel, filed on March 8, 1977 Spl. Proceeding No. 2540 for her appointment as special administratrix of
the estate of Esteban Javellana, Jr. (Exh. 2). Later, she filed an amended petition (Exh. 5) praying that letters of administration be issued to
her; that she be declared sole heir of the deceased; and that after payment of all claims and rendition of inventory and accounting, the estate
be adjudicated to her (p. 115, Rollo).

After due publication and hearing of her petition, as well as her amended petition, she was declared sole heir of the estate of Esteban
Javellana, Jr. She explained that this was done for three reasons: (1) because the properties of the estate had come from her sister, Salustia
Solivio; (2) that she is the decedent's nearest relative on his mother's side; and (3) with her as sole heir, the disposition of the properties of
the estate to fund the foundation would be facilitated.

On April 3, 1978, the court (Branch II, CFI, now Branch 23, RTC) declared her the sole heir of Esteban, Jr. Thereafter, she sold properties of
the estate to pay the taxes and other obligations of the deceased and proceeded to set up the "SALUSTIA SOLIVIO VDA. DE JAVELLANA
FOUNDATION" which she caused to be registered in the Securities and Exchange Commission on July 17,1981 under Reg. No. 0100027 (p.
98, Rollo).

Four months later, or on August 7, 1978, Concordia Javellana Villanueva filed a motion for reconsideration of the court's order declaring
Celedonia as "sole heir" of Esteban, Jr., because she too was an heir of the deceased. On October 27, 1978, her motion was denied by the
court for tardiness (pp. 80-81, Record). Instead of appealing the denial, Concordia filed on January 7, 1980 (or one year and two months
later), Civil Case No. 13207 in the Regional Trial Court of Iloilo, Branch 26, entitled "Concordia Javellana- Villanueva v. Celedonia Solivio" for
partition, recovery of possession, ownership and damages.

On September 3, 1984, the said trial court rendered judgment in Civil Case No. 13207, in favor of Concordia Javellana-Villanueva.

On Concordia's motion, the trial court ordered the execution of its judgment pending appeal and required Celedonia to submit an inventory
and accounting of the estate. In her motions for reconsideration of those orders, Celedonia averred that the properties of the deceased had
already been transferred to, and were in the possession of, the 'Salustia Solivio Vda. de Javellana Foundation." The trial court denied her
motions for reconsideration.

In the meantime, Celedonia perfected an appeal to the Court of Appeals (CA GR CV No. 09010). On January 26, 1988, the Court of Appeals,
Eleventh Division, rendered judgment affirming the decision of the trial court in toto. Hence, this petition for review wherein she raised the
following legal issues:

1. whether Branch 26 of the RTC of Iloilo had jurisdiction to entertain Civil Case No. 13207 for partition and recovery of
Concordia Villanueva's share of the estate of Esteban Javellana, Jr. even while the probate proceedings (Spl. Proc. No.
2540) were still pending in Branch 23 of the same court;

2. whether Concordia Villanueva was prevented from intervening in Spl. Proc. No. 2540 through extrinsic fraud;

3. whether the decedent's properties were subject to reserva troncal in favor of Celedonia, his relative within the third
degree on his mother's side from whom he had inherited them; and

4. whether Concordia may recover her share of the estate after she had agreed to place the same in the Salustia
Solivio Vda. de Javellana Foundation, and notwithstanding the fact that conformably with said agreement, the
Foundation has been formed and properties of the estate have already been transferred to it.
I. The question of jurisdiction—

After a careful review of the records, we find merit in the petitioner's contention that the Regional Trial Court, Branch 26, lacked jurisdiction to
entertain Concordia Villanueva's action for partition and recovery of her share of the estate of Esteban Javellana, Jr. while the probate
proceedings (Spl, Proc. No. 2540) for the settlement of said estate are still pending in Branch 23 of the same court, there being as yet no
orders for the submission and approval of the administratix's inventory and accounting, distributing the residue of the estate to the heir, and
terminating the proceedings (p. 31, Record).

It is the order of distribution directing the delivery of the residue of the estate to the persons entitled thereto that brings to a close the intestate
proceedings, puts an end to the administration and thus far relieves the administrator from his duties (Santiesteban v. Santiesteban, 68 Phil.
367, Philippine Commercial and Industrial Bank v. Escolin, et al., L-27860, March 29, 1974, 56 SCRA 266).

The assailed order of Judge Adil in Spl. Proc. No. 2540 declaring Celedonia as the sole heir of the estate of Esteban Javellana, Jr. did not toll
the end of the proceedings. As a matter of fact, the last paragraph of the order directed the administratrix to "hurry up the settlement of the
estate." The pertinent portions of the order are quoted below:

2. As regards the second incident [Motion for Declaration of Miss Celedonia Solivio as Sole Heir, dated March 7, 1978],
it appears from the record that despite the notices posted and the publication of these proceedings as required by law,
no other heirs came out to interpose any opposition to the instant proceeding. It further appears that herein
Administratrix is the only claimant-heir to the estate of the late Esteban Javellana who died on February 26, 1977.

During the hearing of the motion for declaration as heir on March 17, 1978, it was established that the late Esteban
Javellana died single, without any known issue, and without any surviving parents. His nearest relative is the herein
Administratrix, an elder [sic] sister of his late mother who reared him and with whom he had always been living with
[sic] during his lifetime.

xxxxxxxxx

2. Miss Celedonia Solivio, Administratrix of this estate, is hereby declared as the sole and legal heir of the late Esteban
S. Javellana, who died intestate on February 26, 1977 at La Paz, Iloilo City.

The Administratrix is hereby instructed to hurry up with the settlement of this estate so that it can be terminated. (pp,
14-16, Record)

In view of the pendency of the probate proceedings in Branch 11 of the Court of First Instance (now RTC, Branch 23), Concordia's motion to
set aside the order declaring Celedonia as sole heir of Esteban, and to have herself (Concordia) declared as co-heir and recover her share of
the properties of the deceased, was properly filed by her in Spl. Proc. No. 2540. Her remedy when the court denied her motion, was to
elevate the denial to the Court of Appeals for review on certiorari. However, instead of availing of that remedy, she filed more than one year
later, a separate action for the same purpose in Branch 26 of the court. We hold that the separate action was improperly filed for it is the
probate court that has exclusive jurisdiction to make a just and legal distribution of the estate.

In the interest of orderly procedure and to avoid confusing and conflicting dispositions of a decedent's estate, a court should not interfere with
probate proceedings pending in a co-equal court. Thus, did we rule in Guilas v. Judge of the Court of First Instance of Pampanga, L-26695,
January 31, 1972, 43 SCRA 111, 117, where a daughter filed a separate action to annul a project of partition executed between her and her
father in the proceedings for the settlement of the estate of her mother:

The probate court loses jurisdiction of an estate under administration only after the payment of all the debts and the
remaining estate delivered to the heirs entitled to receive the same. The finality of the approval of the project of The
probate court, in the exercise of its jurisdiction to make distribution, has power to determine the proportion or parts to
which each distributed is entitled. ... The power to determine the legality or illegality of the testamentary provision is
inherent in the jurisdiction of the court making a just and legal distribution of the inheritance. ... To hold that a separate
and independent action is necessary to that effect, would be contrary to the general tendency of the jurisprudence of
avoiding multiplicity of suits; and is further, expensive, dilatory, and impractical. (Marcelino v. Antonio, 70 Phil. 388)

A judicial declaration that a certain person is the only heir of the decedent is exclusively within the range of the
administratrix proceedings and can not properly be made an independent action. (Litam v. Espiritu, 100 Phil. 364)

A separate action for the declaration of heirs is not proper. (Pimentel v. Palanca, 5 Phil. 436)

partition by itself alone does not terminate the probate proceeding (Timbol v. Cano, 1 SCRA 1271, 1276, L-15445, April
29, 1961; Siguiong v. Tecson, 89 Phil. pp. 28, 30). As long as the order of the distribution of the estate has not been
complied with, the probate proceedings cannot be deemed closed and terminated Siguiong v. Tecson, supra); because
a judicial partition is not final and conclusive and does not prevent the heirs from bringing an action to obtain his share,
provided the prescriptive period therefore has not elapsed (Mari v. Bonilia, 83 Phil. 137). The better practice, however,
for the heir who has not received his share, is to demand his share through a proper motion in the same probate or
administration proceedings, or for reopening of the probate or administrative proceedings if it had already been closed,
 and not through an independent action, which would be tried by another court or Judge which may thus reverse a
decision or order of the probate or intestate court already final and executed and re-shuffle properties long ago
distributed and disposed of. (Ramos v. Ortuzar, 89 Phil. 730, 741-742; Timbol v. Cano, supra; Jingco v. Daluz, L-5107,
April 24, 1953, 92 Phil. 1082; Roman Catholic v. Agustines, L-14710, March 29, 1960, 107 Phil. 455, 460-461;
Emphasis supplied)

In Litam et al., v. Rivera, 100 Phil. 364, where despite the pendency of the special proceedings for the settlement of the intestate estate of
the deceased Rafael Litam the plaintiffs-appellants filed a civil action in which they claimed that they were the children by a previous
marriage of the deceased to a Chinese woman, hence, entitled to inherit his one-half share of the conjugal properties acquired during his
marriage to Marcosa Rivera, the trial court in the civil case declared that the plaintiffs-appellants were not children of the deceased, that the
properties in question were paraphernal properties of his wife, Marcosa Rivera, and that the latter was his only heir. On appeal to this Court,
we ruled that "such declarations (that Marcosa Rivera was the only heir of the decedent) is improper, in Civil Case No. 2071, it being within
the exclusive competence of the court in Special Proceedings No. 1537, in which it is not as yet, in issue, and, will not be, ordinarily, in issue
until the presentation of the project of partition. (p. 378).

However, in the Guilas case, supra, since the estate proceedings had been closed and terminated for over three years, the action for
annulment of the project of partition was allowed to continue. Considering that in the instant case, the estate proceedings are still pending,
but nonetheless, Concordia had lost her right to have herself declared as co-heir in said proceedings, We have opted likewise to proceed to
discuss the merits of her claim in the interest of justice.

The orders of the Regional Trial Court, Branch 26, in Civil Case No. 13207 setting aside the probate proceedings in Branch 23 (formerly
Branch 11) on the ground of extrinsic fraud, and declaring Concordia Villanueva to be a co-heir of Celedonia to the estate of Esteban, Jr.,
ordering the partition of the estate, and requiring the administratrix, Celedonia, to submit an inventory and accounting of the estate, were
improper and officious, to say the least, for these matters he within the exclusive competence of the probate court.

II. The question of extrinsic fraud—

Was Concordia prevented from intervening in the intestate proceedings by extrinsic fraud employed by Celedonia? It is noteworthy that
extrinsic fraud was not alleged in Concordia's original complaint in Civil Case No. 13207. It was only in her amended complaint of March 6,
1980, that extrinsic fraud was alleged for the first time.

Extrinsic fraud, as a ground for annulment of judgment, is any act or conduct of the prevailing party which prevented a
fair submission of the controversy (Francisco v. David, 38 O.G. 714). A fraud 'which prevents a party from having a trial
or presenting all of his case to the court, or one which operates upon matters pertaining, not to the judgment itself, but
to the manner by which such judgment was procured so much so that there was no fair submission of the controversy.
For instance, if through fraudulent machination by one [his adversary], a litigant was induced to withdraw his defense or
was prevented from presenting an available defense or cause of action in the case wherein the judgment was obtained,
such that the aggrieved party was deprived of his day in court through no fault of his own, the equitable relief against
such judgment may be availed of. (Yatco v. Sumagui, 44623-R, July 31, 1971). (cited in Philippine Law Dictionary,
1972 Ed. by Moreno; Varela v. Villanueva, et al., 96 Phil. 248)

A judgment may be annulled on the ground of extrinsic or collateral fraud, as distinguished from intrinsic fraud, which
connotes any fraudulent scheme executed by a prevailing litigant 'outside the trial of a case against the defeated party,
or his agents, attorneys or witnesses, whereby said defeated party is prevented from presenting fully and fairly his side
of the case. ... The overriding consideration is that the fraudulent scheme of the prevailing litigant prevented a party
from having his day in court or from presenting his case. The fraud, therefore, is one that affects and goes into the
jurisdiction of the court. (Libudan v. Gil, L-21163, May 17, 1972, 45 SCRA 17, 27-29; Sterling Investment Corp. v. Ruiz,
L-30694, October 31, 1969, 30 SCRA 318, 323)

The charge of extrinsic fraud is, however, unwarranted for the following reasons:

1. Concordia was not unaware of the special proceeding intended to be filed by Celedonia. She admitted in her
complaint that she and Celedonia had agreed that the latter would "initiate the necessary proceeding" and pay the
taxes and obligations of the estate. Thus paragraph 6 of her complaint alleged:

6. ... for the purpose of facilitating the settlement of the estate of the late Esteban Javellana, Jr. at the lowest possible
cost and the least effort, the plaintiff and the defendant agreed that the defendant shall initiate the necessary
proceeding, cause the payment of taxes and other obligations, and to do everything else required by law, and
thereafter, secure the partition of the estate between her and the plaintiff, [although Celedonia denied that they agreed
to partition the estate, for their agreement was to place the estate in a foundation.] (p. 2, Record; emphasis supplied)

Evidently, Concordia was not prevented from intervening in the proceedings. She stayed away by choice. Besides, she knew that the estate
came exclusively from Esteban's mother, Salustia Solivio, and she had agreed with Celedonia to place it in a foundation as the deceased
had planned to do.

2. The probate proceedings are proceedings in rem. Notice of the time and place of hearing of the petition is required to
be published (Sec. 3, Rule 76 in relation to Sec. 3, Rule 79, Rules of Court). Notice of the hearing of Celedonia's
 original petition was published in the "Visayan Tribune" on April 25, May 2 and 9, 1977 (Exh 4, p. 197, Record).
Similarly, notice of the hearing of her amended petition of May 26, 1977 for the settlement of the estate was, by order
of the court, published in "Bagong Kasanag" (New Light) issues of May 27, June 3 and 10, 1977 (pp. 182-305, Record).
The publication of the notice of the proceedings was constructive notice to the whole world. Concordia was not
deprived of her right to intervene in the proceedings for she had actual, as well as constructive notice of the same. As
pointed out by the probate court in its order of October 27, 1978:

... . The move of Concordia Javellana, however, was filed about five months after Celedonia Solivio was declared as
the sole heir. ... .

Considering that this proceeding is one in rem and had been duly published as required by law, despite which the
present movant only came to court now, then she is guilty of laches for sleeping on her alleged right. (p. 22, Record)

The court noted that Concordia's motion did not comply with the requisites of a petition for relief from judgment nor a motion for new trial.

The rule is stated in 49 Corpus Juris Secundum 8030 as follows:

Where petition was sufficient to invoke statutory jurisdiction of probate court and proceeding was in rem no subsequent
errors or irregularities are available on collateral attack. (Bedwell v. Dean 132 So. 20)

Celedonia's allegation in her petition that she was the sole heir of Esteban within the third degree on his mother's side was not false.
Moreover, it was made in good faith and in the honest belief that because the properties of Esteban had come from his mother, not his
father, she, as Esteban's nearest surviving relative on his mother's side, is the rightful heir to them. It would have been self-defeating and
inconsistent with her claim of sole heirship if she stated in her petition that Concordia was her co-heir. Her omission to so state did not
constitute extrinsic fraud.

Failure to disclose to the adversary, or to the court, matters which would defeat one's own claim or defense is not such
extrinsic fraud as will justify or require vacation of the judgment. (49 C.J.S. 489, citing Young v. Young, 2 SE 2d 622;
First National Bank & Trust Co. of King City v. Bowman, 15 SW 2d 842; Price v. Smith, 109 SW 2d 1144, 1149)

It should be remembered that a petition for administration of a decedent's estate may be filed by any "interested person" (Sec. 2, Rule 79,
Rules of Court). The filing of Celedonia's petition did not preclude Concordia from filing her own.

III. On the question of reserva troncal—

We find no merit in the petitioner's argument that the estate of the deceased was subject to reserva troncal and that it pertains to her as his
only relative within the third degree on his mother's side. The reserva troncal provision of the Civil Code is found in Article 891 which reads
as follows:

ART. 891. The ascendant who inherits from his descendant any property which the latter may have acquired by
gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have
acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from
which said property came.

The persons involved in reserva troncal are:

1. The person obliged to reserve is the reservor (reservista)—the ascendant who inherits by operation of law property
from his descendants.

2. The persons for whom the property is reserved are the reservees (reservatarios)—relatives within the third degree
counted from the descendant (propositus), and belonging to the line from which the property came.

3. The propositus—the descendant who received by gratuitous title and died without issue, making his other ascendant
inherit by operation of law. (p. 692, Civil Law by Padilla, Vol. II, 1956 Ed.)

Clearly, the property of the deceased, Esteban Javellana, Jr., is not reservable property, for Esteban, Jr. was not an ascendant, but the
descendant of his mother, Salustia Solivio, from whom he inherited the properties in question. Therefore, he did not hold his inheritance
subject to a reservation in favor of his aunt, Celedonia Solivio, who is his relative within the third degree on his mother's side. The reserva
troncal applies to properties inherited by an ascendant from a descendant who inherited it from another ascendant or 9 brother or sister. It
does not apply to property inherited by a descendant from his ascendant, the reverse of the situation covered by Article 891.

Since the deceased, Esteban Javellana, Jr., died without descendants, ascendants, illegitimate children, surviving spouse, brothers, sisters,
nephews or nieces, what should apply in the distribution of his estate are Articles 1003 and 1009 of the Civil Code which provide:
 ART. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives
shall succeed to the entire estate of the deceased in accordance with the following articles.

ART. 1009. Should there be neither brothers nor sisters, nor children of brothers or sisters, the other collateral relatives
shall succeed to the estate.

The latter shall succeed without distinction of lines or preference among them by reason of relationship by the whole
blood.

Therefore, the Court of Appeals correctly held that:

Both plaintiff-appellee and defendant-appellant being relatives of the decedent within the third degree in the collateral
line, each, therefore, shall succeed to the subject estate 'without distinction of line or preference among them by reason
of relationship by the whole blood,' and is entitled one-half (1/2) share and share alike of the estate. (p. 57, Rollo)

IV. The question of Concordia's one-half share—

However, inasmuch as Concordia had agreed to deliver the estate of the deceased to the foundation in honor of his mother, Salustia Solivio
Vda. de Javellana (from whom the estate came), an agreement which she ratified and confirmed in her "Motion to Reopen and/or Reconsider
Order dated April 3, 1978" which she filed in Spl. Proceeding No. 2540:

4. That ... prior to the filing of the petition they (petitioner Celedonia Solivio and movant Concordia Javellana) have
agreed to make the estate of the decedent a foundation, besides they have closely known each other due to their
filiation to the decedent and they have been visiting each other's house which are not far away for (sic) each other. (p.
234, Record; Emphasis supplied)

she is bound by that agreement. It is true that by that agreement, she did not waive her inheritance in favor of Celedonia, but she did agree
to place all of Esteban's estate in the "Salustia Solivio Vda. de Javellana Foundation" which Esteban, Jr., during his lifetime, planned to set
up to honor his mother and to finance the education of indigent but deserving students as well.

Her admission may not be taken lightly as the lower court did. Being a judicial admission, it is conclusive and no evidence need be presented
to prove the agreement (Cunanan v. Amparo, 80 Phil. 227; Granada v. Philippine National Bank, L-20745, Sept. 2, 1966, 18 SCRA 1; Sta.
Ana v. Maliwat, L-23023, Aug. 31, 1968, 24 SCRA 1018; People v. Encipido, G.R.70091, Dec. 29, 1986, 146 SCRA 478; and Rodillas v.
Sandiganbayan, G.R. 58652, May 20, 1988, 161 SCRA 347).

The admission was never withdrawn or impugned by Concordia who, significantly, did not even testify in the case, although she could have
done so by deposition if she were supposedly indisposed to attend the trial. Only her husband, Narciso, and son-in-law, Juanito Domin,
actively participated in the trial. Her husband confirmed the agreement between his wife and Celedonia, but he endeavored to dilute it by
alleging that his wife did not intend to give all, but only one-half, of her share to the foundation (p. 323, Record).

The records show that the "Salustia Solivio Vda. de Javellana Foundation" was established and duly registered in the Securities and
Exchange Commission under Reg. No. 0100027 for the following principal purposes:

1. To provide for the establishment and/or setting up of scholarships for such deserving students as the Board of
Trustees of the Foundation may decide of at least one scholar each to study at West Visayas State College, and the
University of the Philippines in the Visayas both located in Iloilo City.

2. To provide a scholarship for at least one scholar for St. Clements Redemptorist Community for a deserving student
who has the religious vocation to become a priest.

3. To foster, develop, and encourage activities that will promote the advancement and enrichment of the various fields
of educational endeavors, especially in literary arts. Scholarships provided for by this foundation may be named after
its benevolent benefactors as a token of gratitude for their contributions.

4. To direct or undertake surveys and studies in the community to determine community needs and be able to alleviate
partially or totally said needs.

5. To maintain and provide the necessary activities for the proper care of the Solivio-Javellana mausoleum at Christ the
King Memorial Park, Jaro, Iloilo City, and the Javellana Memorial at the West Visayas State College, as a token of
appreciation for the contribution of the estate of the late Esteban S. Javellana which has made this foundation possible.
Also, in perpetuation of his Roman Catholic beliefs and those of his mother, Gregorian masses or their equivalents will
be offered every February and October, and Requiem masses every February 25th and October llth, their death
anniversaries, as part of this provision.
 6. To receive gifts, legacies, donations, contributions, endowments and financial aids or loans from whatever source, to
invest and reinvest the funds, collect the income thereof and pay or apply only the income or such part thereof as shall
be determined by the Trustees for such endeavors as may be necessary to carry out the objectives of the Foundation.

7. To acquire, purchase, own, hold, operate, develop, lease, mortgage, pledge, exchange, sell, transfer, or otherwise,
invest, trade, or deal, in any manner permitted by law, in real and personal property of every kind and description or
any interest herein.

8. To do and perform all acts and things necessary, suitable or proper for the accomplishments of any of the purposes
herein enumerated or which shall at any time appear conducive to the protection or benefit of the corporation, including
the exercise of the powers, authorities and attributes concerned upon the corporation organized under the laws of the
Philippines in general, and upon domestic corporation of like nature in particular. (pp. 9-10, Rollo)

As alleged without contradiction in the petition' for review:

The Foundation began to function in June, 1982, and three (3) of its eight Esteban Javellana scholars graduated in
1986, one (1) from UPV graduated Cum Laude and two (2) from WVSU graduated with honors; one was a Cum Laude
and the other was a recipient of Lagos Lopez award for teaching for being the most outstanding student teacher.

The Foundation has four (4) high school scholars in Guiso Barangay High School, the site of which was donated by the
Foundation. The School has been selected as the Pilot Barangay High School for Region VI.

The Foundation has a special scholar, Fr. Elbert Vasquez, who would be ordained this year. He studied at St. Francis
Xavier Major Regional Seminary at Davao City. The Foundation likewise is a member of the Redemptorist Association
that gives yearly donations to help poor students who want to become Redemptorist priests or brothers. It gives yearly
awards for Creative writing known as the Esteban Javellana Award.

Further, the Foundation had constructed the Esteban S. Javellana Multi-purpose Center at the West Visayas State
University for teachers' and students' use, and has likewise contributed to religious civic and cultural fund-raising
drives, amongst other's. (p. 10, Rollo)

Having agreed to contribute her share of the decedent's estate to the Foundation, Concordia is obligated to honor her commitment as
Celedonia has honored hers.

WHEREFORE, the petition for review is granted. The decision of the trial court and the Court of Appeals are hereby SET ASIDE. Concordia
J. Villanueva is declared an heir of the late Esteban Javellana, Jr. entitled to one-half of his estate. However, comformably with the
agreement between her and her co-heir, Celedonia Solivio, the entire estate of the deceased should be conveyed to the "Salustia Solivio
Vda. de Javallana Foundation," of which both the petitioner and the private respondent shall be trustees, and each shall be entitled to
nominate an equal number of trustees to constitute the Board of Trustees of the Foundation which shall administer the same for the
purposes set forth in its charter. The petitioner, as administratrix of the estate, shall submit to the probate court an inventory and accounting
of the estate of the deceased preparatory to terminating the proceedings therein.

SO ORDERED.

3.

4. G.R. No. L-34395 May 19, 1981

BEATRIZ L. GONZALES, petitioner,

vs.
COURT OF FIRST INSTANCE OF MANILA (BRANCH V), BENITO F. LEGARDA,
ROSARIO L. VALDEZ, ALEJANDRO LEGARDA, TERESA LEGARDA, JOSE
LEGARDA, BENITO LEGARDA Y FERNANDEZ, CARMEN LEGARDA Y
FERNANDEZ, FILOMENA LEGARDA Y HERNANDEZ, CARMEN LEGARDA Y
HERNANDEZ, ALEJANDRO LEGARDA Y HERNANDEZ, RAMON LEGARDA Y
HERNANDEZ, FILOMENA LEGARDA Y LOBREGAT, JAIME LEGARDA Y
LOBREGAT, CELSO LEGARDA Y LOBREGAT, ALEJANDRO LEGARDA Y
LOBREGAT, MA. TERESA LEGARDA Y LOBREGAT, MA. ANTONIA LEGARDA Y
LOBREGAT, JOSE LEGARDA Y LOBREGAT, ROSARIO LEGARDA Y LOBREGAT,
BENITO LEGARDA Y LOBREGAT, EDUARDO LEGARDA Y LOBREGAT, TRINIDAD
F. LEGARDA, and the ESTATE OF DONA FILOMENA ROCES DE LEGARDA,
respondents.

AQUINO, J.:1äwphï1.ñët

Beatriz Legarda Gonzales appealed from the decision of the Court of First Instance of
Manila, dismissing her complaint for partition, accounting, reconveyance and damages
and holding, as not subject to reserve troncal, the properties which her mother Filomena
Races inherited in 1943 from Filomena Legarda (Civil Case No. 73335). The facts are
as follows:

Benito Legarda y De la Paz, the son of Benito Legarda y Tuason, died [Manila] on June
17, 1933. He was survived by his widow, Filomena Races, and their seven children: four
daughters named Beatriz, Rosario, Teresa and Filomena and three sons named Benito,
Alejandro and Jose.

On July 12, 1939, the real properties left by Benito Legarda y Tuason were partitioned
in three equal portions by his daughters, Consuelo and Rita, and the heirs of his
deceased son Benito Legarda y De la Paz who were represented by Benito F. Legarda.

Filomena Legarda y Races died intestate and without issue on March 19, 1943. Her
sole heiress was her mother, Filomena Races Vda. de Legarda.

Mrs. Legarda executed on May 12, 1947 an affidavit adjudicating extrajudicially to

herself the properties which she inherited from her deceased daughter, Filomena
Legarda. The said properties consist of the following: 1äwphï1.ñët

(a) Savings deposit in the National City Bank of New York with a credit
balance of P3,699.63.

(b) 1,429 shares of the Benguet Consolidated Mining Company and a 1/7
interest in certain shares of the San Miguel Brewery, Tuason & Legarda,
Ltd., Philippine Guaranty Company, Insular Life Assurance Company and
the Manila Times.

(c) 1/7 of the properties described in TCT Nos. 80226, 80237 to 80243 (7
titles), 80260, 80261 and 57512 of the Manila registry of deeds.
 1/21st of the properties covered by TCT Nos. 48164, 84714, 48201,
48202, 48205, 48203, 48206, 48160 and 48192 of the Manila registry of
deeds;

1/21st of the property described in TCT No. 4475 of the registry of deeds
of Rizal, now Quezon City; 1/14th of the property described in TCT No.
966 of the registry of deeds of Baguio;

1/7th of the lot and improvements at 127 Aviles described in TCT No.
41862 of the Manila registry of deeds; 1/7th of the lots and improvements
at 181 San Rafael describe in TCT Nos. 50495 and 48161 of the Manila
registry of deeds;

1/7th of the property described in TCT No. 48163 of the Manila registry of
deeds (Streets);

l/21st of the properties described in TCT Nos. 48199 and 57551 of the
Manila registry of deeds (Streets and Estero):

2/21st of the property described in TCT No. 13458 of tile registry of deeds
of T0ayabas.

These are the properties in litigation in this case. As a result of the affidavit of
adjudication, Filomena Races succeeded her deceased daughter Filomena Legarda as
co-owner of the properties held proindiviso by her other six children.

Mrs. Legarda on March 6, 1953 executed two handwritten Identical documents wherein
she disposed of the properties, which she inherited from her daughter, in favor of the
children of her sons, Benito, Alejandro and Jose (sixteen grandchildren in all). The
document reads: 1äwphï1.ñët

A mis hijos :

Dispongo que se reparta a todos mis nietos hijos de Ben, Mandu y Pepito,
los bienes que he heredado de mi difunta hija Filomena y tambien los
acciones de la Destileria La Rosario' recientemente comprada a los
hermanos Values Legarda.

De los bienes de mi hija Filomena se deducira un tote de terreno que yo

he 0donada a las Hijas de Jesus, en Guipit

La case No. 181 San Rafael, la cede a mi hijo Mandu solo la casa; proque
ella esta construida sobre terreno de los hermanos Legarda Races.
1äwphï1.ñët
 (Sgd.) FILOMENA ROCES
LEGARDA

6 Marzo 1953

During the period from July, 1958 to February, 1959 Mrs. Legarda and her six surviving
children partitioned the properties consisting of the one-third share in the estate of
Benito Legarda y Tuason which the children inherited in representation of their father,
Benito Legarda y De la Paz.

Mrs. Legarda died on September 22, 1967. Her will was admitted to probate as a
holographic will in the order dated July 16, 1968 of the Court of First Instance of Manila
in Special Proceeding No. 70878, Testate Estate of Filomena Races Vda. de Legarda.
The decree of probate was affirmed by the Court of Appeals in Legarda vs. Gonzales,
CA-G.R. No. 43480-R, July 30,1976.

In the testate proceeding, Beatriz Legarda Gonzales, a daughter of the testatrix, filed on
May 20, 1968 a motion to exclude from the inventory of her mother's estate the
properties which she inherited from her deceased daughter, Filomena, on the ground
that said properties are reservable properties which should be inherited by Filomena
Legarda's three sisters and three brothers and not by the children of Benito, Alejandro
and Jose, all surnamed Legarda. That motion was opposed by the administrator, Benito
F. Legarda.

Without awaiting the resolution on that motion, Mrs. Gonzales filed on June 20, 1968 an
ordinary civil action against her brothers, sisters, nephews and nieces and her mother's
estate for the purpose of securing a declaration that the said properties are reservable
properties which Mrs. Legarda could not bequeath in her holographic will to her
grandchildren to the exclusion of her three daughters and her three sons (See Paz vs.
Madrigal, 100 Phil. 1085).

As already stated, the lower court dismissed the action of Mrs. Gonzales. ln this appeal
under Republic Act No. 5440 she contends in her six assignments of error that the lower
court erred in not regarding the properties in question as reservable properties under
article 891 of the Civil Code.

On the other hand, defendants-appellees in their six counter-assignments of error

contend that the lower court erred in not holding that Mrs. Legarda acquired the estate
of her daughter Filomena] Legarda in exchange for her conjugal and hereditary shares
in the estate of her husband Benito Legarda y De la Paz and in not holding that Mrs.
Gonzales waived her right to the reservable properties and that her claim is barred by
estoppel, laches and prescription.

The preliminary issue raised by the private respondents as to the timeliness of Mrs.
Gonzales' petition for review is a closed matter. This Court in its resolution of December
16, 1971 denied respondents' motion to dismiss and gave due course to the petition for
review.

In an appeal under Republic Act No. 5440 only legal issues can be raised under
undisputed facts. Since on the basis of the stipulated facts the lower court resolved only
the issue of whether the properties in question are subject to reserva troncal that is the
only legal issue to be resolved in this appeal.

The other issues raised by the defendants-appellees, particularly those involving factual
matters, cannot be resolved in this appeal. As the trial court did not pass upon those
issues, there is no ruling which can be reviewed by this Court.

The question is whether the disputed properties are reservable properties under article
891 of the Civil Code, formerly article 811, and whether Filomena Races Vda. de
Legarda could dispose of them in his will in favor of her grandchildren to the exclusion
of her six children.

Did Mrs. Legarda have the right to convey mortis causa what she inherited from her
daughter Filomena to the reservees within the third degree and to bypass the reservees
in the second degree or should that inheritance automatically go to the reservees in the
second degree, the six children of Mrs. Legarda?

As will hereinafter be shown that is not a novel issue or a question of first impression. lt
was resolved in Florentino vs. Florentino, 40 Phil. 480. Before discussing the
applicability to this case of the doctrine in the Florentino case and other pertinent
rulings, it may be useful to make a brief discourse on the nature of reserve troncal, also
called lineal, familiar, extraordinaria o semi-troncal.

Much time, effort and energy were spent by the parties in their five briefs in descanting
on the nature of reserve troncal which together with the reserva viudal and reversion
legal, was abolished by the Code Commission to prevent the decedent's estate from
being entailed, to eliminate the uncertainty in ownership caused by the reservation
(which uncertainty impedes the improvement of the reservable property) and to
discourage the confinement of property within a certain family for generations which
situation allegedly leads to economic oligarchy, and is incompatible with the
socialization of ownership.

The Code Commission regarded the reservas as remnants of feudalism which fomented
agrarian unrest. Moreover, the reserves, insofar as they penalize legitimate relationship,
is considered unjust and inequitable.

However, the lawmaking body, not agreeing entirely with the Code Commission,
restored the reserve troncal, a legal institution which, according to Manresa and Castan
Tobenas has provoked questions and doubts that are difficult to resolve.
Reserva troncal is provided for in article 811 of the Spanish Civil Code, now article 891,
which reads: 1äwphï1.ñët

ART. 811. El ascendiente que heredare de su descendiente bienes que

este hubiese adquirido por titulo lucrative de otro ascendiente, o de un
hermano, se halla obligado a reservas los que hubiere adquirido por
ministerio de la ley en favor de los parientes que eaten dentro del tercer
grade y pertenezcan a la linea de donde los bienes proceden

ART. 891. The ascendant who inherits from his descendant any property
which the latter may have acquired by gratuitous title from another
ascendant, or a brother or sister, is obliged to reserve such property as he
may have acquired by operation of law for the benefit of relatives who are
within the third degree and who belong to the line from which said property
came.

In reserve troncal (1) a descendant inherited or acquired by gratuitous title property from
an ascendant or from a brother or sister; (2) the same property is inherited by another
ascendant or is acquired by him by operation of law from the said descendant, and (3)
the said ascendant should reserve the said property for the benefit of relatives who are
within the third degree from the deceased descendant (prepositus) and who belong to
the line from which the said property came.

So, three transmissions are involved: (I) a first transmission by lucrative title (inheritance
or donation) from an ascendant or brother or sister to the deceased descendant; (2) a
posterior transmission, by operation of law (intestate succession or legitime) from the
deceased descendant (causante de la reserve) in favor of another ascendant, the
reservor or reservista, which two transmissions precede the reservation, and (3) a third
transmissions of the same property (in consequence of the reservation) from the
reservor to the reservees (reservatarios) or the relatives within the third degree from the
deceased descendant belonging to the line of the first ascendant, brother or sister of the
deceased descendant (6 Castan Tobenas Derecho Civil, Part l, 1960, 6th Ed., pp. 198-
9).

If there are only two transmissions there is no reserve. Thus, where one Bonifacia
Lacerna died and her properties were inherited by her son, Juan Marbebe, upon the
death of Juan, those lands should be inherited by his half-sister, to the exclusion of his
maternal first cousins. The said lands are not reservable property within the meaning of
article 811 (Lacerna vs. Vda. de Corcino, l l l Phil. 872).

The persons involved in reserve troncal are (1) the ascendant or brother or sister from
whom the property was received by the descendant by lucrative or gratuitous title, (2)
the descendant or prepositus (prepositus) who received the property, (3) the reservor
(reservista) the other ascendant who obtained the property from the (prepositus) by
operation of law and (4) the reserves (reservatario) who is within the third degree from
the prepositus and who belongs to the (line o tronco) from which the property came and
for whom the property should be reserved by the reservor.

The reservees may be half-brothers and sisters (Rodriguez vs. Rodriguez, 101 Phil.
1098; Chua vs. Court of First Instance of Negros Occidental, L-29901, August 31, 1977,
78 SCRA 412). Fourth degree relatives are not included (Jardin vs. Villamayor, 72 Phil.
392).

The rationale of reserve troncal is to avoid "el peligro de que bienes poseidos
secularmente por una familia pasen bruscamente a titulo gratuito a manos extrañas por
el azar de los enlaces y muertes prematuras or impeder que, por un azar de la vide
personas extranas a una familia puedan adquirir bienes que sin aquel hubieran
quedado en ella (6 Castan Tobenas Derecho Civil, Part l, 6th Ed., 1980, p. 203; Padura
vs. Baldovino, 104 Phil. 1065).

An illustration of reserve troncal is found in Edroso vs. Sablan, 25 Phil. 295. ln that
case, Pedro Sablan inherited two parcels of land from his father Victorians. Pedro died
in 1902, single and without issue. His mother, Marcelina Edroso, inherited from him the
two parcels of land.

It was held that the land was reservable property in the hands of Marcelina. The
reservees were Pablo Sablan and Basilio Sablan, the paternal uncles of Pedro Sablan,
the prepositus. Marcelina could register the land under the Torrens system in her name
but the fact that the land was reservable property in favor of her two brothers-in-law,
should they survive her, should be noted in the title.

In another case, it appears that Maria Aglibot died intestate in 1906. Her one-half share
of a parcel of conjugal land was inherited by her daughter, Juliana Mañalac. When
Juliana died intestate in 1920, said one-half share was inherited by her father, Anacleto
Mañalac who owned the other one-half portion.

Anacleto died intestate in 1942, survived by his second wife and their six children. lt was
held that the said one-half portion was reservable property in the hands of Anacleto
Mañalac and, upon his death, should be inherited by Leona Aglibot and Evarista
Aglibot, sisters of Maria and materna aunts of Juliana Mañalac, who belonged to the
line from which said one-half portion came (Aglibot vs. Mañalac 114 Phil. 964).

Other illustrations of reserva troncal are found in Florentino vs Florentino, 40 Phil. 480;
Nieva and Alcala vs. Alcala and Deocampo, 41 Phil. 915; Maghirang and Gutierrez vs.
Balcita 46 Phil. 551; Lunsod vs. Ortega, 46 Phil. 664; Dizon vs. Galang, 48 Phil. 601;
Riosa vs. Rocha, 48 Phil. 737; Centeno vs. Centeno 52 Phil. 322; Velayo Bernardo vs.
Siojo, 58 Phil. 89; Director of Lands vs. Aguas, 63 Phil. 279; Fallorfina vs. Abille, CA 39
O.G. 1784.

The person from whom the degree should be reckoned is the descendant, or the one at
the end of the line from which the property came and upon whom the property last
revolved by descent. He is called the prepositus (Cabardo vs. Villanueva. 44 Phil. 186,
190).

In the Cabardo case, one Cornelia Abordo inherited property from her mother, Basilia
Cabardo. When Cornelia died, her estate passed to her father, Lorenzo Abordo. ln his
hands, the property was reservable property. Upon the death of Lorenzo, the person
entitled to the property was Rosa Cabardo, a maternal aunt of Cornelia, who was her
nearest relative within the third degree.

First cousins of the prepositus are in the fourth degree and are not reservees. They
cannot even represent their parents because representation is confined to relatives
within the third degree (Florentino vs. Florentino, 40 Phil. 480).

Within the third degree, the nearest relatives exclude the more remote subject to the
rule of representation. But the representative should be within the third degree from the
prepositus (Padura vs. Baldovino, 104 Phil. 1065).

Reserva troncal contemplates legitimate relationship. illegitimate relationship and

relationship by affinity are excluded.

Gratuitous title or titulo lucrativo refers to a transmission wherein the recipient gives
nothing in return such as donacion and succession (Cabardo vs. Villanueva, 44 Phil.
186, 189-190, citing 6 Manresa, Codigo Civil, 7th Ed., 195 l, p. 360).

The reserva creates two resolutory conditions, namely, (1) the death of the ascendant
obliged to reserve and (2) the survival, at the time of his death, of relatives within the
third degree belonging to the line from which the property came
(Sienes vs. E Esparcia l l l Phil. 349, 353).

The reservor has the legal title and dominion to the reservable property but subject to
the resolutory condition that such title is extinguished if the reservor predeceased the
reservee. The reservor is a usufructuary of the reservable property. He may alienate it
subject to the reservation. The transferee gets the revocable and conditional ownership
of the reservor. The transferee's rights are revoked upon the survival of the reservees at
the time of the death of the reservor but become indefeasible when the reservees
predecease the reservor. (Sienes vs. Esparcia, 111 Phil. 349, 353; Edroso vs. Sablan,
25 Phil. 295; Lunsod vs. Ortega, 46 Phil. 664; Florentino vs. Florentino, 40 Phil. 480:
Director of Lands vs. Aguas, 63 Phil. 279.)

The reservor's title has been compared with that of the vendee a retro in a pacta de
retro sale or to a fideicomiso conditional.

The reservor's alienation of the reservable property is subject to a resolutory condition,

meaning that if at the time of the reservor's death, there are reservees, the transferee of
the property should deliver it to the reservees. lf there are no reservees at the time of
the reservor's death, the transferee's title would become absolute. (Lunsod vs. Ortega,
46 Phil. 664; Gueco vs. Lacson, 118 Phil. 944; Mono vs. Nequia 93 Phil. 120).

On the other hand, the reserves has only an inchoate, expectant or contingent right. His
expectant right would disappear if he predeceased the reservor. lt would become
absolute should the reservor predecease the reserves.

The reserves cannot impugn any conveyance made by the reservor but he can require
that the reservable character of the property be recognized by the purchaser (Riosa vs.
Rocha 48 Phil. 737; Edroso vs. Sablan, 25 Phil. 295, 312-3; Gueco vs. Lacson, 118
Phil. 944).

There is a holding that the renunciation of the reservee's right to the reservable property
is illegal for being a contract regarding future inheritance (Velayo Bernardo vs. Siojo, 58
Phil. 89, 96).

And there is a dictum that the reservee's right is a real right which he may alienate and
dispose of conditionally. The condition is that the alienation shall transfer ownership to
the vendee only if and when the reserves survives the reservor (Sienes vs. Esparcia,
111 Phil. 349, 353). 1äwphï1.ñët

The reservatario receives the property as a conditional heir of the

descendant (prepositus) said property merely reverting to the line of origin
from which it had temporarily and accidentally stayed during the
reservista's lifetime. The authorities are all agreed that there being
reservatarios that survive the reservists, the latter must be deemed to
have enjoyed no more than a than interest in the reservable property. (J.
J. B. L. Reyes in Cane vs. Director of Lands, 105 Phil. l5.)

Even during the reservista's lifetime, the reservatarios, who are the
ultimate acquirers of the property, can already assert the right to prevent
the reservista from doing anything that might frustrate their reversionary
right, and, for this purpose, they can compel the annotation of their right in
the registry of property even while the (reservista) is alive (Ley Hipotecaria
de Ultramar, Arts. 168, 199; Edroso vs. Sablan, 25 Phil. 295).

This right is incompatible with the mere expectancy that corresponds to

the natural heirs of the reservista lt is likewise clear that the reservable
property is no part of the estate of the reservista who may not dispose of
them (it) by will, so long as there are reservatarios existing (Arroyo vs.
Gerona, 58 Phil. 226, 237).

The latter, therefore, do not inherit from the reservista but from the
descendant (prepositus) of whom the reservatarios are the heirs mortis
causa, subject to the condition that they must survive the reservista.
(Sanchez Roman, Vol. VI Tomo 2, p. 286; Manresa, Commentaries, Vol.
 6, 6th Ed., pp. 274, 310, cited by J. J.B.L. Reyes in Padura vs. Baldovino,
L-11960, December 27, 1958, 104 Phil. 1065).

Hence, upon the reservista's death, the reservatario nearest to the prepositus becomes,
"automatically and by operation of law, the owner of the reservable property." (Cane vs.
Director of Lands, 105 Phil. l5.)

In the instant case, the properties in question were indubitably reservable properties in
the hands of Mrs. Legarda. Undoubtedly, she was a reservor. The reservation became
a certainty when at the time of her death the reservees or relatives within the third
degree of the prepositus Filomena Legarda were living or they survived Mrs. Legarda.

So, the ultimate issue in this case is whether Mrs. Legarda, as reservor, could convey
the reservable properties by will or mortis causa to the reservees within the third degree
(her sixteen grandchildren) to the exclusion of the reservees in the second degree, her
three daughters and three sons. As indicated at the outset, that issue is already res
judicata or cosa juzgada.

We hold that Mrs. Legarda could not convey in her holographic will to her sixteen
grandchildren the reservable properties which she had inherited from her daughter
Filomena because the reservable properties did not form part of her estate (Cabardo vs.
Villanueva, 44 Phil. 186, 191). The reservor cannot make a disposition mortis causa of
the reservable properties as long as the reservees survived the reservor.

As repeatedly held in the Cano and Padura cases, the reservees inherit the reservable
properties from the prepositus, not from the reservor.

Article 891 clearly indicates that the reservable properties should be inherited by all the
nearest relatives within the third degree from the prepositus who in this case are the six
children of Mrs. Legarda. She could not select the reservees to whom the reservable
property should be given and deprive the other reservees of their share therein.

To allow the reservor in this case to make a testamentary disposition of the reservable
properties in favor of the reservees in the third degree and, consequently, to ignore the
reservees in the second degree would be a glaring violation of article 891. That
testamentary disposition cannot be allowed.

We have stated earlier that this case is governed by the doctrine of Florentino vs.
Florentino, 40 Phil. 480, a similar case, where it was ruled: 1äwphï1.ñët

Reservable property left, through a will or otherwise, by the death of

ascendant (reservista) together with his own property in favor of another of
his descendants as forced heir, forms no part of the latter's lawful
inheritance nor of the legitime, for the reason that, as said property
continued to be reservable, the heir receiving the same as an inheritance
from his ascendant has the strict obligation of its delivery to the relatives,
 within the third degree, of the predecessor in interest (prepositus), without
prejudicing the right of the heir to an aliquot part of the property, if he has
at the same time the right of a reservatario (reserves).

ln the Florentino case, it appears that Apolonio Florentino II and his second wife
Severina Faz de Leon begot two children, Mercedes and Apolonio III. These two
inherited properties from their father. Upon Apolonio III death in 1891, his properties
were inherited by his mother, Severina, who died in 1908. ln her will, she instituted her
daughter Mercedes as heiress to all her properties, including those coming from her
deceased husband through their son, Apolonio III.

The surviving children, begotten by Apolonio II with his first wife Antonia Faz de Leon
and the descendants of the deceased children of his first marriage, sued Mercedes
Florentino for the recovery of their share in the reservable properties, which Severina de
Leon had inherited from Apolonio III which the latter had inherited from his father
Apolonio II and which Severina willed to her daughter Mercedes.

Plaintiff's theory was that the said properties, as reservable properties, could not be
disposed of in Severina's will in favor of Mercedes only. That theory was sustained by
this Court.

It was held that the said properties, being reservable properties, did not form part of
Severina's estate and could not be inherited from her by her daughter Mercedes alone.

As there were seven reservees, Mercedes was entitled, as a reserves, to one-seventh

of the properties. The other six sevenths portions were adjudicated to the other six
reservees.

Under the rule of stare decisis et non quieta movere, we are bound to follow in this case
the doctrine of the Florentino case. That doctrine means that as long as during the
reservor's lifetime and upon his death there are relatives within the third degree of the
prepositus regardless of whether those reservees are common descendants of the
reservor and the ascendant from whom the property came, the property retains its
reservable character. The property should go to the nearest reservees. The reservor
cannot, by means of his will, choose the reserves to whom the reservable property
should be awarded.

The alleged opinion of Sanchez Roman that there is no reserva troncal when the only
relatives within the third degree are the common descendants of the predeceased
ascendant and the ascendant who would be obliged to reserve is irrelevant and sans
binding force in the light of the ruling in the Florentino case.

It is contended by the appellees herein that the properties in question are not reservable
properties because only relatives within the third degree from the paternal line have
survived and that when Mrs. Legarda willed the said properties to her sixteen
grandchildren, who are third-degree relatives of Filomena Legarda and who belong to
the paternal line, the reason for the reserva troncal has been satisfied: "to prevent
persons outside a family from securing, by some special accident of life, property that
would otherwise have remained therein".

That same contention was advanced in the Florentino case where the reservor willed
the reservable properties to her daughter, a full-blood sister of the prepositus and
ignored the other six reservors, the relatives of the half-blood of the prepositus.

In rejecting that contention, this Court held that the reservable property bequeathed by
the reservor to her daughter does not form part of the reservor's estate nor of the
daughter's estate but should be given to all the seven reservees or nearest relatives of
the prepositus within the third degree.

This Court noted that, while it is true that by giving the reservable property to only one
reserves it did not pass into the hands of strangers, nevertheless, it is likewise true that
the heiress of the reservor was only one of the reservees and there is no reason
founded upon law and justice why the other reservees should be deprived of their
shares in the reservable property (pp. 894-5).

Applying that doctrine to this case, it results that Mrs. Legarda could not dispose of in
her will the properties in question even if the disposition is in favor of the relatives within
the third degree from Filomena Legarda. The said properties, by operation of Article
891, should go to Mrs. Legarda's six children as reservees within the second degree
from Filomena Legarda.

It should be repeated that the reservees do not inherit from the reservor but from the
reservor but from the prepositus, of whom the reservees are the heirs mortis causa
subject to the condition that they must survive the reservor (Padura vs. Baldovino, L-
11960, December 27, 1958, 104 Phil. 1065).

The trial court said that the disputed properties lost their reservable character due to the
non-existence of third-degree relatives of Filomena Legarda at the time of the death of
the reservor, Mrs. Legarda, belonging to the Legarda family, "except third-degree
relatives who pertain to both" the Legarda and Races lines.

That holding is erroneous. The reservation could have been extinguished only by the
absence of reservees at the time of Mrs. Legarda's death. Since at the time of her
death, there were (and still are) reservees belonging to the second and third degrees,
the disputed properties did not lose their reservable character. The disposition of the
said properties should be made in accordance with article 891 or the rule on reserva
troncal and not in accordance with the reservor's holographic will. The said properties
did not form part of Mrs. Legarda's estate. (Cane vs. Director of Lands, 105 Phil. l, 4).

WHEREFORE, the lower court's decision is reversed and set aside. lt is hereby
adjudged that the properties inherited by Filomena Roces Vda. de Legarda from her
daughter Filomena Legarda, with all the fruits and accessions thereof, are reservable
properties which belong to Beatriz, Rosario, Teresa, Benito, Alejandro and Jose, all
surnamed Legarda y Roces, as reservees. The shares of Rosario L. Valdes and Benito
F. Legarda, who died in 1969 and 1973, respectively, should pertain to their respective
heirs. Costs against the private respondents.

SO ORDERED.

5. G.R. No. 6878 September 13, 1913

MARCELINA EDROSO, petitioner-appellant,

vs.
PABLO and BASILIO SABLAN, opponents-appellees.

Francisco Dominguez for appellant.

Crispin Oben for appellees.

ARELLANO, C.J.:

The subject matter of this appeal is the registration of certain property classified as required by
law to be reserved. Marcelina Edroso applied for registration and issuance of title to two parcels
of land situated in the municipality of Pagsanjan, Province of Laguna, one of 1 hectare 77 ares
and 63 centares, and the other 1 hectare 6 ares and 26 centares. Two applications were filed, one
for each parcel, but both were heard and decided in a single judgment.

Marcelina Edroso was married to Victoriano Sablan until his death on September 22, 1882. In
this marriage they had a son named Pedro, who was born on August 1, 1881, and who at his
father's death inherited the two said parcels. Pedro also died on July 15, 1902, unmarried and
without issue and by this decease the two parcels of land passed through inheritance to his
mother, Marcelina Edroso. Hence the hereditary title whereupon is based the application for
registration of her ownership.

Two legitimate brothers of Victoriano Sablan — that is, two uncles german of Pedro Sablan —
appeared in the case to oppose the registration, claiming one of two things: Either that the
registration be denied, "or that if granted to her the right reserved by law to the opponents be
recorded in the registration of each parcel." (B. of E., 11, 12.)

The Court of Land Registration denied the registration and the application appealed through a
bill of exceptions.

Registration was denied because the trial court held that the parcels of land in question partake of
the nature of property required by law to be reserved and that in such a case application could
only be presented jointly in the names of the mother and the said two uncles of Pedro Sablan.
The appellant impugns as erroneous the first idea advanced (second assignment of error), and
denies that the land which are the subject matter of the application are required by law to be
reserved — a contention we regard as indefensible.

Facts: (1) The applicant acquired said lands from her descendant Pedro Sablan by inheritance;
(2) Pedro Sablan had acquired them from his ascendant Victoriano Sablan, likewise by
inheritance; (3) Victoriano Sablan had likewise acquired them by inheritance from his
ascendants, Mariano Sablan and Maria Rita Fernandez, they having been adjudicated to him in
the partition of hereditary property had between him and his brothers. These are admitted facts.

A very definite conclusions of law is that the hereditary title is one without a valuable
consideration [gratuitous title], and it is so characterized in article 968 of the Civil Code, for he
who acquires by inheritance gives nothing in return for what he receives; and a very definite
conclusion of law also is that the uncles german are within the third degree of blood relationship.

The ascendant who inherits from his descendant property which the latter acquired
without a valuable consideration from another ascendant, or from a brother or sister, is
under obligation to reserve what he has acquired by operation of law for the relatives who
are within the third degree and belong to the line whence the property proceeded. (Civil
Code, art. 811.)

Marcelina Edroso, ascendant of Pedro Sablan, inherited from him these two parcels of land
which he had acquired without a valuable consideration — that is, by inheritance from another
ascendant, his father Victoriano. Having acquired them by operation of law, she is obligated to
relatives within the third degree and belong to the line of Mariano Sablan and Maria Rita
Fernandez, whence the lands proceeded. The trial court's ruling that they partake of the nature
property required by law to be reserved is therefore in accordance with the law.

But the appellant contends that it is not proven that the two parcels of land in question have been
acquired by operation of law, and that only property acquired without a valuable consideration,
which is by operation of law, is required by law to reserved.

The appellees justly argue that this defense was not alleged or discussed in first instance, but
only herein. Certainly, the allegation in first instance was merely that "Pedro Sablan acquired the
property in question in 1882, before the enforcement of the Civil Code, which establishes the
alleged right required by law to be reserved, of which the opponents speak; hence, prescription
of the right of action; and finally, opponents' renunciation of their right, admitting that it existed
and that they had it" (p. 49).

However that be, it is not superflous to say, although it may be unnecessary, that the applicant
inherited the two parcels of land from her son Pedro, who died "unmarried and without issue."
The trial court so held as a conclusion of fact, without any objection on the appellant's part. (B.
of E., 17, 20.) When Pedro Sablan died without issue, his mother became his heir by virtue of her
right to her son's legal portion under article 935 of the Civil Code:
 In the absence of legitimate children and descendants of the deceased, his ascendants
shall from him, to the exclusion of collaterals.

The contrary could only have occurred if the heiress had demonstrated that any of these lands
had passed into her possession by free disposal in her son's will; but the case presents no
testamentary provision that demonstrate any transfer of property from the son to the mother, not
by operation of law, but by her son's wish. The legal presumption is that the transfer of the two
parcels of land was abintestate or by operation of law, and not by will or the wish of the
predecessor in interest. (Act No. 190, sec. 334, No. 26.) All the provision of article 811 of the
Civil Code have therefore been fully complied with.

If Pedro Sablan had instituted his mother in a will as the universal heiress of his property, all he
left at death would not be required by law to be reserved, but only what he would have perforce
left her as the legal portion of a legitimate ascendant.

The legal portion of the parents or ascendants is constituted by one-half of the hereditary
estate of the children and descendants. The latter may unrestrictedly dispose of the other
half, with the exception of what is established in article 836. (Civil Code, art. 809.)

In such case only the half constituting the legal portion would be required by law to be reserved,
because it is what by operation of law could full to the mother from her son's inheritance; the
other half at free disposal would not have to be reserved. This is all that article 811 of the Civil
Code says.

No error has been incurred in holding that the two parcels of land which are the subject matter of
the application are required by law to be reserved, because the interested party has not proved
that either of them became her inheritance through the free disposal of her son.

Proof testate succession devolves upon the heir or heiress who alleges it. It must be admitted that
a half of Pedro Sablan's inheritance was acquired by his mother by operation of law. The law
provides that the other half is also presumed to be acquired by operation of law — that is, by
intestate succession. Otherwise, proof to offset this presumption must be presented by the
interested party, that is, that the other half was acquired by the man's wish and not by operation
of law.

Nor is the third assignments of error admissible — that the trial court failed to sustain the
renunciation of the right required by law to be reserved, which the applicant attributes to the
opponents. Such renunciation does not appear in the case. The appellant deduces it from the fact
that the appellees did not contradict the following statement of hers at the trial:

The day after my brother-in-law Pablo Sablan dies and was buried, his brother came to my
house and said that those rice lands were mine, because we had already talked about making
delivery of them. (p. 91).

The other brother alluded to is Basilio Sablan, as stated on page 92. From the fact that Basilio
Sablan said that the lands belong to the appellant and must be delivered to her it cannot be
deduced that he renounced the right required by law to be reserved in such lands by virtue of the
provisions of article 811 of the Civil Code, for they really belong to her and must be delivered to
her.

The fourth assignments of error set up the defense of prescription of the right of action. The
appellant alleges prescription of the opponent's right of action for requiring fulfillment of the
obligation they attribute to her recording in the property registry the right required by law to be
reserved, in accordance with the provisions of the Mortgage Law; and as such obligation is
created by law, it prescribed in the time fixed in No. 2 of section 43 of Act No. 190. She adds:
"Prescription of the right alleged to the reserved by force of law has not been invoked." (Eight
allegation.)

The appellant does not state in her brief what those provisions of the Mortgage Law are. Nor did
she do so in first instance, where she says only the following, which is quoted from the record: "I
do not refer to the prescription of the right required by law to be reserved in the property; I refer
to the prescription of the right of action of those who are entitled to the guaranty of that right for
seeking that guaranty, for those who are entitled to that right the Mortgage Law grants a period
of time for recording it in the property registry, if I remember correctly, ninety days, for seeking
entry in the registry; but as they have not exercised that right of action, such right of action for
seeking here that it be recorded has prescribed. The right of action for requiring that the property
be reserved has not prescribed, but the right of action for guaranteeing in the property registry
that this property is required by law to be reserved" (p. 69 of the record).

The appellees reply: It is true that their right of action has prescribed for requiring the applicant
to constitute the mortgage imposed by the Mortgage Law for guaranteeing the effectiveness of
the required by law to be reserved; but because that right of action has prescribed, that property
has not been divested of its character of property required by law to be reserved; that it has such
character by virtue of article 8112 of the Civil Code, which went into effect in the Philippine in
December, 1889, and not by virtue of the Mortgage Law, which only went into effect in the
country by law of July 14, 1893; that from December, 1889, to July, 1893, property which under
article 811 of the Civil Code acquired the character of property reserved by operation of law was
such independently of the Mortgage Law, which did not yet form part of the positive legislation
of the country; that although the Mortgage Law has been in effect in the country since July,
1893, still it has in no way altered the force of article 811 of the Civil Code, but has operated to
reinforce the same merely by granting the right of action to the persons in whose favor the right
is reserved by operation of law to require of the person holding the property a guaranty in the
form of a mortgage to answer for the enforcement, in due time, of the right; that to lose the right
of action to the guaranty is not to lose the right itself; that the right reserved is the principal
obligation and the mortgage the accessory obligation, and loss of the accessory does not mean
loss of the principal. (Fifth and sixth allegations.)

The existence of the right required by law to be reserved in the two parcels of land in question
being indisputable, even though it be admitted that the right of action which the Mortgage Law
grants as a guaranty of final enforcement of such right has prescribed, the only thing to be
determined by this appeal is the question raised in the first assignment of error, that is, how said
two parcels of land can and ought to be registered, not in the property registry newly established
by the Mortgage Law, but in the registry newly organized by Act No. 496. But as the have
slipped into the allegations quoted some rather inexact ideas that further obscure such an intricate
subject as this of the rights required to be reserved in Spanish-Philippine law, a brief disgression
on the most essential points may not be out of place here.

The Mortgage Law of July 14, 1893, to which the appellees allude, is the amended one of the
colonies, not the first enforced in the colonies and consequently in the Philippines. The preamble
of said amended Mortgage Law states:

The Mortgage Law in force in Spain for thirty years went into effect, with the
modifications necessary for its adaptation, in the Antilles on May 1, 1880, and in the
Philippines on December 1, 1889, thus commencing in those regions the renovation of
the law on real property, and consequently of agrarian credit.

The Civil Code went into effect in the Philippines in the same year, 1889, but on the eight day.

Two kinds of property required by law to be reserved are distinguished in the Civil Code, as set
forth in article 968 thereof, where it says:

Besides the reservation imposed by article 811, the widow or widower contracting a seconds
marriage shall be obliged to set apart for the children and descendants of the first marriage the
ownership of all the property he or she may have required from the deceased spouse by will, by
intestate succession, by gift, or other transfer without a valuable consideration."

The Mortgage Law of Spain and the first law that went into effect in the Philippines on
December 1, 189, do not contain any provision that can be applied to the right reserved by article
811 of the Civil Code, for such right is a creation of the Civil Code. In those laws appear merely
the provisions intended to guarantee the effectiveness of the right in favor of the children of the
first marriage when their father or mother contracts a second marriage. Nevertheless, the holding
of the supreme court of Spain, for the first time set forth in the decision on appeal of November
8, 1894, has been reiterated:

That while the provisions of articles 977 and 978 of the Civil Code that tend to secure the
right required to be reserved in the property refer especially to the spouses who contract
second or later marriages, they do not thereby cease to be applicable to the right
establishes in article 811, because, aside from the legal reason, which is the same in both
cases, such must be the construction from the important and conclusive circumstance that
said provisions are set forth in the chapter that deals with inheritances in common, either
testate or intestate, and because article 968, which heads the section that deals in general
with property required by law to be reserved, makes reference to the provisions in article
811; and it would consequently be contradictory to the principle of the law and of the
common nature of said provisions not to hold them applicable to that right.

Thus it was again stated in a decision on appeal, December 30, 1897, that: "As the supreme court
has already declared, the guaranties that the Code fixes in article 977 and 978 for the rights
required by law to the reserved to which said articles refer, are applicable to the special right
dealt with in article 811, because the same principle exists and because of the general nature of
the provisions of the chapter in which they are found."

From this principle of jurisprudence it is inferred that if from December, 1889, to July, 1893, a
case had occurred of a right required to be reserved by article 811, the persons entitled to such
right would have been able to institute, against the ascendant who must make the reservation,
proceedings for the assurance and guaranty that article 977 and 978 grant to the children of a first
marriage against their father or mother who has married again. The proceedings for assurance,
under article 977; are: Inventory of the property subject to the right reserved, annotation in the
property registry of such right reserved in the real property and appraisal of the personal
property; and the guaranty, under article 978, is the assurance by mortgage, in the case of realty,
of the value of what is validly alienated.

But since the amended Mortgage Law went into effect by law of July 14, 1893, in the Philippines
this is not only a principle of jurisprudence which may be invoked for the applicability to the
right reserved in article 811 of the remedies of assurance and guaranty provided for the right
reserved in article 968, but there is a positive provision of said law, which is an advantage over
the law of Spain, to wit, article 199, which read thus:

The special mortgage for guaranteeing the right reserved by article 811 of the Civil Code
can only be required by the relatives in whose favor the property is to be reserved, if they
are of age; if minors, it will be require by the person who should legally represent them.
In either case the right of the persons in whose favor the property must be reserved will
be secured by the same requisites as set forth in the preceding article (relative to the right
reserved by article 968 of the Civil Code), applying to the person obligated to reserve the
right the provisions with respect to the father.

In article 168 of the same law the new subsection 2 is added in connection with article 199
quoted, so that said article 168 reads as thus:

Legal mortgage is established:

1. . . .

2. In favor of the relatives to whom article 811 of the Civil Code refers, for the property
required to be reserved, upon the property of the person obliged to reserve it.

This being admitted, and admitted also that both the litigating parties agree that the period of
ninety days fixed for the right of action to the guaranty, that is, to require the mortgage that
guarantees the effectiveness of the right required by law to be reserved, has prescribed, it is
necessary to lay down a principle in this matter. Now it should by noted that such action has not
prescribed, because the period of ninety days fixed by the Mortgage Law is not for the exercise
of the right of action of the persons entitled to the right reserved, but for the fulfillment of the
obligation of the person who must make the reservation.
Article 191 of the reads thus: "If ninety days pass without the father's instituting in court the
proceeding to which the foregoing article refers, the relatives themselves may demand
fulfillment, etc., . . . applying, according to said article 199, to the person obligated to reserve the
right the provisions with respect to the father."

Article 203 of the regulation for the application of the Mortgage Law says: "In the case of article
199 of the law the proceedings to which article 190 thereof refers will be instituted within the
ninety days succeeding the date of the date of the acceptation of the inheritance by the person
obligated to reserve the property; after this period has elapsed, the interested parties may require
the institution of such proceedings, if they are of age; and in any other case, their legal
representatives."

Thus it clearly appears that the lapse of the ninety days is not the expiration by prescription of
the period for the right must be reserved, but really the commencement thereof, enables them to
exercise it at any time, since no limits is set in the law. So, if the annotation of the right required
by law to be reserved in the two parcels of land in question must be made in the property registry
of the Mortgage Law, the persons entitled to it may now institute proceedings to that end, and an
allegation of prescription against the exercise of such right of action cannot be sustained.

Since the applicant confesses that she does not allege prescription of the right of action for
requiring that the property be reserved, for she explicitly so stated at the trial, and as the case
presents no necessity for the proceedings that should be instituted in accordance with the
provisions of the Mortgage Law, this prescription of the right of action cannot take place,
because such right of action does not exist with reference to instituting proceedings for
annotation in the registry of Act No. 496 of the right to the property required by law to be
reserved. It is sufficient, as was done in the present case, to intervene in the registration
proceedings with the claim set up by the two opponents for recording therein the right reserved
in either parcel of land.

Now comes the main point in the appeal. The trial court denied the registration because of this
finding set forth in its decision:

Absolute title to the two parcels of land undoubtedly belongs to the applicant and the two
uncles of the deceased Pedro Sablan, and the application cannot be made except in the
name of all of them in common. (B. of E., p. 20.)

It must be remembered that absolute title consists of the rights to use, enjoy, dispose of, and
recover. The person who has in himself all these rights has the absolute or complete ownership
of the thing; otherwise, the person who has the right to use and enjoy will have the usufruct, and
the person who has the rights of disposal and recovery the direct title. The person who by law,
act, or contract is granted the right of usufruct has the first two rights or using an enjoying, and
then he is said not to have the fee simple — that is, the rights of disposal and recovery, which
pertain to another who, after the usufruct expires, will come into full ownership.

The question set up in the first assignment of error of the appellant's brief is this:
 What are the rights in the property of the person who holds it subject to the reservation of
article 811 of the Civil Code?

There are not lacking writers who say, only those of a usufructuary, the ultimate title belonging
to the person in whose favor the reservation is made. If that were so, the person holding the
property could not apply for registration of title, but the person in whose favor it must be
reserved, with the former's consent. This opinion does not seem to be admissible, although it
appears to be supported by decisions of the supreme court of Spain of May 21, 1861, and June
18, 1880, prior to the Civil Code, and of June 22, 1895, somewhat subsequent to the enforcement
thereof.

Another writer says: "This opinion only looks at two salient points — the usufruct and the fee
simple; the remaining features of the arrangement are not perceived, but become obscure in the
presence of that deceptive emphasis which only brings out two things: that the person holding
the property will enjoy it and that he must keep what he enjoys for other persons." (Manresa,
VII, 189.)

In another place he says: "We do not believe that the third opinion can now be maintained —
that is, that the surviving spouse (the person obliged by article 968 to make the reservation) can
be regarded as a mere usufructuary and the descendants immediately as the owner; such theory
has no serious foundation in the Code." (Ibid., 238.)

The ascendants who inherits from a descendants, whether by the latter's wish or by operation of
law, requires the inheritance by virtue of a title perfectly transferring absolute ownership. All the
attributes of the right of ownership belong to him exclusively — use, enjoyment, disposal and
recovery. This absolute ownership, which is inherent in the hereditary title, is not altered in the
least, if there be no relatives within the third degree in the line whence the property proceeds or
they die before the ascendant heir who is the possessor and absolute owner of the property. If
there should be relatives within the third degree who belong to the line whence the property
proceeded, then a limitation to that absolute ownership would arise. The nature and scope of this
limitation must be determined with exactness in order not to vitiate rights that the law wishes to
be effective. The opinion which makes this limitation consist in reducing the ascendant heir to
the condition in of a mere usufructuary, depriving him of the right of disposal and recovery, does
not seem to have any support in the law, as it does not have, according to the opinion that he has
been expressed in speaking of the rights of the father or mother who has married again. There is
a marked difference between the case where a man's wish institutes two persons as his heirs, one
as usufructuary and the other as owner of his property, and the case of the ascendant in article
811 or of the father or mother in article 968. In the first case, there is not the slightest doubt that
the title to the hereditary property resides in the hereditary owner and he can dispose of and
recover it, while the usufructuary can in no way perform any act of disposal of the hereditary
property (except that he may dispose of the right of usufruct in accordance with the provisions of
article 480 of the Civil Code), or any act of recovery thereof except the limited one in the form
prescribed in article 486 of the Code itself, because he totally lacks the fee simple. But the
ascendants who holds the property required by article 811 to be reserved, and the father of
mother required by article 986 to reserve the right, can dispose of the property they might itself,
the former from his descendant and the latter from his of her child in first marriage, and recover
it from anyone who may unjustly detain it, while the persons in whose favor the right is required
to be reserved in either case cannot perform any act whatsoever of disposal or of recovery.

Article 975 states explicitly that the father or mother required by article 9687 to reserve the right
may dispose of the property itself:

Alienation of the property required by law to be reserved which may be made by the
surviving spouse after contracting a second marriage shall be valid only if at his or her
death no legitimate children or descendants of the first marriage survive, without
prejudice to the provisions of the Mortgage of Law.

It thus appears that the alienation is valid, although not altogether effective, but under a condition
subsequent, to wit: "If at his or her death no legitimate children or descendants of the first
marriage survive."

If the title did not reside in the person holding the property to be reserved, his alienation thereof
would necessarily be null and void, as executed without a right to do so and without a right
which he could transmit to the acquirer. The law says that the alienation subsists (to subject is to
continue to exist) "without prejudice to the provisions of the Mortgage Law." Article 109 of this
Law says:

The possessor of property subject to conditions subsequent that are still pending may
mortgage or alienate it, provided always that he preserve the right of the parties interested
in said conditions by expressly reserving that right in the registration.

In such case, the child or legitimate descendants of the first marriage in whose favor the right is
reserved cannot impugn the validity of the alienation so long as the condition subsequent is
pending, that is, so long as the remarried spouse who must reserve the right is alive, because it
might easily happen that the person who must reserve the right should outlive all the person in
whose favor the right is reserved and then there would be no reason for the condition subsequent
that they survive him, and, the object of the law having disappeared, the right required to be
reserved would disappear, and the alienation would not only be valid but also in very way
absolutely effective. Consequently, the alienation is valid when the right required by law to be
reserved to the children is respected; while the effects of the alienation depend upon a condition,
because it will or will not become definite, it will continue to exist or cease to exist, according to
circumstances. This is what the law establishes with reference to the reservation of article 968,
wherein the legislator expressly directs that the surviving spouse who contracts a second
marriage shall reserve to the children or descendants of the first marriage ownership. Article 811
says nothing more than that the ascendants must make the reservation.

Manresa, with his recognized ability, summarizes the subject under the heading, "Rights and
obligations during the existence of the right required by law to be reserved," in these words:

During the whole period between the constitution in legal form of the right required by law to be
reserved and the extinction thereof, the relatives within the third degree, after the right that in
their turn may pertain to them has been assured, have only an expectation, and therefore they do
not even have the capacity to transmit that expectation to their heirs.

The ascendant is in the first place a usufructuary who should use and enjoy the things according
to their nature, in the manner and form already set forth in commenting upon the article of the
Code referring to use and usufruct.

But since in addition to being the usufructuary he is, even though conditionally, the owner in fee
simple of the property, he can dispose of it in the manner provided in article 974 and 976 of the
same Code. Doubt arose also on this point, but the Direccion General of the registries, in an
opinion of June 25, 1892, declared that articles 974 and 975, which are applicable by analogy,
for they refer to property reserved by law, reveal in the clearest manner the attitude of the
legislator on this subject, and the relatives with the third degree ought not to be more privileged
in the right reserved in article 811 than the children in the right reserved by article 975, chiefly
for the reason that the right required to be reserved carries with it a condition subsequent, and the
property subject to those conditions can validly be alienated in accordance with article 109 of the
Mortgage Law, such alienation to continue, pending fulfillment of the condition." (Civil Code,
VI, 270.)

Another commentator corroborates the foregoing in every way. He says:

The ascendants acquires that property with a condition subsequent, to wit, whether or not
there exists at the time of his death relatives within the third degree of the descendants
from whom they inherit in the line whence the property proceeds. If such relatives exist,
they acquire ownership of the property at the death of the ascendants. If they do not exist,
the ascendants can freely dispose thereof. If this is true, since the possessor of property
subject to conditions subsequent can alienate and encumber it, the ascendants may
alienate the property required by law to be reserved, but he will alienate what he has and
nothing more because no one can give what does not belong to him, and the acquirer will
therefore receive a limited and revocable title. The relatives within the third degree will
in their turn have an expectation to the property while the ascendant lives, an expectation
that cannot be transmitted to their heirs, unless these are also within the third degree.
After the person who is required by law to reserve the right has died, the relatives may
rescind the alienation of the realty required by law to be reserved and they will complete
ownership, in fee simple, because the condition and the usufruct have been terminated by
the death of the usufructuary. (Morell, Estudios sobre bienes reservable, 304, 305.)

The conclusion is that the person required by article 811 to reserve the right has, beyond any
doubt at all, the rights of use and usufruct. He has, moreover, for the reasons set forth, the legal
title and dominion, although under a condition subsequent. Clearly he has, under an express
provision of the law, the right to dispose of the property reserved, and to dispose of is to alienate,
although under a condition. He has the right to recover it, because he is the one who possesses or
should possess it and have title to it, although a limited and revocable one. In a word, the legal
title and dominion, even though under a condition, reside in him while he lives. After the right
required by law to be reserved has been assured, he can do anything that a genuine owner can do.
On the other hand, the relatives within the third degree in whose favor of the right is reserved
cannot dispose of the property, first because it is no way, either actually, constructively or
formally, in their possession; and, moreover, because they have no title of ownership or of the
fee simple which they can transmit to another, on the hypothesis that only when the person who
must reserve the right should die before them will they acquire it, thus creating a fee simple, and
only then will they take their place in the succession of the descendants of whom they are
relatives within the third degree, that it to say, a second contingent place in said legitimate
succession in the fashion of aspirants to a possible future legacy. If any of the persons in whose
favor the right is reserved should, after their rights has been assured in the registry, dare to
dispose of even nothing more than the fee simple of the property to be reserved his act would be
null and void, for, as was definitely decided in the decision on appeal of December 30, 1897, it is
impossible to determine the part "that might pertain therein to the relative at the time he
exercised the right, because in view of the nature and scope of the right required by law to be
reserved the extent of his right cannot be foreseen, for it may disappear by his dying before the
person required to reserve it, just as may even become absolute should that person die."

Careful consideration of the matter forces the conclusion that no act of disposal inter vivos of the
person required by law to reserve the right can be impugned by him in whose favor it is reserved,
because such person has all, absolutely all, the rights inherent in ownership, except that the legal
title is burdened with a condition that the third party acquirer may ascertain from the registry in
order to know that he is acquiring a title subject to a condition subsequent. In conclusion, it
seems to us that only an act of disposal mortis causa in favor of persons other than relatives
within the third degree of the descendants from whom he got the property to be reserved must be
prohibited to him, because this alone has been the object of the law: "To prevent persons outside
a family from securing, by some special accident of life, property that would otherwise have
remained therein." (Decision of December 30, 1897.)

Practically, even in the opinion of those who reduce the person reserving the right to the
condition of a mere usufructuary, the person in whose favor it must be reserved cannot attack the
alienation that may be absolutely made of the property the law requires to be reserved, in the
present case, that which the appellant has made of the two parcels of land in question to a third
party, because the conditional alienation that is permitted her is equivalent to an alienation of the
usufruct, which is authorized by article 480 of the Civil Code, and, practically, use and
enjoyment of the property required by law to be reserved are all that the person who must reserve
it has during his lifetime, and in alienating the usufruct all the usefulness of the thing would be
transmitted in an incontrovertible manner. The question as to whether or not she transmits the fee
simple is purely academic, sine re, for it is not real, actual positive, as is the case of the
institution of two heirs, one a usufructuary and the other the owner, by the express wish of the
predecessor in interest.

If the person whom article 811 requires to reserve the right has all the rights inherent in
ownership, he can use, enjoy, dispose of and recover it; and if, in addition to usufructuary, he is
in fact and in law the real owner and can alienate it, although under a condition, the whole
question is reduced to the following terms:
Cannot the heir of the property required by law to reserved, merely because a condition
subsequent is annexed to his right of disposal, himself alone register the ownership of the
property he has inherited, when the persons in whose favor the reservation must be made degree
thereto, provided that the right reserved to them in the two parcels of land be recorded, as the law
provides?

It is well known that the vendee under pacto de retracto acquires all the rights of the vendor:

The vendee substitutes the vendor in all his rights and actions. (Civil Code, art. 1511.)

If the vendor can register his title, the vendee can also register this same title after he has once
acquired it. This title, however, in its attribute of being disposable, has a condition subsequent
annexed — that the alienation the purchaser may make will be terminated, if the vendor should
exercise the right granted him by article 1507, which says:

Conventional redemption shall take place when the vendor reserves to himself the right to
recover the thing sold, with the obligation to comply with article 1518, and whatever more may
have been agreed upon," that is, if he recovers the thing sold by repaying the vendee the price of
the sale and other expenses. Notwithstanding this condition subsequent, it is a point not at all
doubtful now that the vendee may register his title in the same way as the owner of a thing
mortgaged — that is to say, the latter with the consent of his creditor and the former with the
consent of the vendor. He may alienate the thing bought when the acquirer knows by well from
the title entered in the registry that he acquires a title revocable after a fixed period, a thing much
more certain and to be expected than the purely contingent expectation of the person in whose
favor is reserved a right to inherit some day what another has inherited. The purpose of the law
would be defeated in not applying to the person who must make the reservation the provision
therein relative to the vendee under pacto de retracto, since the argument in his favor is the more
power and conclusive; ubi eadem ratio, eadem legis dispositivo.

Therefore, we reverse the judgment appealed from, and in lieu thereof decide and declare that the
applicant is entitled to register in her own name the two parcels of land which are the subject
matter of the applicants, recording in the registration the right required by article 811 to be
reserved to either or both of the opponents, Pablo Sablan and Basilio Sablan, should they survive
her; without special findings as to costs.

6. G.R. No. L-12957 March 24, 1961

CONSTANCIO SIENES, ET AL., plaintiffs-appellants,

vs.
FIDEL ESPARCIA, ET AL., defendants-appellees.

Proceso R. Remollo for plaintiffs-appellants.

Leonardo D. Mancao for defendants-appellees.
DIZON, J.:

Appellants commenced this action below to secure judgment (1) declaring null and void the sale
executed by Paulina and Cipriana Yaeso in favor of appellees, the spouses Fidel Esparcia and
Paulina Sienes; (2) ordering the Esparcia spouses to reconvey to appellants Lot 3368 of the
Cadastral Survey of Ayuquitan (now Amlan), Oriental Negros; and (3) ordering all the appellees
to pay, jointly and severally, to appellants the sum of P500.00 as damages, plus the costs of suit.
In their answer appellees disclaimed any knowledge or information regarding the sale allegedly
made on April 20, 1951 by Andrea Gutang in favor of appellants and alleged that, if such sale
was made, the same was void on the ground that Andrea Gutang had no right to dispose of the
property subject matter thereof. They further alleged that said property had never been in
possession of appellants, the truth being that appellees, as owners, had been in continuous
possession thereof since the death of Francisco Yaeso. By way of affirmative defense and
counterclaim, they further alleged that on July 30, 1951, Paulina and Cipriana Yaeso, as the only
surviving heirs of Francisco Yaeso, executed a public instrument of sale in favor of the spouses
Fidel Esparcia and Paulina Sienes, the said sale having been registered together with an affidavit
of adjudication executed by Paulina and Cipriana on July 18, 1951, as sole surviving heirs of the
aforesaid deceased; that since then the Esparcias had been in possession of the property as
owners.

After trial upon the issues thus joined, the lower court rendered judgment as follows:

IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered declaring (1) that
the sale of Lot No. 3368 made by Andrea Gutang to the plaintiff spouses Constancio
Sienes and Genoveva Silay is void, and the reconveyance prayed for by them is denied;
(2) that the sale made by Paulina and Cipriana Yaeso in favor of defendants Fidel
Esparcia and Paulina Sienes involving the same lot is also void, and they have no valid
title thereto; and (3) that the reservable property in question is part of and must be
reverted to the estate of Cipriana Yaeso, the lone surviving relative and heir of Francisco
Yaeso at the death of Andrea Gutang as of December 13, 1951. No pronouncement as to
the costs.

From the above decision the Sienes spouse interposed the present appeal, their principal
contentions being, firstly, that the lower court erred in holding that Lot 3368 of the Cadastral
Survey of Ayuquitan was a reservable property; secondly, in annulling the sale of said lot
executed by Andrea Gutang in their favor; and lastly, in holding that Cipriana Yaeso, as reservee,
was entitled to inherit said land.

There is no dispute as to the following facts:

Lot 3368 originally belonged to Saturnino Yaeso. With his first wife, Teresa Ruales, he had four
children named Agaton, Fernando, Paulina and Cipriana, while with his second wife, Andrea
Gutang, he had an only son named Francisco. According to the cadastral records of Ayuquitan,
the properties left by Saturnino upon his death — the date of which does not clearly appear of
record — were left to his children as follows: Lot 3366 to Cipriana, Lot 3367 to Fernando, Lot
3375 to Agaton, Lot 3377 (southern portion) to Paulina, and Lot 3368 (western portion) to
Francisco. As a result of the cadastral proceedings, Original Certificate of Title No. 10275
covering Lot 3368 was issued in the name of Francisco. Because Francisco was a minor at the
time, his mother administered the property for him, declared it in her name for taxation purposes
(Exhs A & A-1), and paid the taxes due thereon (Exhs. B, C, C-1 & C-2). When Francisco died
on May 29, 1932 at the age of 20, single and without any descendant, his mother, as his sole heir,
executed the public instrument Exhibit F entitled EXTRAJUDICIAL SETTLEMENT AND
SALE whereby, among other things, for and in consideration of the sum of P800.00 she sold the
property in question to appellants. When thereafter said vendees demanded from Paulina Yaeso
and her husband Jose Esparcia, the surrender of Original Certificate of Title No. 10275 — which
was in their possession — the latter refused, thus giving rise to the filing of the corresponding
motion in the cadastral record No. 507. The same, however, was denied (Exhs. 8 & 9).

Thereafter, or more specifically, on July 30, 1951, Cipriana and Paulina Yaeso, the surviving
half-sisters of Francisco, and who as such had declared the property in their name, on January 1,
1951 executed a deed of sale in favor of the spouses Fidel Esparcia and Paulina Sienes (Exh. 2)
who, in turn, declared it in their name for tax purposes and thereafter secured the issuance in
their name of Transfer Certificate of Title No. T-2141 (Exhs. 5 & 5-A).

As held by the trial court, it is clear upon the facts already stated, that the land in question was
reservable property. Francisco Yaeso inherited it by operation of law from his father Saturnino,
and upon Francisco's death, unmarried and without descendants, it was inherited, in turn, by his
mother, Andrea Gutang. The latter was, therefore, under obligation to reserve it for the benefit of
relatives within the third degree belonging to the line from which said property came, if any
survived her. The record discloses in this connection that Andrea Gutang died on December 13,
1951, the lone reservee surviving her being Cipriana Yaeso who died only on January 13, 1952
(Exh. 10).

In connection with reservable property, the weight of opinion is that the reserve creates two
resolutory conditions, namely, (1) the death of the ascendant obliged to reserve and (2) the
survival, at the time of his death, of relatives within the third degree belonging to the line from
which the property came (6 Manresa 268-269; 6 Sanchez Roman 1934). This Court has held in
connection with this matter that the reservista has the legal title and dominion to the reservable
property but subject to a resolutory condition; that he is like a life usufructuary of the reservable
property; that he may alienate the same but subject to reservation, said alienation transmitting
only the revocable and conditional ownership of the reservists, the rights acquired by the
transferee being revoked or resolved by the survival of reservatarios at the time of the death of
the reservista (Edroso vs. Sablan, 25 Phil. 295; Lunsod vs. Ortega, 46 Phil. 664; Florentino vs.
Florentino, 40 Phil. 480; and Director of Lands vs. Aguas, 65 Phil. 279).

The sale made by Andrea Gutang in favor of appellees was, therefore, subject to the condition
that the vendees would definitely acquire ownership, by virtue of the alienation, only if the
vendor died without being survived by any person entitled to the reservable property. Inasmuch
much as when Andrea Gutang died, Cipriana Yaeso was still alive, the conclusion becomes
inescapable that the previous sale made by the former in favor of appellants became of no legal
effect and the reservable property subject matter thereof passed in exclusive ownership to
Cipriana.
On the other hand, it is also clear that the sale executed by the sisters Paulina and Cipriana Yaeso
in favor of the spouses Fidel Esparcia and Paulina Sienes was subject to a similar resolutory
condition. The reserve instituted by law in favor of the heirs within the third degree belonging to
the line from which the reservable property came, constitutes a real right which the reservee may
alienate and dispose of, albeit conditionally, the condition being that the alienation shall transfer
ownership to the vendee only if and when the reservee survives the person obliged to reserve. In
the present case, Cipriana Yaeso, one of the reservees, was still alive when Andrea Gutang, the
person obliged to reserve, died. Thus the former became the absolute owner of the reservable
property upon Andrea's death. While it may be true that the sale made by her and her sister prior
to this event, became effective because of the occurrence of the resolutory condition, we are not
now in a position to reverse the appealed decision, in so far as it orders the reversion of the
property in question to the Estate of Cipriana Yaeso, because the vendees — the Esparcia
spouses did — not appeal therefrom.

WHEREFORE, the appealed decision — as above modified — is affirmed, with costs, and
without prejudice to whatever action in equity the Esparcia spouses may have against the Estate
of Cipriana Yaeso for the reconveyance of the property in question.

7. G.R. No. L-10701 January 16, 1959

MARIA CANO, applicant-appellee,

vs.
DIRECTOR OF LANDS, EUSTAQUIA GUERRERO, ET AL., oppositors-appellants.
JOSE FERNANDEZ, ET AL., oppositors-appellants.

Ramon C. Fernandez for appellants.

Jose B. Dealca for appellee.

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

In an amended decision dated October 9, 1951, issued in Land Registration Case No. 12,
G.L.R.O. Rec. No. 2835, the Court of First Instance of Sorsogon decreed the registration of Lots
Nos. 1798 and 1799 of the Juban (Sorsogon) Cadastre, under the following terms and conditions:

In view of the foregoing, and it appearing that the notices have been duly published and
posted as required by law, and that the title of the applicant to the above-mentioned two
parcels of land is registrable in law, it is hereby adjudged and decreed, and with
reaffirmation of the order of general default, that the two parcels of land described in plan
SWO-24152, known as Lots Nos. 1798 and 1799 of the Cadastral Survey of Juban, with
their improvements, be registered in the name of Maria Cano, Filipina, 71 years of age,
widow and resident of Juban, province of Sorsogon, with the understanding that Lot No.
1799 shall be subject to the right of reservation in favor of Eustaquia Guerrero pursuant
to Article 891 of the Civil code. After this decision shall have become final for lack of
 appeal therefrom within the 30-day period from its promulgation, let the corresponding
decree issue.

So ordered. (Rec. App. pp. 18-19)

The decision having become final, the decree and the Certificate of Title (No. 0-20) were issued
in the name of Maria Cano, subject to reserva troncal in favor of Eustaquia Guerrero. In October
1955, counsel for the reserve (reservatorio) Guerrero filed a motion with the Cadastral Court,
alleging the death of the original registered owner and reservista, Maria Cano, on September 8,
1955, and praying that the original Certificate of Title be ordered cancelled and a new one issued
in favor of movant Eustaquia Guerrero; and that the Sheriff be ordered to place her in possession
of the property. The motion was opposed by Jose and Teotimo Fernandez, sons of the reservista
Maria Cano, who contended that the application and operation of the reserva troncal should be
ventilated in an ordinary contentious proceeding, and that the Registration Court did not have
jurisdiction to grant the motion.

In view of the recorded reserva in favor of the appellee, as expressly noted in the final decree of
registration, the lower court granted the petition for the issuance of a new certificate, for the
reason that the death of the reservista vested the ownership of the property in the petitioner as
the sole reservatorio troncal.

The oppositors, heirs of the reservista Maria Cano, duly appealed from the order, insisting that
the ownership of the reservatorio can not be decreed in a mere proceeding under sec. 112 of Act
496, but requires a judicial administration proceedings, wherein the rights of appellee, as the
reservatorio entitled to the reservable property, are to be declared. In this connection, appellants
argue that the reversion in favor of the reservatorio requires the declaration of the existence of
the following facts:

(1) The property was received by a descendant by gratuitous title from an ascendant or
from a brother or sister;

(2) Said descendant dies without issue;

(3) The property is inherited by another ascendant by operation of law; and

(4) The existence of relatives within the third degree belonging the line from which said
property came. (Appellants' Brief, p. 8)

We find the appeal untenable. The requisites enumerated by appellants have already been
declared to exist by the decree of registration wherein the rights of the appellee as reservatario
troncal were expressly recognized:

From the above-quoted agreed stipulation of facts, it is evident that Lot No. 1799 was
acquired by the Appellant Maria Cano by inheritance from her deceased daughter,
Lourdes Guerrero who, in turn, inherited the same from her father Evaristo Guerrero and,
hence, falls squarely under the provisions of Article 891 of the Civil Code; and that each
 and everyone of the private oppositors are within the third degree of consaguinity of the
decedent Evaristo Guerrero, and who belonging to the same line from which the property
came.

It appears however, from the agreed stipulation of facts that with the exception of
Eustaquia Guerrero, who is the only living daughter of the decedent Evaristo Guerrero,
by his former marriage, all the other oppositors are grandchildren of the said Evaristo
Guerrero by his former marriages. Eustaquia Guerrero, being the nearest of kin, excludes
all the other private oppositors, whose decree of relationship to the decedent is remoter
(Article 962, Civil Code; Director of Lands vs. Aguas, 62 Phil., 279). (Rec. App. pp. 16-
17)

This decree having become final, all persons (appellees included) are bared thereby from
contesting the existence of the constituent elements of the reserva. The only requisites for the
passing of the title from the reservista to the appellee are: (1) the death of the reservista; and (2)
the fact that the reservatario has survived the reservista. Both facts are admitted, and their
existence is nowhere questioned.

The contention that an intestacy proceeding is still necessary rests upon the assumption that the
reservatario will succeed in, or inherit, the reservable property from the reservista. This is not
true. The reservatario is not the reservista's successor mortis causa nor is the reservable
property part of the reservista's estate; the reservatario receives the property as a conditional heir
of the descendant ( prepositus), said property merely reverting to the line of origin from which it
had temporarily and accidentally strayed during the reservista's lifetime. The authorities are all
agreed that there being reservatarios that survive the reservista, the latter must be deemed to
have enjoined no more than a life interest in the reservable property.

It is a consequence of these principles that upon the death of the reservista, the reservatario
nearest to the prepositus (the appellee in this case) becomes, automatically and by operation of
law, the owner of the reservable property. As already stated, that property is no part of the estate
of the reservista, and does not even answer for the debts of the latter. Hence, its acquisition by
the reservatario may be entered in the property records without necessity of estate proceedings,
since the basic requisites therefor appear of record. It is equally well settled that the reservable
property can not be transmitted by a reservista to her or his own successors mortis causa,(like
appellants herein) so long as a reservatario within the third degree from the prepositus and
belonging to the line whence the property came, is in existence when the reservista dies.

Of course, where the registration decree merely specifies the reservable character of the
property, without determining the identity of the reservatario (as in the case of Director of Lands
vs. Aguas, 63 Phil., 279) or where several reservatarios dispute the property among themselves,
further proceedings would be unavoidable. But this is not the case. The rights of the reservataria
Eustaquia Guerrero have been expressly recognized, and it is nowhere claimed that there are
other reservatarios of equal or nearer degree. It is thus apparent that the heirs of the reservista
are merely endeavoring to prolong their enjoyment of the reservable property to the detriment of
the party lawfully entitled thereto.
We find no error in the order appealed from and therefore, the same is affirmed with costs
against appellants in both instances. So ordered.

8. G.R. No. 68843-44 September 2, 1991

MARIQUITA O. SUMAYA and LAGUNA AGRO-INDUSTRIAL COCONUT

COOPERATIVE, INC., petitioners,
vs.
THE HON. INTERMEDIATE APPELLATE COURT, and AMADEO, SANCHO,
DONATO, LUIS, ERASTO, LUISA, JOSE and DOLORES, all surnamed
BALANTAKBO, respondents.

Ceriaco A. Sumaya for petitioners.

Tomas P. Añonuevo for private respondents.

MEDIALDEA, J.:

This is a petition for review on certiorari of the decision of the Intermediate Appellate Court
(now Court of Appeals) in C.A. G.R. No. CV-01292-93, which affirmed the decision of the
Court of First Instance (now Regional Trial Court) of Laguna in the consolidated cases in Civil
Case No. SC-9561 and Civil Case No. SC-957.2

The parties entered into a stipulation of facts in the court a quo, which is summarized as follows:

Raul Balantakbo inherited from two (2) different ascendants the two (2) sets of properties subject
of this case: 1) A one-third (1/3) interest, pro-indiviso in a parcel of land situated in Dita, Lilio
(Liliw) Laguna and described in paragraph 7 of the complaint in Civil Case No. SC-956 from his
father Jose, Sr., who died on January 28, 1945; and 2) A one-seventh (1/7) interest pro-indiviso
in ten (10) parcels of registered lands described in paragraph 6 of the complaint in Civil Case No.
SC-957 from his maternal grandmother, Luisa Bautista, who died on November 3, 1950.

On June 13, 1952, Raul died intestate, single, without any issue, and leaving only his mother,
Consuelo Joaquin Vda. de Balantakbo, as his sole surviving heir to the real properties above-
mentioned.

On November 3, 1952, Consuelo adjudicated unto herself the above described properties in an
Affidavit entitled "Caudal Herederario del finado Raul Balantakbo" which provided, among
others:

I. Que de mi legitimo matrimonio con mi difunto esposo, Jose Balantakbo, he tenido

varios hijos, entre ellos si difunto hijo, llamado Raul Balantakbo.
 II. Que mi referido hijo Raul Balantakbo, fallencio el 13 de Junio de 1952, en la Ciudad
de Pasay, durante su minolia de edad sin dejar testamento alguno.

III. Que el finado Raul Balantakbo al morir no ha dejado descendiente alguno.

IV. Que soy la unica ascendiente superviviento de mi referido hijo Raul Balantakbo y por
lo tanto su unica heredera formosa, legitima y universal.

V. Que el finado Raul Balantakbo murio sin dejar deuda alguna.

VI. Que el finado al morir dejo propiedades consistentes en bienes inmuebles situados en
la Provincia de Laguna.

VII. Que dichas propriedades fueron a su vez adquiridas por el finado Raul Balantakbo
per herencia de su difunto padre, Jose Balantakbo, y de su tia abuela Luisa Bautista.

xxx xxx xxx

(Rollo, p. 29)

On December 21, 1959, Consuelo Joaquin vda. de Balantakbo sold the property described in
Civil Case No. SC-956 to Mariquita H. Sumaya. The sale was evidenced by a deed attached as
Annex "C" to the complaint. The same property was subsequently sold by Mariquita Sumaya to
Villa Honorio Development Corporation, Inc., on December 30, 1963. On January 23, 1967,
Villa Honorio Development Corporation transferred and assigned its rights over the property in
favor of Agro-Industrial Coconut Cooperative, Inc. The documents evidencing these transfers
were registered in the Registry of Deeds of Laguna and the corresponding certificates of titles
were issued. The properties are presently in the name of Agro-Industrial Coconut Cooperative,
Inc., 2/3 share and the remaining 1/3 share is in the name of Sancho Balantakbo.

Also on December 30, 1963, Consuelo Joaquin vda. de Balantakbo sold the properties described
in the complaint in Civil Case No. SC-957 to Villa Honorio Development Corporation, Inc. The
latter in turn transferred and assigned all its rights to the properties in favor of Laguna Agro-
Industrial Coconut Cooperative, Inc. which properties are presently in its possession.

The parties admit that the certificates of titles covering the above described properties do not
contain any annotation of its reservable character.

On June 3, 1968, Consuelo Joaquin vda. de Balantakbo died.

On March 4, 1970, Amadeo, Sancho, Donato, Luis, and Erasto, all surnamed Balantakbo,
brothers in full blood of Raul Balantakbo and Luisa, Jose and Dolores, also all surnamed
Balantakbo, surviving children of deceased Jose Balantakbo, Jr., another brother of the first
named Balantakbos, filed the above mentioned civil cases to recover the properties described in
the respective complaints which they claimed were subject to a reserva troncal in their favor.
The court a quo found that the two (2) cases varied only in the identity of the subject matter of
res involved, the transferees, the dates of the conveyances but involve the same legal question of
reserva troncal. Hence, the consolidation of the two (2) cases.

After trial, the court a quo rendered a joint decision in favor of the Balantakbos, the dispositive
portion of which reads:

WHEREFORE, in both Civil Cases Nos. SC-956 and SC-957, judgment is hereby
rendered in favor of the plaintiffs and against the defendants, as follows:

1. Ordering the defendant Laguna Agro-Industrial Coconut Cooperative, Inc. to convey to

the plaintiffs —

a) In Civil Case No. SC-956 — the one-third (1/3) interest and ownership, pro-
indiviso, in and over the parcel of land described in paragraph three (3) sub-
paragraph 1, of pages one (1) and two (2) of this decision;

b) In Civil Case No. SC-957 — the one-seventh (1/7) interest and ownership, pro-
indiviso, in and over the ten (10) parcels of land described in paragraph three (3),
sub-paragraph 2, of pages two (2) and three (3) of this decision;

c) The plaintiffs are to share equally in the real properties herein ordered to be
conveyed to them by the defendants with plaintiffs Luisa, Jose and Dolores, all
surnamed Balantakbo, receiving one-third (1/3) of the one share pertaining to the
other plaintiffs who are their uncles:

2. Ordering the Laguna Agro-Industrial Coconut Cooperative, Inc. to account for and pay
to the plaintiffs the value of the produce from the properties herein ordered to be returned
to the plaintiffs, said accounting and payment of income being for the period from
January 3, 1968 until date of reconveyance of the properties herein ordered:

3. In each of Civil Cases Nos. SC-956 and SC-957, defendants are to pay plaintiffs —

a. One Thousand (P1,000.00) Pesos in litigation expenses.

b. Two Thousand (P2,000.00) Pesos in attorney's fees.

4. Defendants are to pay the costs in each of Civil Cases Nos. SC-956 and 957.

xxx xxx xxx

(p. 46, Rollo)

This decision was appealed to the appellate court which affirmed the decision of the court a quo
in toto. The motion for reconsideration was denied (p. 65, Rollo) by the appellate court which
found no cogent reason to reverse the decision.
This petition before Us was filed on November 12, 1984 with the petitioners assigning the
following errors allegedly committed by the appellate court:

I. The trial court erred in not finding defendants an (sic) innocent purchaser for value and
in good faith of the properties covered by certificates of title subject of litigation.

II. The trial court erred in finding it unnecessary to annotate the reservable interest of the
reservee in the properties covered by certificates of title subject of litigation.

III. The trial court erred in finding that the cause of action of the plaintiffs (private
respondents) has not yet prescribed.

IV. The trial court erred in awarding moral and actual damages in favor of the plaintiffs
by virtue of the institution of Civil Cases Nos. 956 and 957.

Petitioners would want this Court to reverse the findings of the court a quo, which the appellate
court affirmed, that they were not innocent purchasers for value. According to petitioners, before
they agreed to buy the properties from the reservor (also called reservista), Consuelo Joaquin
vda. de Balantakbo, they first sought the legal advice of their family consultant who found that
there was no encumbrance nor any lien annotated on the certificate of title coveting the
properties.

The court a quo found otherwise. Upon the death of the propositus, Raul Balantakbo, the
reservista, Consuelo vda. de Balantakbo caused the registration of an affidavit of self-
adjudication of the estate of Raul, wherein it was clearly stated that the properties were inherited
by Raul from his father Jose, Sr., as regards the subject matter of Civil Case No. SC-956 and
from his maternal grandmother, Luisa Bautista, as regards the subject matter of Civil Case No.
SC-957. The court a quo further ruled that said affidavit was, in its form, declaration and
substance, a recording with the Registry of Deeds of the reservable character of the properties. In
Spanish language, the affidavit clearly stated that the affiant, Consuelo, was a lone-ascendant and
heir to Raul Balantakbo, her son, who died leaving properties previously inherited from other
ascendants and which properties were inventoried in the said affidavit.

It was admitted that the certificates of titles covering the properties in question show that they
were free from any liens and encumbrances at the time of the sale. The fact remains however,
that the affidavit of self-adjudication executed by Consuelo stating the source of the properties
thereby showing the reservable nature thereof was registered with the Register of Deeds of
Laguna, and this is sufficient notice to the whole world in accordance with Section 52 of the
Property Registration Decree (formerly Sec. 51 of R.A. 496) which provides:

Sec. 52. CONSTRUCTIVE NOTICE UPON REGISTRATION. — Every conveyance,

mortgage, lease, lien attachment, order, judgment, instrument or entry affecting registered
land shall, if registered, filed or entered in the Office of the Register of Deeds for the
province or city where the land to which it relates lies, be constructive notice to all
persons from the time of such registering, filing or entering.
Thus, in Gatioan v. Gaffud, G.R. No. L-21953, March 28, 1969, 27 SCRA 706, 712-713, cited in
People v. Reyes, G.R. Nos. 74226-27, July 27, 1989, 175 SCRA 597; Garcia v. CA and PNB v.
CA, et al., G.R. Nos. L-48971 and L-40911, both dated January 22, 1980, 95 SCRA 380 and
Legarda and Prieto v. Saleeby, 31 Phil. 590, 600, We held:

When a conveyance has been properly recorded such record is constructive notice of its
contents and all interests, legal and equitable, included therein . . .

Under the rule of notice, it is presumed that the purchaser has examined every instrument
of record affecting the title. Such presumption is irrebuttable. He is charged with notice
of every fact shown by the record and is presumed to know every fact which an
examination of the record would have disclosed. This presumption cannot be overcome
by proof of innocence or good faith. Otherwise, the very purpose and object of the law
requiring a record would be destroyed. Such presumption cannot be defeated by proof of
want of knowledge of what the record contains any more than one may be permitted to
show that he was ignorant of the provisions of the law. The rule that all persons must take
notice of the facts which the public record contains is a rule of law. The rule must be
absolute, any variation would lead to endless confusion and useless litigation. . . .

In the case of Bass v. De la Rama, 73 Phil. 682, 685, the rule was laid down that the mere entry
of a document in the day book without noting it on the certificate of title is not sufficient
registration. However, that ruling was superseded by the holding in the later six cases of Levin v.
Bass, 91 Phil. 420. As explained in Garcia v. CA, et al., G.R. Nos. L-48971 and 49011, January
20, 1980, 95 SCRA 380, 388, which is the prevailing doctrine in this jurisdiction.

That ruling was superseded by the holding in the later six cases of Levin v. Bass, 91 Phil.
420, where a distinction was made between voluntary and involuntary registration, such
as the registration of an attachment, levy upon execution, notice of lis pendens, and the
like. In cases of involuntary registration, an entry thereof in the day book is a sufficient
notice to all persons even if the owner's duplicate certificate of title is not presented to the
register of deeds.

On the other hand, according to the said cases of Levin v. Bass, in case of voluntary
registration of documents an innocent purchaser for value of registered land becomes the
registered owner, and, in contemplation of law the holder of a certificate of title, the
moment he presents and files a duly notarized and valid deed of sale and the same is
entered in the day book and at the same time he surrenders or presents the owner's
duplicate certificate of title covering the land sold and pays the registration fees, because
what remains to be done lies not within his power to perform. The register of deeds is
duty bound to perform it. (See Potenciano v. Dineros, 97 Phil. 196).

In this case, the affidavit of self adjudication executed by Consuelo vda. de Balantakbo which
contained a statement that the property was inherited from a descendant, Raul, which has
likewise inherited by the latter from another ascendant, was registered with the Registry of
Property. The failure of the Register of Deeds to annotate the reservable character of the property
in the certificate of title cannot be attributed to Consuelo.
Moreover, there is sufficient proof that the petitioners had actual knowledge of the reservable
character of the properties before they bought the same from Consuelo. This matter appeared in
the deed of sale (Exhibit "C") executed by Consuelo in favor of Mariquita Sumaya, the first
vendee of the property litigated in Civil Case No. SC-956, as follows:

xxx xxx xxx

That, I (Consuelo, vendor) am the absolute and exclusive owner of the one-third (1/3)
portion of the above described parcel of land by virtue of the Deed of Extra-judicial
Partition executed by the Heirs of the deceased Jose Balantakbo dated December 10,
1945 and said portion in accordance with the partition above-mentioned was adjudicated
to Raul Balantakbo, single, to (sic) whom I inherited after his death and this property is
entirely free from any encumbrance of any nature or kind whatsoever, . . . (p. 42, Rollo)

It was admitted though that as regards the properties litigated in Civil Case SC-957, no such
admission was made by Consuelo to put Villa Honorio Development on notice of the reservable
character of the properties. The affidavit of self-adjudication executed by Consuelo and
registered with the Registry would still be sufficient notice to bind them.

Moreover, the Court a quo found that the petitioners and private respondents were long time
acquaintances; that the Villa Honorio Development Corporation and its successors, the Laguna
Agro-Industrial Coconut Cooperative Inc., are family corporations of the Sumayas and that the
petitioners knew all along that the properties litigated in this case were inherited by Raul
Balantakbo from his father and from his maternal grandmother, and that Consuelo Vda. de
Balantakbo inherited these properties from his son Raul.

The obligation to reserve rests upon the reservor, Consuelo Joaquin vda. de Balantakbo. Article
891 of the New Civil Code on reserva troncal provides:

Art. 891. The ascendant who inherits from his descendant any property which the latter
may have acquired by gratuitous title from another ascendant or a brother or sister, is
obliged to reserve such property as he may have acquired by operation of law for the
benefit of relatives who are within the third degree and who belong to the line from
which said property came. (Emphasis supplied)

We do not agree, however, with the disposition of the appellate court that there is no need to
register the reservable character of the property, if only for the protection of the reservees,
against innocent third persons. This was suggested as early as the case of Director of Lands v.
Aguas, G.R. No. 42737, August 11, 1936, 63 Phil. 279. The main issue submitted for resolution
therein was whether the reservation established by Article 811 (now Art. 891 of the New Civil
Code) of the Civil Code, for the benefit of the relatives within the third degree belonging to the
line of the descendant from whom the ascendant reservor received the property, should be
understood as made in favor of all the relatives within said degree and belonging to the line
above-mentioned, without distinction legitimate, natural and illegitimate ones not having the
legal status of natural children. However, in an obiter dictum this Court stated therein:
 The reservable character of a property is but a resolutory condition of the ascendant
reservor's right of ownership. If the condition is fulfilled, that is, if upon the ascendant
reservor's death there are relatives having the status provided in Article 811 (Art. 891,
New Civil Code), the property passes, in accordance with this special order of succession,
to said relatives, or to the nearest of kin among them, which question not being pertinent
to this case, need not now be determined. But if this condition is not fulfilled, the
property is released and will be adjudicated in accordance with the regular order of
succession. The fulfillment or non-fulfillment of the resolutory condition, the efficacy or
cessation of the reservation, the acquisition of rights or loss of the vested ones, are
phenomena which have nothing to do with whether the reservation has been noted or not
in the certificate of title to the property. The purpose of the notation is nothing more than
to afford to the persons entitled to the reservation, if any,
due protection against any act of the reservor, which may make it ineffective . . . (p. 292,
Ibid)

Likewise, in Dizon and Dizon v. Galang, G.R. No. 21344, January 14, 1926, 48 Phil. 601, 603,
this Court ruled that the reservable character of a property may be lost to innocent purchasers for
value. Additionally, it was ruled therein that the obligation imposed on a widowed spouse to
annotate the reservable character of a property subject of reserva viudal is applicable to reserva
troncal. (See also Edrozo v. Sablan, G.R. No. 6878, September 13, 1913, 25 Phil. 295).

Since these parcels of land have been legally transferred to third persons, Vicente Galang
has lost ownership thereof and cannot now register nor record in the Registry of Deeds
their reservable character; neither can he effect the fee simple, which does not belong to
him, to the damage of Juan Medina and Teodoro Jurado, who acquired the said land in
good faith, free of all incumbrances. An attempt was made to prove that when Juan
Medina was advised not to buy the land he remarked, "Why did he (Vicente Galang) not
inherit it from his son?" Aside from the fact that it is not clear whether this conservation
took place in 1913 or 1914, that is, before or after the sale, it does not arise that he had
any knowledge of the reservation. This did not arise from the fact alone that Vicente
Galang had inherited the land from his son, but also from the fact that, by operation of
law, the son had inherited it from his mother Rufina Dizon, which circumstance, so far as
the record shows, Juan Medina had not been aware of. We do not decide, however,
whether or not Juan Medina and Teodoro Jurado are obliged to acknowledge the
reservation and to note the same in their deeds, for the reason that there was no prayer to
this effect in the complaint and no question raised in regard thereto.

Consistent with the rule in reserva viudal where the person obliged to reserve (the widowed
spouse) had the obligation to annotate in the Registry of Property the reservable character of the
property, in reserva troncal, the reservor (the ascendant who inherited from a descendant
property which the latter inherited from another descendant) has the duty to reserve and
therefore, the duty to annotate also.

The jurisprudential rule requiring annotation in the Registry of Property of the right reserved in
real property subject of reserva viudal insofar as it is applied to reserva troncal stays despite the
abolition of reserva viudal in the New Civil Code. This rule is consistent with the rule provided
in the second paragraph of Section 51 of P.D. 1529, which provides that: "The act of registration
shall be the operative act to convey or affect the land insofar as third persons are concerned . . ."
(emphasis supplied)

The properties involved in this case are already covered by a Torrens title and unless the
registration of the limitation is effected (either actual or constructive), no third persons shall be
prejudiced thereby.

The respondent appellate court did not err in finding that the cause of action of the private
respondents did not prescribe yet. The cause of action of the reservees did not commence upon
the death of the propositus Raul Balantakbo on June 13, 1952 but upon the death of the reservor
Consuelo Vda. de Balantakbo on June 3, 1968. Relatives within the third degree in whose favor
the right (or property) is reserved have no title of ownership or of fee simple over the reserved
property during the lifetime of the reservor. Only when the reservor should die before the
reservees will the latter acquire the reserved property, thus creating a fee simple, and only then
will they take their place in the succession of the descendant of whom they are relatives within
the third degree (See Velayo Bernardo v. Siojo, G.R. No. 36078, March 11, 1933, 58 Phil. 89).
The reserva is extinguished upon the death of the reservor, as it then becomes a right of full
ownership on the part of the reservatarios, who can bring a reivindicatory suit therefor.
Nonetheless, this right if not exercised within the time for recovery may prescribe in ten (10)
years under the old Code of Civil Procedure (see Carillo v. De Paz, G.R. No. L-22601, October
28, 1966, 18 SCRA 467, 473) or in thirty years under Article 1141 of the New Civil Code. The
actions for recovery of the reserved property was brought by herein private respondents on
March 4, 1970 or less than two (2) years from the death of the reservor. Therefore, private
respondents' cause of action has not prescribed yet.

Finally, the award of one thousand pesos (P1,000.00) for actual litigation expenses and two
thousand pesos (P2,000.00) for attorney's fees is proper under Article 2208(2) of the New Civil
Code. Private respondents were compelled to go to court to recover what rightfully belongs to
them.

ACCORDINGLY, the petition is DENIED. The questioned decision of the Intermediate

Appellate Court is AFFIRMED, except for the modification on the necessity to annotate the
reversable character of a property subject of reserva troncal.

SO ORDERED.

REPRESENTATION

1. G.R. No. L-22469 October 23, 1978

TOMAS CORPUS, plaintiff-appellant,

vs.
ADMINISTRATOR and/or EXECUTOR of the Estate of Teodoro R. Yangco,
RAFAEL CORPUS, AMALIA CORPUS, JOSE A. V. CORPUS, RAMON L. CORPUS,
ENRIQUE J. CORPUS, S. W. STAGG, SOLEDAD ASPRER and CIPRIANO
NAVARRO, defendants-appellees.

AQUINO, J.:

Teodoro R. Yangco died in Manila on April 20, 1939 at the age of seventy-seven years.
His will dated August 29, 1934 was probated in the Court of First Instance of Manila in
Special Proceeding No. 54863. The decree of probate was affirmed in this Court's 1941
decision in Corpus vs. Yangco, 73 Phil. 527. The complete text of the will is quoted in
that decision.

Yangco had no forced heirs. At the time of his death, his nearest relatives were (1) his
half brother, Luis R. Yangco, (2) his half sister, Paz Yangco, the wife of Miguel Ossorio
(3) Amalia Corpus, Jose A. V. Corpus, and Ramon L. Corpus, the children of his half
brother, Pablo Corpus, and (4) Juana (Juanita) Corpus, the daughter of his half brother
Jose Corpus. Juanita died in October, 1944 at Palauig, Zambales.

Teodoro R. Yangco was the son of Luis Rafael Yangco and Ramona Arguelles, the
widow of Tomas Corpus. Before her union with Luis Rafael Yangco, Ramona had
begotten five children with Tomas Corpus, two of whom were the aforenamed Pablo
Corpus and Jose Corpus.

Pursuant to the order of the probate court, a project of partition dated November 26,
1945 was submitted by the administrator and the legatees named in the will. That
project of partition was opposed by the estate of Luis R. Yangco whose counsel
contended that an intestacy should be declared Because the will does not contain an
institution of heir. It was also opposed by Atty. Roman A. Cruz, who represented Juanita
Corpus, Pedro Martinez and Juliana de Castro. Juanita Corpus was already dead when
Atty. Cruz appeared as her counsel.

Atty. Cruz alleged in his opposition that the proposed partion was not in conformity with
the will because the testator intended that the estate. should be "conserved" and not
physically partitioned. Atty. Cruz prayed "que declare que el finado no dispuso en su
testamento de sus bienes y negocios y que ha lugar a sucession intestado con respecio
a los raismos y que same un dia en esta causa para la recepcion de pruebas previa a la
declaracion de quienes son los herederos legales o abintestato del difunto."

The Probate court in its order of December 26, 1946 approved the project of partition. It
held that in certain clauses of the will the testator intended to conserve his properties
not in the sense of disposing of them after his death but for the purpose of Preventing
that "tales bienes fuesen malgastados o desfilpar radios por los legatarios" and that if
the testator intended a Perpetual prohibition against alienation, that conch tion would be
regarded "como no puesta o no existents". it concluded that "no hay motives legales o
morales para que la sucession de Don Teodoro R. Yangco sea declarada intestada
(See Barretto vs. Tuason, 50 Phil. 888, which cites article 785 of the Spanish Civil Code
as prohibiting perpetual entails, and Rodriguez vs. Court of Appeals, L-28734, March
28, 1969, 27 SCRA 546.)

From that order, Pedro Martinez, Juliana de Castro , Juanita Corpus (deceased) and
the estate of Luis R. Yangco aped to this Court (L-1476). Those appeals were
dismissed in tills Court's resolutions of October 10 and 31, 1947 after the legatees and
the appellants entered into compromise agreements. In the compromise dated October
7, 1947 the legatees agreed to pay P35,000 to Pedro Martinez, the heirs of Pio V.
Corpus, the heirs of Isabel Corpus and the heir of Juanita Corpus. Herein appellant
Tomas Corpus signed that compromise settlement as the sole heir of Juanita Corpus.
The estate of Luis R. Yangco entered into a similar compromise a ment A the resolution
dismissing the appeal became, final and executory on October 14 and November 4,
1947, entries of judgment were made on those dates.

Pursuant to the compromise agreement, Tomas Corpus Signed a receipt dated October
24, 1947 wherein he acknowledge that he received from the Yangco estate the sum of
two thousand pesos (P2,000) "as settlement in full of my share of the compromise
agreement as per understanding with Judge Roman Cruz, our attorney in this case"
(Exh. D or 17).

On September 20, 1949, the legatees executed an agreement for the settlement and
physical partition of the Yangco estate. The probate court approved that agreement and
noted that the 1945 project of partition was pro tanto modified. That did not set at rest
the controvery over the Yangco's estate.

On October 5, 1951, Tomas Corpus, as the sole heir of Juanita corpus, filed an action in
the Court of First Instance of Manila to recover her supposed share in Yangco intestate
estate. He alleged in his complaint that the dispositions in his Yangcos will sing
perpetual prohibitions upon alienation rendered it void under article 785 of the old Civil
Code and that the 1949 partition is invalid and, therefore, the decedent's estate should
be distributed according to the rules on intestacy.

The trial court in its decision of July 2, 1956 dismissed the action on the grounds of res
judicata and laches. It held that the intrinsic validity of Yangco's will was passed upon in
its order dated December 26, 1946 in Special Proceeding No. 54863 approving the
project of partition for the testator's estate.

Tomas Corpus appealed to the Court of Appeals which in its resolution dated January
23, 1964 in CA-G. R. No. 18720-R certified the appeal to this Court because it involves
real property valued at more than fifty thousand pesos (Sec. 17151 Judiciary Law
before it was amended by Republic Act No. 2613).
Appellant Corpus contends in this appeal that the trial court erred in holding (1) that
Teodoro R. Yangco was a natural child, (2) that his will had been duly legalized and (3)
that plaintiff's action is barred by res judicata and laches.

In the disposition of this appeal it is not necessary to resolve whether Yangco's will had
been duly legalized and whether the action of Tomas Corpus is barred by res judicata
and laches. The appeal may be resolved by de whether Juanita Corpus, the mother of
apt Tomas Corpus was a legal heir of Yangco. Has Tomas Corpus a cause of action to
recover his mother's supposed intestate share in Yangco's estate?

To answer that question, it is necessary to ascertain Yangco's filiation The trial court
found that Yangco "a su muerte tambien le sbrevivieron Luis y Paz appellidados
Yangco, hermanos naturales reconocidos por su padre natural Luis R. Yangco". The
basis of the trial court's conclusion that Teodoro R. Yangco was an acknowledged
natural child and not a legitimate child was the statement in the will of his father, Luis
Rafael Yangco, dated June 14, 1907, that Teodoro and his three other children were his
acknowledged natural children. His exact words are:

Primera. Declaro que tengo cuatro hijos naturales reconocidos, Hamados

Teodoro, Paz, Luisa y Luis, los cuales son mis unicos herederos forzosos
(Exh. 1 in Testate Estate of Teodoro Yangco).

That will was attested by Rafael del Pan Francisco Ortigas, Manuel Camus and
Florencio Gonzales Diez

Appellant Corpus assails the probative value of the will of Luis R. Yangco, Identified as
Exhibit 1 herein, which he says is a mere copy of Exhibit 20, as found in the record on
appeal in Special Proceeding No. 54863. He contends that it should not prevail over the
presumption of legitimacy found in section 69, Rule 123 of the old Rules of Court and
over the statement of Samuel W. Stagg in his biography of Teodoro R. Yangco, that
Luis Rafael Yangco made a second marital venture with Victoria Obin implying that he
had a first marital venture with Ramona Arguelles, the mother of Teodoro.

These contentions have no merit. The authenticity of the will of Luis Rafael Yangco, as
reproduced in Exhibit I herein and as copied from Exhibit 20 in the proceeding for the
probate of Teodoro R. Yangco's wilt in incontestable. The said will is part of a public or
official judicial record.

On the other hand, the children of Ramona Arguelles and Tomas Corpus are presumed
to be legitimate. A marriage is presumed to have taken place between Ramona and
Tomas. Semper praesumitur pro matrimonio. It is disputably presumption "That a man
and a woman deporting themselves as husband and wife have entered into a lawful
contract of marriage"; "that a child born in lawful wedlock, there being no divorce,
absolute or from bed and board, is legitimate", and "that things have happened
according to the ordinary course of nature and the ordinary habits of life" (Sec. 5[z], [bb]
and cc Rule 131, Rules of Court).
Since Teodoro R. Yangco was an acknowledged natural child or was illegitimate and
since Juanita Corpus was the legitimate child of Jose Corpus, himself a legitimate child,
we hold that appellant Tomas Corpus has no cause of action for the recovery of the
supposed hereditary share of his mother, Juanita Corpus, as a legal heir, in Yangco's
estate. Juanita Corpus was not a legal heir of Yangco because there is no reciprocal
succession between legitimate and illegitimate relatives. The trial court did not err in
dismissing the complaint of Tomas Corpus.

Article 943 of the old Civil code provides that "el hijo natural y el legitimado no tienen
derecho a suceder abintestato a los hijos y parientes legitimos del padre o madre que
to haya reconocido, ni ellos al hijo natural ni al legitimado". Article 943 "prohibits all
successory reciprocity mortis causa between legitimate and illegitimate relatives" 16
Sanchez Roman, Civil Code, pp. 996-997 cited in Director of Lands vs. Aguas, 63 Phil.
279, 287. See 16 Scaevola Codigo Civil, 4th Ed., 455-6). ...

Appellant Corpus concedes that if 'Teodoro R. Yangco was a natural child, he (Tomas
Corpus) would have no legal personality to intervene in the distribution of Yangco's
estate (p. 8, appellant's brief).

The rule in article 943 is now found in article 992 of the Civil Code which provides that
"an illegitimate child has no right to inherit ab intestato from the legitimate children and
relatives of his father or mother; nor shall such children or relatives inherit in the same
manner from the illegitimate child".

That rule is based on the theory that the illegitimate child is disgracefully looked upon by
the legitimate family while the legitimate family is, in turn, hated by the illegitimate child.

The law does not recognize the blood tie and seeks to avod further grounds of
resentment (7 Manresa, Codigo Civil, 7th Ed., pp. 185- 6).

Under articles 944 and 945 of the Spanish Civil Code, "if an acknowledged natural or
legitimated child should die without issue, either legitimate or acknowledged, the father
or mother who acknowledged such child shall succeed to its entire estate; and if both
acknowledged it and are alive, they shall inherit from it share and share alike. In default
of natural ascendants, natural and legitimated children shall be succeeded by their
natural brothers and sisters in accordance with the rules established for legitimate
brothers and sisters." Hence, Teodoro R. Yangco's half brothers on the Corpus side,
who were legitimate, had no right to succeed to his estate under the rules of intestacy.

Following the rule in article 992, formerly article 943, it was held that the legitimate
relatives of the mother cannot succeed her illegitimate child (Cacho vs. Udan L- 19996,
April 30, 1965, 13 SCRA 693. See De Guzman vs. Sevilla, 47 Phil. 991).

Where the testatrix, Rosario Table was the legitimate daughter of Jose Table the two
acknowledged natural children of her uncle, Ramon Table her father's brother, were
held not to be her legal heirs (Grey vs. Table 88 Phil. 128).
By reason of that same rule, the natural child cannot represent his natural father in the
succession to the estate of the legitimate grandparent (Llorente vs. Rodriguez, 10 Phil.
585; Centeno vs. Centeno, 52 Phil. 322; Allarde vs. Abaya, 57 Phil. 909).

The natural daughter cannot succeed to the estate of her deceased uncle, a legitimate
brother of her natural mother (Anuran vs. Aquino and Ortiz, 38 Phil. 29).

WHEREFORE the lower court's judgment is affirmed. No costs.

SO ORDERED.

2. G.R. No. L-66574

ANSELMA DIAZ, guardian of VICTOR, RODRIGO, ANSELMINA and MIGUEL, all

surnamed SANTERO, petitioners, and FELIXBERTA PACURSA guardian of
FEDERICO SANTERO, et al.,
vs.
INTERMEDIATE APPELLATE COURT and FELISA PAMUTI JARDIN, respondents.

Ambrosia Padilla, Mempin & Reyes Law Offices for petitioners.

Pedro S. Sarino for respondent F.P. Jardin.

PARAS, J.:

Private respondent filed a Petition dated January 23, 1976 with the Court of First Instance of
Cavite in Sp. Proc. Case No. B-21, "In The Matter of the Intestate Estate of the late Simona
Pamuti Vda. de Santero," praying among other things, that the corresponding letters of
Administration be issued in her favor and that she be appointed as special Administratrix of the
properties of the deceased Simona Pamuti Vda. de Santero.

It is undisputed: 1) that Felisa Pamuti Jardin is a niece of Simona Pamuti Vda. de Santero who
together with Felisa's mother Juliana were the only legitimate children of the spouses Felipe
Pamuti and Petronila Asuncion; 2) that Juliana married Simon Jardin and out of their union were
born Felisa Pamuti and another child who died during infancy; 3) that Simona Pamuti Vda. de
Santero is the widow of Pascual Santero and the mother of Pablo Santero; 4) that Pablo Santero
was the only legitimate son of his parents Pascual Santero and Simona Pamuti Vda. de Santero;
5) that Pascual Santero died in 1970; Pablo Santero in 1973 and Simona Santero in 1976; 6) that
Pablo Santero, at the time of his death was survived by his mother Simona Santero and his six
minor natural children to wit: four minor children with Anselma Diaz and two minor children
with Felixberta Pacursa.
Judge Jose Raval in his Orders dated December 1, 1976 1 and December 9, 1976 2 declared
Felisa Pamuti Jardin as the sole legitimate heir of Simona Pamuti Vda. de Santero.

Before the trial court, there were 4 interrelated cases filed to wit:

a) Sp. Proc. No. B-4 — is the Petition for the Letters of Administration of the intestate
Estate of Pablo Santero;

b) Sp. Proc. No. B-5 — is the Petition for the Letters of Administration of the Intestate
Estate of Pascual Santero;

c) Sp. Proc. No. B-7 — is the Petition for Guardianship over the properties of an
Incompetent Person, Simona Pamuti Vda. de Santero;

d) Sp. Proc. No. B-21 — is the Petition for Settlement of the Intestate Estate of Simona
Pamuti Vda. de Santero.

Felisa Jardin upon her Motion to Intervene in Sp. Proceedings Nos. B-4 and B-5, was allowed to
intervene in the intestate estates of Pablo Santero and Pascual Santero by Order of the Court
dated August 24, 1977.

Petitioner Anselma Diaz, as guardian of her minor children, filed her "Opposition and Motion to
Exclude Felisa Pamuti Jardin dated March 13, 1980, from further taking part or intervening in
the settlement of the intestate estate of Simona Pamuti Vda. de Santero, as well as in the intestate
estate of Pascual Santero and Pablo Santero.

Felixberta Pacursa guardian for her minor children, filed thru counsel, her Manifestation of
March 14, 1980 adopting the Opposition and Motion to Exclude Felisa Pamuti, filed by Anselma
Diaz.

On May 20, 1980, Judge Ildefonso M. Bleza issued an order excluding Felisa Jardin "from
further taking part or intervening in the settlement of the intestate estate of Simona Pamuti Vda.
de Santero, as well as in the intestate estates of Pascual Santero and Pablo Santero and declared
her to be, not an heir of the deceased Simona Pamuti Vda. de Santero." 3

After her Motion for Reconsideration was denied by the trial court in its order dated November
1, 1980, Felisa P. Jardin filed her appeal to the Intermediate Appellate Court in CA-G.R. No.
69814-R. A decision 4 was rendered by the Intermediate Appellate Court on December 14, 1983
(reversing the decision of the trial court) the dispositive portion of which reads —

WHEREFORE, finding the Order appealed from not consistent with the facts and law
applicable, the same is hereby set aside and another one entered sustaining the Orders of
December 1 and 9, 1976 declaring the petitioner as the sole heir of Simona Pamuti Vda.
de Santero and ordering oppositors-appellees not to interfere in the proceeding for the
declaration of heirship in the estate of Simona Pamuti Vda. de Santero.
 Costs against the oppositors-appellees.

The Motion for Reconsideration filed by oppositors-appellees (petitioners herein) was denied by
the same respondent court in its order dated February 17, 1984 hence, the present petition for
Review with the following:

ASSIGNMENT OF ERRORS

I. The Decision erred in ignoring the right to intestate succession of petitioners

grandchildren Santero as direct descending line (Art. 978) and/or natural/"illegitimate
children" (Art. 988) and prefering a niece, who is a collateral relative (Art. 1003);

II. The Decision erred in denying the right of representation of the natural grandchildren
Santero to represent their father Pablo Santero in the succession to the intestate estate of
their grandmother Simona Pamuti Vda. de Santero (Art. 982);

III. The Decision erred in mistaking the intestate estate of the grandmother Simona
Pamuti Vda. de Santero as the estate of "legitimate child or relative" of Pablo Santero, her
son and father of the petitioners' grandchildren Santero;

IV. The Decision erred in ruling that petitioner-appellant Felisa P. Jardin who is a niece
and therefore a collateral relative of Simona Pamuti Vda. de Santero excludes the natural
children of her son Pablo Santero, who are her direct descendants and/or grand children;

V. The Decision erred in applying Art. 992, when Arts. 988, 989 and 990 are the
applicable provisions of law on intestate succession; and

VI. The Decision erred in considering the orders of December 1 and December 9, 1976
which are provisional and interlocutory as final and executory.

The real issue in this case may be briefly stated as follows — who are the legal heirs of Simona
Pamuti Vda. de Santero — her niece Felisa Pamuti Jardin or her grandchildren (the natural
children of Pablo Santero)?

The dispute at bar refers only to the intestate estate of Simona Pamuti Vda. de Santero and the
issue here is whether oppositors-appellees (petitioners herein) as illegitimate children of Pablo
Santero could inherit from Simona Pamuti Vda. de Santero, by right of representation of their
father Pablo Santero who is a legitimate child of Simona Pamuti Vda, de Santero.

Now then what is the appropriate law on the matter? Petitioners contend in their pleadings that
Art. 990 of the New Civil Code is the applicable law on the case. They contend that said
provision of the New Civil Code modifies the rule in Article 941 (Old Civil Code) and
recognizes the right of representation (Art. 970) to descendants, whether legitimate or
illegitimate and that Art. 941, Spanish Civil Code denied illegitimate children the right to
represent their deceased parents and inherit from their deceased grandparents, but that Rule was
expressly changed and/or amended by Art. 990 New Civil Code which expressly grants the
illegitimate children the right to represent their deceased father (Pablo Santero) in the estate of
their grandmother Simona Pamuti)." 5

Petitioners' contention holds no water. Since the heridatary conflict refers solely to the intestate
estate of Simona Pamuti Vda. de Santero, who is the legitimate mother of Pablo Santero, the
applicable law is the provision of Art. 992 of the Civil Code which reads as follows:

ART. 992. An illegitimate child has no right to inherit ab intestato from the legitimate
children and relatives of his father or mother; nor shall such children or relatives inherit
in the same manner from the illegitimate child. (943a)

Pablo Santero is a legitimate child, he is not an illegitimate child. On the other hand, the
oppositors (petitioners herein) are the illegitimate children of Pablo Santero.

Article 992 of the New Civil Code provides a barrier or iron curtain in that it prohibits absolutely
a succession ab intestato between the illegitimate child and the legitimate children and relatives
of the father or mother of said legitimate child. They may have a natural tie of blood, but this is
not recognized by law for the purposes of Art. 992, Between the legitimate family and the
illegitimate family there is presumed to be an intervening antagonism and incompatibility. The
illegitimate child is disgracefully looked down upon by the legitimate family; the family is in
turn, hated by the illegitimate child; the latter considers the privileged condition of the former,
and the resources of which it is thereby deprived; the former, in turn, sees in the illegitimate
child nothing but the product of sin, palpable evidence of a blemish broken in life; the law does
no more than recognize this truth, by avoiding further grounds of resentment. 6

Thus, petitioners herein cannot represent their father Pablo Santero in the succession of the letter
to the intestate estate of his legitimate mother Simona Pamuti Vda. de Santero, because of the
barrier provided for under Art. 992 of the New Civil Code.

In answer to the erroneous contention of petitioners that Article 941 of the Spanish Civil Code is
changed by Article 990 of the New Civil Code, We are reproducing herewith the Reflections of
the Illustrious Hon. Justice Jose B.L. Reyes which also finds full support from other civilists, to
wit:

In the Spanish Civil Code of 1889 the right of representation was admitted only within
the legitimate family; so much so that Article 943 of that Code prescribed that an
illegitimate child can riot inherit ab intestato from the legitimate children and relatives of
his father and mother. The Civil Code of the Philippines apparently adhered to this
principle since it reproduced Article 943 of the Spanish Code in its own Art. 992, but
with fine inconsistency, in subsequent articles (990, 995 and 998) our Code allows the
hereditary portion of the illegitimate child to pass to his own descendants, whether
legitimate or illegitimate. So that while Art. 992 prevents the illegitimate issue of a
legitimate child from representing him in the intestate succession of the grandparent, the
illegitimates of an illegitimate child can now do so. This difference being indefensible
and unwarranted, in the future revision of the Civil Code we shall have to make a choice
and decide either that the illegitimate issue enjoys in all cases the right of representation,
 in which case Art. 992 must be suppressed; or contrariwise maintain said article and
modify Articles 995 and 998. The first solution would be more in accord with an
enlightened attitude vis-a-vis illegitimate children. (Reflections on the Reform of
Hereditary Succession, JOURNAL of the Integrated Bar of the Philippines, First Quater,
1976, Volume 4, Number 1, pp. 40-41).

It is therefore clear from Article 992 of the New Civil Code that the phrase "legitimate children
and relatives of his father or mother" includes Simona Pamuti Vda. de Santero as the word
"relative" includes all the kindred of the person spoken of. 7 The record shows that from the
commencement of this case the only parties who claimed to be the legitimate heirs of the late
Simona Pamuti Vda. de Santero are Felisa Pamuti Jardin and the six minor natural or illegitimate
children of Pablo Santero. Since petitioners herein are barred by the provisions of Article 992,
the respondent Intermediate Appellate Court did not commit any error in holding Felisa Pamuti-
Jardin to be the sole legitimate heir to the intestate estate of the late Simona Pamuti Vda. de
Santero.

Lastly, petitioners claim that the respondent Intermediate Appellate Court erred in ruling that the
Orders of the Court a quo dated December 1, 1976 and December 9, 1976 are final and
executory. Such contention is without merit. The Hon. Judge Jose Raval in his order dated
December 1, 1976 held that the oppositors (petitioners herein) are not entitled to intervene and
hence not allowed to intervene in the proceedings for the declaration of the heirship in the
intestate estate of Simona Pamuti Vda. de Santero. Subsequently, Judge Jose Raval issued an
order, dated December 9, 1976, which declared Felisa Pamuti-Jardin to be the sole legitimate
heir of Simona Pamuti. The said Orders were never made the subjects of either a motion for
reconsideration or a perfected appeal. Hence, said orders which long became final and executory
are already removed from the power of jurisdiction of the lower court to decide anew. The only
power retained by the lower court, after a judgment has become final and executory is to order its
execution. The respondent Court did not err therefore in ruling that the Order of the Court a quo
dated May 30, 1980 excluding Felisa Pamuti Jardin as intestate heir of the deceased Simona
Pamuti Vda. de Santero "is clearly a total reversal of an Order which has become final and
executory, hence null and void. "

WHEREFORE, this petition is hereby DISMISSED, and the assailed decision is hereby
AFFIRMED.

SO ORDERED.

G.R. No. L-66574 February 21, 1990

ANSELMA DIAZ, guardian of VICTOR, RODRIGO, ANSELMINA and MIGUEL, all surnamed SANTERO, and FELIXBERTA PACURSA,
guardian of FEDERICO SANTERO, et al., petitioners,
vs.
INTERMEDIATE APPELLATE COURT and FELISA PAMUTI JARDIN, respondents.

Ambrosio Padilla, Mempin & Reyes Law Offices for petitioners.

Pedro S. Sarino for respondent Felisa Pamuti Jardin.

 RESOLUTION

PARAS, J.:

The decision of the Second Division of this Court in the case of Anselma Diaz, et al. vs. Intermediate Appellate Court, et al., G.R. No. 6574,
promulgated June 17, 1987 declaring Felisa Pamuti-Jardin to be the sole legitimate heir to the intestate estate of the late Simona Pamuti
Vda. de Santero, and its Resolution of February 24, 1988 denying the Motion for Reconsideration dated July 2, 1987, are being challenged in
this Second Motion for Reconsideration dated July 5, 1988. After the parties had filed their respective pleadings, the Court, in a resolution
dated October 27, 1988, resolved to grant the request of the petitioners for oral argument before the court en banc, and the case was set for
hearing on November 17, 1988 to resolve the question: Does the term "relatives" in Article 992 of the New Civil Code which reads:

An illegitimate child has no right to inherit ab intestato from the legitimate children or relatives of his father or mother;
nor shall such children or relatives inherit in the same manner from the illegitimate child.

include the legitimate parents of the father or mother of the illegitimate children? Invited to discuss as amici curiae during the hearing were
the following: Justice Jose B.L. Reyes, former Justice Minister Ricardo C. Puno, Dr. Arturo Tolentino, former Justice Eduardo Caguioa, and
Professor Ruben Balane.

The facts of the case, as synthesized in the assailed decision, are as follows:

It is undisputed: 1) that Felisa Pamuti Jardin is a niece of Simona Pamuti Vda. de Santero who together with Felisa's
mother Juliana were the only legitimate children of the spouses Felipe Pamuti and Petronila Asuncion; 2) that Juliana
married Simon Jardin and out of their union were born Felisa Pamuti and another child who died during infancy; 3) that
Simona Pamuti Vda. de Santero is the widow of Pascual Santero and the mother of Pablo Santero; 4) that Pablo
Santero was the only legitimate son of his parents Pascual Santero and Simona Pamuti Vda. de Santero; 5) that
Pascual Santero died in 1970; Pablo Santero in 1973 and Simona Santero in 1976; 6) that Pablo Santero, at the time
of his death was survived by his mother Simona Santero and his six minor natural children to wit: four minor children
with Anselma Diaz and two minor children with Felixberta Pacursa.
(pp. 1-2, Decision; pp. 190-191, Rollo)

Briefly stated, the real issue in the instant case is this — who are the legal heirs of Simona Pamuti Vda. de Santero — her niece Felisa
Pamuti-Jardin or her grandchildren (the natural children of Pablo Santero)?

The present controversy is confined solely to the intestate estate of Simona Pamuti Vda. de Santero. In connection therewith, We are tasked
with determining anew whether petitioners as illegitimate children of Pablo Santero could inherit from Simona Pamuti Vda. de Santero, by
right of representation of their father Pablo Santero who is a legitimate child of Simona Pamuti Vda. de Santero.

Petitioners claim that the amendment of Articles 941 and 943 of the old Civil Code (Civil Code of Spain) by Articles 990 and 992 of the new
Civil Code (Civil Code of the Philippines) constitute a substantial and not merely a formal change, which grants illegitimate children certain
successional rights. We do not dispute the fact that the New Civil Code has given illegitimate children successional rights, which rights were
never before enjoyed by them under the Old Civil Code. They were during that time merely entitled to support. In fact, they are now
considered as compulsory primary heirs under Article 887 of the new Civil Code (No. 5 in the order of intestate succession). Again, We do
not deny that fact. These are only some of the many rights granted by the new Code to illegitimate children. But that is all. A careful
evaluation of the New Civil Code provisions, especially Articles 902, 982, 989, and 990, claimed by petitioners to have conferred illegitimate
children the right to represent their parents in the inheritance of their legitimate grandparents, would in point of fact reveal that such right to
this time does not exist.

Let Us take a closer look at the above-cited provisions.

Art.902. The rights of illegitimate children set forth in the preceding articles are transmitted upon their death to their
descendants, whether legitimate or illegitimate.

Art. 982. The grandchildren and other descendants shall inherit by right of representation and if any one of them should
have died, leaving several heirs, the portion pertaining to him shall be divided among the latter in equal portions. (933)

Art. 989. If, together with illegitimate children, there should survive descendants of another illegitimate child who is
dead, the former shall succeed in their own right and the latter by right of representation. (940a)

Art. 990. The hereditary rights granted by the two preceding articles to illegitimate children shall be transmitted upon
their death to their descendants, who shall inherit by right of representation from their deceased grandparent. (941a)
Emphasis supplied).
Articles 902, 989, and 990 clearly speak of successional rights of illegitimate children, which rights are transmitted to their descendants upon
their death. The descendants (of these illegitimate children) who may inherit by virtue of the right of representation may be legitimate or
illegitimate. In whatever manner, one should not overlook the fact that the persons to be represented are themselves illegitimate. The three
named provisions are very clear on this matter. The right of representation is not available to illegitimate descendants of legitimate children in
the inheritance of a legitimate grandparent. It may be argued, as done by petitioners, that the illegitimate descendant of a legitimate child is
entitled to represent by virtue of the provisions of Article 982, which provides that "the grandchildren and other descendants shall inherit by
right of representation." Such a conclusion is erroneous. It would allow intestate succession by an illegitimate child to the legitimate parent of
his father or mother, a situation which would set at naught the provisions of Article 992. Article 982 is inapplicable to instant case because
Article 992 prohibits absolutely a succession ab intestato between the illegitimate child and the legitimate children and relatives of the father
or mother. It may not be amiss to state that Article 982 is the general rule and Article 992 the exception.

"The rules laid down in Article 982 that 'grandchildren and other descendants shall inherit by right of representation and in Article 902 that the
rights of illegitimate children ... are transmitted upon their death to their descendants, whether legitimate or illegitimate are subject to the
limitation prescribed by Article 992 to the end that an illegitimate child has no right to inherit ab intestato from the legitimate children and
relatives of his father or mother."' (Amicus Curiae's Opinion by former Justice Minister Ricardo C. Puno, p. 12)

"Article 992 of the New Civil Code provides a barrier or iron curtain in that it prohibits absolutely a succession ab intestato between the
illegitimate child and the legitimate children and relatives of the father or mother of said illegitimate child. They may have a natural tie of
blood, but this is not recognized by law for the purpose of Article 992. Between the legitimate family and the illegitimate family there is
presumed to be an intervening antagonism and incompatibility. The illegitimate child is disgracefully looked down upon by the legitimate
family; and the family is in turn, hated by the illegitimate child; the latter considers the privileged condition of the former, and the resources of
which it is thereby deprived; the former, in turn, sees in the illegitimate child nothing but the product of sin, palpable evidence of a blemish
broken in life; the law does no more than recognize this truth, by avoiding further ground of resentment." (7 Manresa 110 cited in Grey v.
Fable 40 OG (First S) No. 3, p. 196).

According to petitioners, the commentaries of Manresa as above- quoted are based on Articles 939 to 944 of the old Civil Code and are
therefore inapplicable to the New Civil Code and to the case at bar. Petitioners further argue that the consistent doctrine adopted by this
Court in the cases of Llorente vs. Rodriguez, et al., 10 Phil., 585; Centeno vs. Centeno, 52 Phil. 322, and Oyao vs. Oyao, 94 Phil. 204, cited
by former Justice Minister Justice Puno, Justice Caguioa, and Prof. Balane, which identically held that an illegitimate child has no right to
succeed ab intestato the legitimate father or mother of his natural parent (also a legitimate child himself is already abrogated by the
amendments made by the Now Civil Code and thus cannot be made to apply to the instant case.

Once more, We decline to agree with petitioner. We are fully aware of certain substantial changes in our law of succcession, but there is no
change whatsoever with respect to the provision of Article 992 of the Civil Code. Otherwise, by the said substantial change, Article 992,
which was a reproduction •f Article 943 of the Civil Code of Spain, should have been suppressed or at least modified to clarify the matters
which are now the subject of the present controversy. While the New Civil Code may have granted successional rights to illegitimate children,
those articles, however, in conjunction with Article 992, prohibit the right of representation from being exercised where the person to be
represented is a legitimate child. Needless to say, the determining factor is the legitimacy or illegitimacy of the person to be represented. If
the person to be represented is an illegitimate child, then his descendants, whether legitimate or illegitimate, may represent him; however, if
the person to be represented is legitimate, his illegitimate descendants cannot represent him because the law provides that only his
legitimate descendants may exercise the right of representation by reason of the barrier imposed Article 992. In this wise, the commentaries
of Manresa on the matter in issue, even though based on the old Civil Code, are still very much applicable to the New Civil Code because
the amendment, although substantial, did not consist of giving illegitimate children the right to represent their natural parents (legitimate) in
the intestate succession of their grandparents (legitimate). It is with the same line of reasoning that the three aforecited cases may be said to
be still applicable to the instant case.

Equally important are the reflections of the Illustrious Hon. Justice Jose B.L. Reyes which also find support from other civilists. We quote:

In the Spanish Civil Code of 1889 the right of representation was admitted only within the legitimate family; so much so
that Article 943 of that Code prescribed that an illegitimate child can not inherit ab intestato from the legitimate children
and relatives of his father and mother. The Civil Code of the Philippines apparently adhered to this principle since it
reproduced Article 943 of the Spanish Code in its own Art. 992, but with fine inconsistency, in subsequent articles (990,
995 and 998) our Code allows the hereditary portion of the illegitimate child to pass to his own descendants, whether
legitimate or illegitimate. So that while Art. 992 prevents the illegitimate issue of a legitimate child from representing him
in the intestate succession of the grandparent, the illegitimates of an illegitimate child can now do so. This difference
being indefensible and unwarranted, in the future revision of the Civil Code we shall have to make a choice and decide
either that the illegitimate issue enjoys in all cases the right of representation, in which case Art. 992 must be
suppressed; or contrariwise maintain said article and modify Articles 992 and 998. The first solution would be more in
accord with an enlightened attitude vis-a-vis illegitimate children. (Reflections on the Reform of hereditary Succession,
JOURNAL of the Integrated Bar of the Philippines, First Quartet 1976, Volume 4, Number 1, pp. 40-41). (p. 7, Decision;
p. 196, Rollo)

It is therefore clear from Article 992 of the New Civil Code that the phrase "legitimate children and relatives of his father or mother" includes
Simona Pamuti Vda. de Santero as the word "relative" is broad enough to comprehend all the kindred of the person spoken of. (Comment, p.
139 Rollo citing p. 2862 Bouvier's Law Dictionary vol. 11, Third Revision, Eight Edition) The record reveals that from the commencement of
this case the only parties who claimed to be the legitimate heirs of the late Simona Pamuti Vda. de Santero are Felisa Pamuti Jardin and the
six minor natural or illegitimate children of Pablo Santero. Since petitioners herein are barred by the provisions of Article 992, the respondent
Intermediate Appellate Court did not commit any error in holding Felisa Pamuti Jardin to be the sole legitimate heir to the intestate estate of
the late Simona Pamuti Vda. de Santero.
It is Our shared view that the word "relatives" should be construed in its general acceptation. Amicus curiae Prof. Ruben Balane has this to
say:

The term relatives, although used many times in the Code, is not defined by it. In accordance therefore with the canons
of statutory interpretation, it should be understood to have a general and inclusive scope, inasmuch as the term is a
general one. Generalia verba sunt generaliter intelligenda. That the law does not make a distinction prevents us from
making one: Ubi lex non distinguit, nec nos distinguera debemus. Esrinche, in his Diccionario de Legislacion y
Jurisprudencia defines parientes as "los que estan relacionados por los vinculos de la sangre, ya sea por proceder
unos de otros, como los descendientes y ascendientes, ya sea por proceder de una misma raiz o tronco, como los
colaterales. (cited in Scaevola, op. cit., p. 457). (p. 377, Rollo)

According to Prof. Balane, to interpret the term relatives in Article 992 in a more restrictive sense than it is used and intended is not
warranted by any rule of interpretation. Besides, he further states that when the law intends to use the term in a more restrictive sense, it
qualifies the term with the word collateral, as in Articles 1003 and 1009 of the New Civil Code.

Thus, the word "relatives" is a general term and when used in a statute it embraces not only collateral relatives but also all the kindred of the
person spoken of, unless the context indicates that it was used in a more restrictive or limited sense — which as already discussed earlier, is
not so in the case at bar.

To recapitulate, We quote this:

The lines of this distinction between legitimates and illegitimates. which goes back very far in legal history, have been
softened but not erased by present law. Our legislation has not gone so far as to place legitimate and illegitimate
children on exactly the same footing. Even the Family Code of 1987 (EO 209) has not abolished the gradation between
legitimate and illegitimate children (although it has done away with the sub-classification of illegitimates into natural and
'spurious'). It would thus be correct to say that illegitimate children have only those rights which are expressly or clearly
granted to them by law (vide Tolentino, Civil Code of the Philippines, 1973 ed., vol. III, p. 291). (Amicus Curiae's
Opinion by Prof. Ruben Balane, p. 12).

In the light of the foregoing, We conclude that until Article 992 is suppressed or at least amended to clarify the term "relatives" there is no
other alternative but to apply the law literally. Thus, We hereby reiterate the decision of June 17, 1987 and declare Felisa Pamuti-Jardin to be
the sole heir to the intestate estate of Simona Pamuti Vda. de Santero, to the exclusion of petitioners.

WHEREFORE, the second Motion for Reconsideration is DENIED, and the assailed decision is hereby AFFIRMED.

SO ORDERED.

3. G.R. No. L-18753 March 26, 1965

VICENTE B. TEOTICO, petitioner-appellant,

vs.
ANA DEL VAL, ETC., oppositor-appellant.

Antonio Gonzales for petitioner-appellant.

J.C. Zulueta, G. D. David and N. J. Quisumbing for oppositor-appellant.

BAUTISTA ANGELO, J.:

Maria Mortera y Balsalobre Vda. de Aguirre died on July 14, 1955 in the City of Manila leaving
properties worth P600,000.00. She left a will written in Spanish which she executed at her
residence at No. 2 Legarda St., Quiapo, Manila. She affixed her signature at the bottom of the
will and on the left margin of each and every page thereof in the presence of Pilar Borja, Pilar C.
Sanchez, and Modesto Formilleza, who in turn affixed their signatures below the attestation
clause and on the left margin of each and every page of the will in the presence of the testatrix
and of each other. Said will was acknowledged before Notary Public Niceforo S. Agaton by the
testatrix and her witnesses.

In said will the testatrix made the following preliminary statement: that she was possessed of the
full use of her mental faculties; that she was free from illegal pressure or influence of any kind
from the beneficiaries of the will and from any influence of fear or threat; that she freely and
spontaneously executed said will and that she had neither ascendants nor descendants of any kind
such that she could freely dispose of all her estate.

Among the many legacies and devises made in the will was one of P20,000.00 to Rene A.
Teotico, married to the testatrix's niece named Josefina Mortera. To said spouses the testatrix left
the usufruct of her interest in the Calvo building, while the naked ownership thereof she left in
equal parts to her grandchildren who are the legitimate children of said spouses. The testatrix
also instituted Josefina Mortera as her sole and universal heir to all the remainder of her
properties not otherwise disposed of in the will.

On July 17, 1955, Vicente B. Teotico filed a petition for the probate of the will before the Court
of First Instance of Manila which was set for hearing on September 3, 1955 after the requisite
publication and service to all parties concerned.

Ana del Val Chan, claiming to be an adopted child of Francisca Mortera, a deceased sister of the
testatrix, as well as an acknowledged natural child of Jose Mortera, a deceased brother of the
same testatrix, filed on September 2, 1955 an opposition to the probate of the will alleging the
following grounds: (1) said will was not executed as required by law; (2) the testatrix was
physically and mentally incapable to execute the will at the time of its execution; and (3) the will
was executed under duress, threat or influence of fear.

Vicente B. Teotico, filed a motion to dismiss the opposition alleging that the oppositor had no
legal personality to intervene. The probate court, after due hearing, allowed the oppositor to
intervene as an adopted child of Francisca Mortera, and on June 17, 1959, the oppositor amended
her opposition by alleging, the additional ground that the will is inoperative as to the share of Dr.
Rene Teotico because the latter was the physician who took care of the testatrix during her last
illness.

After the parties had presented their evidence, the probate court rendered its decision on
November 10, 1960, admitting the will to probate but declaring the disposition made in favor of
Dr. Rene Teotico void with the statement that the portion to be vacated by the annulment should
pass to the testatrix's heirs by way of intestate succession.

Petitioner Teotico, together with the universal heir Josefina Mortera, filed a motion for
reconsideration of that part of the decision which declares the portion of the estate to be vacated
by the nullity of the legacy made to Dr. Rene Teotico as passing to the legal heirs, while the
oppositor filed also a motion for reconsideration of the portion of the judgment which decrees
the probate of the will. On his part, Dr. Rene Teotico requested leave to intervene and to file a
motion for reconsideration with regard to that portion of the decision which nullified the legacy
made in his favor.
The motions for reconsideration above adverted to having been denied, both petitioner and
oppositor appealed from the decision, the former from that portion which nullifies the legacy in
favor of Dr. Rene Teotico and declares the vacated portion as subject of succession in favor of
the legal heirs, and the latter from that portion which admits the will to probate. And in this
instance both petitioner and oppositor assign several errors which, stripped of non-essentials,
may be boiled down to the following: (1) Has oppositor Ana del Val Chan the right to intervene
in this proceeding?; (2) Has the will in question been duly admitted to probate?; (3) Did the
probate court commit an error in passing on the intrinsic validity of the provisions of the will and
in determining who should inherit the portion to be vacated by the nullification of the legacy
made in favor of Dr. Rene Teotico?

These issues will be discussed separately.

1. It is a well-settled rule that in order that a person may be allowed to intervene in a probate
proceeding he must have an interest in the estate, or in the will, or in the property to be affected
by it either as executor or as a claimant of the estate (Ngo The Hua v. Chung Kiat Hua, et al., L-
17091, September 30, 1963); and an interested party has been defined as one who would be
benefited by the estate such as an heir or one who has a claim against the estate like a creditor
(Idem). On the other hand, in Saguinsin v. Lindayag, et al., L-17750, December 17, 1962, this
Court said:

According to Section 2, Rule 80 of the Rules of Court, a petition for letters of

administration must be filed by an "interested person." An interested party has been
defined in this connection as one who would be benefited by the estate, such as an heir,
or one who has a claim against the estate, such as a creditor (Intestate Estate of Julio
Magbanwa 40 O.G. 1171). And it is well settled in this jurisdiction that in civil actions as
well as special proceedings, the interest required in order that a person may be a party
thereto must be material and direct, and not merely indirect or contingent (Trillana vs.
Crisostomo, G.R. No. L-3370, August 22, 1951; Rapinosa vs. Barrion, 70 Phil. 311).

The question now may be asked: Has oppositor any interest in any of the provisions of the will,
and, in the negative, would she acquire any right to the estate in the event that the will is denied
probate?

Under the terms of the will, oppositor has no right to intervene because she has no interest in the
estate either as heir, executor, or administrator, nor does she have any claim to any property
affected by the will, because it nowhere appears therein any provision designating her as heir,
legatee or devisee of any portion of the estate. She has also no interest in the will either as
administratrix or executrix. Neither has she any claim against any portion of the estate because
she is not a co-owner thereof, and while she previously had an interest in the Calvo building
located in Escolta, she had already disposed of it long before the execution of the
will.1äwphï1.ñët

In the supposition that, the will is denied probate, would the oppositor acquire any interest in any
portion of the estate left by the testatrix? She would acquire such right only if she were a legal
heir of the deceased, but she is not under our Civil Code. It is true that oppositor claims to be an
acknowledged natural child of Jose Mortera, a deceased brother of the deceased, and also an
adopted daughter of Francisca Mortera, a deceased sister of the testatrix, but such claim cannot
give her any comfort for, even if it be true, the law does not give her any right to succeed to the
estate of the deceased sister of both Jose Mortera and Francisca Mortera. And this is so because
being an illegitimate child she is prohibited by law from succeeding to the legitimate relatives of
her natural father. Thus, Article 992 of our Civil Code provides: "An illegitimate child has no
right to inherit ab intestato from the legitimate children and relatives of his father or mother; ... ."
And the philosophy behind this provision is well expressed in Grey v. Fabie, 68 Phil. 128, as
follows:

Between the natural child and the legitimate relatives of the father or mother who
acknowledged it, the Code denies any right of succession. They cannot be called relatives
and they have no right to inherit. Of course, there is a blood tie, but the law does not
recognize it. On this, article 943 is based upon the reality of the facts and upon the
presumption will of the interested parties; the natural child is disgracefully looked down
upon by the legitimate family; the legitimate family is, in turn, hated by the natural child;
the latter considers the privileged condition of the former and the resources of which it is
thereby deprived; the former, in turn, sees in the natural child nothing but the product of
sin, a palpable evidence of a blemish upon the family. Every relation is ordinarily broken
in life; the law does no more than recognize this truth, by avoiding further grounds of
resentment. (7 Manresa, 3d., p. 110.)

The oppositor cannot also derive comfort from the fact that she is an adopted child of Francisca
Mortera because under our law the relationship established by adoption is limited solely to the
adopter and the adopted and does not extend to the relatives of the adopting parents or of the
adopted child except only as expressly provided for by law. Hence, no relationship is created
between the adopted and the collaterals of the adopting parents. As a consequence, the adopted is
an heir of the adopter but not of the relatives of the adopter.

The relationship established by the adoption, however, is limited to the adopting parent,
and does not extend to his other relatives, except as expressly provided by law. Thus, the
adopted child cannot be considered as a relative of the ascendants and collaterals of the
adopting parents, nor of the legitimate children which they may have after the adoption,
except that the law imposes certain impediments to marriage by reason of adoption.
Neither are the children of the adopted considered as descendants of the adopter. The
relationship created is exclusively between the adopter and the adopted, and does not
extend to the relatives of either. (Tolentino, Civil Code of the Philippines, Vol. 1, p. 652).

Relationship by adoption is limited to adopter and adopted, and does not extend to other
members of the family of either; but the adopted is prohibited to marry the children of the
adopter to avoid scandal. (An Outline of Philippine Civil Law by Justice Jose B. L. Reyes
and Ricardo C. Puno, Vol. 1, p. 313; See also Caguioa, Comments and Cases on Civil
Law 1955, Vol 1, pp. 312-313; Paras, Civil Code of the Philippines, 1959 ed., Vol. 1, p.
515)
It thus appears that the oppositor has no right to intervene either as testamentary or as legal heir
in this probate proceeding contrary to the ruling of the court a quo.

2. The next question to be determined is whether the will Exhibit A was duly admitted to
probate. Oppositor claims that the same should not have been admitted not only because it was
not properly attested to but also because it was procured thru pressure and influence and the
testatrix affixed her signature by mistake believing that it contained her true intent.

The claim that the will was not properly attested to is contradicted by the evidence of record. In
this respect it is fit that we state briefly the declarations of the instrumental witnesses.

Pilar Borja testified that the testatrix was in perfect state of health at the time she executed the
will for she carried her conversation with her intelligently; that the testatrix signed immediately
above the attestation clause and on each and every page thereof at the left-hand margin in the
presence of the three instrumental witnesses and the notary public; that it was the testatrix herself
who asked her and the other witnesses to act as such; and that the testatrix was the first one to
sign and later she gave the will to the witnesses who read and signed it.

Pilar G. Sanchez also testified that she knew the testatrix since 1945; that it was the testatrix
herself who asked her to be a witness to the will; that the testatrix was the first one to sign and
she gave the will later to the witnesses to sign and afterwards she gave it to the notary public;
that on the day of the execution of the will the testatrix was in the best of health.

Modesto Formilleza also testified that he was asked by the testatrix to be one of the witnesses to
the will; that he read and understood the attestation clause before he signed the document, and all
the witnesses spoke either in Spanish or in Tagalog. He finally said that the instrumental
witnesses and the testatrix signed the will at the same time and place and identified their
signatures.

This evidence which has not been successfully refuted proves conclusively that the will was duly
executed because it was signed by the testatrix and her instrumental witnesses and the notary
public in the manner provided for by law.

The claim that the will was procured by improper pressure and influence is also belied by the
evidence. On this point the court a quo made the following observation:

The circumstance that the testatrix was then living under the same roof with Dr. Rene
Teotico is no proof adequate in law to sustain the conclusion that there was improper
pressure and undue influence. Nor is the alleged fact of isolation of the testatrix from the
oppositor and her witnesses, for their supposed failure to see personally the testatrix,
attributable to the vehemence of Dr. Rene Teotico, to exclude visitors, took place years
after the execution of the will on May 17, 1951. Although those fact may have some
weight to support the theory of the oppositor, yet they must perforce yield to the
weightier fact that nothing could have prevented the testatrix, had she really wanted to
from subsequently revoking her 1951 will if it did not in fact reflect and express her own
testamentary dispositions. For, as testified to by the oppositor and her witnesses, the
 testatrix was often seen at the Escolta, in Quiapo and Sta. Cruz, Manila, walking and
accompanied by no one. In fact, on different occasions, each of them was able to talk
with her.

We have examined the evidence on the matter and we are fully in accord with the foregoing
observation. Moreover, the mere claim that Josefina Mortera and her husband Rene Teotico had
the opportunity to exert pressure on the testatrix simply because she lived in their house several
years prior to the execution of the will and that she was old and suffering from hypertension in
that she was virtually isolated from her friends for several years prior to her death is insufficient
to disprove what the instrumental witnesses had testified that the testatrix freely and voluntarily
and with full consciousness of the solemnity of the occasion executed the will under
consideration. The exercise of improper pressure and undue influence must be supported by
substantial evidence and must be of a kind that would overpower and subjugate the mind of the
testatrix as to destroy her free agency and make her express the will of another rather than her
own (Coso v. Deza, 42 0. G. 596). The burden is on the person challenging the will that such
influence was exerted at the time of its execution, a matter which here was not done, for the
evidence presented not only is insufficient but was disproved by the testimony of the
instrumental witnesses.

3. The question of whether the probate court could determine the intrinsic validity of the
provisions of a will has been decided by this Court in a long line of decisions among which the
following may be cited:

Opposition to the intrinsic validity or legality of the provisions of the will cannot be
entertained in Probate proceeding because its only purpose is merely to determine if the
will has been executed in accordance with the requirements of the law." (Palacios v.
Palacios, 58 0. G. 220)

... The authentication of a will decides no other questions than such as touch upon the
capacity of the testator and the compliance with those requisites or solemnities which the
law prescribes for the validity of wills. It does not determine nor even by implication
prejudge the validity or efficiency of the provisions, these may be impugned as being
vicious or null, notwithstanding its authentication. The questions relating to these points
remain entirely unaffected, and may be raised even after the will has been authenticated.
...

From the fact that the legalization of a will does not validate the provisions therein
contained, it does not follow that such provision lack the efficiency, or fail to produce the
effects which the law recognizes when they are not impugned by anyone. In the matter of
wills it is a fundamental doctrine that the will of the testator is the law governing the
interested parties, and must be punctually complied with in so far as it is not contrary to
the law or to public morals. (Montañano v. Suesa, 14 Phil. 676, 679-680)

To establish conclusively as against everyone, and once for all, the facts that a will was
executed with the formalities required by law and that the testator was in a condition to
make a will, is the only purpose of the proceedings under the new code for the probate of
 a will. (Sec. 625.) The judgment in such proceedings determines and can determine
nothing more. In them the court has no power to pass upon the validity of any provisions
made in the will. It can not decide, for example, that a certain legacy is void and another
one is valid. (Castañeda v. Alemany, 3 Phil. 426, 428)

Pursuant to the foregoing precedents the pronouncement made by the court a quo declaring
invalid the legacy made to Dr. Rene Teotico in the will Exhibit A must be set aside as having
been made in excess of its jurisdiction. Another reason why said pronouncement should be set
aside is that the legatee was not given an opportunity to defend the validity of the legacy for he
was not allowed to intervene in this proceeding. As a corollary, the other pronouncements
touching on the disposition of the estate in favor of some relatives of the deceased should also be
set aside for the same reason.

WHEREFORE, with the exception of that portion of the decision which declares that the will in
question has been duly executed and admitted the same to probate, the rest of the decision is
hereby set aside. This case is ordered remanded to the court a quo for further proceedings. No
pronouncement as to costs.

4. G.R. Nos. 89224-25 January 23, 1992

MAURICIO SAYSON, ROSARIO SAYSON-MALONDA, BASILISA SAYSON-LIRIO, REMEDIOS SAYSON-REYES and JUANA C.
BAUTISTA, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, DELIA SAYSON, assisted by her husband, CIRILO CEDO, JR., EDMUNDO SAYSON AND
DORIBEL SAYSON, respondents.

CRUZ, J.:

At issue in this case is the status of the private respondents and their capacity to inherit from their alleged parents and grandparents. The
petitioners deny them that right, asserting if for themselves to the exclusion of all others.

The relevant genealogical facts are as follows.

Eleno and Rafaela Sayson begot five children, namely, Mauricio, Rosario, Basilisa, Remedios and Teodoro. Eleno died on November 10,
1952, and Rafaela on May 15, 1976. Teodoro, who had married Isabel Bautista, died on March 23, 1972. His wife died nine years later, on
March 26, 1981. Their properties were left in the possession of Delia, Edmundo, and Doribel, all surnamed Sayson, who claim to be their
children.

On April 25, 1983, Mauricio, Rosario, Basilisa, and Remedios, together with Juana C. Bautista, Isabel's mother, filed a complaint for partition
and accounting of the intestate estate of Teodoro and Isabel Sayson. It was docketed as Civil Case No. 1030 in Branch 13 of the Regional
Trial Court of Albay. The action was resisted by Delia, Edmundo and Doribel Sayson, who alleged successional rights to the disputed estate
as the decedents' lawful descendants.

On July 11, 1983, Delia, Edmundo and Doribel filed their own complaint, this time for the accounting and partition of the intestate estate of
Eleno and Rafaela Sayson, against the couple's four surviving children. This was docketed as Civil Case No. 1042 in the Regional Trial Court
of Albay, Branch 12. The complainants asserted the defense they raised in Civil Case No. 1030, to wit, that Delia and Edmundo were the
adopted children and Doribel was the legitimate daughter of Teodoro and Isabel. As such, they were entitled to inherit Teodoro's share in his
parents' estate by right of representation.

Both cases were decided in favor of the herein private respondents on the basis of practically the same evidence.
Judge Rafael P. Santelices declared in his decision dated May 26,
1986, 1 that Delia and Edmundo were the legally adopted children of Teodoro and Isabel Sayson by virtue of the decree of adoption dated
March 9, 1967. 2 Doribel was their legitimate daughter as evidenced by her birth certificate dated February 27, 1967. 3 Consequently, the
three children were entitled to inherit from Eleno and Rafaela by right of representation.

In his decision dated September 30, 1986, 4 Judge Jose S. Sañez dismissed Civil Case No. 1030, holding that the defendants, being the
legitimate heirs of Teodoro and Isabel as established by the aforementioned evidence, excluded the plaintiffs from sharing in their estate.

Both cases were appealed to the Court of Appeals, where they were consolidated. In its own decision dated February 28, 1989, 5 the
respondent court disposed as follows:

WHEREFORE, in Civil Case No. 1030 (CA-G.R. No. 11541), the appealed decision is hereby AFFIRMED. In Civil case
No. 1042 (CA-G.R. No. 12364), the appealed decision is MODIFIED in that Delia and Edmundo Sayson are
disqualified from inheriting from the estate of the deceased spouses Eleno and Rafaela Sayson, but is affirmed in all
other respects.

SO ORDERED.

That judgment is now before us in this petition for review by certiorari. Reversal of the respondent court is sought on the ground that it
disregarded the evidence of the petitioners and misapplied the pertinent law and jurisprudence when it declared the private respondents as
the exclusive heirs of Teodoro and Isabel Sayson.

The contention of the petitioners is that Delia and Edmundo were not legally adopted because Doribel had already been born on February
27, 1967, when the decree of adoption was issued on March 9, 1967. The birth of Doribel disqualified her parents from adopting. The
pertinent provision is Article 335 of the Civil Code, naming among those who cannot adopt "(1) Those who have legitimate, legitimated,
acknowledged natural children, or natural children by legal fiction."

Curiously enough, the petitioners also argue that Doribel herself is not the legitimate daughter of Teodoro and Isabel but was in fact born to
one Edita Abila, who manifested in a petition for guardianship of the child that she was her natural mother. 6

The inconsistency of this position is immediately apparent. The petitioners seek to annul the adoption of Delia and Edmundo on the ground
that Teodoro and Isabel already had a legitimate daughter at the time but in the same breath try to demolish this argument by denying that
Doribel was born to the couple.

On top of this, there is the vital question of timeliness. It is too late now to challenge the decree of adoption, years after it became final and
executory. That was way back in 1967. 7 Assuming the the petitioners were proper parties, what they should have done was seasonably
appeal the decree of adoption, pointing to the birth of Doribel that disqualified Teodoro and Isabel from adopting Delia and Edmundo. They
did not. In fact, they should have done this earlier, before the decree of adoption was issued. They did not, although Mauricio claimed he had
personal knowledge of such birth.

As the respondent court correctly observed:

When Doribel was born on February 27, 1967, or about TEN (10) days before the issuance of the Order of Adoption,
the petitioners could have notified the court about the fact of birth of DORIBEL and perhaps withdrew the petition or
perhaps petitioners could have filed a petition for the revocation or rescission of the adoption (although the birth of a
child is not one of those provided by law for the revocation or rescission of an adoption). The court is of the considered
opinion that the adoption of the plaintiffs DELIA and EDMUNDO SAYSON is valid, outstanding and binding to the
present, the same not having been revoked or rescinded.

Not having any information of Doribel's birth to Teodoro and Isabel Sayson, the trial judge cannot be faulted for granting the petition for
adoption on the finding inter alia that the adopting parents were not disqualified.

A no less important argument against the petitioners is that their challenge to the validity of the adoption cannot be made collaterally, as in
their action for partition, but in a direct proceeding frontally addressing the issue.

The settled rule is that a finding that the requisite jurisdictional facts exists, whether erroneous or not, cannot be
questioned in a collateral proceeding, for a presumption arises in such cases where the validity of the judgment is thus
attacked that the necessary jurisdictional facts were proven [Freeman on Judgments, Vol. I, Sec. 350, pp. 719-720].
(Emphasis supplied.)

In the case of Santos v. Aranzanso, 8 this Court declared:

Anent this point, the rulings are summed up in 2 American Jurisprudence, 2nd Series, Adoption, Sec. 75, p. 922, thus:
 An adoption order implies the finding of the necessary facts and the burden of proof is on the
party attacking it; it cannot be considered void merely because the fact needed to show statutory
compliance is obscure. While a judicial determination of some particular fact, such as the
abandonment of his next of kin to the adoption, may be essential to the exercise of jurisdiction to
enter the order of adoption, this does not make it essential to the jurisdictional validity of the
decree that the fact be determined upon proper evidence, or necessarily in accordance with the
truth; a mere error cannot affect the jurisdiction, and the determination must stand until reversed
on appeal, and hence cannot be collaterally attacked. If this were not the rule, the status of
adopted children would always be uncertain, since the evidence might not be the same at all
investigations, and might be regarded with different effect by different tribunals, and the adoption
might be held by one court to have been valid, while another court would hold it to have been of
no avail. (Emphasis supplied.)

On the question of Doribel's legitimacy, we hold that the findings of the trial courts as affirmed by the respondent court must be sustained.
Doribel's birth certificate is a formidable piece of evidence. It is one of the prescribed means of recognition under Article 265 of the Civil Code
and Article 172 of the Family Code. It is true, as the petitioners stress, that the birth certificate offers only prima facie evidence 9 of filiation
and may be refuted by contrary evidence. However, such evidence is lacking in the case at bar.

Mauricio's testimony that he was present when Doribel was born to Edita Abila was understandbly suspect, coming as it did from an
interested party. The affidavit of Abila 10 denying her earlier statement in the petition for the guardianship of Doribel is of course hearsay, let
alone the fact that it was never offered in evidence in the lower courts. Even without it, however, the birth certificate must be upheld in line
with Legaspi v. Court of Appeals, 11 where we ruled that "the evidentiary nature of public documents must be sustained in the absence of
strong, complete and conclusive proof of its falsity or nullity."

Another reason why the petitioners' challenge must fail is the impropriety of the present proceedings for that purpose. Doribel's legitimacy
cannot be questioned in a complaint for partition and accounting but in a direct action seasonably filed by the proper party.

The presumption of legitimacy in the Civil Code . . . does not have this purely evidential character. It serves a more
fundamental purpose. It actually fixes a civil status for the child born in wedlock, and that civil status cannot be attacked
collaterally. The legitimacy of the child can be impugned only in a direct action brought for that purpose, by the proper
parties, and within the period limited by law.

The legitimacy of the child cannot be contested by way of defense or as a collateral issue in another action for a
different purpose. . . . 12 (Emphasis supplied.)

In consequence of the above observations, we hold that Doribel, as the legitimate daughter of Teodoro and Isabel Sayson, and Delia and
Edmundo, as their adopted children, are the exclusive heirs to the intestate estate of the deceased couple, conformably to the following
Article 979 of the Civil Code:

Art. 979. Legitimate children and their descendants succeed the parents and other ascendants, without distinction as to
sex or age, and even if they should come from different marriages.

An adopted child succeeds to the property of the adopting parents in the same manner as a legitimate child.

The philosophy underlying this article is that a person's love descends first to his children and grandchildren before it ascends to his parents
and thereafter spreads among his collateral relatives. It is also supposed that one of his purposes in acquiring properties is to leave them
eventually to his children as a token of his love for them and as a provision for their continued care even after he is gone from this earth.

Coming now to the right of representation, we stress first the following pertinent provisions of the Civil Code:

Art. 970. Representation is a right created by fiction of law, by virtue of which the representative is raised to the place
and the degree of the person represented, and acquires the rights which the latter would have if he were living or if he
could have inherited.

Art. 971. The representative is called to the succession by the law and not by the person represented. The
representative does not succeed the person represented but the one who the person represented would have
succeeded.

Art. 981. Should children of the deceased and descendants of other children who are dead, survive, the former shall
inherit in their own right, and the latter by right of representation.

There is no question that as the legitimate daughter of Teodoro and thus the granddaughter of Eleno and Rafaela, Doribel has a right to
represent her deceased father in the distribution of the intestate estate of her grandparents. Under Article 981, quoted above, she is entitled
to the share her father would have directly inherited had he survived, which shall be equal to the shares of her grandparents' other children.
13
But a different conclusion must be reached in the case of Delia and Edmundo, to whom the grandparents were total strangers. While it is true
that the adopted child shall be deemed to be a legitimate child and have the same right as the latter, these rights do not include the right of
representation. The relationship created by the adoption is between only the adopting parents and the adopted child and does not extend to
the blood relatives of either party. 14

In sum, we agree with the lower courts that Delia and Edmundo as the adopted children and Doribel as the legitimate daughter of Teodoro
Sayson and Isabel Bautista, are their exclusive heirs and are under no obligation to share the estate of their parents with the petitioners. The
Court of Appeals was correct, however, in holding that only Doribel has the right of representation in the inheritance of her grandparents'
intestate estate, the other private respondents being only the adoptive children of the deceased Teodoro.

WHEREFORE, the petition is DENIED, and the challenged decision of the Court of Appeals is AFFIRMED in toto, with costs against the
petitioners.

INTESTACY

1. G.R. No. L-19281 June 30, 1965

IN THE MATTER OF THE INTESTATE ESTATE OF PEDRO SANTILLON, CLARO

SANTILLON, petitioner-appellant,
vs.
PERFECTA MIRANDA, BENITO U. MIRANDA and ROSARIO CORRALES, oppositors-
appellees.

Clodualdo P. Surio and Claro Santillon (in his own behalf) for petitioner-appellant.
Patricio M. Patajo for oppositors-appellees.

BENGZON, C.J.:

This is an appeal from the order of the Court of First Instance of Pangasinan, specifying the
respective shares of the principal parties herein in the intestate estate of Pedro Santillon.

On November 21, 1953, Santillon died without testament in Tayug, Pangasinan, his residence,
leaving one son, Claro, and his wife, Perfecta Miranda. During his marriage, Pedro acquired
several parcels of land located in that province.

About four years after his death, Claro Santillon filed a petition for letters of administration.
Opposition to said petition was entered by the widow Perfecta Miranda and the spouses Benito
U. Miranda and Rosario Corrales on the following grounds: (a) that the properties enumerated in
the petition were all conjugal, except three parcels which Perfecta Miranda claimed to be her
exclusive properties; (b) that Perfecta Miranda by virtue of two documents had conveyed 3/4 of
her undivided share in most of the properties enumerated in the petition to said spouses Benito
and Rosario; (c) that administration of the estate was not necessary, there being a case for
partition pending; and (d) that if administration was necessary at all, the oppositor Perfecta
Miranda and not the petitioner was better qualified for the post. It appears that subsequently,
oppositor Perfecta Miranda was appointed administratrix of the estate.
On March 22, 1961, the court appointed commissioners to draft within sixty days, a project of
partition and distribution of all the properties of the deceased Pedro Santillon.

On April 25, 1961, Claro filed a "Motion to Declare Share of Heirs" and to resolve the
conflicting claims of the parties with respect to their respective rights in the estate. Invoking Art.
892 of the New Civil Code, he insisted that after deducting 1/2 from the conjugal properties is
the conjugal share of Perfecta, the remaining 1/2 must be divided as follows: 1/4 for her and 3/4
for him. Oppositor Perfecta, on the other hand, claimed that besides her conjugal half, she was
entitled under Art. 996 of the New Civil Code to another 1/2 of the remaining half. In other
words, Claro claimed 3/4 of Pedro's inheritance, while Perfecta claimed 1/2.

After due notice and hearing, the court, on June 28, 1961, issued an order, the dispositive portion
of which reads:

IN VIEW OF THE FOREGOING CONSIDERATIONS it is hereby ruled and ordered

that in the intestate succession of the deceased Pedro Santillon, the surviving spouse
Perfecta Miranda shall inherit ONE-HALF (1/2) share and the remaining ONE-HALF
(1/2) share for the only son, Atty. Claro Santillon. This is after deducting the share of the
widow as co-owner of the conjugal properties. ... .

From this order, petitioner Claro Santillon has appealed to this Court. Two questions of law are
involved. The first, raised in Perfecta's Motion to Dismiss Appeal, is whether the order of the
lower court is appealable. And the second, raised in appellant's lone assignment of error, is: How
shall the estate of a person who dies intestate be divided when the only survivors are the spouse
and one legitimate child?

The First Issue: — It is clear that the order of the lower court is final and, therefore, appealable
to this Court.

Under Rule 109, sec. 1, a person may appeal in special proceedings from an order of the Court of
First Instance where such order "determines ... the distributive share of the estate to which such
person is entitled."

The Second Issue: — Petitioner rests his claim to 3/4 of his father's estate on Art. 892 of the New
Civil Code which provides that:

If only the legitimate child or descendant of the deceased survives the widow or widower
shall be entitled to one-fourth of the hereditary estate. ... .

As she gets one-fourth, therefore, I get 3/4, says Claro. Perfecta, on the other hand, cites Art. 996
which provides:

If a widow or widower and legitimate children or descendants are left, the surviving
spouse has in the succession the same share as that of each of the children.
Replying to Perfecta's claim, Claro says the article is unjust and unequitable to the extent that it
grants the widow the same share as that of the children in intestate succession, whereas in
testate, she is given 1/4 and the only child 1/2.

Oppositor Perfecta Miranda, on the other hand, contends that Art. 996 should control, regardless
of its alleged inequity, being as it is, a provision on intestate succession involving a surviving
spouse and a legitimate child, inasmuch as in statutory construction, the plural word "children"
includes the singular "child."

Art. 892 of the New Civil Code falls under the chapter on Testamentary Succession; whereas
Art. 996 comes under the chapter on Legal or Intestate Succession. Such being the case, it is
obvious that Claro cannot rely on Art. 892 to support his claim to 3/4 of his father's estate. Art
892 merely fixes the legitime of the surviving spouse and Art. 888 thereof, the legitime of
children in testate succession. While it may indicate the intent of the law with respect to the ideal
shares that a child and a spouse should get when they concur with each other, it does not fix the
amount of shares that such child and spouse are entitled to when intestacy occurs. Because if the
latter happens, the pertinent provision on intestate succession shall apply, i.e., Art. 996.

Some commentators of our New Civil Code seem to support Claro's contention; at least, his
objection to fifty-fifty sharing. But others confirm the half and half idea of the Pangasinan court.

This is, remember, intestate proceedings. In the New Civil Code's chapter on legal or intestate
succession, the only article applicable is Art. 996. Our colleague, Mr. Justice J.B.L. Reyes,
professor of Civil Law, is quoted as having expressed the opinion that under this article, when
the widow survives with only one legitimate child, they share the estate in equal parts. 1 Senator
Tolentino in his commentaries writes as follows:

One child Surviving. — If there is only one legitimate child surviving with the spouse,
since they share equally, one-half of the estate goes to the child and the other half goes to
the surviving spouse. Although the law refers to "children or descendants," the rule in
statutory construction that the plural can be understood to include the singular is
applicable in this case. (Tolentino, Civil Code of the Philippines, Vol. III, p. 436.)

The theory of those holding otherwise seems to be premised on these propositions: (a) Art. 996
speaks of "Children," therefore it does not apply when there is only one "child"; consequently
Art. 892 (and Art. 888) should be applied, thru a process of judicial construction and analogy; (b)
Art. 996 is unjust or unfair because, whereas in testate succession, the widow is assigned one-
fourth only (Art. 892), she would get 1/2 in intestate.

A. Children. — It is a maxim of statutory construction that words in plural include the singular. 2
So Art. 996 could or should be read (and so applied) : "If the widow or widower and a legitimate
child are left, the surviving spouse has the same share as that of the child." Indeed, if we refuse
to apply the article to this case on the ground that "child" is not included in "children," the
consequences would be tremendous, because "children" will not include "child" in the following
articles:
 ART. 887. — The following are compulsory heirs: (1) legitimate children and
descendants ... .

ART. 888. — The legitime of legitimate children and descendants consists of one-half of
the hereditary estate ... .

ART. 896. — Illegitimate children who may survive ... are entitled to one-fourth of the
hereditary estate ... . (See also Art. 901).

In fact, those who say "children" in Art. 996 does not include "child" seem to be inconsistent
when they argue from the premise that "in testate succession the only legitimate child gets one-
half and the widow, one-fourth." The inconsistency is clear, because the only legitimate child
gets one-half under Art. 888, which speaks of "children," not "child." So if "children" in Art. 888
includes "child," the same meaning should be given to Art. 996.

B. Unfairness of Art. 996. — Such position, more clearly stated, is this: In testate succession,
where there is only one child of the marriage, the child gets one-half, and the widow or widower
one-fourth. But in intestate , if Art. 996 is applied now, the child gets one-half, and the widow or
widower one-half. Unfair or inequitable, they insist.

On this point, it is not correct to assume that in testate succession the widow or widower "gets
only one-fourth." She or he may get one-half — if the testator so wishes. So, the law virtually
leaves it to each of the spouses to decide (by testament, whether his or her only child shall get
more than his or her survivor).

Our conclusion (equal shares) seems a logical inference from the circumstance that whereas
Article 834 of the Spanish Civil Code, from which Art. 996 was taken, contained two paragraphs
governing two contingencies, the first, where the widow or widower survives with legitimate
children (general rule), and the second, where the widow or widower survives with only one
child (exception), Art. 996 omitted to provide for the second situation, thereby indicating the
legislator's desire to promulgate just one general rule applicable to both situations.

The resultant division may be unfair as some writers explain — and this we are not called upon
to discuss — but it is the clear mandate of the statute, which we are bound to enforce.

The appealed decision is affirmed. No costs in this instance.

2. G.R. No. 136467 April 6, 2000

ANTONIA ARMAS Y CALISTERIO, petitioner,

vs.
MARIETTA CALISTERIO, respondent.
VITUG, J.:

On 24 April 1992, Teodorico Calisterio died intestate, leaving several parcels of land with an
estimated value of P604,750.00. Teodorico was survived by his wife, herein respondent Marietta
Calisterio.

Teodorico was the second husband of Marietta who had previously been married to James
William Bounds on 13 January 1946 at Caloocan City. James Bounds disappeared without a
trace on 11 February 1947. Teodorico and Marietta were married eleven years later, or on 08
May 1958, without Marietta having priorly secured a court declaration that James was
presumptively dead.

On 09 October 1992, herein petitioner Antonia Armas y Calisterio, a surviving sister of

Teodorico, filed with the Regional Trial Court ("RTC") of Quezon City, Branch 104, a petition
entitled, "In the Matter of Intestate Estate of the Deceased Teodorico Calisterio y Cacabelos,
Antonia Armas, Petitioner," claiming to be inter alia, the sole surviving heir of Teodorico
Calisterio, the marriage between the latter and respondent Marietta Espinosa Calisterio being
allegedly bigamous and thereby null and void. She prayed that her son Sinfroniano C. Armas, Jr.,
be appointed administrator, without bond, of the estate of the deceased and that the inheritance
be adjudicated to her after all the obligations of the estate would have been settled.

Respondent Marietta opposed the petition. Marietta stated that her first marriage with James
Bounds had been dissolved due to the latter's absence, his whereabouts being unknown, for more
than eleven years before she contracted her second marriage with Teodorico. Contending to be
the surviving spouse of Teodorico, she sought priority in the administration of the estate of the
decedent.

On 05 February 1993, the trial court issued an order appointing jointly Sinfroniano C. Armas, Jr.,
and respondent Marietta administrator and administratrix, respectively, of the intestate estate of
Teodorico.

On 17 January 1996, the lower court handed down its decision in favor of petitioner Antonia; it
adjudged:

WHEREFORE, judgment is hereby rendered finding for the petitioner and against the
oppositor whereby herein petitioner, Antonia Armas y Calisterio, is declared as the sole
heir of the estate of Teodorico Calisterio y Cacabelos. 1

Respondent Marietta appealed the decision of the trial court to the Court of Appeals, formulating
that —

1. The trial court erred in applying the provisions of the Family Code in the instant case
despite the fact that the controversy arose when the New Civil Code was the law in force.
 2. The trial court erred in holding that the marriage between oppositor-appellant and the
deceased Teodorico Calisterio is bigamous for failure of the former to secure a decree of
the presumptive death of her first spouse.

3. The trial court erred in not holding that the property situated at No. 32 Batangas Street,
San Francisco del Monte, Quezon City, is the conjugal property of the oppositor-
appellant and the deceased Teodorico Calisterio.

4. The trial court erred in holding that oppositor-appellant is not a legal heir of deceased
Teodorico Calisterio.

5. The trial court erred in not holding that letters of administration should be granted
solely in favor of oppositor-appellant. 2

On 31 August 1998, the appellate court, through Mr. Justice Conrado M. Vasquez, Jr.,
promulgated its now assailed decision, thus:

IN VIEW OF ALL THE FOREGOING, the Decision appealed from is REVERSED

AND SET ASIDE, and a new one entered declaring as follows:

(a) Marietta Calisterio's marriage to Teodorico remains valid;

(b) The house and lot situated at #32 Batangas Street, San Francisco del Monte,
Quezon City, belong to the conjugal partnership property with the concomitant
obligation of the partnership to pay the value of the land to Teodorico's estate as
of the time of the taking;

(c) Marietta Calisterio, being Teodorico's compulsory heir, is entitled to one half
of her husband's estate, and Teodorico's sister, herein petitioner Antonia Armas
and her children, to the other half;

(d) The trial court is ordered to determine the competence of Marietta E.

Calisterio to act as administrator of Teodorico's estate, and if so found competent
and willing, that she be appointed as such; otherwise, to determine who among
the deceased's next of kin is competent and willing to become the administrator of
the estate. 3

On 23 November 1998, the Court of Appeals denied petitioner's motion for

reconsideration, prompting her to interpose the present appeal. Petitioner asseverates:

It is respectfully submitted that the decision of the Court of Appeals reversing and setting
aside the decision of the trial court is not in accord with the law or with the applicable
decisions of this Honorable Court. 4
It is evident that the basic issue focuses on the validity of the marriage between the deceased
Teodorico and respondent Marietta, that, in turn, would be determinative of her right as a
surviving spouse.

The marriage between the deceased Teodorico and respondent Marietta was solemnized on 08
May 1958. The law in force at that time was the Civil Code, not the Family Code which took
effect only on 03 August 1988. Article 256 of the Family Code 5 itself limited its retroactive
governance only to cases where it thereby would not prejudice or impair vested or acquired
rights in accordance with the Civil Code or other laws.

Verily, the applicable specific provision in the instant controversy is Article 83 of the New Civil
Code which provides:

Art. 83. Any marriage subsequently contracted by any person during the lifetime of the
first spouse of such person with any person other than such first spouse shall be illegal
and void from its performance, unless:

(1) The first marriage was annulled or dissolved; or

(2) The first spouse had been absent for seven consecutive years at the time of the second
marriage without the spouse present having news of the absentee being alive, or if the
absentee, though he has been absent for less than seven years, is generally considered as
dead and believed to be so by the spouse present at the time of contracting such
subsequent marriage, or if the absentee is presumed dead according to articles 390 and
391. The marriage so contracted shall be valid in any of the three cases until declared null
and void by a competent court.

Under the foregoing provisions, a subsequent marriage contracted during the lifetime of the first
spouse is illegal and void ab initio unless the prior marriage is first annulled or dissolved.
Paragraph (2) of the law gives exceptions from the above rule. For the subsequent marriage
referred to in the three exceptional cases therein provided, to be held valid, the spouse present
(not the absentee spouse) so contracting the later marriage must have done so in good faith. 6
Bad faith imports a dishonest purpose or some moral obliquity and conscious doing of wrong —
it partakes of the nature of fraud, a breach of a known duty through some motive of interest or ill
will. 7 The Court does not find these circumstances to be here extant.

A judicial declaration of absence of the absentee spouse is not necessary8 as long as the
prescribed period of absence is met. It is equally noteworthy that the marriage in these
exceptional cases are, by the explicit mandate of Article 83, to be deemed valid "until declared
null and void by a competent court." It follows that the burden of proof would be, in these cases,
on the party assailing the second marriage.

In contrast, under the 1988 Family Code, in order that a subsequent bigamous marriage may
exceptionally be considered valid, the following conditions must concur; viz.: (a) The prior
spouse of the contracting party must have been absent for four consecutive years, or two years
where there is danger of death under the circumstances stated in Article 391 of the Civil Code at
the time of disappearance; (b) the spouse present has a well-founded belief that the absent spouse
is already dead; and (c) there is, unlike the old rule, a judicial declaration of presumptive death of
the absentee for which purpose the spouse present can institute a summary proceeding in court to
ask for that declaration. The last condition is consistent and in consonance with the requirement
of judicial intervention in subsequent marriages as so provided in Article 41 9 , in relation to
Article 40, 10 of the Family Code.

In the case at bar, it remained undisputed that respondent Marietta's first husband, James William
Bounds, had been absent or had disappeared for more than eleven years before she entered into a
second marriage in 1958 with the deceased Teodorico Calisterio. This second marriage, having
been contracted during the regime of the Civil Code, should thus be deemed valid
notwithstanding the absence of a judicial declaration of presumptive death of James Bounds.

The conjugal property of Teodorico and Marietta, no evidence having been adduced to indicate
another property regime between the spouses, pertains to them in common. Upon its dissolution
with the death of Teodorico, the property should rightly be divided in two equal portions — one
portion going to the surviving spouse and the other portion to the estate of the deceased spouse.
The successional right in intestacy of a surviving spouse over the net estate 11 of the deceased,
concurring with legitimate brothers and sisters or nephews and nieces (the latter by right of
representation), is one-half of the inheritance, the brothers and sisters or nephews and nieces,
being entitled to the other half. Nephews and nieces, however, can only succeed by right of
representation in the presence of uncles and aunts; alone, upon the other hand, nephews and
nieces can succeed in their own right which is to say that brothers or sisters exclude nephews and
nieces except only in representation by the latter of their parents who predecease or are
incapacitated to succeed. The appellate court has thus erred in granting, in paragraph (c) of the
dispositive portion of its judgment, successional rights, to petitioner's children, along with their
own mother Antonia who herself is invoking successional rights over the estate of her deceased
brother.1âwphi1

WHEREFORE, the assailed judgment of the Court of Appeals in CA G.R. CV No. 51574 is
AFFIRMED except insofar only as it decreed in paragraph (c) of the dispositive portion thereof
that the children of petitioner are likewise entitled, along with her, to the other half of the
inheritance, in lieu of which, it is hereby DECLARED that said one-half share of the decedent's
estate pertains solely to petitioner to the exclusion of her own children. No costs.

SO ORDERED.1âwphi1.nêt

3. G.R. No. 117246 August 21, 1995

BENIGNO MANUEL, LIBERATO MANUEL, LORENZO MANUEL, PLACIDA MANUEL, MADRONA MANUEL, ESPERANZA MANUEL,
AGAPITA MANUEL, BASILISA MANUEL, EMILIA MANUEL and NUMERIANA MANUEL, petitioners,
vs.
HON. NICODEMO T. FERRER, Presiding Judge, Regional Trial Court, Branch 37, Lingayen, Pangasinan, MODESTA BALTAZAR and
ESTANISLAOA MANUEL, respondents.
VITUG, J.:

The property involved in this petition for review on certiorari is the inheritance left by an illegitimate child who died intestate without any
surviving descendant or ascendant.

Petitioners, the legitimate children of spouses Antonio Manuel and Beatriz Guiling, initiated this suit. During his marriage with Beatriz,
Antonio had an extra-marital affair with one Ursula Bautista. From this relationship, Juan Manuel was born. Several years passed before
Antonio Manuel, his wife Beatriz, and his mistress Ursula finally crossed the bar on, respectively, 06 August 1960, 05 February 1981 and 04
November 1976.

Juan Manuel, the illegitimate son of Antonio, married Esperanza Gamba. In consideration of the marriage, a donation propter nuptias over a
parcel of land, with an area of 2,700 square meters, covered by Original Certificate of Title ("OCT") No. P-20594 was executed in favor of
Juan Manuel by Laurenciana Manuel. Two other parcels of land, covered by OCT P-19902 and Transfer Certificate of Title ("TCT") No.
41134, were later bought by Juan and registered in his name. The couple were not blessed with a child of their own. Their desire to have one
impelled the spouses to take private respondent Modesta Manuel-Baltazar into their fold and so raised her as their own "daughter".

On 03 June 1980, Juan Manuel executed in favor of Estanislaoa Manuel a Deed of Sale Con Pacto de Retro (with a 10-year period of
redemption) over a one-half (1/2) portion of his land covered by TCT No. 41134. Juan Manuel died intestate on 21 February 1990. Two years
later, or on 04 February 1992, Esperanza Gamba also passed away.

On 05 March 1992, a month after the death of Esperanza, Modesta executed an Affidavit of Self-Adjudication claiming for herself the three
parcels of land covered by OCT P-20594, OCT P-19902 and TCT No. 41134 (all still in the name of Juan Manuel). Following the registration
of the document of adjudication with the Office of the Register of Deeds, the three titles
(OCT P-20594, OCT P-19902 and TCT No. 41134) in the name of Juan Manuel were canceled and new titles, TCT No. 184223, TCT No.
184224 and TCT No. 184225, were issued in the name of Modesta Manuel-Baltazar. On 19 October 1992, Modesta executed in favor of her
co-respondent Estanislaoa Manuel a Deed of Renunciation and Quitclaim over the unredeemed one-half (1/2) portion of the land (now
covered by TCT No. 184225) that was sold to the latter by Juan Manuel under the 1980 Deed of Sale Con Pacto de Retro. These acts of
Modesta apparently did not sit well with petitioners. In a complaint filed before the Regional Trial Court of Lingayen, Pangasinan, the
petitioners sought the declaration of nullity of the aforesaid instruments.

The case, there being no material dispute on the facts, was submitted to the court a quo for summary judgment.

The trial court, in its now assailed 15th August 1994 decision, dismissed the complaint holding that petitioners, not being heirs ab intestato of
their illegitimate brother Juan Manuel, were not the real parties-in-interest to institute the suit. Petitioners were also ordered to jointly and
severally (solidarily) pay
(a) respondent Modesta Manuel-Baltazar the sum of P5,000.00 for moral damages, P5,000.00 for exemplary damages, P5,000.00 for
attorney's fees and P500.00 for litigation expenses and (b) Estanislaoa Manuel the sum of P5,000.00 for moral damages, P5,000.00 for
exemplary damages and P500.00 for attorney's fees.

Petitioners' motion for reconsideration was denied by the trial court.

The petition before us raises the following contentions: That —

1. THE LOWER COURT (HAS) FAILED TO CONSIDER THE LAST PARAGRAPH OF ARTICLE 994 OF THE NEW CIVIL CODE,
AS THE CONTROLLING LAW APPLICABLE BY VIRTUE OF THE ADMITTED FACTS, AND NOT ARTICLE 992 OF THE SAME
CODE.

2. THE LOWER COURT, IN NOT ANNULLING ALL THE ACTS OF, AND VOIDING ALL DOCUMENTS EXECUTED BY,
RESPONDENT MODESTA BALTAZAR, WHO ARROGATED UNTO HERSELF THE RIGHTS OF AN HEIR TO THE ESTATE OF
DECEDENT JUAN MANUEL, (HAS) VIRTUALLY GRANTED SAID RESPONDENT THE STATUS OF AN HEIR MANIFESTLY
CONTRARY TO LAW, MORALS AND PUBLIC POLICY.

3. TO ENFORCE ONE'S RIGHT WHEN THEY ARE VIOLATED IS NEVER A LEGAL WRONG.1

Petitioners argue that they are the legal heirs over one-half of Juan's intestate estate (while the other half would pertain to Juan's surviving
spouse) under the provision of the last paragraph of Article 994 of the Civil Code, providing thusly:

Art. 994. In default of the father or mother, an illegitimate child shall be succeeded by his or her surviving spouse, who shall be
entitled to the entire estate.

If the widow or widower should survive with brothers and sisters, nephews and nieces, she or he shall inherit one-half of the
estate, and the latter the other half. (Emphasis supplied)

Respondents, in turn, submit that Article 994 should be read in conjunction with Article 992 of the Civil Code, which reads:
 Art. 992. An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother;
nor shall such children or relative inherit in the same manner from the illegitimate child. (Emphasis supplied)

Article 992, a basic postulate, enunciates what is so commonly referred to in the rules on succession as the "principle of absolute separation
between the legitimate family and the illegitimate family." The doctrine rejects succession ab intestato in the collateral line between legitimate
relatives, on the one hand, and illegitimate relatives, on other hand, although it does not totally disavow such succession in the direct line.
Since the rule is predicated on the presumed will of the decedent, it has no application, however, on testamentary dispositions.

This "barrier" between the members of the legitimate and illegitimate family in intestacy is explained by a noted civilist.2 His thesis:

What is meant by the law when it speaks of brothers and sisters, nephews and nieces, as legal or intestate heirs of an illegitimate
child? It must be noted that under Art. 992 of the Code, there is a barrier dividing members of the illegitimate family from members
of the legitimate family. It is clear that by virtue of this barrier, the legitimate brothers and sisters as well as the children, whether
legitimate or illegitimate, of such brothers and sisters, cannot inherit from the illegitimate child. Consequently, when the law
speaks of "brothers and sisters, nephews and nieces" as legal heirs of an illegitimate child, it refers to illegitimate brothers and
sisters as well as to the children, whether legitimate or illegitimate, of such brothers and sisters. (Emphasis supplied)

The Court, too, has had occasions to explain this "iron curtain", firstly, in the early case of Grey v. Fabie3 and, then, in the relatively recent
cases of Diaz v. Intermediate Appellate Court4 and De la Puerta v. Court of Appeals.5 In Diaz, we have said:

Article 992 of the New Civil Code . . . prohibits absolutely a succession ab intestato between the illegitimate child and the
legitimate children and relatives of the father or mother of said legitimate child. They may have a natural tie of blood, but this is not
recognized by law for the purposes of Article 992. Between the legitimate family and the illegitimate family there is presumed to be
an intervening antagonism and incompatibility. The illegitimate child is disgracefully looked down upon by the legitimate family; the
legitimate family is, in turn, hated by the illegitimate child; the latter considers the privileged condition of the former, and the
resources of which it is thereby deprived; the former, in turn, sees in the illegitimate child nothing but the product of sin, palpable
evidence of a blemish broken in life; the law does no more than recognize this truth, by avoiding further grounds of resentment.

The rule in Article 992 has consistently been applied by the Court in several other cases. Thus, it has ruled that where the illegitimate child
had
half-brothers who were legitimate, the latter had no right to the former's inheritance;6 that the legitimate collateral relatives of the mother
cannot succeed from her illegitimate child;7 that a natural child cannot represent his natural father in the succession to the estate of the
legitimate grandparent;8 that the natural daughter cannot succeed to the estate of her deceased uncle who is a legitimate brother of her
natural father;9 and that an illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father.10
Indeed, the law on succession is animated by a uniform general intent, and thus no part should be rendered inoperative11 by, but must
always be construed in relation to, any other part as to produce a harmonious whole.12

In passing, we might, in easy graphic presentation, collate the order of preference and concurrence in intestacy expressed in Article 978
through
Article 1014, inclusive, of the Civil Code; viz.:

Order of Preference Order of Concurrence

(a) Legitimate Children and (a) Legitimate Children and
Descendants Descendants, Illegitimate
Children and Descendants,
and Surviving Spouse
(b) Legitimate Parents and (b) Legitimate Parents and
Ascendants Ascendants Illegitimate
Children and Descendants,
and Surviving Spouse
(c) Illegitimate Children and (c) Illegitimate Children and
Descendants (in the absence Descendants and Surviving
of ICDs and LPAs, the Spouse
Illegitimate Parents)
(d) Surviving Spouse (d) Surviving Spouse and
 Illegitimate Parents
(e) Brothers and Sisters/ (e) Brothers and Sisters/
Nephews and Nephews and Nieces
Nieces and Surviving Spouse
(f) Other Collateral Relatives (f) Alone
(within the fifth civil degree)
(g) State (g) Alone

In her answer to the complaint, Modesta candidly admitted that she herself is not an intestate heir of Juan Manuel. She is right. A
ward (ampon), without the benefit of formal (judicial) adoption, is neither a compulsory nor a legal heir.13

We must hold, nevertheless, that the complaint of petitioners seeking the nullity of the Affidavit of Self-Adjudication executed by
Modesta, the three (3) TCT's issued to her favor, as well as the Deed of Renunciation and Quitclaim in favor of Estanislaoa
Manuel, was properly dismissed by the trial court. Petitioners, not being the real "parties-in-interest"14 in the case, had neither the
standing nor the cause of action to initiate the complaint.

The Court, however, sees no sufficient reason to sustain the award of amounts for moral and exemplary damages, attorney's fees
and litigation expenses. An adverse result of a suit in law does not mean that its advocacy is necessarily so wrongful as to justify
an assessment of damages against the actor.15

WHEREFORE, the appealed decision of the Regional Trial Court of Pangasinan (Branch 37) is AFFIRMED, except insofar as it
has awarded moral and exemplary damages, as well as attorney's fees and litigation expenses, in favor of private respondents,
which portion is hereby DELETED. No special pronouncement on costs.

SO ORDERED.

4.

SURVIVORSHIP AGREEMENT

1. G.R. No. 82027 March 29, 1990

ROMARICO G. VITUG, petitioner,

vs.
THE HONORABLE COURT OF APPEALS and ROWENA FAUSTINO-CORONA,
respondents.

Rufino B. Javier Law Office for petitioner.

Quisumbing, Torres & Evangelista for private respondent.

SARMIENTO, J.:
This case is a chapter in an earlier suit decided by this Court 1 involving the probate of
the two wills of the late Dolores Luchangco Vitug, who died in New York, U. S.A., on
November 10, 1980, naming private respondent Rowena Faustino-Corona executrix. In
our said decision, we upheld the appointment of Nenita Alonte as co-special
administrator of Mrs. Vitug's estate with her (Mrs. Vitug's) widower, petitioner Romarico
G. Vitug, pending probate.

On January 13, 1985, Romarico G. Vitug filed a motion asking for authority from the
probate court to sell certain shares of stock and real properties belonging to the estate
to cover allegedly his advances to the estate in the sum of P667,731.66, plus interests,
which he claimed were personal funds. As found by the Court of Appeals, 2 the alleged
advances consisted of P58,147.40 spent for the payment of estate tax, P518,834.27 as
deficiency estate tax, and P90,749.99 as "increment thereto." 3 According to Mr. Vitug,
he withdrew the sums of P518,834.27 and P90,749.99 from savings account No.
35342-038 of the Bank of America, Makati, Metro Manila.

On April 12, 1985, Rowena Corona opposed the motion to sell on the ground that the
same funds withdrawn from savings account No. 35342-038 were conjugal partnership
properties and part of the estate, and hence, there was allegedly no ground for
reimbursement. She also sought his ouster for failure to include the sums in question for
inventory and for "concealment of funds belonging to the estate." 4

Vitug insists that the said funds are his exclusive property having acquired the same
through a survivorship agreement executed with his late wife and the bank on June 19,
1970. The agreement provides:

We hereby agree with each other and with the BANK OF AMERICAN
NATIONAL TRUST AND SAVINGS ASSOCIATION (hereinafter referred
to as the BANK), that all money now or hereafter deposited by us or any
or either of us with the BANK in our joint savings current account shall be
the property of all or both of us and shall be payable to and collectible or
withdrawable by either or any of us during our lifetime, and after the death
of either or any of us shall belong to and be the sole property of the
survivor or survivors, and shall be payable to and collectible or
withdrawable by such survivor or survivors.

We further agree with each other and the BANK that the receipt or check
of either, any or all of us during our lifetime, or the receipt or check of the
survivor or survivors, for any payment or withdrawal made for our above-
mentioned account shall be valid and sufficient release and discharge of
the BANK for such payment or withdrawal. 5

The trial courts 6 upheld the validity of this agreement and granted "the motion to sell
some of the estate of Dolores L. Vitug, the proceeds of which shall be used to pay the
personal funds of Romarico Vitug in the total sum of P667,731.66 ... ." 7
On the other hand, the Court of Appeals, in the petition for certiorari filed by the herein
private respondent, held that the above-quoted survivorship agreement constitutes a
conveyance mortis causa which "did not comply with the formalities of a valid will as
prescribed by Article 805 of the Civil Code," 8 and secondly, assuming that it is a mere
donation inter vivos, it is a prohibited donation under the provisions of Article 133 of the
Civil Code. 9

The dispositive portion of the decision of the Court of Appeals states:

WHEREFORE, the order of respondent Judge dated November 26, 1985

(Annex II, petition) is hereby set aside insofar as it granted private
respondent's motion to sell certain properties of the estate of Dolores L.
Vitug for reimbursement of his alleged advances to the estate, but the
same order is sustained in all other respects. In addition, respondent
Judge is directed to include provisionally the deposits in Savings Account
No. 35342-038 with the Bank of America, Makati, in the inventory of actual
properties possessed by the spouses at the time of the decedent's death.
With costs against private respondent. 10

In his petition, Vitug, the surviving spouse, assails the appellate court's ruling on the
strength of our decisions in Rivera v. People's Bank and Trust Co. 11 and Macam v.
Gatmaitan 12 in which we sustained the validity of "survivorship agreements" and
considering them as aleatory contracts. 13

The petition is meritorious.

The conveyance in question is not, first of all, one of mortis causa, which should be
embodied in a will. A will has been defined as "a personal, solemn, revocable and free
act by which a capacitated person disposes of his property and rights and declares or
complies with duties to take effect after his death." 14 In other words, the bequest or
device must pertain to the testator. 15 In this case, the monies subject of savings
account No. 35342-038 were in the nature of conjugal funds In the case relied on,
Rivera v. People's Bank and Trust Co., 16 we rejected claims that a survivorship
agreement purports to deliver one party's separate properties in favor of the other, but
simply, their joint holdings:

xxx xxx xxx

... Such conclusion is evidently predicated on the assumption that

Stephenson was the exclusive owner of the funds-deposited in the bank,
which assumption was in turn based on the facts (1) that the account was
originally opened in the name of Stephenson alone and (2) that Ana
Rivera "served only as housemaid of the deceased." But it not infrequently
happens that a person deposits money in the bank in the name of another;
and in the instant case it also appears that Ana Rivera served her master
for about nineteen years without actually receiving her salary from him.
 The fact that subsequently Stephenson transferred the account to the
name of himself and/or Ana Rivera and executed with the latter the
survivorship agreement in question although there was no relation of
kinship between them but only that of master and servant, nullifies the
assumption that Stephenson was the exclusive owner of the bank
account. In the absence, then, of clear proof to the contrary, we must give
full faith and credit to the certificate of deposit which recites in effect that
the funds in question belonged to Edgar Stephenson and Ana Rivera; that
they were joint (and several) owners thereof; and that either of them could
withdraw any part or the whole of said account during the lifetime of both,
and the balance, if any, upon the death of either, belonged to the survivor.
17

xxx xxx xxx

In Macam v. Gatmaitan, 18 it was held:

xxx xxx xxx

This Court is of the opinion that Exhibit C is an aleatory contract whereby,

according to article 1790 of the Civil Code, one of the parties or both
reciprocally bind themselves to give or do something as an equivalent for
that which the other party is to give or do in case of the occurrence of an
event which is uncertain or will happen at an indeterminate time. As
already stated, Leonarda was the owner of the house and Juana of the
Buick automobile and most of the furniture. By virtue of Exhibit C, Juana
would become the owner of the house in case Leonarda died first, and
Leonarda would become the owner of the automobile and the furniture if
Juana were to die first. In this manner Leonarda and Juana reciprocally
assigned their respective property to one another conditioned upon who
might die first, the time of death determining the event upon which the
acquisition of such right by the one or the other depended. This contract,
as any other contract, is binding upon the parties thereto. Inasmuch as
Leonarda had died before Juana, the latter thereupon acquired the
ownership of the house, in the same manner as Leonarda would have
acquired the ownership of the automobile and of the furniture if Juana had
died first. 19

xxx xxx xxx

There is no showing that the funds exclusively belonged to one party, and hence it must
be presumed to be conjugal, having been acquired during the existence of the marita.
relations. 20

Neither is the survivorship agreement a donation inter vivos, for obvious reasons,
because it was to take effect after the death of one party. Secondly, it is not a donation
between the spouses because it involved no conveyance of a spouse's own properties
to the other.

It is also our opinion that the agreement involves no modification petition of the conjugal
partnership, as held by the Court of Appeals, 21 by "mere stipulation" 22 and that it is
no "cloak" 23 to circumvent the law on conjugal property relations. Certainly, the
spouses are not prohibited by law to invest conjugal property, say, by way of a joint and
several bank account, more commonly denominated in banking parlance as an "and/or"
account. In the case at bar, when the spouses Vitug opened savings account No.
35342-038, they merely put what rightfully belonged to them in a money-making
venture. They did not dispose of it in favor of the other, which would have arguably been
sanctionable as a prohibited donation. And since the funds were conjugal, it can not be
said that one spouse could have pressured the other in placing his or her deposits in the
money pool.

The validity of the contract seems debatable by reason of its "survivor-take-all" feature,
but in reality, that contract imposed a mere obligation with a term, the term being death.
Such agreements are permitted by the Civil Code. 24

Under Article 2010 of the Code:

ART. 2010. By an aleatory contract, one of the parties or both reciprocally

bind themselves to give or to do something in consideration of what the
other shall give or do upon the happening of an event which is uncertain,
or which is to occur at an indeterminate time.

Under the aforequoted provision, the fulfillment of an aleatory contract depends on

either the happening of an event which is (1) "uncertain," (2) "which is to occur at an
indeterminate time." A survivorship agreement, the sale of a sweepstake ticket, a
transaction stipulating on the value of currency, and insurance have been held to fall
under the first category, while a contract for life annuity or pension under Article 2021, et
sequentia, has been categorized under the second. 25 In either case, the element of
risk is present. In the case at bar, the risk was the death of one party and survivorship of
the other.

However, as we have warned:

xxx xxx xxx

But although the survivorship agreement is per se not contrary to law its
operation or effect may be violative of the law. For instance, if it be shown
in a given case that such agreement is a mere cloak to hide an inofficious
donation, to transfer property in fraud of creditors, or to defeat the legitime
of a forced heir, it may be assailed and annulled upon such grounds. No
such vice has been imputed and established against the agreement
involved in this case. 26
 xxx xxx xxx

There is no demonstration here that the survivorship agreement had been executed for
such unlawful purposes, or, as held by the respondent court, in order to frustrate our
laws on wills, donations, and conjugal partnership.

The conclusion is accordingly unavoidable that Mrs. Vitug having predeceased her
husband, the latter has acquired upon her death a vested right over the amounts under
savings account No. 35342-038 of the Bank of America. Insofar as the respondent court
ordered their inclusion in the inventory of assets left by Mrs. Vitug, we hold that the
court was in error. Being the separate property of petitioner, it forms no more part of the
estate of the deceased.

WHEREFORE, the decision of the respondent appellate court, dated June 29, 1987,
and its resolution, dated February 9, 1988, are SET ASIDE.

No costs.

SO ORDERED.

2. G.R. No. L-42619 March 11, 1937

NICOLAS MACAM, as testamentary executrix of the estate of the deceased Leonarda

Macam, plaintiff-appellant,
vs.
JUANA GATMAITAN and MAGNO S. GATMAITAN, defendants-appellees.

Reyes and Reyes for appellant.

Juan Ortega and Magno S. Gatmaitan for appellees.

AVANCEÑA, C.J.:

This is an action brought by the plaintiff as executrix of the testate estate of the deceased
Leonarda Macam, for the recovery from the defendant Juana Gatmaitan and Magno S. Gatmaitan
of the ownership of the house described in paragraph 2 of the complaint. The plaintiff appealed
from the decision of the court absolving the defendants.

On September 24, 1929, the deceased Leonardo Macam and the defendant Juana Gatmaitan
purchased the house in question for P3,000 from the spouses Generosa Inducil and Flora Ramos
(Exhibit B). It is stated in the deed of sale that the vendors received the purchase price of the
house from the vendees, both single. However, on June 12, 1932, the deceased Leonarda Macam
and the defendant Juana Gatmaitan subscribed a document (Exhibit C) which reads as follows:

Know all men by these presents:

That we, Leonarda Macam and Juana Gatmaitan, both single of age and residents of the
municipality of Calumpit, Province of Bulacan, Philippine Islands, by means of this
document, freely and voluntarily state as follows:

1. That during the time we lived together as friends, we have purchased a house of strong
materials built on a lot belonging to the Diocese, situated in the municipality of Calumpit,
Province of Bulacan, and declared for taxation purposes under Tax No. 6977, one Buick
automobile, and furniture necessary for the house.

2. That I, Juana Gatmaitan, hereby declare that the house purchased by us was paid with
my friend Leonarda Macam's own money in the sum of three thousand pesos (P3,000)
and therefore, said house truly belongs to my said friend. The following furniture
likewise truly belong to her:

One (1) wardrobe with mirror and carved top.

One (1) narra bed.
One (1) small wooden wardrobe.
One (1) small wooden table.
One (1) narra chair.
One (1) rattan sofa.
One (1) dining room table.
One (1) kitchen table.
One (1) dining room benches.
One (1) kitchen benches.
One (1) ice box.

3. I, Leonarda Macam also hereby declared that the Buick automobile and most of the
furniture in the house where we live, as the narra chairs, wardrobe and bed, truly belong
to my friend Juana Gatmaitan, said automobile and most of said furniture having been
bought with money exclusively belonging to her; and she was also the one who had my
house painted.

4. That in consideration of the friendship we mutually profess, considering ourselves

almost as sisters, we have voluntarily agreed that whoever of us will die first shall leave
to the survivor, as the latter's property, the houses and all the furniture therein together
with the Buick automobile above-stated, excluding the furniture belonging to Leonarda
Macam stated in paragraph 2 of this document, which may be taken by the heirs of said
Leonarda Macam if she will be the first to give up her soul to God, as remembrance to
her surviving friend, and this agreement shall be equivalent to a transfer of the right of
the one who dies first and shall be kept by the survivor; and none of our heirs shall claim
the property mentioned in this document left by any us who dies first.

In witness whereof, we affix our signature at the foot of this document as a proof of the
acceptance by each of us of this agreement, this 12th day of July, 1932, in the
municipality of Calumpit Province of Bulacan, P. I.
It is inferred from the foregoing document that the deceased Leonarda Macam and the defendant
Juana Gatmaitan lived together as friends, Leonarda having contributed the house and Juana the
Buick automobile and most of the furniture to such companionship, both having thereby
established between themselves a de facto joint ownership of the properties respectively
contributed by them which, judging from their nature and description, are more or less of the
same value. Such must be the case, judging from the fact that, although the house was purchased
with money exclusively belonging to Leonarda, it was made to appear that both were the
purchasers.

The plaintiff contends that with respect to the house, Exhibit C, on the part of Leonarda,
constitutes a donation mortis causa in favor of Juana, and that as it had not been executed with
all the formalities required by law for a will, it is entirely invalid and did produce the effect of
conveying the ownership of the house to Juana.

The lower court, in absolving the defendants from the complaint, considered the act of the
deceased Leonarda as a transfer of the ownership of the house in favor of Juana, but not in the
concept of a donation. This conclusion of the court below is supported by the literal
interpretation of Exhibit C, wherein the parties describe the act performed by them as an
agreement and a transfer.

This court is of the opinion that Exhibit C is an aleatory contract whereby, according to article
1790 of the Civil Code, one of the parties or both reciprocally bind themselves to give or do
something as an equivalent for that which the other party is to give or do in case of the
occurrence of an event which is uncertain or will happen at an indeterminate time. As already
stated Leonarda was the owner of the house and Juana of the Buick automobile and most of the
furniture. By virtue of Exhibit C, Juana would become the owner of the house in case Leonarda
died first, and Leonarda would become the owner of the automobile and the furniture if Juana
were to die first. In this manner Leonarda and Juana reciprocally assigned their respective
property to one another conditioned upon who might die first, the time of death determining the
event upon which the acquisition of such right by the one or the other depended. This contract, as
any other contract, is binding upon the parties thereto. Inasmuch as Leonarda had died before
Juana the latter thereupon acquired the ownership of the house, in the same manner as Leonarda
would have acquired the ownership of the automobile and of the furniture if Juana had died first.

In view of the foregoing considerations, the judgment appealed from is affirmed with costs to the
appellant. So ordered.

3. G.R. No. L-47757 April 7, 1942

ANA RIVERA, plaintiff-appellant,

vs.
PEOPLES BANK AND TRUST CO., defendant-appellee.
MINNIE STEPHENSON, in her capacity as administratix of the intestate estate of EDGAR
Stephenson, intervenor-appellee.
Cecilio I. Lim, Chief Public Defender, for appellant.
Antonio M. Opisso for intervenor-appellee.
No appearance for appellee Peoples Bank & Trust Co.

OZAETA, J.:

The question raised in this appeal is the validity of the survivorship agreement made by and
between Edgar Stephenson, now deceased, and Ana Rivera, appellant herein, which read as
follows:

SURVIVORSHIP AGREEMENT

Know All Men by These Presents:

That we hereby agree with each other and with the PEOPLES BANK AND TRUST
COMPANY, Manila, Philippine Islands (hereinafter called the Bank), that all moneys
now or hereafter deposited by us or either of us with the Bank in our savings account
shall be deposited in and received by the Bank with the understanding and upon the
condition that said money be deposited without consideration of its previous ownership,
and that said money and all interest thereon, if any there be, shall be the property of both
of us joint tenants, and shall be payable to and collectible by either of us during our joint
lives, and after the death of one of us shall belong to and be the sole property of the
survivor, and shall be payable to and collectible by such survivor.

And we further covenant and agree with each other and the Bank, its successors or
assigns, that the receipt or check of either of us during our joint lives, or the receipt or
check of the survivor, for any payment made from this account, and shall be valid and
sufficient and discharge to the Bank for such payment.

The Bank is hereby authorized to accept and deposit to this account all checks made
payable to either or both of us, when endorsed by either or both of us or one for the other.

This is a joint and several agreement and is binding upon each of us, our heirs, executors,
administrators, and assigns.

In witness whereof we have signed our names here to this 17th day of October, 1931.

(Sgd.) EDGAR STEPHENSON

(Sgd.) Ana Rivera
Address: 799 Sta. Mesa, Manila

Witness:
(Sgd.) FRED W. BOHLER
(Sgd.) Y. E. Cox
S. A. #4146
Ana Rivera was employed by Edgar Stephenson as housekeeper from the year 1920 until his
death on June 8, 1939. On December 24, Stephenson opened an account in his name with the
defendant Peoples Bank by depositing therein the sum of P1,000. On October 17, 1931, when
there was a balance of P2,072 in said account, the survivorship agreement in question was
executed and the said account was transferred to the name of "Edgar Stephenson and/or Ana
Rivera." At the time of Stephenson's death Ana Rivera held the deposit book, and there was a
balance in said account of P701. 43, which Ana Rivera claimed but which the bank refused to
pay to her upon advice of its attorneys who gave the opinion that the survivorship agreement was
of doubtful validity. Thereupon Ana Rivera instituted the present action against the bank, and
Minnie Stephenson, administratix of the estate of the deceased, intervened and claimed the
amount for the estate, alleging that the money deposited in said account was and is the exclusive
property of the deceased.

The trial court held that the agreement in question, viewed from its effect during the lives of the
parties, was a mere power of attorney authorizing Ana Rivera to withdraw the deposit, which
power terminated upon the death of the principal, Edgar Stephenson; but that, viewed from its
effect after the death of either of the parties, the agreement was a donation mortis causa with
reference to the balance remaining at the death of one of them, which, not having been executed
with the formalities of a testamentary disposition as required by article 620 of the Civil Code,
was of no legal effect.

The defendant bank did not appear in this Court. Counsel for the intervenor-appellee in his brief
contends that the survivorship agreement was a donation mortis causa from Stephenson to Ana
Rivera of the bank account in question and that, since it was not executed with the formalities of
a will, it can have no legal effect.

We find no basis for the conclusion that the survivorship agreement was a mere power of
attorney from Stephenson to Ana Rivera, or that it is a gift mortis causa of the bank account in
question from him to her. Such conclusion is evidently predicated on the assumption that
Stephenson was the exclusive owner of the funds deposited in the bank, which assumption was
in turn based on the facts (1) that the account was originally opened in the name of Stephenson
alone and (2) that Ana Rivera "served only as housemaid of the deceased." But it not
infrequently happens that a person deposits money in the bank in the name of another; and in the
instant case it also appears that Ana Rivera served her master for about nineteen years without
actually receiving her salary from him. The fact that subsequently Stephenson transferred the
account to the name of himself and/or Ana Rivera and executed with the latter the survivorship
agreement in question although there was no relation of kinship between them but only that of
master and servant, nullifies the assumption that Stephenson was the exclusive owner of the bank
account. In the absence, then, of clear proof of the contrary, we must give full faith and credit to
the certificate of deposit, which recites in effect that the funds in question belonged to Edgar
Stephenson and Ana Rivera; that they were joint owners thereof; and that either of them could
withdraw any part or the whole of said account during the lifetime of both, and the balance, if
any, upon the death of either, belonged to the survivor.

Is the survivorship agreement valid? Prima facie, we think it is valid. It is an aleatory contract
supported by law a lawful consideration — the mutual agreement of the joint depositors
permitting either of them to withdraw the whole deposit during their lifetime, and transferring
the balance to the survivor upon the death of one of them. The trial court said that the Civil Code
"contains no provisions sanctioning such an agreement" We think it is covered by article 1790 of
the Civil Code, which provides as follows:

ART. 1790. By an aleatory contract one of the parties binds himself, or both reciprocally
bind themselves, to give or to do something as an equivalent for that which the other
party is to give or do in case of the occurrence of an event which is uncertain or will
happen at an indeterminate time.

(See also article 1255.)

The case of Macam vs. Gatmaitan (decided March 11, 1937), 36 Off. Gaz., 2175, is in point.
Two friends Juana Gatmaitan and Leonarda Macam, who had lived together for some time,
agreed in writing that the house of strong materials which they bought with the money belonging
to Leonarda Macam and the Buick automobile and certain furniture which belonged to Juana
Gatmaitan shall belong to the survivor upon the death of one of them and that "this agreement
shall be equivalent to a transfer of the rights of the one who dies first and shall be kept by the
survivor." After the death of Leonarda Macam, her executrix assailed that document on the
ground that with respect to the house the same constituted a donation mortis causa by Leonarda
Macam in favor of Juana Gatmaitan. In affirming the judgment of the trial court absolving the
defendants from the complaint this Court, speaking through Chief Justice Avaceña, said:

This court is of the opinion that Exhibit C is an aleatory contract whereby, according to
article 1790 of the civil Code, one of the parties or both reciprocally bind themselves to
give or do something as an equivalent for that which the other party is to give or do in
case of the occurrence of an event which is uncertain or will happen at an indeterminate
time. As already stated, Leonarda was the owner of the house and Juana of the Buick
automobile and most of the furniture. By virtue of Exhibit C, Juana would become the
owner of the house in case Leonarda died first, and Leonarda would become the owner of
the automobile and the furniture if Juana were to die first. In this manner Leonarda and
Juana reciprocally assigned their respective property to one another conditioned upon
who might die first, the time of death determining the event upon which the acquisition of
such right by the one or the other depended. This contract, as any other contract, is
binding upon the parties thereto. Inasmuch as Leonarda had died before Juana, the latter
thereupon acquired the ownership of the house, in the same manner as Leonarda would
have acquired the ownership of the automobile of the furniture if Juana had died first. (36
Off. Gaz., 2176.)

Furthermore, "it is well established that a bank account may be so created that two persons shall
be joint owners thereof during their mutual lives, and the survivor take the whole on the death of
the other. The right to make such joint deposits has generally been held not to be done with by
statutes abolishing joint tenancy and survivorship generally as they existed at common law." (7
Am. Jur., 299.)
But although the survivorship agreement is per se not contrary to law, its operation or effect may
be violative of the law. For instance, if it be shown in a given case that such agreement is a mere
cloak to hide an inofficious donation, to transfer property in fraud of creditors, or to defeat the
legitime of a forced heir, it may be assailed and annulled upon such grounds. No such vice has
been imputed and established against the agreement involved in the case.

The agreement appealed from is reversed and another judgment will be entered in favor of the
plaintiff ordering the defendant bank to pay to her the sum of P701.43, with legal interest thereon
from the date of the complaint, and the costs in both instances. So ordered.

COLLATION

1. G.R. No. 149926 February 23, 2005

UNION BANK OF THE PHILIPPINES, petitioner,

vs.
EDMUND SANTIBAÑEZ and FLORENCE SANTIBAÑEZ ARIOLA, respondents.

DECISION

CALLEJO, SR., J.:

Before us is a petition for review on certiorari under Rule 45 of the Revised Rules of Court
which seeks the reversal of the Decision1 of the Court of Appeals dated May 30, 2001 in CA-
G.R. CV No. 48831 affirming the dismissal2 of the petitioner’s complaint in Civil Case No.
18909 by the Regional Trial Court (RTC) of Makati City, Branch 63.

The antecedent facts are as follows:

On May 31, 1980, the First Countryside Credit Corporation (FCCC) and Efraim M. Santibañez
entered into a loan agreement3 in the amount of ₱128,000.00. The amount was intended for the
payment of the purchase price of one (1) unit Ford 6600 Agricultural All-Purpose Diesel Tractor.
In view thereof, Efraim and his son, Edmund, executed a promissory note in favor of the FCCC,
the principal sum payable in five equal annual amortizations of ₱43,745.96 due on May 31, 1981
and every May 31st thereafter up to May 31, 1985.

On December 13, 1980, the FCCC and Efraim entered into another loan agreement,4 this time in
the amount of ₱123,156.00. It was intended to pay the balance of the purchase price of another
unit of Ford 6600 Agricultural All-Purpose Diesel Tractor, with accessories, and one (1) unit
Howard Rotamotor Model AR 60K. Again, Efraim and his son, Edmund, executed a promissory
note for the said amount in favor of the FCCC. Aside from such promissory note, they also
signed a Continuing Guaranty Agreement5 for the loan dated December 13, 1980.
Sometime in February 1981, Efraim died, leaving a holographic will.6 Subsequently in March
1981, testate proceedings commenced before the RTC of Iloilo City, Branch 7, docketed as
Special Proceedings No. 2706. On April 9, 1981, Edmund, as one of the heirs, was appointed as
the special administrator of the estate of the decedent.7 During the pendency of the testate
proceedings, the surviving heirs, Edmund and his sister Florence Santibañez Ariola, executed a
Joint Agreement8 dated July 22, 1981, wherein they agreed to divide between themselves and
take possession of the three (3) tractors; that is, two (2) tractors for Edmund and one (1) tractor
for Florence. Each of them was to assume the indebtedness of their late father to FCCC,
corresponding to the tractor respectively taken by them.

On August 20, 1981, a Deed of Assignment with Assumption of Liabilities9 was executed by
and between FCCC and Union Savings and Mortgage Bank, wherein the FCCC as the assignor,
among others, assigned all its assets and liabilities to Union Savings and Mortgage Bank.

Demand letters10 for the settlement of his account were sent by petitioner Union Bank of the
Philippines (UBP) to Edmund, but the latter failed to heed the same and refused to pay. Thus, on
February 5, 1988, the petitioner filed a Complaint11 for sum of money against the heirs of
Efraim Santibañez, Edmund and Florence, before the RTC of Makati City, Branch 150, docketed
as Civil Case No. 18909. Summonses were issued against both, but the one intended for Edmund
was not served since he was in the United States and there was no information on his address or
the date of his return to the Philippines.12 Accordingly, the complaint was narrowed down to
respondent Florence S. Ariola.

On December 7, 1988, respondent Florence S. Ariola filed her Answer13 and alleged that the
loan documents did not bind her since she was not a party thereto. Considering that the joint
agreement signed by her and her brother Edmund was not approved by the probate court, it was
null and void; hence, she was not liable to the petitioner under the joint agreement.

On January 29, 1990, the case was unloaded and re-raffled to the RTC of Makati City, Branch
63.14 Consequently, trial on the merits ensued and a decision was subsequently rendered by the
court dismissing the complaint for lack of merit. The decretal portion of the RTC decision reads:

WHEREFORE, judgment is hereby rendered DISMISSING the complaint for lack of merit.15

The trial court found that the claim of the petitioner should have been filed with the probate court
before which the testate estate of the late Efraim Santibañez was pending, as the sum of money
being claimed was an obligation incurred by the said decedent. The trial court also found that the
Joint Agreement apparently executed by his heirs, Edmund and Florence, on July 22, 1981, was,
in effect, a partition of the estate of the decedent. However, the said agreement was void,
considering that it had not been approved by the probate court, and that there can be no valid
partition until after the will has been probated. The trial court further declared that petitioner
failed to prove that it was the now defunct Union Savings and Mortgage Bank to which the
FCCC had assigned its assets and liabilities. The court also agreed to the contention of
respondent Florence S. Ariola that the list of assets and liabilities of the FCCC assigned to Union
Savings and Mortgage Bank did not clearly refer to the decedent’s account. Ruling that the joint
agreement executed by the heirs was null and void, the trial court held that the petitioner’s cause
of action against respondent Florence S. Ariola must necessarily fail.

The petitioner appealed from the RTC decision and elevated its case to the Court of Appeals
(CA), assigning the following as errors of the trial court:

1. THE COURT A QUO ERRED IN FINDING THAT THE JOINT AGREEMENT

(EXHIBIT A) SHOULD BE APPROVED BY THE PROBATE COURT.

2. THE COURT A QUO ERRED IN FINDING THAT THERE CAN BE NO VALID

PARTITION AMONG THE HEIRS UNTIL AFTER THE WILL HAS BEEN
PROBATED.

3. THE COURT A QUO ERRED IN NOT FINDING THAT THE DEFENDANT HAD
WAIVED HER RIGHT TO HAVE THE CLAIM RE-LITIGATED IN THE ESTATE
PROCEEDING.16

The petitioner asserted before the CA that the obligation of the deceased had passed to his
legitimate children and heirs, in this case, Edmund and Florence; the unconditional signing of the
joint agreement marked as Exhibit "A" estopped respondent Florence S. Ariola, and that she
cannot deny her liability under the said document; as the agreement had been signed by both
heirs in their personal capacity, it was no longer necessary to present the same before the probate
court for approval; the property partitioned in the agreement was not one of those enumerated in
the holographic will made by the deceased; and the active participation of the heirs, particularly
respondent Florence S. Ariola, in the present ordinary civil action was tantamount to a waiver to
re-litigate the claim in the estate proceedings.

On the other hand, respondent Florence S. Ariola maintained that the money claim of the
petitioner should have been presented before the probate court.17

The appellate court found that the appeal was not meritorious and held that the petitioner should
have filed its claim with the probate court as provided under Sections 1 and 5, Rule 86 of the
Rules of Court. It further held that the partition made in the agreement was null and void, since
no valid partition may be had until after the will has been probated. According to the CA, page 2,
paragraph (e) of the holographic will covered the subject properties (tractors) in generic terms
when the deceased referred to them as "all other properties." Moreover, the active participation
of respondent Florence S. Ariola in the case did not amount to a waiver. Thus, the CA affirmed
the RTC decision, viz.:

WHEREFORE, premises considered, the appealed Decision of the Regional Trial Court of
Makati City, Branch 63, is hereby AFFIRMED in toto.

SO ORDERED.18

In the present recourse, the petitioner ascribes the following errors to the CA:
 I.

THE HONORABLE COURT OF APPEALS ERRED IN FINDING THAT THE JOINT

AGREEMENT SHOULD BE APPROVED BY THE PROBATE COURT.

II.

THE COURT OF APPEALS ERRED IN FINDING THAT THERE CAN BE NO VALID

PARTITION AMONG THE HEIRS OF THE LATE EFRAIM SANTIBAÑEZ UNTIL AFTER
THE WILL HAS BEEN PROBATED.

III.

THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE RESPONDENT HAD
WAIVED HER RIGHT TO HAVE THE CLAIM RE-LITIGATED IN THE ESTATE
PROCEEDING.

IV.

RESPONDENTS CAN, IN FACT, BE HELD JOINTLY AND SEVERALLY LIABLE WITH

THE PRINCIPAL DEBTOR THE LATE EFRAIM SANTIBAÑEZ ON THE STRENGTH OF
THE CONTINUING GUARANTY AGREEMENT EXECUTED IN FAVOR OF
PETITIONER-APPELLANT UNION BANK.

V.

THE PROMISSORY NOTES DATED MAY 31, 1980 IN THE SUM OF ₱128,000.00 AND
DECEMBER 13, 1980 IN THE AMOUNT OF ₱123,000.00 CATEGORICALLY
ESTABLISHED THE FACT THAT THE RESPONDENTS BOUND THEMSELVES
JOINTLY AND SEVERALLY LIABLE WITH THE LATE DEBTOR EFRAIM
SANTIBAÑEZ IN FAVOR OF PETITIONER UNION BANK.19

The petitioner claims that the obligations of the deceased were transmitted to the heirs as
provided in Article 774 of the Civil Code; there was thus no need for the probate court to
approve the joint agreement where the heirs partitioned the tractors owned by the deceased and
assumed the obligations related thereto. Since respondent Florence S. Ariola signed the joint
agreement without any condition, she is now estopped from asserting any position contrary
thereto. The petitioner also points out that the holographic will of the deceased did not include
nor mention any of the tractors subject of the complaint, and, as such was beyond the ambit of
the said will. The active participation and resistance of respondent Florence S. Ariola in the
ordinary civil action against the petitioner’s claim amounts to a waiver of the right to have the
claim presented in the probate proceedings, and to allow any one of the heirs who executed the
joint agreement to escape liability to pay the value of the tractors under consideration would be
equivalent to allowing the said heirs to enrich themselves to the damage and prejudice of the
petitioner.
The petitioner, likewise, avers that the decisions of both the trial and appellate courts failed to
consider the fact that respondent Florence S. Ariola and her brother Edmund executed loan
documents, all establishing the vinculum juris or the legal bond between the late Efraim
Santibañez and his heirs to be in the nature of a solidary obligation. Furthermore, the Promissory
Notes dated May 31, 1980 and December 13, 1980 executed by the late Efraim Santibañez,
together with his heirs, Edmund and respondent Florence, made the obligation solidary as far as
the said heirs are concerned. The petitioner also proffers that, considering the express provisions
of the continuing guaranty agreement and the promissory notes executed by the named
respondents, the latter must be held liable jointly and severally liable thereon. Thus, there was no
need for the petitioner to file its money claim before the probate court. Finally, the petitioner
stresses that both surviving heirs are being sued in their respective personal capacities, not as
heirs of the deceased.

In her comment to the petition, respondent Florence S. Ariola maintains that the petitioner is
trying to recover a sum of money from the deceased Efraim Santibañez; thus the claim should
have been filed with the probate court. She points out that at the time of the execution of the joint
agreement there was already an existing probate proceedings of which the petitioner knew about.
However, to avoid a claim in the probate court which might delay payment of the obligation, the
petitioner opted to require them to execute the said agreement.1a\^/phi1.net

According to the respondent, the trial court and the CA did not err in declaring that the
agreement was null and void. She asserts that even if the agreement was voluntarily executed by
her and her brother Edmund, it should still have been subjected to the approval of the court as it
may prejudice the estate, the heirs or third parties. Furthermore, she had not waived any rights, as
she even stated in her answer in the court a quo that the claim should be filed with the probate
court. Thus, the petitioner could not invoke or claim that she is in estoppel.

Respondent Florence S. Ariola further asserts that she had not signed any continuing guaranty
agreement, nor was there any document presented as evidence to show that she had caused
herself to be bound by the obligation of her late father.

The petition is bereft of merit.

The Court is posed to resolve the following issues: a) whether or not the partition in the
Agreement executed by the heirs is valid; b) whether or not the heirs’ assumption of the
indebtedness of the deceased is valid; and c) whether the petitioner can hold the heirs liable on
the obligation of the deceased.1awphi1.nét

At the outset, well-settled is the rule that a probate court has the jurisdiction to determine all the
properties of the deceased, to determine whether they should or should not be included in the
inventory or list of properties to be administered.20 The said court is primarily concerned with
the administration, liquidation and distribution of the estate.21

In our jurisdiction, the rule is that there can be no valid partition among the heirs until after the
will has been probated:
In testate succession, there can be no valid partition among the heirs until after the will has been
probated. The law enjoins the probate of a will and the public requires it, because unless a will is
probated and notice thereof given to the whole world, the right of a person to dispose of his
property by will may be rendered nugatory. The authentication of a will decides no other
question than such as touch upon the capacity of the testator and the compliance with those
requirements or solemnities which the law prescribes for the validity of a will.22

This, of course, presupposes that the properties to be partitioned are the same properties
embraced in the will.23 In the present case, the deceased, Efraim Santibañez, left a holographic
will24 which contained, inter alia, the provision which reads as follows:

(e) All other properties, real or personal, which I own and may be discovered later after my
demise, shall be distributed in the proportion indicated in the immediately preceding paragraph
in favor of Edmund and Florence, my children.

We agree with the appellate court that the above-quoted is an all-encompassing provision
embracing all the properties left by the decedent which might have escaped his mind at that time
he was making his will, and other properties he may acquire thereafter. Included therein are the
three (3) subject tractors. This being so, any partition involving the said tractors among the heirs
is not valid. The joint agreement25 executed by Edmund and Florence, partitioning the tractors
among themselves, is invalid, specially so since at the time of its execution, there was already a
pending proceeding for the probate of their late father’s holographic will covering the said
tractors.

It must be stressed that the probate proceeding had already acquired jurisdiction over all the
properties of the deceased, including the three (3) tractors. To dispose of them in any way
without the probate court’s approval is tantamount to divesting it with jurisdiction which the
Court cannot allow.26 Every act intended to put an end to indivision among co-heirs and legatees
or devisees is deemed to be a partition, although it should purport to be a sale, an exchange, a
compromise, or any other transaction.27 Thus, in executing any joint agreement which appears
to be in the nature of an extra-judicial partition, as in the case at bar, court approval is
imperative, and the heirs cannot just divest the court of its jurisdiction over that part of the estate.
Moreover, it is within the jurisdiction of the probate court to determine the identity of the heirs of
the decedent.28 In the instant case, there is no showing that the signatories in the joint agreement
were the only heirs of the decedent. When it was executed, the probate of the will was still
pending before the court and the latter had yet to determine who the heirs of the decedent were.
Thus, for Edmund and respondent Florence S. Ariola to adjudicate unto themselves the three (3)
tractors was a premature act, and prejudicial to the other possible heirs and creditors who may
have a valid claim against the estate of the deceased.

The question that now comes to fore is whether the heirs’ assumption of the indebtedness of the
decedent is binding. We rule in the negative. Perusing the joint agreement, it provides that the
heirs as parties thereto "have agreed to divide between themselves and take possession and use
the above-described chattel and each of them to assume the indebtedness corresponding to the
chattel taken as herein after stated which is in favor of First Countryside Credit Corp."29 The
assumption of liability was conditioned upon the happening of an event, that is, that each heir
shall take possession and use of their respective share under the agreement. It was made
dependent on the validity of the partition, and that they were to assume the indebtedness
corresponding to the chattel that they were each to receive. The partition being invalid as earlier
discussed, the heirs in effect did not receive any such tractor. It follows then that the assumption
of liability cannot be given any force and effect.

The Court notes that the loan was contracted by the decedent.l^vvphi1.net The petitioner,
purportedly a creditor of the late Efraim Santibañez, should have thus filed its money claim with
the probate court in accordance with Section 5, Rule 86 of the Revised Rules of Court, which
provides:

Section 5. Claims which must be filed under the notice. If not filed barred; exceptions. — All
claims for money against the decedent, arising from contract, express or implied, whether the
same be due, not due, or contingent, all claims for funeral expenses for the last sickness of the
decedent, and judgment for money against the decedent, must be filed within the time limited in
the notice; otherwise they are barred forever, except that they may be set forth as counterclaims
in any action that the executor or administrator may bring against the claimants. Where an
executor or administrator commences an action, or prosecutes an action already commenced by
the deceased in his lifetime, the debtor may set forth by answer the claims he has against the
decedent, instead of presenting them independently to the court as herein provided, and mutual
claims may be set off against each other in such action; and if final judgment is rendered in favor
of the defendant, the amount so determined shall be considered the true balance against the
estate, as though the claim had been presented directly before the court in the administration
proceedings. Claims not yet due, or contingent, may be approved at their present value.

The filing of a money claim against the decedent’s estate in the probate court is mandatory.30 As
we held in the vintage case of Py Eng Chong v. Herrera:31

… This requirement is for the purpose of protecting the estate of the deceased by informing the
executor or administrator of the claims against it, thus enabling him to examine each claim and
to determine whether it is a proper one which should be allowed. The plain and obvious design
of the rule is the speedy settlement of the affairs of the deceased and the early delivery of the
property to the distributees, legatees, or heirs. `The law strictly requires the prompt presentation
and disposition of the claims against the decedent's estate in order to settle the affairs of the
estate as soon as possible, pay off its debts and distribute the residue.32

Perusing the records of the case, nothing therein could hold private respondent Florence S.
Ariola accountable for any liability incurred by her late father. The documentary evidence
presented, particularly the promissory notes and the continuing guaranty agreement, were
executed and signed only by the late Efraim Santibañez and his son Edmund. As the petitioner
failed to file its money claim with the probate court, at most, it may only go after Edmund as co-
maker of the decedent under the said promissory notes and continuing guaranty, of course,
subject to any defenses Edmund may have as against the petitioner. As the court had not
acquired jurisdiction over the person of Edmund, we find it unnecessary to delve into the matter
further.
We agree with the finding of the trial court that the petitioner had not sufficiently shown that it is
the successor-in-interest of the Union Savings and Mortgage Bank to which the FCCC assigned
its assets and liabilities.33 The petitioner in its complaint alleged that "by virtue of the Deed of
Assignment dated August 20, 1981 executed by and between First Countryside Credit
Corporation and Union Bank of the Philippines…"34 However, the documentary evidence35
clearly reflects that the parties in the deed of assignment with assumption of liabilities were the
FCCC, and the Union Savings and Mortgage Bank, with the conformity of Bancom Philippine
Holdings, Inc. Nowhere can the petitioner’s participation therein as a party be found.
Furthermore, no documentary or testimonial evidence was presented during trial to show that
Union Savings and Mortgage Bank is now, in fact, petitioner Union Bank of the Philippines. As
the trial court declared in its decision:

… [T]he court also finds merit to the contention of defendant that plaintiff failed to prove or did
not present evidence to prove that Union Savings and Mortgage Bank is now the Union Bank of
the Philippines. Judicial notice does not apply here. "The power to take judicial notice is to [be]
exercised by the courts with caution; care must be taken that the requisite notoriety exists; and
every reasonable doubt upon the subject should be promptly resolved in the negative." (Republic
vs. Court of Appeals, 107 SCRA 504).36

This being the case, the petitioner’s personality to file the complaint is wanting. Consequently, it
failed to establish its cause of action. Thus, the trial court did not err in dismissing the complaint,
and the CA in affirming the same.

IN LIGHT OF ALL THE FOREGOING, the petition is hereby DENIED. The assailed Court
of Appeals Decision is AFFIRMED. No costs.

SO ORDERED.

2. G.R. No. 118449 February 11, 1998

LAURO G. VIZCONDE, petitioner,

vs.
COURT OF APPEALS, REGIONAL TRIAL COURT, Branch 120, Caloocan City, and
RAMON G. NICOLAS, respondents.

FRANCISCO, J.:

Petitioner Lauro G. Vizconde and his wife Estrellita Nicolas-Vizconde had two children,
viz., Carmela and Jennifer. Petitioner's wife, Estrellita, is one of the five siblings of
spouses Rafael Nicolas and Salud Gonzales-Nicolas. The other children of Rafael and
Salud are Antonio Nicolas; Ramon Nicolas; Teresita Nicolas de Leon, and Ricardo
Nicolas, an incompetent. Antonio predeceased his parents and is now survived by his
widow, Zenaida, and their four children.

On May 22, 1979, Estrellita purchased from Rafael a parcel of land with an area of
10,110 sq. m. located at Valenzuela, Bulacan (hereafter Valenzuela property) covered
by TCT No. (T-36734) 13206 for One Hundred Thirty Five Thousand Pesos
(P135,000.00), evidenced by a "Lubusang Bilihan ng Bahagi ng Lupa na Nasasakupan
ng Titulo TCT No. T-36734".1 In view thereof, TCT No. V-554 covering the Valenzuela
property was issued to Estrellita. 2 On March 30, 1990, Estrellita sold the Valenzuela
property to Amelia Lim and Maria Natividad Balictar Chiu for Three Million, Four
Hundred Five Thousand, Six Hundred Twelve Pesos (P3,405,612.00).3 In June of
the same year, Estrellita bought from Premier Homes, Inc., a parcel of land with
improvements situated at Vinzon St., BF Homes, Parañaque (hereafter Parañaque
property) using a portion of the proceeds of sale of the Valenzuela property. The
remaining amount of the proceeds was used in buying a car while the balance
was deposited in a bank.

The following year an unfortunate event in petitioner's life occurred. Estrellita and
her two daughters, Carmela and Jennifer, were killed on June 30, 1991, an
incident popularly known as the "Vizconde Massacre". The findings of the
investigation conducted by the NBI reveal that Estrellita died ahead of her
daughters.4 Accordingly, Carmela, Jennifer and herein petitioner succeeded
Estrellita and, with the subsequent death of Carmela and Jennifer, petitioner was
left as the sole heir of his daughters. Nevertheless, petitioner entered into an
"Extra-Judicial Settlement of the Estate of Deceased Estrellita Nicolas-Vizconde
With Waiver of Shares", 5 with Rafael and Salud, Estrellita's parents. The extra-
judicial settlement provided for the division of the properties of Estrellita and her
two daughters between petitioner and spouses Rafael and Salud. The properties
include bank deposits, a car and the Parañaque property. The total value of the
deposits deducting the funeral and other related expenses in the burial of
Estrellita, Carmela and Jennifer, amounts to Three Million Pesos (P3,000,000.00).6
The settlement gave fifty percent (50%) of the total amount of the bank deposits
of Estrellita and her daughters to Rafael, except Savings Account No. 104-111211-
0 under the name of Jennifer which involves a token amount. The other fifty
percent (50%) was allotted to petitioner. The Parañaque property and the car and
were also given to petitioner with Rafael and Salud waiving all their "claims,
rights, ownership and participation as heirs" 7 in the said properties.

On November 18, 1992, Rafael died. To settle Rafael's estate, Teresita instituted
an intestate estate proceeding8 docketed as Sp. Proc. No. C-1679, with Branch
120 of the Regional Trial Court (RTC) of Caloocan City listing as heirs Salud,
Ramon, Ricardo, and the wife (Zenaida) and children of Antonio. Teresita prayed
to be appointed Special Administratrix of Rafael's estate. Additionally, she sought
to be appointed as guardian ad litem of Salud, now senile, and Ricardo, her
incompetent brother Herein private respondent Ramon filed an opposition9 dated
March 24, 1993, praying to be appointed instead as Salud and Ricardo's guardian.
Barely three weeks passed, Ramon filed another opposition 10 alleging, among
others, that Estrellita was given the Valenzuela property by Rafael which she sold
for not less than Six Million Pesos (P6,000,000.00) before her gruesome murder.
Ramon pleaded for the court's intervention "to determine the legality and validity
of the intervivos distribution made by deceased Rafael to his children," 11
Estrellita included. On May 12, 1993, Ramon filed his own petition, docketed as
Sp. Proc. No. C-1699, entitled "In The Matter Of The Guardianship Of Salud G.
Nicolas and Ricardo G. Nicolas" and averred that their legitime should come from
the collation of all the properties distributed to his children by Rafael during his
lifetime. 12 Ramon stated that herein petitioner is one of Rafael's children "by
right of representation as the widower of deceased legitimate daughter of
Estrellita." 13

In a consolidated Order, dated November 9, 1993, the RTC appointed Ramon as

the guardian of Salud and Ricardo while Teresita, in turn, was appointed as the
Special Administratrix of Rafael's estate. The court's Order did not include
petitioner in the slate of Rafael's heirs. 14 Neither was the Parañaque property
listed in its list of properties to be included in the estate. 15 Subsequently, the
RTC in an Order dated January 5, 1994, removed Ramon as Salud and Ricardo's
guardian for Selling his ward's property without the court's knowledge and
permission. 16

Sometime on January 13, 1994, the RTC released an Order giving petitioner "ten
(10) days . . . within which to file any appropriate petition or motion related to the
pending petition insofar as the case is concerned and to file any opposition to
any pending motion that has been filed by both the counsels for Ramon Nicolas
and Teresita de Leon." In response, petitioner filed a Manifestation, dated January
19, 1994, stressing that he was neither a compulsory heir nor an intestate heir of
Rafael and he has no interest to participate in the proceedings. The RTC noted
said Manifestation in its Order dated February 2, 1994. 17 Despite the
Manifestation, Ramon, through a motion dated February 14, 1994, moved to
include petitioner in the intestate estate proceeding and asked that the Parañaque
property, as well as the car and the balance of the proceeds of the sale of the
Valenzuela property, be collated. 18 Acting on Ramon's motion, the trial court on
March 10, 1994 granted the same in an Order which pertinently reads as follows:

xxx xxx xxx

On the Motion To Include Lauro G. Vizconde In Intestate proceedings

in instant case and considering the comment on his Manifestation,
the same is hereby granted.19

xxx xxx xxx

Petitioner filed its motion for reconsideration of the aforesaid Order which Ramon
opposed. 20 On August 12, 1994, the RTC rendered an Order denying petitioner's
motion for reconsideration. It provides:

xxx xxx xxx

The centerpoint of oppositor-applicant's argument is that spouses

Vizconde were then financially incapable of having purchased or
acquired for a valuable consideration the property at Valenzuela from
the deceased Rafael Nicolas. Admittedly, the spouses Vizconde were
then living with the deceased Rafael Nicolas in the latter's ancestral
home. In fact, as the argument further goes, said spouses were
dependent for support on the deceased Rafael Nicolas. And, Lauro
Vizconde left for the United States in, de-facto separation, from the
family for sometime and returned to the Philippines only after the
occurrence of violent deaths of Estrellita and her two daughters.

To dispute the contention that the spouses Vizconde were financially

incapable to buy the property from the late Rafael Nicolas, Lauro
Vizconde claims that they have been engaged in business venture
such as taxi business, canteen concessions and garment
manufacturing. However, no competent evidence has been
submitted to indubitably support the business undertakings
adverted to.

In fine, there is no sufficient evidence to show that the acquisition of

the property from Rafael Nicolas was for a valuable consideration.

Accordingly, the transfer of the property at Valenzuela in favor of

Estrellita by her father was gratuitous and the subject property in
Parañaque which was purchased out of the proceeds of the said
transfer of the property by the deceased Rafael Nicolas in favor of
Estrellita, is subject to collation.

WHEREFORE, the motion for reconsideration is hereby DENIED. 21

(Emphasis added)

Petitioner filed a petition for certiorari and prohibition with respondent

Court of Appeals. In its decision of December 14, 1994, respondent Court of
Appeals 22 denied the petition stressing that the RTC correctly adjudicated
the question on the title of the Valenzuela property as "the jurisdiction of
the probate court extends to matters incidental and collateral to the
exercise of its recognized powers in handling the settlement of the estate
of the deceased (Cf.: Sec. 1, Rule 90, Revised Rules of Court)." 23
Dissatisfied, petitioner filed the instant petition for review on certiorari.
Finding prima facie merit, the Court on December 4, 1995, gave due course
 to the petition and required the parties to submit their respective
memoranda.

The core issue hinges on the validity of the probate court's Order, which
respondent Court of Appeals sustained, nullifying the transfer of the Valenzuela
property from Rafael to Estrellita and declaring the Parañaque property as
subject to collation.

The appeal is well taken.

Basic principles of collation need to be emphasized at the outset. Article 1061 of

the Civil Code speaks of collation. It states:

Art. 1061. Every compulsory heir, who succeeds with other

compulsory heirs, must bring into the mass of the estate any
property or right which he may have received from the decedent,
during the lifetime of the latter, by way of donation, or any other
gratuitous title, in order that it may be computed in the determination
of the legitime of each heir, and in the account of the partition.

Collation is the act by virtue of which descendants or other forced heirs who
intervene in the division of the inheritance of an ascendant bring into the
common mass, the property which they received from him, so that the division
may be made according to law and the will of the testator. 24 Collation is only
required of compulsory heirs succeeding with other compulsory heirs and
involves property or rights received by donation or gratuitous title during the
lifetime of the decedent. 25 The purpose is to attain equality among the
compulsory heirs in so far as possible for it is presumed that the intention of the
testator or predecessor in interest making a donation or gratuitous transfer to a
forced heir is to give him something in advance on account of his share in the
estate, and that the predecessor's will is to treat all his heirs equally, in the
absence of any expression to the contrary. 26 Collation does not impose any lien
on the property or the subject matter of collationable donation. What is brought
to collation is not the property donated itself, but rather the value of such
property at the time it was donated, 27 the rationale being that the donation is a
real alienation which conveys ownership upon its acceptance, hence any
increase in value or any deterioration or loss thereof is for the account of the heir
or donee. 28

The attendant facts herein do not make a case of collation. We find that the
probate court, as well as respondent Court of Appeals, committed reversible
errors.

First: The probate court erred in ordering the inclusion of petitioner in the
intestate estate proceeding. Petitioner, a son-in-law of Rafael, is not one of
Rafael's compulsory heirs. Article 887 of the Civil Code is clear on this point:
 Art. 887. The following are compulsory heirs:

(1) Legitimate children and descendants, with respect to their

legitimate parents and ascendants;

(2) In default of the following, legitimate parents and ascendants,

with respect to their legitimate children and ascendants;

(3) The widow or widower;

(4) Acknowledged natural children, and natural children by legal

fiction;

(5) Other illegitimate children referred to in article 287.

Compulsory heirs mentioned in Nos. 3, 4 and 5 are not excluded by

those in Nos. 1 and 2; neither do they exclude one another.

In all cases of illegitimate children, their filiation must be duly

proved.

The father or mother of illegitimate children of the three classes

mentioned, shall inherit from them in the manner and to the extent
established by this Code.

With respect to Rafael's estate, therefore, petitioner who was not even
shown to be a creditor of Rafael is considered a third person or a stranger.
29 As such, petitioner may not be dragged into the intestate estate
proceeding. Neither may he be permitted or allowed to intervene as he has
no personality or interest in the said proceeding, 30 which petitioner
correctly argued in his manifestation. 31

Second: As a rule, the probate court may pass upon and determine the title or
ownership of a property which may or may not be included in the estate
proceedings. 32 Such determination is provisional in character and is subject to
final decision in a separate action to resolve title. 33 In the case at bench,
however, we note that the probate court went beyond the scope of its jurisdiction
when it proceeded to determine the validity of the sale of the Valenzuela property
between Rafael and Estrellita and ruled that the transfer of the subject property
between the concerned parties was gratuitous. The interpretation of the deed and
the true intent of the contracting parties, as well as the presence or absence of
consideration, are matters outside the probate court's jurisdiction. These issues
should be ventilated in an appropriate action. We reiterate:

. . . we are of the opinion and so hold, that a court which takes

cognizance of testate or intestate proceedings has power and
 jurisdiction to determine whether or not the properties included
therein or excluded therefrom belong prima facie to the deceased,
although such a determination is not final or ultimate in nature, and
without prejudice to the right of the interested parties, in a proper
action, to raise the question bearing on the ownership or existence
of the right or credit.34

Third: The order of the probate court subjecting the Parañaque property to
collation is premature. Records indicate that the intestate estate proceedings is
still in its initiatory stage. We find nothing herein to indicate that the legitime of
any of Rafael's heirs has been impaired to warrant collation. We thus advert to
our ruling in Udarbe v. Jurado, 59 Phil. 11, 13-14, to wit:

We are of the opinion that this contention is untenable. In

accordance with the provisions of article 1035 35 of the Civil Code, it
was the duty of the plaintiffs to allege and prove that the donations
received by the defendants were inofficious in whole or in part and
prejudiced the legitime or hereditary portion to which they are
entitled. In the absence of evidence to that effect, the collation
sought is untenable for lack of ground or basis therefor.

Fourth: Even on the assumption that collation is appropriate in this case the
probate court, nonetheless, made a reversible error in ordering collation of the
Parañaque property. We note that what was transferred to Estrellita, by way of
deed of sale, is the Valenzuela property. The Parañaque property which Estrellita
acquired by using the proceeds of the sale of the Valenzuela property does not
become collationable simply by reason thereof. Indeed, collation of the
Parañaque property has no statutory basis. 36 The order of the probate court
presupposes that the Parañaque property was gratuitously conveyed by Rafael to
Estrellita. Records indicate, however, that the Parañaque property was conveyed
for and in consideration of P900,000.00, 37 by Premier Homes, Inc., to Estrellita.
Rafael, the decedent, has no participation therein, and petitioner who inherited
and is now the present owner of the Parañaque property is not one of Rafael's
heirs. Thus, the probate court's order of collation against petitioner is
unwarranted for the obligation to collate is lodged with Estrellita, the heir, and not
to herein petitioner who does not have any interest in Rafael's estate. As it
stands, collation of the Parañaque property is improper for, to repeat, collation
covers only properties gratuitously given by the decedent during his lifetime to
his compulsory heirs which fact does not obtain anent the transfer of the
Parañaque property. Moreover, Rafael, in a public instrument, voluntarily and
willfully waived any "claims, rights, ownership and participation as heir" 38 in the
Parañaque property.

Fifth: Finally, it is futile for the probate court to ascertain whether or not the
Valenzuela property may be brought to collation. Estrellita, it should be stressed,
died ahead of Rafael. In fact, it was Rafael who inherited from Estrellita an amount
more than the value of the Valenzuela property. 39 Hence, even assuming that the
Valenzuela property may be collated collation may not be allowed as the value of
the Valenzuela property has long been returned to the estate of Rafael. Therefore,
any determination by the probate court on the matter serves no valid and binding
purpose.

WHEREFORE, the decision of the Court of Appeals appealed from is hereby

REVERSED AND SET ASIDE.

SO ORDERED.