G.R. No.

L-23079 February 27, 1970

RUBEN AUSTRIA, CONSUELO AUSTRIA-BENTA and LAURO AUSTRIA MOZO, petitioners,
vs.
HON. ANDRES REYES, Judge, Court of First Instance of Rizal, PERFECTO CRUZ, BENITA CRUZ-MENEZ
ISAGANI CRUZ, ALBERTO CRUZ and LUZ CRUZ-SALONGA respondents.
Salonga, Ordoñez, Yap, Sicat and Associates for petitioners.
Ruben Austria for himself and co-petitioners.
De los Santos, De los Santos and De los Santos for respondent Perfecto Cruz.
Villareal, Almacen, Navarra and Amores for other respondents.

CASTRO, J.:
On July 7, 1956 Basilia Austria vda. de Cruz filed with the Court of First Instance of Rizal (Special Proceedings 2457)
a petition for probate, ante mortem, of her last will and testament. The probate was opposed by the present
petitioners Ruben Austria, Consuelo Austria-Benta and Lauro Austria Mozo, and still others who, like the petitioner,
are nephews and nieces of Basilia. This opposition was, however, dismissed and the probate of the will allowed after
due hearing.
The bulk of the estate of Basilia, admittedly, was destined under the will to pass on to the respondents Perfecto
Cruz, Benita Cruz-Meñez, Isagani Cruz, Alberto Cruz, and Luz Cruz-Salonga, all of whom had been assumed and
declared by Basilia as her own legally adopted children.
On April 23, 1959, more than two years after her will was allowed to probate, Basilia died. The respondent Perfecto
Cruz was appointed executor without bond by the same court in accordance with the provisions of the decedent's
will, notwithstanding the blocking attempt pursued by the petitioner Ruben Austria.
Finally, on November 5, 1959, the present petitioners filed in the same proceedings a petition in intervention for
partition alleging in substance that they are the nearest of kin of Basilia, and that the five respondents Perfecto
Cruz, et al., had not in fact been adopted by the decedent in accordance with law, in effect rendering these
respondents mere strangers to the decedent and without any right to succeed as heirs.
Notwithstanding opposition by the respondent Perfecto Cruz, as executor of the estate, the court a quo allowed the
petitioners' intervention by its order of December 22, 1959, couched in broad terms, as follows: "The Petition in
Intervention for Partition filed by the above-named oppositors [Ruben Austria, et al.,] dated November 5, 1959 is
hereby granted."
In the meantime, the contending sides debated the matter of authenticity or lack of it of the several adoption
papers produced and presented by the respondents. On motion of the petitioners Ruben Austria, et al., these
documents were referred to the National Bureau of Investigation for examination and advice. N.B.I. report seems to
bear out the genuineness of the documents, but the petitioners, evidently dissatisfied with the results, managed to
obtain a preliminary opinion from a Constabulary questioned-document examiner whose views undermine the
authenticity of the said documents. The petitioners Ruben Austria, et al., thus moved the lower court to refer the
adoption papers to the Philippine Constabulary for further study. The petitioners likewise located former personnel
of the court which appeared to have granted the questioned adoption, and obtained written depositions from two
of them denying any knowledge of the pertinent adoption proceedings.
On February 6, 1963, more than three years after they were allowed to intervene, the petitioners Ruben Austria, let
al., moved the lower court to set for hearing the matter of the genuineness of the adoption of the respondents
Perfecto Cruz, et al., by the late Basilia. Before the date set by the court for hearing arrived, however, the
respondent Benita Cruz-Meñez who entered an appearance separately from that of her brother Perfecto Cruz, filed
on February 28, 1963 a motion asking the lower court, by way of alternative relief, to confine the petitioners'
intervention, should it be permitted, to properties not disposed of in the will of the decedent.
On March 4, 1963, the lower court heard the respondent Benita's motion. Both sides subsequently submitted their
respective memoranda, and finally, the lower court issued an order on June 4, 1963, delimiting the petitioners'
intervention to the properties of the deceased which were not disposed of in the will.
The petitioners moved the lower court to reconsider this latest order, eliciting thereby an opposition, from the
respondents. On October 25, 1963 the same court denied the petitioners' motion for reconsideration.
A second motion for reconsideration which set off a long exchange of memoranda from both sides, was summarily
denied on April 21, 1964.
Hence this petition for certiorari, praying this Court to annul the orders of June 4 and October 25, 1963 and the
order of April 21, 1964, all restricting petitioners' intervention to properties that were not included in the decedent's
testamentary dispositions.
The uncontested premises are clear. Two interests are locked in dispute over the bulk of the estate of the deceased.
Arrayed on one side are the petitioners Ruben Austria, Consuelo Austria-Benta and Lauro Austria Mozo, three of a
number of nephews and nieces who are concededly the nearest surviving blood relatives of the decedent. On the
other side are the respondents brothers and sisters, Perfecto Cruz, Benita Cruz-Meñez, Isagani Cruz, Alberto Cruz
and Luz Cruz-Salonga, all of whom heirs in the will of the deceased Basilia, and all of whom claim kinship with the
decedent by virtue of legal adoption. At the heart of the controversy is Basilia's last will — immaculate in its
extrinsic validity since it bears the imprimatur of duly conducted probate proceedings.
The complaint in intervention filed in the lower court assails the legality of the tie which the respondent Perfecto
Cruz and his brothers and sisters claim to have with the decedent. The lower court had, however, assumed, by its
orders in question, that the validity or invalidity of the adoption is not material nor decisive on the efficacy of the
institution of heirs; for, even if the adoption in question were spurious, the respondents Perfecto Cruz, et al., will
nevertheless succeed not as compulsory heirs but as testamentary heirs instituted in Basilia's will. This ruling
apparently finds support in article, 842 of the Civil Code which reads:
One who has no compulsory heirs may dispose of by will all his estate or any part of it in favor of any
person having capacity to succeed.
One who has compulsory heirs may dispose of his estate provided he does not contravene the
provisions of this Code with regard to the legitime of said heirs.
The lower court must have assumed that since the petitioners nephews and niece are not compulsory heirs, they do
not possess that interest which can be prejudiced by a free-wheeling testamentary disposition. The petitioners'
interest is confined to properties, if any, that have not been disposed of in the will, for to that extent intestate
succession can take place and the question of the veracity of the adoption acquires relevance.
The petitioners nephews and niece, upon the other hand, insist that the entire estate should descend to them by
intestacy by reason of the intrinsic nullity of the institution of heirs embodied in the decedent's will. They have thus
raised squarely the issue of whether or not such institution of heirs would retain efficacy in the event there exists
proof that the adoption of the same heirs by the decedent is false.
The petitioners cite, as the controlling rule, article 850 of the Civil Code which reads:
The statement of a false cause for the institution of an heir shall be considered as not written, unless
it appears from the will that the testator would not have made such institution if he had known the
falsity of such cause.
Coming closer to the center of the controversy, the petitioners have called the attention of the lower court and this
Court to the following pertinent portions of the will of the deceased which recite:
III
Ang aking mga sapilitang tagapagmana (herederos forzosos) ay ang aking itinuturing na mga anak
na tunay (Hijos legalmente adoptados) na sina Perfecto, Alberto, Luz, Benita at Isagani, na pawang
may apelyidong Cruz.
xxx xxx xxx
Kung ako ay bawian ng Dios ng buhay, ay aking ipinamamana ang aking mga ari-ariang maiiwan, sa
kaparaanang sumusunod:
A.—Aking ipinamamana sa aking nabanggit na limang anak na sina Perfecto, Alberto, Luz, Benita at
Isagani, na pawang may apelyidong Cruz, na parepareho ang kaparti ng bawa't isa at walang
lamangan (en partes iguales), bilang kanilang sapilitang mana (legiti[ma]), ang kalahati (½) ng aking
kaparti sa lahat ng aming ari-ariang gananciales ng aking yumaong asawang Pedro Cruz na
napapaloob sa Actuacion Especial No. 640 ng Hukumang Unang Dulugan ng Rizal at itinutukoy sa
No. 1 ng parafo IV ng testamentong ito, ang kalahati (½) ng mga lagay na lupa at palaisdaan na
nasa Obando at Polo, Bulacan, na namana ko sa aking yumaong ama na si Calixto Austria, at ang
kalahati (½) ng ilang lagay na lupa na nasa Tinejeros, Malabon, Rizal, na aking namana sa yumao
kong kapatid na si Fausto Austria.
The tenor of the language used, the petitioners argue, gives rise to the inference that the late Basilia was deceived
into believing that she was legally bound to bequeath one-half of her entire estate to the respondents Perfecto
Cruz, et al. as the latter's legitime. The petitioners further contend that had the deceased known the adoption to be
spurious, she would not have instituted the respondents at all — the basis of the institution being solely her belief
that they were compulsory heirs. Proof therefore of the falsity of the adoption would cause a nullity of the
institution of heirs and the opening of the estate wide to intestacy. Did the lower court then abuse its discretion or
act in violation of the rights of the parties in barring the petitioners nephews and niece from registering their claim
even to properties adjudicated by the decedent in her will?
Before the institution of heirs may be annulled under article 850 of the Civil Code, the following requisites must
concur: First, the cause for the institution of heirs must be stated in the will; second, the cause must be shown to be
false; and third, it must appear from the face of the will that the testator would not have made such institution if he
had known the falsity of the cause.
The petitioners would have us imply, from the use of the terms, "sapilitang tagapagmana" (compulsory heirs) and
"sapilitang mana" (legitime), that the impelling reason or cause for the institution of the respondents was the
testatrix's belief that under the law she could not do otherwise. If this were indeed what prompted the testatrix in
instituting the respondents, she did not make it known in her will. Surely if she was aware that succession to the
legitime takes place by operation of law, independent of her own wishes, she would not have found it convenient
to name her supposed compulsory heirs to their legitimes. Her express adoption of the rules on legitimes should
very well indicate her complete agreement with that statutory scheme. But even this, like the petitioners' own
proposition, is highly speculative of what was in the mind of the testatrix when she executed her will. One fact
prevails, however, and it is that the decedent's will does not state in a specific or unequivocal manner the cause for
such institution of heirs. We cannot annul the same on the basis of guesswork or uncertain implications.
And even if we should accept the petitioners' theory that the decedent instituted the respondents Perfecto Cruz, et
al. solely because she believed that the law commanded her to do so, on the false assumption that her adoption of
these respondents was valid, still such institution must stand.
Article 850 of the Civil Code, quoted above, is a positive injunction to ignore whatever false cause the testator may
have written in his will for the institution of heirs. Such institution may be annulled only when one is satisfied, after
an examination of the will, that the testator clearly would not have made the institution if he had known the cause
for it to be false. Now, would the late Basilia have caused the revocation of the institution of heirs if she had known
that she was mistaken in treating these heirs as her legally adopted children? Or would she have instituted them
nonetheless?
The decedent's will, which alone should provide the answer, is mute on this point or at best is vague and uncertain.
The phrases, "mga sapilitang tagapagmana" and "sapilitang mana," were borrowed from the language of the law on
succession and were used, respectively, to describe the class of heirs instituted and the abstract object of the
inheritance. They offer no absolute indication that the decedent would have willed her estate other than the way
she did if she had known that she was not bound by law to make allowance for legitimes. Her disposition of the
free portion of her estate (libre disposicion) which largely favored the respondent Perfecto Cruz, the latter's children,
and the children of the respondent Benita Cruz, shows a perceptible inclination on her part to give to the
respondents more than what she thought the law enjoined her to give to them. Compare this with the relatively
small devise of land which the decedent had left for her blood relatives, including the petitioners Consuelo Austria-
Benta and Lauro Mozo and the children of the petitioner Ruben Austria. Were we to exclude the respondents
Perfecto Cruz, et al. from the inheritance, then the petitioners and the other nephews and nieces would succeed to
the bulk of the testate by intestacy — a result which would subvert the clear wishes of the decedent.
Whatever doubts one entertains in his mind should be swept away by these explicit injunctions in the Civil Code:
"The words of a will are to receive an interpretation which will give to every expression some effect, rather than one
which will render any of the expressions inoperative; and of two modes of interpreting a will, that is to be preferred
which will prevent intestacy." 1
Testacy is favored and doubts are resolved on its side, especially where the will evinces an intention on the part of
the testator to dispose of practically his whole estate,2 as was done in this case. Moreover, so compelling is the
principle that intestacy should be avoided and the wishes of the testator allowed to prevail, that we could even vary
the language of the will for the purpose of giving it effect.3 A probate court has found, by final judgment, that the
late Basilia Austria Vda. de Cruz was possessed of testamentary capacity and her last will executed free from
falsification, fraud, trickery or undue influence. In this situation, it becomes our duty to give full expression to her
will.4
At all events, the legality of the adoption of the respondents by the testatrix can be assailed only in a separate
action brought for that purpose, and cannot be the subject of a collateral attack.5
To the petitioners' charge that the lower court had no power to reverse its order of December 22, 1959, suffice it to
state that, as borne by the records, the subsequent orders complained of served merely to clarify the first — an act
which the court could legally do. Every court has the inherent power to amend and control its processes and orders
so as to make them conformable to law and justices.6 That the court a quo has limited the extent of the petitioners'
intervention is also within its powers as articulated by the Rules of Court.7
ACCORDINGLY, the present petition is denied, at petitioners cost.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Fernando, Teehankee, Barredo and Villamor, JJ., concur.

Footnotes
1 Article 791.
2 53 Cal. Jur. 2d 678.
3 Rodriguez v. Court of Appeals, L-28734, March 24, 1969, 27 SCRA 546, 552; Solla v. Ascueta, 49
Phil. 333, 347-348.
4 Ibid, citing Barrera v. Tampoco, 94 Phil. 346, 353.
5 See Gomez v. Concepcion, 47 Phil. 717; Ramos v. Mañalac, 89 Phil. 270; Santos v. Aranzaso, L-
23828, Feb. 28, 1966 16 SCRA 352.
6 Sec. 5, par. (g), Rules of Court.
7 Sec. 2, par. (b), Ibid; Seva, et al. v. Rivera, etc., 73 Phil. 477, 479-480, cited in Moran, Comments on
the Rules of Court, 1963 edition, Vol. I, pp. 354-355.
G.R. No. L-17818 January 25, 1967
TIRSO T. REYES, as guardian of the minors Azucena Flordelis and Tirso, Jr., all surnamed Reyes y
Barretto, plaintiffs-appellants,
vs.
LUCIA MILAGROS BARRETTO-DATU, defendant-appellee.
Recto Law Office for plaintiff-appealant.
Deogracias T. Reyes and Associates for defendant-appellee.
REYES, J.B.L., J.:
Direct appeal from a judgment of the Court of First Instance of Bulacan, in its Civil Case No. 1084, dismissing the
complaint of appellant Tirso T. Reyes and ordering the same to deliver to the defendant-appellee, Lucia Milagros
Barretto-Datu, the properties receivea by his deceasea wife under the terms of the will of the late Bibiano Barretto,
consisting of lots in Manila, Rizal, Pampanga and Bulacan, valued at more than P200,000.
The decision appealed from sets the antecedents of the case to be as follows:
"This is an action to recover one-half share in the fishpond, located in the barrio of San Roque, Hagonoy,
Bulacan, covered by Transfer Certificate of Title No. T-13734 of the Land Records of this Province, being the
share of plaintiff's wards as minor heirs of the deceased Salud Barretto, widow of plaintiff Tirso Reyes,
guardian of said minors."
It appears that Bibiano Barretto was married to Maria Gerardo. During their lifetime they acquired a vast estate,
consisting of real properties in Manila, Pampanga, and Bulacan, covered by Transfer Certificates of Title Nos. 41423,
22443, 8858, 32989, 31046, 27285, 6277, 6500, 2057, 6501, 2991, 57403 and 12507/T-337.
When Bibiano Barretto died on February 18, 1936, in the City of Manila, he left his share of these properties in a will
Salud Barretto, mother of plaintiff's wards, and Lucia Milagros Barretto and a small portion as legacies to his two
sisters Rosa Barretto and Felisa Barretto and his nephew anä nieces® The usufruct oæ the fishponä situateä iî barrio
Saî Roque¬ Hagonoy, Bulacan, above-mentioned, however, was reserved for his widow, Maria Gerardo® Iî the
meantime¬ Maria Gerardo was appointeä administratrix. By virtue thereof, she prepared a project of partition,
which was signed by her in her own behalf and as guardian of the minor Milagros Barretto. Said project of partition
was approved by the Court of First Instance of Manila on November 22, 1939. The distribution of the estate and the
delivery of the shares of the heirs followed forthwith. As a consequence, Salud Barretto took immediate possession
of her share and secured the cancellation of the original certificates of title and the issuance of new titles in her own
name.
Everything went well since then. Nobody was heard to complain of any irregularity in the distribution of the said
estate until the widow, Maria Gerardo died on March 5, 1948. Upon her death, it was discovered that she had
executed two wills, in the first of which, she instituted Salud and Milagros, both surnamed Barretto, as her heirs;
and, in the second, she revoked the same and left all her properties in favor of Milagros Barretto alone. Thus, the
later will was allowed and the first rejected. In rejecting the first will presented by Tirso Reyes, as guardian of the
children of Salud Barretto, the lower court held that Salud was not the daughter of the decedent Maria Gerardo by
her husband Bibiano Barretto. This ruling was appealed to the Supreme Court, which affirmed the same.1
Having thus lost this fight for a share in the estate of Maria Gerardo, as a legitimate heir of Maria Gerardo, plaintiff
now falls back upon the remnant of the estate of the deceased Bibiano Barretto, which was given in usufruct to his
widow Maria Gerardo. Hence, this action for the recovery of one-half portion, thereof.
This action afforded the defendant an opportunity to set up her right of ownership, not only of the fishpond under
litigation, but of all the other properties willed and delivered to Salud Barretto, for being a spurious heir, and not
entitled to any share in the estate of Bibiano Barretto, thereby directly attacking the validity, not only of the project
of partition, but of the decision of the court based thereon as well.
The defendant contends that the Project of Partition from which Salud acquired the fishpond in question is void ab
initio and Salud Barretto did not acquire any valid title thereto, and that the court did not acquire any jurisdiction of
the person of the defendant, who was then a minor.'
Finding for the defendant (now appellee), Milagros Barretto, the lower court declared the project of partition
submitted in the proceedings for the settlement of the estate of Bibiano Barretto (Civil Case No. 49629 of the Court
of First Instance of Manila) to be null and void ab initio (not merely voidable) because the distributee, Salud
Barretto, predecessor of plaintiffs (now appellants), was not a daughter of the spouses Bibiano Barretto and Maria
Gerardo. The nullity of the project of partition was decreed on the basis of Article 1081 of the Civil Code of 1889
(then in force) providing as follows: .
A partition in which a person was believed to be an heir, without being so, has been included, shall be null
and void.
The court a quo further rejected the contention advanced by plaintiffs that since Bibiano Barretto was free to
dispose of one-third (1/3) of his estate under the old Civil Code, his will was valid in favor of Salud Barretto (nee Lim
Boco) to the extent, at least, of such free part. And it concluded that, as defendant Milagros was the only true heir
of Bibiano Barretto, she was entitled to recover from Salud, and from the latter's children and successors, all the
Properties received by her from Bibiano's estate, in view of the provisions of Article 1456 of the new Civil Code of
the Philippines establishing that property acquired by fraud or mistake is held by its acquirer in implied trust for the
real owner. Hence, as stated at the beginning of this opinion, the Court a quo not only dismissed the plaintiffs'
complaint but ordered them to return the properties received under the project of partition previously mentioned
as prayed for in defendant Milagros Barretto's counterclaim. However, it denied defendant's prayer for damages.
Hence, this appeal interposed by both plaintiffs and defendant.
Plaintiffs-appellants correctly point out that Article 1081 of the old Civil Code has been misapplied to the present
case by the court below. The reason is obvious: Salud Barretto admittedly had been instituted heir in the late
Bibiano Barretto's last will and testament together with defendant Milagros; hence, the partition had between them
could not be one such had with a party who was believed to be an heir without really being one, and was not null
and void under said article. The legal precept (Article 1081) does not speak of children, or descendants, but
of heirs (without distinction between forced, voluntary or intestate ones), and the fact that Salud happened not to
be a daughter of the testator does not preclude her being one of the heirs expressly named in his testament; for
Bibiano Barretto was at liberty to assign the free portion of his estate to whomsoever he chose. While the share (½)
assigned to Salud impinged on the legitime of Milagros, Salud did not for that reason cease to be a testamentary
heir of Bibiano Barretto.
Nor does the fact that Milagros was allotted in her father's will a share smaller than her legitime invalidate the
institution of Salud as heir, since there was here no preterition, or total ommission of a forced heir. For this
reason, Neri vs. Akutin, 72 Phil. 322, invoked by appellee, is not at all applicable, that case involving an instance of
preterition or omission of children of the testator's former marriage.
Appellee contends that the partition in question was void as a compromise on the civil status of Salud in violation
of Article 1814 of the old Civil Code. This view is erroneous, since a compromise presupposes the settlement of a
controversy through mutual concessions of the parties (Civil Code of 1889, Article 1809; Civil Code of the
Philippines, Art. 2028); and the condition of Salud as daughter of the testator Bibiano Barretto, while untrue, was at
no time disputed during the settlement of the estate of the testator. There can be no compromise over issues not in
dispute. And while a compromise over civil status is prohibited, the law nowhere forbids a settlement by the parties
over the share that should correspond to a claimant to the estate.
At any rate, independently of a project of partition which, as its own name implies, is merely a proposal for
distribution of the estate, that the court may accept or reject, it is the court alone that makes the distribution of the
estate and determines the persons entitled thereto and the parts to which each is entitled (Camia vs. Reyes, 63 Phil.
629, 643; Act 190, Section 750; Rule 90, Rules of 1940; Rule 91, Revised Rules of Court), and it is that judicial decree
of distribution, once final, that vests title in the distributees. If the decree was erroneous or not in conformity with
law or the testament, the same should have been corrected by opportune appeal; but once it had become final, its
binding effect is like that of any other judgment in rem, unless properly set aside for lack of jurisdiction or fraud.
It is thus apparent that where a court has validly issued a decree of distribution of the estate, and the same has
become final, the validity or invalidity of the project of partition becomes irrelevant.
It is, however, argued for the appellee that since the court's distribution of the estate of the late Bibiano Barretto
was predicated on the project of partition executed by Salud Barretto and the widow, Maria Gerardo (who signed
for herself and as guardian of the minor Milagros Barretto), and since no evidence was taken of the filiation of the
heirs, nor were any findings of fact or law made, the decree of distribution can have no greater validity than that of
the basic partition, and must stand or fall with it, being in the nature of a judgment by consent, based on a
compromise. Saminiada vs. Mata, 92 Phil. 426, is invoked in support of the proposition. That case is authority for the
proposition that a judgment by compromise may be set aside on the ground of mistake or fraud, upon petition
filed in due time, where petition for "relief was filed before the compromise agreement a proceeding, was
consummated" (cas. cit. at p. 436). In the case before us, however, the agreement of partition was not only ratified
by the court's decree of distribution, but actually consummated, so much so that the titles in the name of the
deceased were cancelled, and new certificates issued in favor of the heirs, long before the decree was attacked.
Hence, Saminiada vs. Mata does not apply.
Moreover, the defendant-appellee's argument would be plausible if it were shown that the sole basis for the decree
of distribution was the project of partition. But, in fact, even without it, the distribution could stand, since it was in
conformity with the probated will of Bibiano Barretto, against the provisions whereof no objection had been made.
In fact it was the court's duty to do so. Act 190, section 640, in force in 1939, provided: .
SEC. 640. Estate, How Administered. — When a will is thus allowed, the court shall grant letters testamentary,
or letters of administration with the will annexed, and such letters testamentary or of administration, shall
extend to all the estate of the testator in the Philippine Islands. Such estate, after the payment of just debts
and expenses of administration, shall be disposed of according to such will, so far as such will may operate
upon it; and the residue, if any, shall be disposed of as is provided by law in cases of estates in these Islands
belonging to persons who are inhabitants of another state or country. (Emphasis supplied)
That defendant Milagros Barretto was a minor at the time the probate court distributed the estate of her father in
1939 does not imply that the said court was without jurisdiction to enter the decree of distribution. Passing upon a
like issue, this Court ruled in Ramos vs. Ortuzar, 89 Phil. Reports, pp. 741 and 742:
If we are to assume that Richard Hill and Marvin Hill did not formally intervene, still they would be
concluded by the result of the proceedings, not only as to their civil status but as the distribution of the
 estate as well. As this Court has held in Manolo vs. Paredes, 47 Phil. 938, "The proceeding for probate is
one in rem (40 Cyc., 1265) and the court acquires jurisdiction over all persons interested, through the
publication of the notice prescribed by section 630 C.P.C.; and any order that any be entered therein is
binding against all of them." (See also in re Estate of Johnson, 39 Phil. 156.) "A final order of distribution of
the estate of a deceased person vests the title to the land of the estate in the distributees". (Santos vs.
Roman Catholic Bishop of Nueva Caceres, 45 Phil. 895.) There is no reason why, by analogy, these salutary
doctrines should not apply to intestate proceedings.
The only instance that we can think of in which 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. Even then, the better practice to secure relief is reopening of
the same case by proper motion within the reglementary period, instead of an independent action the effect
of which, if successful, would be, as in the instant case, for another court or judge to throw out a decision or
order already final and executed and reshuffle properties long ago distributed and disposed of.
It is well to observe, at this juncture, as this Court expressly declared in Reyes vs. Barretto Datu, 94 Phil. 446 (Am'd
Rec. Appeal, pp. 156, 157), that:
... It is argued that Lucia Milagros Barretto was a minor when she signed the partition, and that Maria
Gerardo was not her judicially appointed guardian. The claim is not true. Maria Gerardo signed as guardian
of the minor. (Secs. 3 and 5, Rule 97, Rules of Court.) The mere statement in the project of partion that the
guardianship proceedings of the minor Lucia Milagros Barretto are pending in the court, does not mean
that the guardian had not yet been appointed; it meant that the guardianship proceedings had not yet been
terminated, and as a guardianship proceedings begin with the appointment of a guardian, Maria Gerardo
must have been already appointed when she signed the project of partition. There is, therefore, no
irregularity or defect or error in the project of partition, apparent on the record of the testate proceedings,
which shows that Maria Gerardo had no power or authority to sign the project of partition as guardian of
the minor Lucia Milagros Barretto, and, consequently, no ground for the contention that the order
approving the project of partition is absolutely null and void and may be attacked collaterally in these
proceedings.
So that it is now incontestable that appellee Milagros Barretto was not only made a party by publication but
actually appeared and participated in the proceedings through her guardian: she, therefore, can not escape the
jurisdiction of the Manila Court of First Instance which settled her father's estate.
Defendant-appellee further pleads that as her mother and guardian (Maria Gerardo) could not have ignored that
the distributee Salud was not her child, the act of said widow in agreeing to the oft-cited partition and distribution
was a fraud on appellees rights and entitles her to relief. In the first place, there is no evidence that when the estate
of Bibiano Barretto was judicially settled and distributed appellants' predecessor, Salud Lim Boco Barretto to, knew
that she was not Bibiano's child: so that if fraud was committed, it was the widow, Maria Gerardo, who was solely
responsible, and neither Salud nor her minor children, appellants herein, can be held liable therefor. In the second
placegranting that there was such fraud, relief therefrom can only be obtained within 4 years from its discovery, and
the record shows that this period had elapsed long ago.
Because at the time of the distribution Milagros Barretto was only 16 years old (Exhibit 24), she became of age five
years later, in 1944. On that year, her cause of action accrued to contest on the ground of fraud the court decree
distributing her father's estate and the four-year period of limitation started to run, to expire in 1948 (Section 43,
Act. 190). In fact, conceding that Milagros only became aware of the true facts in 1946 (Appellee's Brief, p. 27), her
action still became extinct in 1950. Clearly, therefore, the action was already barred when in August 31, 1956 she
filed her counterclaim in this case contesting the decree of distribution of Bibiano Barretto's estate.
In order to evade the statute of limitations, Milagros Barretto introduced evidence that appellant Tirso Reyes had
induced her to delay filing action by verbally promising to reconvey the properties received by his deceased wife,
Salud. There is no reliable evidence of the alleged promise, which rests exclusively on the oral assertions of Milagros
herself and her counsel. In fact, the trial court made no mention of such promise in the decision under appeal. Even
more: granting arguendo that the promise was made, the same can not bind the wards, the minor children of Salud,
who are the real parties in interest. An abdicative waiver of rights by a guardian, being an act of disposition, and not
of administration, can not bind his wards, being null and void as to them unless duly authorized by the proper court
(Ledesma Hermanos vs. Castro, 55 Phil. 136, 142).
In resume, we hold (1) that the partition had between Salud and Milagros Barretto in the proceedings for the
settlement of the estate of Bibiano Barretto duly approved by the Court of First Instance of Manila in 1939, in its
Civil Case No. 49629, is not void for being contrary to either Article 1081 or 1814 of the, Civil Code of 1889; (2) that
Milagros Barretto's action to contest said partition and decree of distribution is barred by the statute of limitations;
and (3) that her claim that plaintiff-appellant guardian is a possessor in bad faith and should account for the fruits
received from the properties inherited by Salud Barretto (nee Lim Boco) is legally untenable. It follows that the
plaintiffs' action for partition of the fishpond described in the complaint should have been given due course.
Wherefore, the decision of the Court of First Instance of Bulacan now under appeal is reversed and set aside in so
far as it orders plaintiff-appellant to reconvey to appellee Milagros Barretto Datu the properties enumeracted in
said decision, and the same is affirmed in so far as it denies any right of said appellee to accounting. Let the records
be returned to the court of origin, with instructions to proceed with the action for partition of the fishpond (Lot No.
4, Plan Psu-4709), covered by TCT No. T-13734 of the Office of the Register of Deeds of Bulacan, and for the
accounting of the fruits thereof, as prayed for in the complaint No costs.
Concepcion, C.J., Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar, Sanchez and Castro, JJ., concur.
Footnotes
1
Reyes vs. Barretto, G.R. No. L-5831, Jan. 31, 1956.
G.R. No. L-24365 June 30, 1966
IN THE MATTER OF THE INTESTATE ESTATE OF EDWARD E. CHRISTENSEN, deceased.
ADOLFO C. AZNAR, executor and appellee,
vs.
MARIA LUCY CHRISTENSEN DUNCAN, oppositor and appellant.
MARIA HELEN CHRISTENSEN, oppositor and appellee.
J. Salonga and L. M. Abellera for oppositor and appellee.
Carlos Dominguez, Jr. for executor-appellee.
M. R. Sotelo for appellant.
MAKALINTAL, J.:
Edward E. Christensen, a citizen of California with domicile in the Philippines, died leaving a will executed on March
5, 1951. The will was admitted to probate by the Court of First Instance of Davao in its decision of February 28,
1954. In that same decision the court declared that Maria Helen Christensen Garcia (hereinafter referred to as Helen
Garcia) was a natural child of the deceased. The declaration was appealed to this Court, and was affirmed in its
decision of February 14, 1958 (G.R. No. L-11484).
In another incident relative to the partition of the deceased's estate, the trial court approved the project submitted
by the executor in accordance with the provisions of the will, which said court found to be valid under the law of
California. Helen Garcia appealed from the order of approval, and this Court, on January 31, 1963, reversed the
same on the ground that the validity of the provisions of the will should be governed by Philippine law, and
returned the case to the lower court with instructions that the partition be made as provided by said law (G.R. No.
L-16749).
On October 29, 1964, the Court of First Instance of Davao issued an order approving the project of partition
submitted by the executor, dated June 30, 1964, wherein the properties of the estate were divided equally between
Maria Lucy Christensen Duncan (named in the will as Maria Lucy Christensen Daney, and hereinafter referred to as
merely Lucy Duncan), whom the testator had expressly recognized in his will as his daughter (natural) and Helen
Garcia, who had been judicially declared as such after his death. The said order was based on the proposition that
since Helen Garcia had been preterited in the will the institution of Lucy Duncan as heir was annulled, and hence
the properties passed to both of them as if the deceased had died intestate, saving only the legacies left in favor of
certain other persons, which legacies have been duly approved by the lower court and distributed to the legatees.
The case is once more before us on appeal, this time by Lucy Duncan, on the sole question of whether the estate,
after deducting the legacies, should pertain to her and to Helen Garcia in equal shares, or whether the inheritance
of Lucy Duncan as instituted heir should be merely reduced to the extent necessary to cover the legitime of Helen
Garcia, equivalent to 1/4 of the entire estate.
The will of Edward E. Christensen contains, among others, the following clauses which are pertinent to the issue in
this case:
3. I declare ... that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN (Now Mrs. Bernard Daney),
who was born in the Philippines about twenty-eight years ago, who is now residing at No. 665 Rodger
Young Village, Los Angeles, California, U.S.A.
4. I further declare that I now have no living ascendants, and no descendants except my above-named
daughter, MARIA LUCY CHRISTENSEN DANEY.
xxx xxx xxx
7. I give, devise, and bequeath unto MARIA HELEN CHRISTENSEN, now married to Eduardo Garcia, about
eighteen years of age and who, notwithstanding the fact that she was baptized Christensen, is not in any
way related to me, nor has she been at any time adopted by me, and who, from all information I have now
resides in Egpit, Digos, Davao, Philippines, the sum of THREE THOUSAND SIX HUNDRED PESOS (P3,600.00),
Philippine Currency, the same to be deposited in trust for the said Maria Helen Christensen with the Davao
Branch of the Philippine National Bank, and paid to her at the rate of One Hundred Pesos (P100.00),
Philippine Currency per month until the principal thereof as well as any interest which may have accrued
thereon, is exhausted.
xxx xxx xxx
12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said MARIA LUCY
CHRISTENSEN DANEY (Mrs. Bernard Daney) now residing, as aforesaid, at No. 665 Rodger Young Village,
Los Angeles, California, U.S.A., all the income from the rest, remainder, and residue of my property and
estate, real, personal and/or mixed, of whatsoever kind or character, and wheresoever situated, of which I
may be possessed at my death and which may have come to me from any source whatsoever, during her
lifetime; Provided, however, that should the said MARIA LUCY CHRISTENSEN DANEY at anytime prior to her
decease having living issue, then and in that event, the life interest herein given shall terminate, and if so
terminated, then I give, devise, and bequeath to my daughter, the said MARIA LUCY CHRISTENSEN DANEY
the rest, remainder and residue of my property with the same force and effect as if I had originally so given,
devised and bequeathed it to her; and provided, further, that should the said MARIA LUCY CHRISTENSEN
DANEY die without living issue, then, and in that event, I give, devise and bequeath all the rest, remainder
 and residue of my property one-half (1/2) to my well-beloved sister, Mrs. CARRIE LOUISE C. BORTON, now
residing at No. 2124, Twentieth Street, Bakersfield, California, U.S.A., and one-half (1/2) to the children of my
deceased brother, JOSEPH C. CHRISTENSEN, namely: Mrs. Carol F. Ruggaver, of Los Angeles, California,
U.S.A., and Joseph Raymond Christensen, of Manhattan Beach, California, U.S.A., share and share alike, the
share of any of the three above named who may predecease me, to go in equal parts to the descendants of
the deceased; and, provided further, that should my sister Mrs. Carol Louise C. Borton die before my own
decease, then, and in that event, the share of my estate devised to her herein I give, devise and bequeath to
her children, Elizabeth Borton de Treviño, of Mexico City Mexico; Barbara Borton Philips, of Bakersfield,
California, U.S.A., and Richard Borton, of Bakersfield, California, U.S.A., or to the heirs of any of them who
may die before my own decease, share and share alike.
The trial court ruled, and appellee now maintains, that there has been preterition of Helen Garcia, a compulsory heir
in the direct line, resulting in the annulment of the institution of heir pursuant to Article 854 of the Civil Code, which
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.
On the other hand, appellant contends that this is not a case of preterition, but is governed by Article 906 of the
Civil Code, which says: "Any compulsory heir to whom the testator has left by any title less than the legitime
belonging to him may demand that the same be fully satisfied." Appellant also suggests that considering the
provisions of the will whereby the testator expressly denied his relationship with Helen Garcia, but left to her a
legacy nevertheless although less than the amount of her legitime, she was in effect defectively disinherited within
the meaning of Article 918, which reads:
ART. 918. Disinheritance without a specification of the cause, or for a cause the truth of which, if
contradicted, is not proved, or which is not one of those set forth in this Code, shall annul the institution of
heirs insofar as it may prejudice the person disinherited; but the devices and legacies and other
testamentary dispositions shall be valid to such extent as will not impair the legitimate.
Thus, according to appellant, under both Article 906 and 918, Helen Garcia is entitled only to her legitime, and not
to a share of the estate equal that of Lucy Duncan as if the succession were intestate.
Article 854 is a reproduction of Article 814 of the Spanish Civil Code; and Article 906 of Article 815. Commenting on
Article 815, Manresa explains:
Como dice Goyena, en el caso de pretericion puede presumirse ignorancia o falta de memoria en el
testador; en el de dejar algo al heredero forzoso no. Este no se encuentra plivado totalmente de su legitima:
ha recibido por cualquir titulo una porcion de los bienes hereditarios, porcion que no alcanza a completar la
legitima, pero que influeye poderosamente en el animo del legislador para decidirle a adoptar una solucion
bien diferente de la señalada para el caso de pretericion.
El testador no ha olvidado por completo al heredero forzoso; le ha dejado bienes; pero haciendo un calculo
equivocado, ha repartido en favor de extraños o en favor de otros legitimarios por via de legado donacion o
mejora mayor cantidad de la que la ley de consentia disponer. El heredero forzoso no puede perder su
legitima, pero tampoco puede pedir mas que la misma. De aqui su derecho a reclamar solamente lo que le
falta; al complemento de la porcion que forzosamente la corresponde.
... Dejar el testador por cualquier titulo, equivale a disponer en testamento por titulo de herencia legado o
mejora, y en favor de legitimarios, de alguna cantidad o porcion de bienes menos que la legitima o igual a
la misma. Tal sentido, que es el mas proprio en al articulo 815, no pugna tampoco con la doctrina de la
ley. Cuando en el testamento se deja algo al heredero forzoso, la pretericion es incompleta: es mas formularia
que real. Cuando en el testamento nada se deja el legitimario, hay verdadera pretericion. (6 Manresa, 7th Ed.,
1951, p. 437.)
On the difference between preterition of a compulsory heir and the right to ask for completion of his legitime,
Sanchez Roman says:
La desheredacion, como expresa, es siempre voluntaria; la pretericion puede serlo pero se presume
involuntaria la omision en que consiste en cuanto olvida o no atiende el testador en su testamento a la
satisfaccion del derecho a la legitima del heredero forzoso preterido, prescindiendo absoluta y totalmente
de el y no mencionandole en ninguna de sus disposiciones testamentarias, o no instituyendole en parte alguna
de la herencia, ni por titulo de heredero ni por el de legatar o aunque le mencionara o nombrara sin dejarle
mas o menos bienes. Si le dejara algunos, por pocos que sean e insuficientes para cubrir su legitima, ya no
seria caso de pretericion, sino de complemento de aquella. El primer supuesto o de pretericion se regula por
el articulo 814, y produce accion de nulidad de la institucion de heredero; y el segundo, o de complemento
de legitima por el 815 y solo original la accion ad suplementum, para completar la legitima. (Sanchez
Roman, Tomo VI, Vol. 2, p. 1131.)
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. Manresa continues:
 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.1äwphï1.ñët
xxx xxx xxx
B. Que la omision sea completa — Esta condicion se deduce del mismo Articulo 814 y resulta con evidencia
al relacionar este articulo con el 815. El heredero forzoso a quien el testador deja algo por cualquier titulo
en su testamento, no se halla propiamente omitido pues se le nombra y se le reconoce participacion en los
bienes hereditarios. Podria discutirse en el Articulo 814 si era o no necesario que se reconociese el derecho
del heredero como tal heredero, pero el articulo 815 desvanece esta duda. Aquel se ocupa de privacion
completa o total, tacita este, de la privacion parcial. Los efectos deben ser y son, como veremos
completamente distintos (6 Manresa, p. 428.)
La privacion de la legitima puede ser total o parcial.
Privar totalmente de la legitima es negarla en absoluto al legitimario, despojarle de ella por completo. A
este caso se refiere el articulo 814. Privar parcialmente de la legitima, es menguarla o reducirla dejar al
legitimario una porcion, menor que la que le corresponde. A este caso se refiere el articulo 815. El 813
sienta, pues, una regla general, y las consecuencias del que brantamiento de esta regla se determina en los
articulos 814 y 815. (6 Manresa p. 418.)
Again Sanchez Roman:
QUE LA OMISSION SEA TOTAL. — Aunque el articulo 814 no consigna de modo expreso esta circunstancia
de que la pretericion o falta de mencion e institucion o disposicion testamentaria a su favor, sea total,
completa y absoluta, asi se deduce de no hacer distincion o salvedad alguna empleandola en terminos
generales; pero sirve a confirmarlo de un modo indudable el siguiente articulo 815, al decir que el heredero
forzoso a quien el testador haya dejado por cualquier titulo, menos de la legitima que la corresponda,
podria pedir el complemento de la misma, lo cual ya no son el caso ni los efectos de la pretericion, que anula
la institucion, sino simplemente los del suplemento necesario para cubrir su legitima. (Sanchez Roman —
Tomo VI, Vol. 2.0 p. 1133.)
The question may be posed: In order that the right of a forced heir may be limited only to the completion of his
legitime (instead of the annulment of the institution of heirs) is it necessary that what has been left to him in the
will "by any title," as by legacy, be granted to him in his capacity as heir, that is, a titulo de heredero? In other words,
should he be recognized or referred to in the will as heir? This question is pertinent because in the will of the
deceased Edward E. Christensen Helen Garcia is not mentioned as an heir — indeed her status as such is denied —
but is given a legacy of P3,600.00.
While the classical view, pursuant to the Roman law, gave an affirmative answer to the question, according to both
Manresa (6 Manresa 7th 3rd. 436) and Sanchez Roman (Tomo VI, Vol. 2.0 — p. 937), that view was changed by
Article 645 of the "Proyecto de Codigo de 1851," later on copied in Article 906 of our own Code. Sanchez Roman, in
the citation given above, comments as follows:
RESPECTO DEL COMPLEMENTO DE LA LEGITIMA. — Se inspira el Codigo en esta materia en la doctrina
clasica del Derecho romano y patrio (2); pero con alguna racional modificacion. Concedian aquellos
precedentes legales al heredero forzoso, a quien no se le dejaba por titulo de tal el completo de su legitima,
la accion para invalidar la institucion hecha en el testamento y reclamar y obtener aquella mediante el
ejercicio de la querella de inoficioso, y aun cuando resultara favorecido como donotario, por otro titulo que
no fuera el de heredero, sino al honor de que se le privaba no dandole este caracter, y solo cuando era
instituido heredero en parte o cantidad inferior a lo que le correspondiera por legitima, era cuando bastaba el
ejercicio de la accion ad suplementum para completarla, sin necesidad de anular las otras instituciones de
heredero o demas disposiciones contenidas en el testamento.
El Articulo 851 se aparta de este criterio estricto y se ajusta a la unica necesidad que le inspira cual es la de
que se complete la legitima del heredero forzoso, a quien por cualquier titulo se haya dejado menos de lo
que le corresponda, y se le otorga tan solo el derecho de pedir el complemento de la misma sin necesidad
de que se anulen las disposiciones testamentarias, que se reduciran en lo que sean inoficiosas conforme al
articulo 817, cuya interpretacion y sentido tienen ya en su apoyo la sancion de la jurisprudencia (3); siendo
condicion precisa que lo que se hubiere dejado de menos de la legitima al heredero forzoso, lo haya sido en
el testamento, o sea por disposicion del testador, segun lo revela el texto del articulo, "el heredero forzoso a
quien el testador haya dejado, etc., esto es por titulo de legado o donacion mortis causa en el testamento y,
no fuera de al. (Sanchez Roman, Tomo VI, Vol. 2.0 — p. 937.)
Manresa cites particularly three decisions of the Supreme Court of Spain dated January 16, 1895, May 25, 1917, and
April 23, 1932, respectively. In each one of those cases the testator left to one who was a forced heir a legacy worth
less than the legitime, but without referring to the legatee as an heir or even as a relative, and willed the rest of the
estate to other persons. It was held that Article 815 applied, and the heir could not ask that the institution of heirs
be annulled entirely, but only that the legitime be completed. (6 Manresa, pp. 438, 441.)
The foregoing solution is indeed more in consonance with the expressed wishes of the testator in the present case
as may be gathered very clearly from the provisions of his will. He refused to acknowledge Helen Garcia as his
natural daughter, and limited her share to a legacy of P3,600.00. The fact that she was subsequently declared
judicially to possess such status is no reason to assume that had the judicial declaration come during his lifetime his
subjective attitude towards her would have undergone any change and that he would have willed his estate equally
to her and to Lucy Duncan, who alone was expressly recognized by him.
The decision of this Court in Neri, et al. v. Akutin, 74 Phil. 185, is cited by appellees in support of their theory of
preterition. That decision is not here applicable, because it referred to a will where "the testator left all his property
by universal title to the children by his second marriage, and (that) without expressly disinheriting the children by
his first marriage, he left nothing to them or, at least, some of them." In the case at bar the testator did not entirely
omit oppositor-appellee Helen Garcia, but left her a legacy of P3,600.00.
The estate of the deceased Christensen upon his death consisted of 399 shares of stocks in the Christensen
Plantation Company and a certain amount in cash. One-fourth (1/4) of said estate descended to Helen Garcia as her
legitime. Since she became the owner of her share as of the moment of the death of the decedent (Arts. 774, 777,
Civil Code), she is entitled to a corresponding portion of all the fruits or increments thereof subsequently accruing.
These include the stock dividends on the corporate holdings. The contention of Lucy Duncan that all such dividends
pertain to her according to the terms of the will cannot be sustained, for it would in effect impair the right of
ownership of Helen Garcia with respect to her legitime.
One point deserves to be here mentioned, although no reference to it has been made in the brief for oppositor-
appellant. It is the institution of substitute heirs to the estate bequeathed to Lucy Duncan in the event she should
die without living issue. This substitution results in effect from the fact that under paragraph 12 of the will she is
entitled only to the income from said estate, unless prior to her decease she should have living issue, in which event
she would inherit in full ownership; otherwise the property will go to the other relatives of the testator named in the
will. Without deciding this, point, since it is not one of the issues raised before us, we might call attention to the
limitations imposed by law upon this kind of substitution, particularly that which says that it can never burden the
legitime (Art. 864 Civil Code), which means that the legitime must descend to the heir concerned in fee simple.
Wherefore, the order of the trial court dated October 29, 1964, approving the project of partition as submitted by
the executor-appellee, is hereby set aside; and the case is remanded with instructions to partition the hereditary
estate anew as indicated in this decision, that is, by giving to oppositor-appellee Maria Helen Christensen Garcia no
more than the portion corresponding to her as legitime, equivalent to one-fourth (1/4) of the hereditary estate,
after deducting all debts and charges, which shall not include those imposed in the will of the decedent, in
accordance with Article 908 of the Civil Code. Costs against appellees in this instance.
Concepcion, C.J., J.B.L. Reyes, Barrera, Dizon, Regala, J.P. Bengzon, Zaldivar and Sanchez, JJ., concur.
RESOLUTION
July 30, 1967
MAKALINTAL, J.:
Oppositor-appellant has filed an ex-parte petition dated July 11, 1966, making reference to an alleged oversight
and asking for the corresponding correction, in the last paragraph before the dispositive part of our decision, which
reads as follows:
One point deserves to be here mentioned, although no reference to it has been made in the brief for oppositor-
appellant. It is the institution of substituted heirs to the estate bequeathed to Lucy Duncan in the event she should
die without living issue. This substitution results in effect from the fact that under paragraph 12 of the will she is
entitled only to the income from said estate, unless prior to her decease she should have living issue, in which event
she would inherit in full ownership; otherwise the property will go to the other relatives of the testator named in the
will. Without deciding this point, since it is not one of the issues raised before us, we might call attention to the
limitations imposed by law upon this kind of substitution, particularly that which says that it can never burden the
legitime (Art. 864, Civil Code), which means that the legitime must descend to the heir concerned in fee simple.
(Decision, June 30, 1966, pages 14-15; emphasis ours).
Oppositor-appellant points out that the matter of substitution of heirs was taken up and discussed in her brief
particularly in pages 28 and 32 thereof. This is indeed quite true, but the reference to and discussion of the rights of
the substitute heirs (called American heirs in the brief) appears to be merely for the purpose of refuting the theory
advanced by appellees and not for the purpose of having the rights of said heirs defined in so far as, under the
terms of the will, they may affect the legitime of oppositor-appellant. This point of course was not and could hardly
have been squarely raised as an issue inasmuch as the substitute heirs are not parties in this case. We have
nevertheless called attention "to the limitations imposed by law upon this kind of substitution," because in the brief
for oppositor-appellant, at page 45, she makes the conclusion "that the Last Will and Testament of Edward E.
Christensen are valid under Philippine Law and must be given full force and effect;" and to give them full force and
effect would precisely affect the legitime of oppositor-appellant.
Wherefore, the last paragraph before the dispositive part of our decision quoted above is amended by eliminating
the following phrase in the first sentence: "although no reference to it has been made in the brief for oppositor-
appellant."
Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur.
Regala and Castro, JJ., took no part.
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.
Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Chico-Nazario, JJ., concur.

Footnotes
1
Rollo, pp. 9-24. Decision penned by Justice B. Adefuin-De la Cruz and concurred in by Justices Fermin
Martin, Jr. and Presbitero Velasco, Jr.
2
Id. at 81-89. Decision penned by Judge Ismael Baldado.
3
Id. at 82. Maria Evelyn and Jose Catalino are the legitimated children of Don Julian and Milagros Donio
while Milagros Reyes and Pedro are their acknowledged natural children.[3]
4
Id. at 82.
5
Id. at 82-83.
6
Rollo, pp. 69-75.
7
Ibid.
8
Rollo, p. 83.
9
Records, pp. 77-79.
10
Rollo, p. 84.
11
RTC Records, p. 108.
12
Id. at 109 and 162; Rollo, p. 84.
13
Id. at 14.
14
Balansag died on 16 January 1997.
15
Records, p. 98; Exh. B.
16
Id. at 102; Exh. D.
17
Rollo, pp. 81-82.
18
Supra note 12.
19
Rollo, p. 89.
20
Id. at 85.
21
Id. at 87.
22
Id. at 87.
23
Id. at 87-88.
24
14. That, however, in the event Julian L. Teves or his heirs above-mentioned in the next preceding
paragraph would sell any of the properties adjudicated to the said Julian L. Teves in this agreement,
his two children of the first marriage, Emilio B. Teves and Josefa Teves Escaño, shall be given the first option
and preference to buy said properties at a price to be agreed upon by the parties only in case, when the
latter two shall refuse to buy may Julian L. Teves or his heirs already mentioned sell the same to other third
persons. (Emphasis added)
25
Id. at 88.
26
Ibid.
27
Id. at 89.
28
Id. at 24.
29
Id. at 19.
30
Id. at 22.
31
Id. at 23.
32
Id. at 24.
33
Id. at 33.
34
111 Phi. 503 (1961).
35
Perillo, et al v. Perillo, et al., (CA) 48 O.G. 4444, cited in Padilla, Civil Law, Vol. IV-A, 221 (1988).
36
Tolentino, Civil Code of the Philippines, Vol. IV, 522 (1991).
37
Ibid.
38
Civil Code of the Philippines, Vol. III, 556 (12th ed., 1989).
39
Ibid.
40
Art. 1056. If the testator should make a partition of his property by an act inter vivos, or by will, such
partition shall stand in so far as it does not prejudice the legitime of the forced heirs.
41
Dizon-Rivera v. Dizon, 144 Phil. 558 (1970); See also Zaragoza v. Court of Appeals, G.R. No. 106401,
September 29, 2000, 341 SCRA 309, 315-316. A contrary opinion, however, is advanced by Tolentino and
Reyes and Puno.
42
Albela and Aebuya v. Albela and Allones, (CA) G.R. No. 5583-R, June 20, 1951.
43
Johnson v. Breeding, 136 Tenn 528, 190 SW 545.
44
Aznar v. Duncan, 123 Phil. 1450 (1966).
45
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.
 ....
46
Tolentino, Civil Code of the Philippines, Vol. III, 187 (1992).
47
Reyes-Barreto v. Barretto-Datu, 125 Phil. 501 (1967).
48
Paragraph 13 of the Compromise Agreement provides in part:
. . . . 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)
Paragraph 7 thereof reads:
7. That the parties shall not demand the partition of the said Hacienda Medalla Milagrosa which shall
remain undivided during the lifetime of Julian L. Teves and shall be under the joint administration of
Julian L. Teves, Josefa T. Escaño and Emilio B. Teves. Monthly reports of the affairs and management
of the hacienda shall be prepared and approved by all. In the event of death of Julian L. Teves, the
Hacienda Medalla Milagrosa may then be partitioned and the one-half undivided share which in this
agreement pertains to Julian L. Teves may be divided between his heirs, namely, Emilio B. Teves,
Josefa Teves Escaño, the wife in second marriage of Julian L. Teves, Milagrosa Donio Teves and his
four minor children, the two acknowledged natural, Milagros Reyes Teves and Pedro Reyes
Teves and the other two legitimated children Maria Evelyn Donio Teves and Jose Catalino
Teves, in the proportion established by law. (Emphasis supplied)
49
Noblejas and Noblejas, Registration of Land and Titles and Deeds, p. 178 (1986 ed.).
50
Halili v. Court of Industrial Relations, 326 Phil. 982 (1996).
51
Solar v. Diancin, 55 Phil. 479 (1930); De Gala v. Gonzales, 51 Phil. 480 (1928).
52
Records, p. 108.
53
A certified copy of the original OCT No. 5203 is part of the RTC Records. See p. 107.
54
Records, pp. 167-168.
55
Rollo, pp. 14-16.
56
Id. at 22.
57
Records, p. 108.
58
Id. at 162. Rehabilitation Finance Corporation later became Development Bank of the Philippines.
59
Padilla, Civil Law, Vol. IV-A, 247-248 (1988). Ocejo, Perez and Co. v. Flores and Bas, 40 Phil. 921, Escutin v.
Escutin, 60 Phil. 922.
Art. 1409. The following contracts are inexistent and void from the beginning:
....
(2)Those which are absolutely simulated or fictitious;
....
60
Art. 1354. Although the cause is not stated in the contract, it is presumed that it exists and is lawful, unless
the debtor proves the contrary.
61
G.R. No. 155810, August 13, 2004.
62
Records, p. 169.
63
Sumipat, et al. v. Banga, et al, supra note 60.
64
Villegas v. Court of Appeals, G.R. No. 129977, February 1, 2001, 351 SCRA 69, 74; Logronio v. Taleseo, 370
Phil. 452 (1999), citing Saura Import and Export Co., Inc. v. Philippine International Surety Co., Inc., 8 SCRA
143; Miguel v. Court of Appeals, 29 SCRA 760, October 30, 1969; Sociedad Europea de Financion, S.A. v.
Court of Appeals, 193 SCRA 105, January 21, 1991; Larobis v. Court of Appeals, 220 SCRA 639, March 30,
1993; Hernandez v. Andal, 78 Phil. 196 citing 4 C.J.S. 1734 and 3 C.J.S. 1341; Barons Marketing Corp. v. Court
of Appeals, 286 SCRA 96, 108; Korean Airlines Co., Ltd. v. Court of Appeals, G.R. No. 114061, August 3, 1994,
234 SCRA 717, 725; Vda. de Javellana v. Court of Appeals, G.R. No. L-60129, July 29, 1983, 123 SCRA 799,
805; Catholic Bishop of Balanga v. Court of Appeals, 332 Phil. 206 (1996) citing Section 16(b), Rule 46 of the
Rules of Court.
65
Catholic Bishop of Balanga v. Court of Appeals, supra note 63.
66
Sumipat v. Banga, supra note 60 at 16.
 G.R. No. 198994, February 03, 2016
IRIS MORALES, Petitioners, v. ANA MARIA OLONDRIZ, ALFONSO JUAN OLONDRIZ, JR., ALEJANDRO
MORENO OLONDRIZ, ISABEL ROSA OLONDRIZ AND FRANCISCO JAVIER MARIA OLONDRIZ, Respondent.
DECISION
BRION, J.:
This is a petition for review on certiorari filed by Iris Morales from the May 27, 2011 decision and October 12, 2011
resolution of the Court of Appeals (CA) in CA-G.R. SP No. 102358.1 The CA denied Morales' petition
for certiorari from the Regional Trial Court's (RTC) July 12, 2007 and October 30, 2007 orders in SP. Proc. No. 03-
0060 and SP. Proc. No. 03-0069.2chanroblesvirtuallawlibrary
Antecedents

Alfonso Juan P. Olondriz, Sr. (the decedent) died on June 9, 2003. He was survived by his widow, Ana Maria Ortigas
de Olondriz, and his children: Alfonso Juan O. Olondriz, Jr., Alejandro Marino O. Olondriz, Isabel Rosa O. Olondriz,
Angelo Jose O. Olondriz, and Francisco Javier Maria Bautista Olondriz. His widow and children are collectively
referred to as the respondent heirs.

Believing that the decedent died intestate, the respondent heirs filed a petition with the Las Piñas RTC for the
partition of the decedent's estate and the appointment of a special administrator on July 4, 2003. The case was
raffled to Branch 254 and docketed as Sp. Proc. Case No. SP-03-0060.

On July 11, 2003, the RTC appointed Alfonso Juan O. Olondriz, Jr. as special administrator.

However, on July 28, 2003, Iris Morales filed a separate petition with the RTC alleging that the decedent left a will
dated July 23, 1991. Morales prayed for the probate of the will and for hex appointment as special administratrix.
Her petition was also raffled to Branch 254 and docketed as Sp. Proc. Case No. SP-03-0069.

The pertinent portions of the decedent's will reads:chanRoblesvirtualLawlibrary

1. Upon my death, IRIS MORALES OLONDRIZ shall be the executor hereof and administrator of my
estate until its distribution in accordance herewith, x x x
2. My entire estate shall be divided into six (6) parts to be distributed equally among and between (1)
IRIS MORALES OLONDRIZ, my children (2) ALFONSO JUAN OLONDRIZ, JR., (3) ALEJANDRO
OLONDRIZ, (4) ISABEL OLONDRIZ, (5) ANGELO OLONDRIZ, and their mother (6) MARIA ORTEGAS
OLONDRIZ, SR.3
Notably, the will omitted Francisco Javier Maria Bautista Olondriz, an illegitimate son of the decedent.

On September 1, 2003, Morales filed a manifestation in Sp. Proc. Case No. SP-03-0060 and moved to suspend the
intestate proceedings in order to give way to the probate proceedings in Sp. Proc. Case No. SP-03-0069. The
respondent heirs opposed Morales' motion for suspension and her petition for allowance of the will.

On November 27, 2003, the RTC consolidated Sp. Proc. Case No. SP-03-0060 with Sp. Proc. Case No. SP-03-
0069.

On January 6, 2004, the respondent heirs moved to dismiss the probate proceedings because Francisco was
preterited from the will.

On January 10, 2006, Morales agreed to the holding of an evidentiary hearing to resolve the issue of preterition.
Thus, the RTC ordered the parties to submit their factual allegations to support or negate the existence of
preterition. Only the respondent heirs complied with this order.

After several postponements at the instance of Morales, the reception of evidence for the evidentiary hearing was
scheduled on May 29, 2006. However, Morales failed to appear, effectively waiving her right to present evidence on
the issue of preterition.

On June 23, 2006, the RTC, through Judge Gloria Butay Aglugub, suspended the intestate proceedings in Sp. Proc.
Case No. SP-03-0060 and set the case for probate. The RTC reasoned that probate proceedings take precedence
over intestate proceedings.

The respondent heirs moved for reconsideration of the suspension order but the RTC denied the motion on
September 1, 2006. The RTC also summarily revoked the Letters of Administration previously issued to Alfonso Jr.

The respondent heirs moved for reconsideration of the summary revocation of the Letters of Administration. They
also moved for the inhibition of Judge Aglugub of Branch 254.

On November 16, 2006, the RTC granted the motion for inhibition. The case was transferred to Branch
253 presided by Judge Salvador V. Timbang, Jr.

On July 12, 2007, the RTC resolved (1) the respondent heirs' motion for reconsideration of the revocation of the
Letters of Administration and (2) Morales' motion to be appointed Special Administratrix of the estate. The RTC
noted that while testacy is preferred over intestacy, courts will not hesitate to set aside probate proceedings if it
appears that the probate of the will might become an idle ceremony because the will is intrinsically void.

The RTC observed: (1) that Morales expressly admitted that Francisco Javier Maria Bautista Olondriz is an heir of the
decedent; (2) that Francisco was clearly omitted from the will; and (3) that based on the evidentiary hearings,
Francisco was clearly preterited. Thus, the RTC reinstated Alfonso Jr. as administrator of the estate and ordered the
case to proceed in intestacy.

Morales moved for reconsideration which the RTC denied on October 30, 2007, for lack of merit.

On February 7, 2008, Morales filed a petition for certiorari against the orders of the RTC. Morales alleged that the
RTC acted with grave abuse of discretion in proceeding intestate despite the existence of the will. The petition was
docketed as CA-G.R. SP No. 102358.

On May 27, 2011, the CA dismissed Morales' petition for certiorari. The CA reasoned that while probate
proceedings take precedence over intestate proceedings, the preterition of a compulsory heir in the direct line
annuls the institution of heirs in the will and opens the entire inheritance into intestate succession.4 Thus, the
continuation of the probate proceedings would be superfluous and impractical because the inheritance will be
adjudicated intestate. The CA concluded that the RTC did not act with grave abuse of discretion.

Morales moved for reconsideration which the CA denied on October 12, 2011. Hence, she filed the present petition
for review on certiorari on December 5, 2011.
The Petition

Morales maintains that the RTC committed grave abuse of discretion when it ordered the case to proceed intestate
because: (1) the probate of a decedent's will is mandatory; (2) the RTC Branch 254 already ordered the case to
proceed into probate; (3) the order setting the case for probate already attained finality; (3) the probate court
cannot touch on the intrinsic validity of the will; and (4) there was no preterition because Francisco received a house
and lot inter vivos as an advance on his legitime.

The respondent heirs counter: (1) that it is within the RTC's jurisdiction to reverse or modify an interlocutory order
setting the case for probate; (2) that the petitioner failed to mention that she did not appear in any of the
evidentiary hearings to disprove their allegation of preterition; (3) that the RTC and the CA both found that
Francisco was preterited from the will; and (4) that Francisco's preterition annulled the institution of heirs and
opened the case into intestacy. They conclude that the RTC did not exceed its jurisdiction or act with grave abuse of
discretion when it reinstated Alfonso Jr. as the administrator of the estate and ordered the case to proceed
intestate.
Our Ruling

We join the ruling of the CA.

Preterition consists in the omission of a compulsory heir from the will, either because he is not named or, although
he is named as a father, son, etc., he is neither instituted as an heir nor assigned any part of the estate without
expressly being disinherited - tacitly depriving the heir of his legitime.5 Preterition requires that the omission is
total, meaning the heir did not also receive any legacies, devises, or advances on his legitime.6

In other words, preterition is the complete and total omission of a compulsory heir from the testator's
inheritance without the heir's express disinheritance.

Article 854 of the Civil Code states the legal effects of preterition:chanRoblesvirtualLawlibrary
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.
If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to
the right of representation, (emphasis supplied)cralawlawlibrary
Under the Civil Code, the preterition of a compulsory heir in the direct line shall annul the institution of heirs, but
the devises and legacies shall remain valid insofar as the legitimes are not impaired. Consequently, if a will does not
institute any devisees or legatees, the preterition of a compulsory heir in the direct line will result in total intestacy.7

In the present case, the decedent's will evidently omitted Francisco Olondriz as an heir, legatee, or devisee. As the
decedent's illegitimate son, Francisco is a compulsory heir in the direct line. Unless Morales could show otherwise,
Francisco's omission from the will leads to the conclusion of his preterition.

During the proceedings in the RTC, Morales had the opportunity to present evidence that Francisco received
donations inter vivos and advances on his legitime from the decedent. However, Morales did not appear during the
hearing dates, effectively waiving her right to present evidence on the issue. We cannot fault the RTC for reaching
the reasonable conclusion that there was preterition.

We will not entertain the petitioner's factual allegation that Francisco was not preterited because this Court is not a
trier of facts. Furthermore, the CA concurred with the RTC's conclusion. We see no cogent reason to deviate from
the factual findings of the lower courts.

The remaining question is whether it was proper for the RTC to (1) pass upon the intrinsic validity of the will during
probate proceedings and (2) order the case to proceed intestate because of preterition.

The general rule is that in probate proceedings, the scope of the court's inquiry is limited to questions on the
extrinsic validity of the will; the probate court will only determine the will's formal validity and due
execution.8 However, this rule is not inflexible and absolute.9 It is not beyond the probate court's jurisdiction to pass
upon the intrinsic validity of the will when so warranted by exceptional circumstances.10 When practical
considerations demand that the intrinsic validity of the will be passed upon even before it is probated, the probate
court should meet the issue.11

The decedent's will does not contain specific legacies or devices and Francisco's preterition annulled the institution
of heirs. The annulment effectively caused the total abrogation of the will, resulting in total intestacy of the
inheritance.12 The decedent's will, no matter how valid it may appear extrinsically, is null and void. The conduct of
separate proceedings to determine the intrinsic validity of its testamentary provisions would be superfluous. Thus,
we cannot attribute error - much less grave abuse of discretion - on the RTC for ordering the case to proceed
intestate.

Finally, there is no merit in the petitioner's argument that the previous order setting the case for probate barred the
RTC from ordering the case to proceed intestate. The disputed order is merely interlocutory and can never become
final and executory in the same manner that a final judgment does.13 An interlocutory order does not result in res
judicata.14 It remains under the control of the court and can be modified or rescinded at any time before final
judgment.15

Certiorari is a limited form of review confined to errors of jurisdiction. An error of jurisdiction is one where the
officer or tribunal acted without or in excess of its jurisdiction, or with grave abuse of discretion amounting to lack
or excess of jurisdiction.16 As discussed, it is well within the jurisdiction of the probate court to pass upon the
intrinsic validity of the will if probate proceedings might become an idle ceremony due to the nullity of the will.

On the other hand, grave abuse of discretion is the capricious and whimsical exercise of judgment equivalent to an
evasion of positive duty, or a virtual refusal to act at all in contemplation of the law.17 It is present when power is
exercised in a despotic manner by reason, for instance, of passion and hostility. Morales failed to show that the RTC
acted in such a capricious and despotic manner that would have warranted the CA's grant of her petition
for certiorari. On the contrary, the RTC acted appropriately in accordance with the law and jurisprudence.cralaw-red

WHEREFORE, the petition is DISMISSED. Costs against the petitioner.

SO ORDERED.

Carpio, (Chairperson), Del Castillo, and Mendoza, JJ., concur.

Leonen, J., on leave.
Endnotes:
1
Both penned by Associate Justice Danton Q. Bueser and concurred in by Associate Justices Hakim S. Abdulwahid
and Ricardo R. Rosario. Rollo, pp. 23-33.

2
RTC, Las Piñas City, Branch 253 through Presiding Judge Salvador V. Timbang, Jr. Rollo, pp. 130-134.

3
Rollo, p. 34.

4
Id. at 28.

5
Nuguid v. Nuguid, G.R. No. L-23445, June 23, 1966, 17 SCRA 449, 454, citing VI Manresa, Commentaries al Codigo
Civil Espahol, 7th Ed. (1951), p. 424; Aznar v. Duncan, G.R. No. L-24365, 17 SCRA 590, 595, citing VI Manresa, p. 428.

6
Nuguid, id. at 454; see also Aznar, supra note 5, citing Sanchez Roman - Tomo VI, Vol. 2, p. 1133.

7
Nuguid, id. at 459.

8
Nepomuceno v. Court of Appeals, 223 Phil. 418, 423 (1985).

9
Id. at 424.

10
See Nuguid, supra note 5; Nepomuceno, supra; Balanay v. Hon. Martinez, 159-A Phil. 718, 723 (1975).

11
Balanay, supra note 10, at 723, citing Nuguid, supra note 5. Nuguid, supra note, at 455-459. Montilla v. Court of
Appeals, 244 Phil. 166, Appellate Court, 232 Phil. 256, 263-264 (1989).

12
Nuguid, supra note, at 455-459.

13
Montilla v. Court of Appeals, 244 Phil. 166, 171 (1998); Denso (Phils.), Inc. v. Intermediate Appellate Court, 232 Phil.
256, 263-264 (1989).

14
Macahilig v. Magalit, 398 Phil. 802, 804 (2000).

15
Manila Electric Co. v. Artiaga, 50 Phil. 144, 147 (1929).

16
Villareal v. Aliga, G.R. No. 166995, January 13, 2014, 713 SCRA 52-54.

17
Commission on Internal Revenue v. Court of Appeals, G.R. No. 119322, June 4, 1996, 257 SCRA 200-201; Salma v.
Hon. Miro, 541 Phil. 685, 686 (2007); Ligeralde v. Patalinghug, G.R. No. 168796, April 15, 2010, 618 SCRA 315.
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.
Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Padilla, Bidin, Sarmiento and Cortes,
JJ., concur.
Separate Opinions

MELENCIO-HERRERA, J., concurring:

I concur in the result on the basic proposition that preterition in this case was by mistake or inadvertence.
To my mind, an important distinction has to be made as to whether the omission of a forced heir in the will of a
testator is by mistake or inadvertence, or voluntary or intentional. If by mistake or inadvertence, there is true
preterirton and total intestacy results. The reason for this is the "inability to determine how the testator would have
distributed his estate if none of the heirs had been omitted or forgotten (An Outline of Civil Law, J.B.L. Reyes and
R.C. Puno, Vol. III, p. 54).
The requisites of preterition are:
1. The heir omitted is a forced heir (in the direct line);
2. The ommission is by mistake or thru an oversight.
3. The omission is complete so that the forced heir received nothing in the will. (111 Padilla, Civil
Code Annotated, 1973 Edition, pp. 224-225) (Parenthetical addendum supplied).
On the other hand, if the omission is intentional, the effect would be a defective disinheritance covered by Article
918 of the Civil Code in which case the institution of heir is not wholly void but only insofar as it prejudices the
legitime of the person disinherited. Stated otherwise. the nullity is partial unlike in true preterition where the nullity
is total.
Pretention is presumed to be only an involuntary omission; that is, that if the testator had known of
the existence of the compulsory heir at the time of the execution of the will, he would have instituted
such heir. On the other hand, if the testator attempts to disinherit a compulsory heir, the
presumption of the law is that he wants such heir to receive as little as possible from his estate. (III
Tolentino, Civil Code, 1973 Edition, pp. 174-175).
In the case at bar, there seems to have been mistake or in advertence in the omission of the adopted daughter,
hence, my concurrence in the result that total intestacy ensued.

Separate Opinions
MELENCIO-HERRERA, J., concurring:
I concur in the result on the basic proposition that preterition in this case was by mistake or inadvertence.
To my mind, an important distinction has to be made as to whether the omission of a forced heir in the will of a
testator is by mistake or inadvertence, or voluntary or intentional. If by mistake or inadvertence, there is true
preterirton and total intestacy results. The reason for this is the "inability to determine how the testator would have
distributed his estate if none of the heirs had been omitted or forgotten (An Outline of Civil Law, J.B.L. Reyes and
R.C. Puno, Vol. III, p. 54).
The requisites of preterition are:
1. The heir omitted is a forced heir (in the direct line);
2. The ommission is by mistake or thru an oversight.
3. The omission is complete so that the forced heir received nothing in the will. (111 Padilla, Civil
Code Annotated, 1973 Edition, pp. 224-225) (Parenthetical addendum supplied).
On the other hand, if the omission is intentional, the effect would be a defective disinheritance covered by Article
918 of the Civil Code in which case the institution of heir is not wholly void but only insofar as it prejudices the
legitime of the person disinherited. Stated otherwise. the nullity is partial unlike in true preterition where the nullity
is total.
Pretention is presumed to be only an involuntary omission; that is, that if the testator had known of
the existence of the compulsory heir at the time of the execution of the will, he would have instituted
such heir. On the other hand, if the testator attempts to disinherit a compulsory heir, the
presumption of the law is that he wants such heir to receive as little as possible from his estate. (III
Tolentino, Civil Code, 1973 Edition, pp. 174-175).
In the case at bar, there seems to have been mistake or in advertence in the omission of the adopted daughter,
hence, my concurrence in the result that total intestacy ensued.
Footnotes
* Penned by Justice Jose A. R. Melo and concurred in by Justices Milagros A. German and Nathanael
P. De Pano, Jr.
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.
Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Bengzon, J.P. and Zaldivar, JJ., concur.
Footnotes
1
Castañeda vs. Alemany, 3 Phil. 426, 428; Pimentel vs. Palanca, etc., et al., 5 Phil. 436, 440-441; Limjuco vs.
Ganara, 11 Phil. 393, 394-395; Montañano vs. Suesa, 14 Phil. 676, 679; Riera vs. Palmorali, et al., 40 Phil. 105,
116; In re Estate of Johnson, 39 Phil. 156, 174; Palacios vs. Palacios, 58 O.G. No. 2, 220, 221; Teotico vs. Del
Val, etc., L-18753, March 26, 1965.
2
Section 13, Rule 76 of the Rules of Court.
3
Section 2, Rule 1, Rules of Court. Case, et al. vs. Jugo, et al., 77 Phil. 517, 522.
4
Betterments are eliminated in the present Civil Code. II Padilla, Civil Code Annotated, p. 1077.
5
VI Manresa, Commentarios al Codigo Civil Español, 7th Edition, (1951), p. 424.
6
Words & Phrases, Vol. 3A, Permanent Ed., p. 3.
7
Id., p. 4.
8
Black's Law Dictionary, 4th ed., p. 117.
9
Manresa, id., p. 426.
10
Manresa, id., pp. 431-432.
11
VI Sanchez Roman, Estudios de Derecho Civil, 2nd Edition, Volumen 2.o, p. 1140.
12
VI Sanchez Roman, id., p. 1138. This is also cited in the Neri case, 74 Phil. 192-193.
Justice J.B.L. Reyes and Judge R.C. Puno, in their work entitled "An Outline of Philippine Civil Law",
1956 ed., Vol. III, p. 8; citing Gil vs. Murciano, L-3362, March 1, 1951, likewise opined that "the right
to make a will is statutory, not a natural right, and must be subordinate to law and public policy".
13
Sanchez Roman, id., p. 1141.
14
Manresa, id., p. 434.
15
Petitioner's brief, p. 15.
16
Neri, et al. vs. Akutin, et al., supra, 72 Phil., at p. 325.
17
Justice J.B.L. Reyes and Judge R.C. Puno, id., p. 106.
18
Manresa, id., p. 424. Justice Reyes and Judge Puno, id., 107, speaking of the requisites of a valid
disinheritance, confirm the theory that disinheritance "must be express (not implied) (Art. 918 ; otherwise
there is preterition".
19
Sanchez Roman, id., p. 1131.
20
Arts. 915, 916, Civil Code; II Padilla, Civil Code Annotated, pp. 750-752.
21
III Tolentino, Civil Code of the Philippines, 1961 Edition, p. 172.
22
Now one-half, Articles 888 and 889, Civil Code.
23
Manresa, id., p. 430.
24
Petitioner's brief, p. 13.
25
Neri, et al. vs. Akutin, et al., 74 Phil. pp. 191-192.
Arts. 817 and 851, Civil Code of Spain of 1889, referred to in the opinion above, are now Arts. 907
and 918 of the present Civil Code.
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£
I
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.
Footnotestêñ.£îhqwâ£
1 Annex "H" Petition, p. 64, Rollo.
2 T.s.n., May 13, 1970, pp. 27-29, Decision, p. 18.
3 pp. A-C, Petitioner's Brief.
4 Annex "D", Petition, p. 55, Rollo.
5 Article 838, Civil Code; Rule 75, Sec. 1, Rules of Court.
6 Teotico vs. Del Val,. 13 SCRA 406 (1965); Fernandez vs. Dimagiba, 21 SCRA 428 (1967).
7 Article 277, Civil Code.
8 Article 854, Ibid.
9 Art. 563. usufruct is constituted by law, by the will of private persons expressed in acts inter vivos
or in a last will and testament, and by prescription
10 Neri vs. Akutin, 74 Phil. 185 (1943).
11 Escuin vs. Escuin, 11 Phil. 332 (1908); Eleazar vs. Eleazar, 67 Phil. 497 (1939).
12 Ibid.
13 Art, 895, Civil Code.
14 17 SCRA 449 (1966)
15 74 Phil. 185 (1943).
16 23 SCRA 29 (1968).
G.R. No. L-39247 June 27, 1975
In the Matter of the Petition to Approve the Will of Leodegaria Julian. FELIX BALANAY, JR., petitioner,
vs.
HON. ANTONIO M. MARTINEZ, Judge of the Court of First Instance of Davao, Branch VI; AVELINA B.
ANTONIO and DELIA B. LANABAN, respondents.
Roberto M. Sarenas for petitioner.
Jose B. Guyo for private respondents.

AQUINO, J.:
Felix Balanay, Jr. appealed by certiorari from the order of the Court of First Instance of Davao dated February 28,
1974, declaring illegal and void the will of his mother, Leodegaria Julian, converting the testate proceeding into an
intestate proceeding and ordering the issuance of the corresponding notice to creditors (Special Case No. 1808).
The antecedents of the appeal are as follows:
Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on February 12, 1973 in Davao City at the age of sixty-
seven. She was survived by her husband, Felix Balanay, Sr., and by their six legitimate children named Felix Balanay,
Jr., Avelina B. Antonio, Beatriz B. Solamo, Carolina B. Manguiob, Delia B. Lanaban and Emilia B. Pabaonon.
Felix J. Balanay, Jr. filed in the lower court a petition dated February 27, 1973 for the probate of his mother's notarial
will dated September 5, 1970 which is written in English. In that will Leodegaria Julian declared (a) that she was the
owner of the "southern half of nine conjugal lots (par. II); (b) that she was the absolute owner of two parcels of land
which she inherited from her father (par. III), and (c) that it was her desire that her properties should not be divided
among her heirs during her husband's lifetime and that their legitimes should be satisfied out of the fruits of her
properties (Par. IV).
Then, in paragraph V of the will she stated that after her husband's death (he was eighty-two years old in 1973) her
paraphernal lands and all the conjugal lands (which she described as "my properties") should be divided and
distributed in the manner set forth in that part of her will. She devised and partitioned the conjugal lands as if they
were all owned by her. She disposed of in the will her husband's one half share of the conjugal assets. *
Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the will on the grounds of lack of testamentary
capacity, undue influence, preterition of the husband and alleged improper partition of the conjugal estate. The
oppositors claimed that Felix Balanay, Jr. should collate certain properties which he had received from the testatrix.
Felix Balanay, Jr., in his reply to the opposition, attached thereto an affidavit of Felix Balanay, Sr. dated April 18,
1973 wherein he withdrew his opposition to the probate of the will and affirmed that he was interested in its
probate. On the same date Felix Balanay, Sr. signed an instrument captioned "Conformation (sic) of Division and
Renunciation of Hereditary Rights" wherein he manifested that out of respect for his wife's will he "waived and
renounced' his hereditary rights in her estate in favor of their six children. In that same instrument he confirmed the
agreement, which he and his wife had perfected before her death, that their conjugal properties would be
partitioned in the manner indicated in her will.
Avelina B. Antonio, an oppositor, in her rejoinder contended that the affidavit and "conformation" of Felix Balanay,
Sr. were void. The lower court in its order of June 18, 1973 "denied" the opposition and reset for hearing the
probate of the will. It gave effect to the affidavit and conformity of Felix Balanay, Sr. In an order dated August 28,
1973 it appointed its branch clerk of court as special administrator of the decedent's estate.
Mrs. Antonio moved for the reconsideration of the lower court's order of June 18, 1973 on the grounds (a) that the
testatrix illegally claimed that she was the owner of the southern half of the conjugal lots and (b) that she could not
partition the conjugal estate by allocating portions of the nine lots to her children. Felix Balanay, Jr., through his
counsel, Hermenegildo Cabreros, opposed that motion. The lower court denied it in its order of October 15, 1973.
In the meanwhile, another lawyer appeared in the case. David O. Montaña, Sr., claiming to be the lawyer of
petitioner Felix Balanay, Jr. (his counsel of record was Atty. Cabreros), filed a motion dated September 25, 1973 for
"leave of court to withdraw probate of alleged will of Leodegaria Julian and requesting authority to proceed by
intestate estate proceeding." In that motion Montaña claimed to be the lawyer not only of the petitioner but also of
Felix Balanay, Sr., Beatriz B. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon.
Montaña in his motion assailed the provision of the will which partitioned the conjugal assets or allegedly effected
a compromise of future legitimes. He prayed that the probate of the will be withdrawn and that the proceeding be
converted into an intestate proceeding. In another motion of the same date he asked that the corresponding notice
to creditors be issued.
Avelina B. Antonio and Delia B. Lanaban, through Atty. Jose B. Guyo, in their comments dated October 15, 1973
manifested their conformity with the motion for the issuance of a notice to creditors. They prayed that the will be
declared void for being contrary to law and that an intestacy be declared.
The lower court, acting on the motions of Atty. Montaña, assumed that the issuance of a notice to creditors was in
order since the parties had agreed on that point. It adopted the view of Attys. Montaña and Guyo that the will was
void. So, in its order of February 28, 1974 it dismissed the petition for the probate, converted the testate
proceeding into an intestate proceeding, ordered the issuance of a notice to creditors and set the intestate
proceeding for hearing on April 1 and 2, 1974. The lower court did not abrogate its prior orders of June 18 and
October 15, 1973. The notice to creditors was issued on April 1, 1974 and published on May 2, 9 and 16 in the
Davao Star in spite of petitioner's motion of April 17, 1974 that its publication be held in abeyance.
Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas, in a verified motion dated April 15, 1974, asked for
the reconsideration of the lower court's order of February 28, 1974 on the ground that Atty. Montaña had no
authority to withdraw the petition for the allowance of the will. Attached to the motion was a copy of a letter dated
March 27, 1974 addressed to Atty. Montaña and signed by Felix Balanay, Jr., Beatriz V. Solamo, Carolina B.
Manguiob and Emilia B. Pabaonon, wherein they terminated Montaña's services and informed him that his
withdrawal of the petition for the probate of the will was without their consent and was contrary to their repeated
reminder to him that their mother's will was "very sacred" to them.
Avelina B. Antonio and Delia B. Lanaban opposed the motion for reconsideration. The lower court denied the
motion in its order of June 29, 1974. It clarified that it declared the will void on the basis of its own independent
assessment of its provisions and not because of Atty. Montaña's arguments.
The basic issue is whether the probate court erred in passing upon the intrinsic validity of the will, before ruling on
its allowance or formal validity, and in declaring it void.
We are of the opinion that in view of certain unusual provisions of the will, which are of dubious legality, and
because of the motion to withdraw the petition for probate (which the lower court assumed to have been filed with
the petitioner's authorization), the trial court acted correctly in passing upon the will's intrinsic validity even before
its formal validity had been established. The probate of a will might become an idle ceremony if on its face it
appears to be intrinsically void. Where practical considerations demand that the intrinsic validity of the will be
passed upon, even before it is probated, the court should meet the issue (Nuguid vs. Nuguid, 64 O.G. 1527, 17
SCRA 449. Compare with Sumilang vs. Ramagosa, L-23135, December 26, 1967, 21 SCRA 1369; Cacho vs. Udan, L-
19996, April 30, 1965, 13 SCRA 693).1äwphï1.ñët
But the probate court erred in declaring, in its order of February 28, 1974 that the will was void and in converting
the testate proceeding into an intestate proceeding notwithstanding the fact that in its order of June 18, 1973 , it
gave effect to the surviving husband's conformity to the will and to his renunciation of his hereditary rights which
presumably included his one-half share of the conjugal estate.
The rule is that "the invalidity of one of several dispositions contained in a will does not result in the invalidity of the
other dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the
first invalid disposition had not been made" (Art. 792, Civil Code). "Where some of the provisions of a will are valid
and others invalid, the valid parts will be upheld if they can be separated from the invalid without defeating the
intention of the testator or interfering with the general testamentary scheme, or doing injustice to the beneficiaries"
(95 C.J.S. 873).
The statement of the testatrix that she owned the "southern half of the conjugal lands is contrary to law because,
although she was a coowner thereof, her share was inchoate and proindiviso (Art. 143, Civil Code; Madrigal and
Paterno vs. Rafferty and Concepcion, 38 Phil. 414). But That illegal declaration does not nullify the entire will. It may
be disregarded.
The provision of the will that the properties of the testatrix should not be divided among her heirs during her
husband's lifetime but should be kept intact and that the legitimes should be paid in cash is contrary to article 1080
of the Civil Code which 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.
A parent who, in the interest of his or her family, to keep any agricultural, industrial, or
manufacturing enterprise intact, may avail himself of the right granted him in this article, by ordering
that the legitime of the other children to whom the property is not assigned be paid in cash. (1056a)
The testatrix in her will made a partition of the entire conjugal estate among her six children (her husband had
renounced his hereditary rights and his one-half conjugal share). She did not assign the whole estate to one or
more children as envisaged in article 1080. Hence, she had no right to require that the legitimes be paid in cash. On
the other hand, her estate may remain undivided only for a period of twenty years. So, the provision that the estate
should not be divided during her husband's lifetime would at most be effective only for twenty years from the date
of her death unless there are compelling reasons for terminating the coownership (Art. 1083, Civil Code).
Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half share of the conjugal partnership
(Arts. 179[1] and 1041, Civil Code) but insofar as said renunciation partakes of a donation of his hereditary rights
and his one-half share in the conjugal estate (Art. 1060[1] Civil Code), it should be subject to the limitations
prescribed in articles 750 and 752 of the Civil Code. A portion of the estate should be adjudicated to the widower
for his support and maintenance. Or at least his legitime should be respected.
Subject to the foregoing observations and the rules on collation, the will is intrinsically valid and the partition
therein may be given effect if it does not prejudice the creditors and impair the legitimes. The distribution and
partition would become effective upon the death of Felix Balanay, Sr. In the meantime, the net income should be
equitably divided among the children and the surviving spouse.
It should be stressed that by reason of the surviving husband's conformity to his wife's will and his renunciation of
his hereditary rights, his one-half conjugal share became a part of his deceased wife's estate. His conformity had
the effect of validating the partition made in paragraph V of the will without prejudice, of course, to the rights of
the creditors and the legitimes of the compulsory heirs.
Article 793 of the Civil Code provides that "property acquired after the making of a will shall only pass thereby, as if
the testator had it at the time of making the will, should it expressly appear by the will that such was his intention".
Under article 930 of the Civil Code "the legacy or devise of a thing belonging to another person is void, if the
testator erroneously believed that the thing pertained to him. But if the thing bequeathed, though not belonging to
the testator when he made the will, afterwards becomes his, by whatever title, the disposition shall take effect."
In the instant case there is no doubt that the testatrix and her husband intended to partition the conjugal estate in
the manner set forth in paragraph V of her will. It is true that she could dispose of by will only her half of the
conjugal estate (Art. 170, Civil Code) but since the husband, after the dissolution of the conjugal partnership, had
assented to her testamentary partition of the conjugal estate, such partition has become valid, assuming that the
will may be probated.
The instant case is different from the Nuguid case, supra, where the testatrix instituted as heir her sister and
preterited her parents. Her will was intrinsically void because it preterited her compulsory heirs in the direct line.
Article 854 of the Civil Code 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." Since the
preterition of the parents annulled the institution of the sister of the testatrix and there were no legacies and
devises, total intestacy resulted (.Art. 960[2], Civil Code).1äwphï1.ñët
In the instant case, the preterited heir was the surviving spouse. His preterition did not produce intestacy.
Moreover, he signified his conformity to his wife's will and renounced his hereditary rights. .
It results that the lower court erred in not proceeding with the probate of the will as contemplated in its
uncancelled order of June 18, 1973. Save in an extreme case where the will on its face is intrinsically void, it is the
probate court's duty to pass first upon the formal validity of the will. Generally, the probate of the will is mandatory
(Art. 838, Civil Code; Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249; Fernandez vs. Dimagiba, L-23638, October
12, 1967, 21 SCRA 428).
As aptly stated by Mr. Justice Barredo, "the very existence of a purported testament is in itself prima facie proof that
the supposed testator has willed that his estate should be distributed in the manner therein provided, and it is
incumbent upon the state that, if legally tenable, such desire be given effect independent of the attitude of the
parties affected thereby" (Resolution, Vda. de Precilla vs. Narciso, L-27200, August 18, 1972, 46 SCRA 538, 565).
To give effect to the intention and wishes of the testatrix is the first and principal law in the matter of testaments
(Dizon-Rivera vs. Dizon, L-24561, June 30, 1970, 33 SCRA 554, 561). Testacy is preferable to intestacy. An
interpretation that will render a testamentary disposition operative takes precedence over a construction that will
nullify a provision of the will (Arts. 788 and 791, Civil Code).
Testacy is favored. Doubts are resolved in favor of testacy especially where the will evinces an intention on the part
of the testator to dispose of practically his whole estate. So compelling is the principle that intestacy should be
avoided and that the wishes of the testator should prevail that sometimes the language of the will can be varied for
the purpose of giving it effect (Austria vs. Reyes, L-23079, February 27, 1970, 31 SCRA 754, 762).
As far as is legally possible, the expressed desire of the testator must be followed and the dispositions of the
properties in his will should be upheld (Estorque vs. Estorque, L-19573, June 30, 1970, 33 SCRA 540, 546).
The law has a tender regard for the wishes of the testator as expressed in his will because any disposition therein is
better than that which the law can make (Castro vs. Bustos, L-25913, February 28, 1969, 27 SCRA 327, 341).
Two other errors of the lower court may be noticed. It erred in issuing a notice to creditors although no executor or
regular administrator has been appointed. The record reveals that it appointed a special administrator. A notice to
creditors is not in order if only a special administrator has been appointed. Section 1, Rule 86 of the Rules of Court,
in providing that "immediately after granting letters of testamentary or of administration, the court shall issue a
notice requiring all persons having money claims against the decedent to file them in the office of the clerk of said
court" clearly contemplates the appointment of an executor or regular administrator and not that of a special
administrator.
It is the executor or regular administrator who is supposed to oppose the claims against the estate and to pay such
claims when duly allowed (See. 10, Rule 86 and sec. 1, Rule 88, Rules of Court).
We also take this occasion to point out that the probate court's appointment of its branch clerk of court as special
administrator (p. 30, Rollo) is not a salutary practice because it might engender the suspicion that the probate
Judge and his clerk of court are in cahoots in milking the decedent's estate. Should the branch clerk of court
commit any abuse or devastavit in the course of his administration, the probate Judge might find it difficult to hold
him to a strict accountability. A court employee should devote his official time to his official duties and should not
have as a sideline the administration of a decedent's estate.
WHEREFORE, the lower court's orders of February 28, and June 29, 1974 are set aside and its order of June 18, 1973,
setting for hearing the petition for probate, is affirmed. The lower court is directed to conduct further proceedings
in Special Case No. 1808 in consonance with this opinion. Costs, against the private respondents.
SO ORDERED.
Fernando (Chairman), Barredo, Antonio and Concepcion, Jr., JJ., concur.

Footnotes
* The pertinent provisions of the will are as follows:
"II. That I am the absolute owner of the southern half of the following conjugal properties which I
acquired during my married life with my husband, Felix Balanay, Sr., namely: (Here follows an
enumeration of nine lots).1äwphï1.ñët
"III. I am the absolute owner of the following paraphernal properties which I inherited from my
deceased father, Cecilio Julian, namely: (Here follows a description of two lots).
"IV. It is my desire and I direct that in the interest of my family, my properties shall not be divided
among my heirs during the lifetime of my husband, Felix Balanay, Sr. but should be kept intact. The
respective legitimes of my husband and my children should be paid in cash out of the proceeds of
sale of the produce and rents derived from said properties.
"V. After the death of my husband, Felix Balanay, Sr., my properties shall be divided and distributed
in the manner as follows:" (Here follows a partition of the nine conjugal lots and the two paraphernal
lots. The testatrix divided among her six children not only her two paraphernal lots, one of which she
devised to Emilia Pabaonon and the other lot to Felix Balanay, Jr., but also the nine conjugal lots. She
did not restrict the partition to her one-half conjugal share but included her husband's one-half
share.).
G.R. No. L-31703 February 13, 1930
CARMEN G. DE PEREZ, trustee of the estate of Ana Maria Alcantara, plaintiff-appellee,
vs.
MARIANO GARCHITORENA, and JOSE CASIMIRO, Sheriff of the Court of First Instance of
Manila, defendants-appellants.
L. D. Lockwood and Jose M. Casal for appellants.
Eduardo Gutierrez Repide and Leoncio B. Monzon for appellee.
ROMUALDEZ, J.:
The amount of P21,428.58 is on deposit in the plaintiff's name with the association known as La Urbana in Manila,
as the final payment of the liquidated credit of Ana Maria Alcantara, deceased, whose heiress is said plaintiff,
against Andres Garchitorena, also deceased, represented by his son, the defendant Mariano Garchitorena.
And as said Mariano Garchitorena held a judgment for P7,872.23 against Joaquin Perez Alcantara, husband of the
plaintiff, Carmen G. de Perez, the sheriff pursuant to the writ of execution issued in said judgment, levied an
attachment on said amount deposited with La Urbana.
The plaintiff, alleging that said deposit belongs to the fideicommissary heirs of the decedent Ana Maria Alcantara,
secured a preliminary injunction restraining the execution of said judgment on the sum so attached. The
defendants contend that the plaintiff is the decedent's universal heiress, and pray for the dissolution of the
injunction.
The court below held that said La Urbana deposit belongs to the plaintiff's children as fideicommissary heirs of Ana
Maria Alcantara, and granted a final writ of injunction.
The defendants insist in their contentions, and, in their appeal from the decision of the trial court, assign the
following errors:
1. The lower court erred in holding that a trust was created by the will of Doña Ana Maria Alcantara.
2. The lower court erred in concluding and declaring that the amount of P21,428.58 deposited with La
Urbana is the property of the children of the plaintiff as "herederos fidei-comisarios."
3. The lower court erred in making the injunction permanent and condemning defendant to pay the costs.
The question here raised is confined to the scope and meaning of the institution of heirs made in the will of the late
Ana Maria Alcantara already admitted to probate, and whose legal force and effect is not in dispute.
The clauses of said will relevant to the points in dispute, between the parties are the ninth, tenth, and eleventh,
quoted below:
Ninth. Being single and without any forced heir, to show my gratitude to my niece-in-law, Carmen
Garchitorena, of age, married to my nephew, Joaquin Perez Alcantara, and living in this same house with me,
I institute her as my sole and universal heiress to the remainder of my estate after the payment of my debts
and legacies, so that upon my death and after probate of this will, and after the report of the committee on
claims and appraisal has been rendered and approved, she will receive from my executrix and properties
composing my hereditary estate, that she may enjoy them with God's blessing and my own.
Tenth. Should my heiress Carmen Garchitorena die, I order that my whole estate shall pass unimpaired to
her surviving children; and should any of these die, his share shall serve to increase the portions of his
surviving brothers (and sisters) by accretion, in such wise that my estate shall never pass out of the hands of
my heiress or her children in so far as it is legally possible.
Eleventh. Should my aforesaid heiress, Carmen Garchitorena, die after me while her children are still in their
minority, I order that my estate be administered by my executrix, Mrs. Josefa Laplana, and in her default, by
Attorney Ramon Salinas and in his default, by his son Ramon Salinas; but the direction herein given must
not be considered as an indication of lack of confidence in my nephew Joaquin Perez Alcantara, whom I
relieve from the duties of administering my estate, because I recognize that his character is not adapted to
management and administration.
The appellants contend that in these clauses the testatrix has ordered a simple substitution, while the appellee
contends that it is a fideicommissary substitution.
This will certainly provides for a substitution of heirs, and of the three cases that might give rise to a simple
substitution (art. 774, Civil Code), only the death of the instituted heiress before the testatrix would in the instant
case give place to such substitution, inasmuch as nothing is said of the waiver of inheritance, or incapacity to accept
it. As a matter of fact, however, clause XI provides for the administration of the estate in case the heiress instituted
should die after the testatrix and while the substitute heirs are still under age. And it is evident that, considering the
nature of simple substitution by the heir's death before the testator, and the fact that by clause XI in connection
with clause X, the substitution is ordered where the heiress instituted dies after the testatrix, this cannot be a case
of simple substitution.
The existence of a substitution in the will is not and cannot be denied, and since it cannot be a simple substitution
in the light of the considerations above stated, let us now see whether the instants case is a fideicommissary
substitution.
In clause IX, the testatrix institutes the plaintiff herein her sole and universal heiress, and provides that upon her
death (the testatrix's) and after probate of the will and approval of the report of the committee on claims and
appraisal, said heiress shall receive and enjoy the whole hereditary estate. Although this clause provides nothing
explicit about substitution, it does not contain anything in conflict with the idea of fideicommissary substitution.
The fact that the plaintiff was instituted the sole and universal heiress does not prevent her children from receiving,
upon her death and in conformity with the express desire of the testatrix, the latter's hereditary estate, as provided
in the following (above quoted) clauses which cannot be disregarded if we are to give a correct interpretation of
the will. The word sole does not necessarily exclude the idea of substitute heirs; and taking these three clauses
together, such word means that the plaintiff is the sole heiress instituted in the first instance.
The disposition contained in clause IX, that said heiress shall receive and enjoy the estate, is not incompatible with a
fideicommissary substitution (it certainly is incompatible with the idea of simple substitution, where the heiress
instituted does not receive the inheritance). In fact the enjoyment of the inheritance is in conformity with the idea
of fideicommissary substitution, by virtue of which the heir instituted receives the inheritance and enjoys it,
although at the same time he preserves it in order to pass it on the second heir. On this point the illustrious
Manresa, in his Civil Code (Vol. 6, pp. 142 and 143, 5th ed.), says:
Or, what amounts to the same thing, the fideicommissary substitution, as held in the Resolution of June 25,
1895, February 10, 1899, and July 19, 1909, requires three things:
1. A first heir called primarily to the enjoyment of the estate.
2. An obligation clearly imposed upon him to preserve and transmit to a third person the whole or a part of
the estate.
3. A second heir.
To these requisites, the decision of November 18, 1918 adds another, namely that the fideicommissarius be
entitled to the estate from the time the testator dies, since he is to inherit from the latter and not from the
fiduciary. (Emphasis ours.)
It appears from this quotation that the heir instituted or the fiduciary, as referred to in articles 783 of the Civil Code,
is entitled to enjoy the inheritance. And it might here be observed, as a timely remark, that the fideicommissum
arising from a fideicommissary substitution, which is of Roman origin, is not exactly equivalent to, nor may it be
confused with, the English "trust."
It should also be noted that said clause IX vests in the heiress only the right to enjoy but not the right to dispose of
the estate. It says, she may enjoy it, but does not say she may dispose of it. This is an indication of the usufruct
inherent in fideicommissary substitution.
Clause X expressly provides for the substitution. It is true that it does not say whether the death of the heiress
herein referred to is before or after that of the testatrix; but from the whole context it appears that in making the
provisions contained in this clause X, the testatrix had in mind a fideicommissary substitution, since she limits the
transmission of her estate to the children of the heiress by this provision, "in such wise that my estate shall never
pass out of the hands of my heiress or her children in so far as it is legally possible." Here it clearly appears that the
testatrix tried to avoid the possibility that the substitution might later be legally declared null for transcending the
limits fixed by article 781 of the Civil Code which prescribed that fideicommissary substitutions shall be valid
"provided they do not go beyond the second degree."
Another clear and outstanding indication of fideicommissary substitution in clause X is the provision that
the whole estate shall pass unimpaired to the heiress's children, that is to say the heiress is required to preserve the
whole estate, without diminution, in order to pass it on in due time to the fideicommissary heirs. This provision
complies with another of the requisites of fideicommissary substitution according to our quotation from Manresa
inserted above.
Lastly, clause XI more clearly indicates the idea of fideicommissary substitution, when a provision is therein made in
the event the heiress should die after the testatrix. That is, said clause anticipates the case where the instituted
heiress should die after the testatrix and after receiving and enjoying the inheritance.
The foregoing leads us to the conclusion that all the requisites of a fideicommissary substitution, according to the
quotation from Manresa above inserted, are present in the case of substitution now under consideration, to wit:
1. At first heir primarily called to the enjoyment of the estate. In this case the plaintiff was instituted an
heiress, called to the enjoyment of the estate, according to clause IX of the will.
2. An obligation clearly imposed upon the heir to preserve and transmit to a third person the whole or a
part of the estate. Such an obligation is imposed in clause X which provides that the "whole estate shall pass
unimpaired to her (heiress's) surviving children;" thus, instead of leaving the heiress at liberty to dispose of
the estate by will, or of leaving the law to take its course in case she dies intestate, said clause not only
disposes of the estate in favor of the heiress instituted, but also provides for the disposition thereof in case
she should die after the testatrix.
3. A second heir. Such are the children of the heiress instituted, who are referred to as such second heirs
both in clause X and in clause XI.
Finally, the requisite added by the decision of November 18, 1918, to wit, that the fideicommissarius or second heir
should be entitled to the estate from the time of the testator's death, which in the instant case, is, rather than a
requisite, a necessary consequence derived from the nature of the fideicommissary substitution, in which the
second heir does not inherit from the heir first instituted, but from the testator.
By virtue of this consequence, the inheritance in question does not belong to the heiress instituted, the plaintiff
herein, as her absolute property, but to her children, from the moment of the death of the testatrix, Ana Maria
Alcantara.
Therefore, said inheritance, of which the amount referred to at the beginning, which is on deposit with the
association known as La Urbana in the plaintiff's name, is a part, does not belong to her nor can it be subject to the
execution of the judgment against Joaquin Perez, who is not one of the fideicommissary heirs.
The judgment appealed from is affirmed, with costs against the appellant, Mariano Garchitorena. So ordered.
Johnson, Malcolm, Villamor, Ostrand, Johns and Villa-Real, JJ., concur.
Street, J., reserves his vote.
G.R. No. L-13876 February 28, 1962
CONSOLACION FLORENTINO DE CRISOLOGO, ET AL., plaintiffs-appellees,
vs.
DR. MANUEL SINGSON, defendant-appellant.
Felix V. Vergara for defendant-appellant.
B. Martinez for plaintiffs-appellees.
DIZON, J.:
Action for partition commenced by the spouses Consolacion Florentino and Francisco Crisologo against Manuel
Singson in connection with a residential lot located a Plaridel St., Vigan, Ilocos Sur, with an area of approximately
193 square meters, and the improvements existing thereon, covered by Tax No. 10765-C. Their complaint alleged
that Singson owned one-half pro-indiviso of said property and that Consolacion Florentino owned the other half by
virtue of the provisions of the duly probated last will of Dña. Leona Singson, the original owner, and the project of
partition submitted to, and approved by the Court of First Instance of Ilocos Sur in special Proceeding No. 453; that
plaintiffs had made demands for the partition of said property, but defendant refused to accede thereto, thus
compelling them to bring action.
Defendant's defense was that Consolacion Florentino was a mere usufructuary of, and not owner of one-half pro-
indiviso of the property in question, and that, therefore, she was not entitled to demand partition thereof.
After trial upon the issue thus posed, the lower court rendered judgment as follows:
1. Declaring that the plaintiff is a co-owner pro-indiviso with the defendant of the house and lot described
in the complaint to the extent of each of an undivided 1/2 portion thereof; .
2. Ordering the aforesaid co-owners to execute an agreement of partition of the said property within 30
days from receipt of this judgment unless it be shown that the division thereof may render it unserviceable,
in which case the provisions of Art. 498 of the New Civil Code may be applied; .1äwphï1.ñët
3. That in the event the said parties shall fail to do so, this Court will appoint the corresponding
commissioners to make the partition in accordance with law; and .
4. Without special pronouncement as to costs." .
From the above judgment, defendant Singson appealed.
It is admitted that Dña. Leona Singson, who died single on January 13, 1948, was the owner of the property in
question at the time of her death. On July 31, 1951 she executed her last will which was admitted to probate in
Special Proceeding No. 453 of the lower court whose decision was affirmed by the Court of Appeals in G.R. No.
3605-R. At the time of the execution of the will, her nearest living relatives were her brothers Evaristo, Manuel and
Dionisio Singson, her nieces Rosario, Emilia and Trinidad, and her grandniece Consolation, all surnamed Florentino.
Clause IX of her last will reads as follows: .
NOVENO. — Ordeno que se de a mi nieta por parte de mi hermana mia y que al mismo tiempo vive en mi
casa, y, por tanto, bajo mi proteccion, y es la CONSOLACION FLORENTINO: —
(A). La mitad de mi casa de materials fuertes con techo de hierro galvanizado, incluyendo la mitad de su
solar, ubicado en la Poblacion de Vigan, Ilocos Sur, Calle Plaridel, actualmente arrendada por los hermanos
Fortunato, Teofilo y Pedro del appellido Kairuz. Pero si falleciere antes o despues que yo mi citada nieta,
esta propiedad se dara por partes iguales entre mis tres hermanos Evaristo, Manuel y Dionisio, o a sus
herederos forzosos en el caso de que alguno de ellas murieie antes ... (Exhibit F.)
The issue to be decided is whether the testamentary disposition above-quoted provided for what is
called sustitucion vulgar or for a sustitucion fideicomisaria. This issue is, we believe, controlled by the pertinent
provisions of the Civil Code in force in the Philippines prior to the effectivity of the New Civil Code, in view of the
fact that the testatrix died on January 13, 1948. They are the following: .
Art. 774. The testator may designate one or more persons to substitute the heir or heirs instituted in case
such heir or heirs should die before him, or should not wish or should be unable to accept the inheritance.
A simple substitution, without a statement of the cases to which it is to apply, shall include the three
mentioned in the next preceeding paragraph, unless the testator has otherwise provided:
Art. 781. Fidei-commissary substitutions by virtue of which the heir is charged to preserve and transmit to a
third person the whole or part of the inheritance shall be valid and effective, provided they do not go
beyond the second degree, or that they are made in favor of persons living at the time of the death of the
testator." .
Art. 785. The following shall be inoperative: .
1. Fiduciary substitutions not made expressly, either by giving them this name or by imposing upon the
fiduciary the absolute obligation of delivering the property to a second heir." ....
In accordance with the first legal provision quoted above, the testator may not only designate the heirs who will
succeed him upon his death, but also provide for substitutes in the event that said heirs do not accept or are in no
position to accept the inheritance or legacies, or die ahead of him.
The testator may also bequeath his properties to a particular person with the obligation, on the part of the latter, to
deliver the same to another person, totally or partially, upon the occurrence of a particular event (6 Manresa, p.
1112).
It is clear that the particular testamentary clause under consideration provides for a substitution of the heir named
therein in this manner: that upon the death of Consolacion Florentino — whether this occurs before or after that of
the testatrix — the property bequeathed to her shall be delivered ("se dara") or shall belong in equal parts to the
testatrix's three brothers, Evaristo, Manuel and Dionisio, or their forced heirs, should anyone of them die ahead of
Consolacion Florentino. If this clause created what is known as sustitucion vulgar, the necessary result would be that
Consolacion Florentino, upon the death of the testatrix, became the owner of one undivided half of the property,
but if it provided for a sustitution fideicomisaria, she would have acquired nothing more than usufructuary rights
over the same half. In the former case, she would undoubtedly be entitled to partition, but not in the latter. As
Manresa says, if the fiduciary did not acquire full ownership of the property bequeathed by will, but mere
usufructuary rights thereon until the time came for him to deliver said property to the fideicomisario, it is obvious
that the nude ownership over the property, upon the death of the testatrix, passed to and was acquired by another
person, and the person cannot be other than the fideicomisario (6 Manresa p. 145).
It seems to be of the essence of a fideicommissary substitution that an obligation be clearly imposed upon the first
heir to preserve and transmit to another the whole or part of the estate bequeathed to him, upon his death or upon
the happening of a particular event. For this reason, Art. 785 of the old Civil Code provides that a fideicommissary
substitution shall have no effect unless it is made expressly ("de una manera expresa") either by giving it such
name, or by imposing upon the first heir the absolute obligation ("obligacion terminante") to deliver the inheritance
to a substitute or second heir. In this connection Manresa says: .
Para que la sustitucion sea fideicomisaria, es preciso segun el art. 781, que se ordeno o encargue al primer
heredero, cuando sea tal, que conserve y transmita a una tercera persona o entidad el todo a parte de la
herencia. O lo que es lo mismo, la sustitucion fideicomisaria, como declaran las resoluciones de 25 de Junio
de 1895, 10 de Febrero de 1899 y 19 de Julio de 1909, exige tres requisitos: .
1.o Un primer heredero llamado al goce de los bienes preferentemente.
2.o Obligacion claramente impuesta al mismo de conservar y transmitir a un tercero el todo o parte del
caudal.
3.o Un segundo heredero.
A estos requisitos anade la sentencia de 18 de Noviembre de 1918, otro mas, el del que el fideicomisario
tenga derecho a los bienes de la herencia desde el momento de la muerte del testador, puesto que ha de
suceder a este y no al fiduciario.
Por tanto, cuando el causante se limita a instituir dos herederos, y por fallecimiento de ambos o de
cualquiera de ellos, asigna la parte del fallecido o fallecidos, a los herederos legitimos o a otras personas,
solo existe una sustitucion vulgar, porque falta el requisito de haberse impuesto a los primeros herederos la
obligacion de conservar y transmitir los bienes, y el articulo 789, en su parrafo primero, evige que la
sustitucion sea expresa, ya dandole el testador el nombre de sustitucion fideicomisaria, ya imponiendo al
sustituido la obligacion terminante de conservar y transmitir los bienes a un segundo heredero.
A careful perusal of the testamentary clause under consideration shows that the substitution of heirs provided for
therein is not expressly made of the fideicommissary kind, nor does it contain a clear statement to the effect that
appellee, during her lifetime, shall only enjoy usufructuary rights over the property bequeathed to her, naked
ownership thereof being vested in the brothers of the testatrix. As already stated, it merely provides that upon
appellee's death — whether this happens before or after that of the testatrix — her share shall belong to the
brothers of the testatrix.
In the light of the foregoing, we believe, and so hold, that the last will of the deceased Dña. Leona Singson,
established a mere sustitucion vulgar, the substitution Consolacion Florentino by the brothers of the testatrix to be
effective or to take place upon the death of the former, whether it happens before or after that of the testatrix.
IN VIEW OF THE FOREGOING, the appealed judgment is affirmed, with costs.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes and De Leon, JJ., concur.
G.R. Nos. L-27860 and L-27896 March 29, 1974
PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, Administrator of the Testate Estate of Charles Newton
Hodges (Sp. Proc. No. 1672 of the Court of First Instance of Iloilo), petitioner,
vs.
THE HONORABLE VENICIO ESCOLIN, Presiding Judge of the Court of First Instance of Iloilo, Branch II, and
AVELINA A. MAGNO, respondents.
G.R. Nos. L-27936 & L-27937 March 29, 1974
TESTATE ESTATE OF THE LATE LINNIE JANE HODGES (Sp. Proc. No. 1307). TESTATE ESTATE OF THE LATE
CHARLES NEWTON HODGES (Sp. Proc. No. 1672). PHILIPPINE COMMERCIAL AND INDUSTRIAL
BANK, administrator-appellant,
vs.
LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL, SALVADOR GUZMAN, BELCESAR CAUSING,
FLORENIA BARRIDO, PURIFICACION CORONADO, GRACIANO LUCERO, ARITEO THOMAS JAMIR,
MELQUIADES BATISANAN, PEPITO IYULORES, ESPERIDION PARTISALA, WINIFREDO ESPADA, ROSARIO
ALINGASA, ADELFA PREMAYLON, SANTIAGO PACAONSIS, and AVELINA A. MAGNO, the last as
Administratrix in Sp. Proc. No. 1307, appellees, WESTERN INSTITUTE OF TECHNOLOGY, INC., movant-
appellee.
San Juan, Africa, Gonzales and San Agustin for Philippine Commercial and Industrial Bank.
Manglapus Law Office, Antonio Law Office and Rizal R. Quimpo for private respondents and appellees Avelina A.
Magno, etc., et al.

BARREDO, J.:p
Certiorari and prohibition with preliminary injunction; certiorari to "declare all acts of the respondent court in the
Testate Estate of Linnie Jane Hodges (Sp. Proc. No. 1307 of the Court of First Instance of Iloilo) subsequent to the
order of December 14, 1957 as null and void for having been issued without jurisdiction"; prohibition to enjoin the
respondent court from allowing, tolerating, sanctioning, or abetting private respondent Avelina A. Magno to
perform or do any acts of administration, such as those enumerated in the petition, and from exercising any
authority or power as Regular Administratrix of above-named Testate Estate, by entertaining manifestations,
motion and pleadings filed by her and acting on them, and also to enjoin said court from allowing said private
respondent to interfere, meddle or take part in any manner in the administration of the Testate Estate of Charles
Newton Hodges (Sp. Proc. No. 1672 of the same court and branch); with prayer for preliminary injunction, which
was issued by this Court on August 8, 1967 upon a bond of P5,000; the petition being particularly directed against
the orders of the respondent court of October 12, 1966 denying petitioner's motion of April 22, 1966 and its order
of July 18, 1967 denying the motion for reconsideration of said order.
Related to and involving basically the same main issue as the foregoing petition, thirty-three (33) appeals from
different orders of the same respondent court approving or otherwise sanctioning the acts of administration of the
respondent Magno on behalf of the testate Estate of Mrs. Hodges.
THE FACTS
On May 23, 1957, Linnie Jane Hodges died in Iloilo City leaving a will executed on November 22, 1952 pertinently
providing as follows:
FIRST: I direct that all my just debts and funeral expenses be first paid out of my estate.
SECOND: I give, devise and bequeath all of the rest, residue and remainder of my estate, both
personal and real, wherever situated, or located, to my beloved husband, Charles Newton Hodges, to
have and to hold unto him, my said husband, during his natural lifetime.
THIRD: I desire, direct and provide that my husband, Charles Newton Hodges, shall have the right to
manage, control, use and enjoy said estate during his lifetime, and he is hereby given the right to
make any changes in the physical properties of said estate, by sale or any part thereof which he may
think best, and the purchase of any other or additional property as he may think best; to execute
conveyances with or without general or special warranty, conveying in fee simple or for any other
term or time, any property which he may deem proper to dispose of; to lease any of the real
property for oil, gas and/or other minerals, and all such deeds or leases shall pass the absolute fee
simple title to the interest so conveyed in such property as he may elect to sell. All rents,
emoluments and income from said estate shall belong to him, and he is further authorized to use
any part of the principal of said estate as he may need or desire. It is provided herein, however, that
he shall not sell or otherwise dispose of any of the improved property now owned by us located at,
in or near the City of Lubbock, Texas, but he shall have the full right to lease, manage and enjoy the
same during his lifetime, above provided. He shall have the right to subdivide any farm land and sell
lots therein. and may sell unimproved town lots.
FOURTH: At the death of my said husband, Charles Newton Hodges, I give, devise and bequeath all
of the rest, residue and remainder of my estate, both real and personal, wherever situated or located,
to be equally divided among my brothers and sisters, share and share alike, namely:
 Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Saddie Rascoe, Era Roman and Nimroy
Higdon.
FIFTH: In case of the death of any of my brothers and/or sisters named in item Fourth, above, prior
to the death of my husband, Charles Newton Hodges, then it is my will and bequest that the heirs of
such deceased brother or sister shall take jointly the share which would have gone to such brother
or sister had she or he survived.
SIXTH: I nominate and appoint my said husband, Charles Newton Hodges, to be executor of this, my
last will and testament, and direct that no bond or other security be required of him as such
executor.
SEVENTH: It is my will and bequest that no action be had in the probate court, in the administration
of my estate, other than that necessary to prove and record this will and to return an inventory and
appraisement of my estate and list of claims. (Pp. 2-4, Petition.)
This will was subsequently probated in aforementioned Special Proceedings No. 1307 of respondent court on June
28, 1957, with the widower Charles Newton Hodges being appointed as Executor, pursuant to the provisions
thereof.
Previously, on May 27, 1957, the said widower (hereafter to be referred to as Hodges) had been appointed Special
Administrator, in which capacity he filed a motion on the same date as follows:
URGENT EX-PARTE MOTION TO ALLOW OR AUTHORIZE PETITIONER TO CONTINUE THE BUSINESS
IN WHICH HE WAS ENGAGED AND TO PERFORM ACTS WHICH HE HAD BEEN DOING WHILE
DECEASED WAS LIVING
Come petitioner in the above-entitled special proceedings, thru his undersigned attorneys, to the Hon. Court, most
respectfully states:
1. — That Linnie Jane Hodges died leaving her last will and testament, a copy of which is attached to
the petition for probate of the same.
2. — That in said last will and testament herein petitioner Charles Newton Hodges is directed to have
the right to manage, control use and enjoy the estate of deceased Linnie Jane Hodges, in the same
way, a provision was placed in paragraph two, the following: "I give, devise and bequeath all of the
rest, residue and remainder of my estate, to my beloved husband, Charles Newton Hodges, to have
and (to) hold unto him, my said husband, during his natural lifetime."
3. — That during the lifetime of Linnie Jane Hodges, herein petitioner was engaged in the business
of buying and selling personal and real properties, and do such acts which petitioner may think best.
4. — That deceased Linnie Jane Hodges died leaving no descendants or ascendants, except brothers
and sisters and herein petitioner as executor surviving spouse, to inherit the properties of the
decedent.
5. — That the present motion is submitted in order not to paralyze the business of petitioner and the
deceased, especially in the purchase and sale of properties. That proper accounting will be had also
in all these transactions.
WHEREFORE, it is most respectfully prayed that, petitioner C. N. Hodges (Charles Newton Hodges)
be allowed or authorized to continue the business in which he was engaged and to perform acts
which he had been doing while deceased Linnie Jane Hodges was living.
City of Iloilo, May 27, 1957. (Annex "D", Petition.)
which the respondent court immediately granted in the following order:
It appearing in the urgent ex-parte motion filed by petitioner C. N. Hodges, that the business in
which said petitioner and the deceased were engaged will be paralyzed, unless and until the
Executor is named and appointed by the Court, the said petitioner is allowed or authorized to
continue the business in which he was engaged and to perform acts which he had been doing while
the deceased was living.
SO ORDERED.
City of Iloilo May 27, 1957. (Annex "E", Petition.)
Under date of December 11, 1957, Hodges filed as such Executor another motion thus:
MOTION TO APPROVE ALL SALES, CONVEYANCES, LEASES, MORTGAGES THAT THE EXECUTOR HAD
MADE FURTHER AND SUBSEQUENT TRANSACTIONS WHICH THE EXECUTOR MAY DO IN
ACCORDANCE WITH THE LAST WISH OF THE DECEASED LINNIE JANE HODGES.
Comes the Executor in the above-entitled proceedings, thru his undersigned attorney, to the Hon.
Court, most respectfully states:
1. — That according to the last will and testament of the deceased Linnie Jane Hodges, the executor
as the surviving spouse and legatee named in the will of the deceased; has the right to dispose of all
the properties left by the deceased, portion of which is quoted as follows:
Second: I give, devise and bequeath all of the rest, residue and remainder of my estate, both
personal and real, wherever situated, or located, to my beloved husband, Charles Newton Hodges, to
have and to hold unto him, my said husband, during his natural lifetime.
 Third: I desire, direct and provide that my husband, Charles Newton Hodges, shall have the right to
manage, control, use and enjoy said estate during his lifetime, and he is hereby given the right to
make any changes in the physical properties of said estate, by sale or any part thereof which he may
think best, and the purchase of any other or additional property as he may think best; to execute
conveyances with or without general or special warranty, conveying in fee simple or for any other
term or time, any property which he may deem proper to dispose of; to lease any of the real
property for oil, gas and/or other minerals, and all such deeds or leases shall pass the absolute fee
simple title to the interest so conveyed in such property as he may elect to sell. All rents,
emoluments and income from said estate shall belong to him, and he is further authorized to use any
part of the principal of said estate as he may need or desire. ...
2. — That herein Executor, is not only part owner of the properties left as conjugal, but also, the
successor to all the properties left by the deceased Linnie Jane Hodges. That during the lifetime of
herein Executor, as Legatee has the right to sell, convey, lease or dispose of the properties in the
Philippines. That inasmuch as C.N. Hodges was and is engaged in the buy and sell of real and
personal properties, even before the death of Linnie Jane Hodges, a motion to authorize said C.N.
Hodges was filed in Court, to allow him to continue in the business of buy and sell, which motion
was favorably granted by the Honorable Court.
3. — That since the death of Linnie Jane Hodges, Mr. C.N. Hodges had been buying and selling real
and personal properties, in accordance with the wishes of the late Linnie Jane Hodges.
4. — That the Register of Deeds for Iloilo, had required of late the herein Executor to have all the
sales, leases, conveyances or mortgages made by him, approved by the Hon. Court.
5. — That it is respectfully requested, all the sales, conveyances leases and mortgages executed by
the Executor, be approved by the Hon. Court. and subsequent sales conveyances, leases and
mortgages in compliances with the wishes of the late Linnie Jane Hodges, and within the scope of
the terms of the last will and testament, also be approved;
6. — That the Executor is under obligation to submit his yearly accounts, and the properties
conveyed can also be accounted for, especially the amounts received.
WHEREFORE, it is most respectfully prayed that, all the sales, conveyances, leases, and mortgages
executed by the Executor, be approved by the Hon. Court, and also the subsequent sales,
conveyances, leases, and mortgages in consonance with the wishes of the deceased contained in her
last will and testament, be with authorization and approval of the Hon. Court.
City of Iloilo, December 11, 1967.
(Annex "G", Petition.)
which again was promptly granted by the respondent court on December 14, 1957 as follows:
ORDER
As prayed for by Attorney Gellada, counsel for the Executor for the reasons stated in his motion
dated December 11, 1957, which the Court considers well taken all the sales, conveyances, leases
and mortgages of all properties left by the deceased Linnie Jane Hodges executed by the Executor
Charles N. Hodges are hereby APPROVED. The said Executor is further authorized to execute
subsequent sales, conveyances, leases and mortgages of the properties left by the said deceased
Linnie Jane Hodges in consonance with the wishes conveyed in the last will and testament of the
latter.
So ordered.
Iloilo City. December 14, 1957.
(Annex "H", Petition.)
On April 14, 1959, in submitting his first statement of account as Executor for approval, Hodges alleged:
Pursuant to the provisions of the Rules of Court, herein executor of the deceased, renders the
following account of his administration covering the period from January 1, 1958 to December 31,
1958, which account may be found in detail in the individual income tax return filed for the estate of
deceased Linnie Jane Hodges, to wit:
That a certified public accountant has examined the statement of net worth of the estate of Linnie
Jane Hodges, the assets and liabilities, as well as the income and expenses, copy of which is hereto
attached and made integral part of this statement of account as Annex "A".
IN VIEW OF THE FOREGOING, it is most respectfully prayed that, the statement of net worth of the
estate of Linnie Jane Hodges, the assets and liabilities, income and expenses as shown in the
individual income tax return for the estate of the deceased and marked as Annex "A", be approved
by the Honorable Court, as substantial compliance with the requirements of the Rules of Court.
That no person interested in the Philippines of the time and place of examining the herein accounts
be given notice, as herein executor is the only devisee or legatee of the deceased, in accordance with
the last will and testament already probated by the Honorable court.
City of Iloilo April 14, 1959.
 (Annex "I", Petition.)
The respondent court approved this statement of account on April 21, 1959 in its order worded thus:
Upon petition of Atty. Gellada, in representation of the Executor, the statement of net worth of the
estate of Linnie Jane Hodges, assets and liabilities, income and expenses as shown in the individual
income tax return for the estate of the deceased and marked as Annex "A" is approved.
SO ORDERED.
City of Iloilo April 21, 1959.
(Annex "J", Petition.)
His accounts for the periods January 1, 1959 to December 31, 1959 and January 1, 1960 to December 31, 1960 were
submitted likewise accompanied by allegations identical mutatis mutandis to those of April 14, 1959, quoted above;
and the respective orders approving the same, dated July 30, 1960 and May 2, 1961, were substantially identical to
the above-quoted order of April 21, 1959. In connection with the statements of account just mentioned, the
following assertions related thereto made by respondent-appellee Magno in her brief do not appear from all
indications discernible in the record to be disputable:
Under date of April 14, 1959, C.N. Hodges filed his first "Account by the Executor" of the estate of
Linnie Jane Hodges. In the "Statement of Networth of Mr. C.N. Hodges and the Estate of Linnie Jane
Hodges" as of December 31, 1958 annexed thereto, C.N. Hodges reported that the combined
conjugal estate earned a net income of P328,402.62, divided evenly between him and the estate of
Linnie Jane Hodges. Pursuant to this, he filed an "individual income tax return" for calendar year
1958 on the estate of Linnie Jane Hodges reporting, under oath, the said estate as having earned
income of P164,201.31, exactly one-half of the net income of his combined personal assets and that
of the estate of Linnie Jane Hodges. (p. 91, Appellee's Brief.)
xxx xxx xxx
Under date of July 21, 1960, C.N. Hodges filed his second "Annual Statement of Account by the
Executor" of the estate of Linnie Jane Hodges. In the "Statement of Networth of Mr. C.N. Hodges and
the Estate of Linnie Jane Hodges" as of December 31, 1959 annexed thereto, C.N. Hodges reported
that the combined conjugal estate earned a net income of P270,623.32, divided evenly between him
and the estate of Linnie Jane Hodges. Pursuant to this, he filed an "individual income tax return" for
calendar year 1959 on the estate of Linnie Jane Hodges reporting, under oath, the said estate as
having earned income of P135,311.66, exactly one-half of the net income of his combined personal
assets and that of the estate of Linnie Jane Hodges. (pp. 91-92. Appellee's Brief.)
xxx xxx xxx
Under date of April 20, 1961, C.N. Hodges filed his third "Annual Statement of Account by the
Executor for the Year 1960" of the estate of Linnie Jane Hodges. In the "Statement of Net Worth of
Mr. C.N. Hodges and the Estate of Linnie Jane Hodges" as of December 31, 1960 annexed thereto,
C.N. Hodges reported that the combined conjugal estate earned a net income of P314,857.94,
divided evenly between him and the estate of Linnie Jane Hodges. Pursuant to this, he filed an
"individual income tax return" for calendar year 1960 on the estate of Linnie Jane Hodges reporting,
under oath, the said estate as having earned income of P157,428.97, exactly one-half of the net
income of his combined personal assets and that of the estate of Linnie Jane Hodges. (Pp. 92-93,
Appellee's Brief.)
Likewise the following:
In the petition for probate that he (Hodges) filed, he listed the seven brothers and sisters of Linnie
Jane as her "heirs" (see p. 2, Green ROA). The order of the court admitting the will to probate
unfortunately omitted one of the heirs, Roy Higdon (see p. 14, Green ROA). Immediately, C.N.
Hodges filed a verified motion to have Roy Higdon's name included as an heir, stating that he
wanted to straighten the records "in order the heirs of deceased Roy Higdon may not think or
believe they were omitted, and that they were really and are interested in the estate of deceased
Linnie Jane Hodges. .
As an executor, he was bound to file tax returns for the estate he was administering under American
law. He did file such as estate tax return on August 8, 1958. In Schedule "M" of such return, he
answered "Yes" to the question as to whether he was contemplating "renouncing the will". On the
question as to what property interests passed to him as the surviving spouse, he answered:
"None, except for purposes of administering the Estate, paying debts, taxes and other
legal charges. It is the intention of the surviving husband of deceased to distribute the
remaining property and interests of the deceased in their Community estate to the
devisees and legatees named in the will when the debts, liabilities, taxes and expenses
of administration are finally determined and paid."
Again, on August 9, 1962, barely four months before his death, he executed an "affidavit" wherein he
ratified and confirmed all that he stated in Schedule "M" of his estate tax returns as to his having
renounced what was given him by his wife's will.1
 As appointed executor, C.N. Hodges filed an "Inventory" dated May 12, 1958. He listed all the assets
of his conjugal partnership with Linnie Jane Hodges on a separate balance sheet and then stated
expressly that her estate which has come into his possession as executor was "one-half of all the
items" listed in said balance sheet. (Pp. 89-90, Appellee's Brief.)
Parenthetically, it may be stated, at this juncture, that We are taking pains to quote wholly or at least, extensively
from some of the pleadings and orders whenever We feel that it is necessary to do so for a more comprehensive
and clearer view of the important and decisive issues raised by the parties and a more accurate appraisal of their
respective positions in regard thereto.
The records of these cases do not show that anything else was done in the above-mentioned Special Proceedings
No. 1307 until December 26, 1962, when on account of the death of Hodges the day before, the same lawyer, Atty.
Leon P. Gellada, who had been previously acting as counsel for Hodges in his capacity as Executor of his wife's
estate, and as such had filed the aforequoted motions and manifestations, filed the following:
URGENT EX-PARTE MOTION FOR THE APPOINTMENT OF A
SPECIAL ADMINISTRATRIX
COMES the undersigned attorney for the Executor in the above-entitled proceedings, to the
Honorable Court, most respectfully states:
1. That in accordance with the Last Will and Testament of Linnie Jane Hodges (deceased), her
husband, Charles Newton Hodges was to act as Executor, and in fact, in an order issued by this Hon.
Court dated June 28, 1957, the said Charles Newton Hodges was appointed Executor and had
performed the duties as such.
2. That last December 22, 1962, the said Charles Newton Hodges was stricken ill, and brought to the
Iloilo Mission Hospital for treatment, but unfortunately, he died on December 25, 1962, as shown by
a copy of the death certificate hereto attached and marked as Annex "A".
3. That in accordance with the provisions of the last will and testament of Linnie Jane Hodges,
whatever real and personal properties that may remain at the death of her husband Charles Newton
Hodges, the said properties shall be equally divided among their heirs. That there are real and
personal properties left by Charles Newton Hodges, which need to be administered and taken care
of.
4. That the estate of deceased Linnie Jane Hodges, as well as that of Charles Newton Hodges, have
not as yet been determined or ascertained, and there is necessity for the appointment of a general
administrator to liquidate and distribute the residue of the estate to the heirs and legatees of both
spouses. That in accordance with the provisions of Section 2 of Rule 75 of the Rules of Court, the
conjugal partnership of Linnie Jane Hodges and Charles Newton Hodges shall be liquidated in the
testate proceedings of the wife.
5. That the undersigned counsel, has perfect personal knowledge of the existence of the last will and
testament of Charles Newton Hodges, with similar provisions as that contained in the last will and
testament of Linnie Jane Hodges. However, said last will and testament of Charles Newton Hodges is
kept inside the vault or iron safe in his office, and will be presented in due time before this
honorable Court.
6. That in the meantime, it is imperative and indispensable that, an Administratrix be appointed for
the estate of Linnie Jane Hodges and a Special Administratrix for the estate of Charles Newton
Hodges, to perform the duties required by law, to administer, collect, and take charge of the goods,
chattels, rights, credits, and estate of both spouses, Charles Newton Hodges and Linnie Jane Hodges,
as provided for in Section 1 and 2, Rule 81 of the Rules of Court.
7. That there is delay in granting letters testamentary or of administration, because the last will and
testament of deceased, Charles Newton Hodges, is still kept in his safe or vault, and in the meantime,
unless an administratrix (and,) at the same time, a Special Administratrix is appointed, the estate of
both spouses are in danger of being lost, damaged or go to waste.
8. That the most trusted employee of both spouses Linnie Jane Hodges and C.N. Hodges, who had
been employed for around thirty (30) years, in the person of Miss Avelina Magno, (should) be
appointed Administratrix of the estate of Linnie Jane Hodges and at the same time Special
Administratrix of the estate of Charles Newton Hodges. That the said Miss Avelina Magno is of legal
age, a resident of the Philippines, the most fit, competent, trustworthy and well-qualified person to
serve the duties of Administratrix and Special Administratrix and is willing to act as such.
9. That Miss Avelina Magno is also willing to file bond in such sum which the Hon. Court believes
reasonable.
WHEREFORE, in view of all the foregoing, it is most respectfully prayed that, Miss AVELINA A.
MAGNO be immediately appointed Administratrix of the estate of Linnie Jane Hodges and as Special
Administratrix of the estate of Charles Newton Hodges, with powers and duties provided for by law.
That the Honorable Court fix the reasonable bond of P1,000.00 to be filed by Avelina A. Magno.
(Annex "O", Petition.)
which respondent court readily acted on in its order of even date thus: .
For the reasons alleged in the Urgent Ex-parte Motion filed by counsel for the Executor dated
December 25, 1962, which the Court finds meritorious, Miss AVELINA A. MAGNO, is hereby
appointed Administratrix of the estate of Linnie Jane Hodges and as Special Administratrix of the
estate of Charles Newton Hodges, in the latter case, because the last will of said Charles Newton
Hodges is still kept in his vault or iron safe and that the real and personal properties of both spouses
may be lost, damaged or go to waste, unless a Special Administratrix is appointed.
Miss Avelina A. Magno is required to file bond in the sum of FIVE THOUSAND PESOS (P5,000.00),
and after having done so, let letters of Administration be issued to her." (Annex "P", Petition.)
On December 29, 1962, however, upon urgent ex-parte petition of respondent Magno herself, thru
Atty. Gellada, Harold, R. Davies, "a representative of the heirs of deceased Charles Newton Hodges
(who had) arrived from the United States of America to help in the administration of the estate of
said deceased" was appointed as Co-Special Administrator of the estate of Hodges, (pp. 29-33,
Yellow - Record on Appeal) only to be replaced as such co-special administrator on January 22, 1963
by Joe Hodges, who, according to the motion of the same attorney, is "the nephew of the deceased
(who had) arrived from the United States with instructions from the other heirs of the deceased to
administer the properties or estate of Charles Newton Hodges in the Philippines, (Pp. 47-50, id.)
Meanwhile, under date of January 9, 1963, the same Atty. Gellada filed in Special Proceedings 1672 a petition for
the probate of the will of Hodges,2 with a prayer for the issuance of letters of administration to the same Joe
Hodges, albeit the motion was followed on February 22, 1963 by a separate one asking that Atty. Fernando Mirasol
be appointed as his co-administrator. On the same date this latter motion was filed, the court issued the
corresponding order of probate and letters of administration to Joe Hodges and Atty. Mirasol, as prayed for.
At this juncture, again, it may also be explained that just as, in her will, Mrs. Hodges bequeathed her whole estate to
her husband "to have and to hold unto him, my said husband, during his natural lifetime", she, at the same time or
in like manner, provided that "at the death of my said husband — I give devise and bequeath all of the rest, residue
and remainder of my estate, both real and personal, wherever situated or located, to be equally divided among my
brothers and sisters, share and share alike —". Accordingly, it became incumbent upon Hodges, as executor of his
wife's will, to duly liquidate the conjugal partnership, half of which constituted her estate, in order that upon the
eventuality of his death, "the rest, residue and remainder" thereof could be determined and correspondingly
distributed or divided among her brothers and sisters. And it was precisely because no such liquidation was done,
furthermore, there is the issue of whether the distribution of her estate should be governed by the laws of the
Philippines or those of Texas, of which State she was a national, and, what is more, as already stated, Hodges made
official and sworn statements or manifestations indicating that as far as he was concerned no "property interests
passed to him as surviving spouse — "except for purposes of administering the estate, paying debts, taxes and
other legal charges" and it was the intention of the surviving husband of the deceased to distribute the remaining
property and interests of the deceased in their Community Estate to the devisees and legatees named in the will
when the debts, liabilities, taxes and expenses of administration are finally determined and paid", that the incidents
and controversies now before Us for resolution arose. As may be observed, the situation that ensued upon the
death of Hodges became rather unusual and so, quite understandably, the lower court's actuations presently under
review are apparently wanting in consistency and seemingly lack proper orientation.
Thus, We cannot discern clearly from the record before Us the precise perspective from which the trial court
proceeded in issuing its questioned orders. And, regretably, none of the lengthy briefs submitted by the parties is
of valuable assistance in clearing up the matter.
To begin with, We gather from the two records on appeal filed by petitioner, as appellant in the appealed cases,
one with green cover and the other with a yellow cover, that at the outset, a sort of modus operandi had been
agreed upon by the parties under which the respective administrators of the two estates were supposed to act
conjointly, but since no copy of the said agreement can be found in the record before Us, We have no way of
knowing when exactly such agreement was entered into and under what specific terms. And while reference is
made to said modus operandi in the order of September 11, 1964, on pages 205-206 of the Green Record on
Appeal, reading thus:
The present incident is to hear the side of administratrix, Miss Avelina A. Magno, in answer to the
charges contained in the motion filed by Atty. Cesar Tirol on September 3, 1964. In answer to the
said charges, Miss Avelina A. Magno, through her counsel, Atty. Rizal Quimpo, filed a written
manifestation.
After reading the manifestation here of Atty. Quimpo, for and in behalf of the administratrix, Miss
Avelina A. Magno, the Court finds that everything that happened before September 3, 1964, which
was resolved on September 8, 1964, to the satisfaction of parties, was simply due to a
misunderstanding between the representative of the Philippine Commercial and Industrial Bank and
Miss Magno and in order to restore the harmonious relations between the parties, the Court ordered
the parties to remain in status quo as to their modus operandi before September 1, 1964, until after
the Court can have a meeting with all the parties and their counsels on October 3, as formerly
 agreed upon between counsels, Attys. Ozaeta, Gibbs and Ozaeta, Attys. Tirol and Tirol and Atty. Rizal
Quimpo.
In the meantime, the prayers of Atty. Quimpo as stated in his manifestation shall not be resolved by
this Court until October 3, 1964.
SO ORDERED.
there is nothing in the record indicating whatever happened to it afterwards, except that again, reference thereto
was made in the appealed order of October 27, 1965, on pages 292-295 of the Green Record on Appeal, as follows:
On record is an urgent motion to allow PCIB to open all doors and locks in the Hodges Office at
206-208 Guanco Street, Iloilo City, to take immediate and exclusive possession thereof and to place
its own locks and keys for security purposes of the PCIB dated October 27, 1965 thru Atty. Cesar
Tirol. It is alleged in said urgent motion that Administratrix Magno of the testate estate of Linnie
Jane Hodges refused to open the Hodges Office at 206-208 Guanco Street, Iloilo City where PCIB
holds office and therefore PCIB is suffering great moral damage and prejudice as a result of said act.
It is prayed that an order be issued authorizing it (PCIB) to open all doors and locks in the said office,
to take immediate and exclusive possession thereof and place thereon its own locks and keys for
security purposes; instructing the clerk of court or any available deputy to witness and supervise the
opening of all doors and locks and taking possession of the PCIB.
A written opposition has been filed by Administratrix Magno of even date (Oct. 27) thru counsel
Rizal Quimpo stating therein that she was compelled to close the office for the reason that the PCIB
failed to comply with the order of this Court signed by Judge Anacleto I. Bellosillo dated September
11, 1964 to the effect that both estates should remain in status quo to their modus operandi as of
September 1, 1964.
To arrive at a happy solution of the dispute and in order not to interrupt the operation of the office
of both estates, the Court aside from the reasons stated in the urgent motion and opposition heard
the verbal arguments of Atty. Cesar Tirol for the PCIB and Atty. Rizal Quimpo for Administratix
Magno.
After due consideration, the Court hereby orders Magno to open all doors and locks in the Hodges
Office at 206-208 Guanco Street, Iloilo City in the presence of the PCIB or its duly authorized
representative and deputy clerk of court Albis of this branch not later than 7:30 tomorrow morning
October 28, 1965 in order that the office of said estates could operate for business.
Pursuant to the order of this Court thru Judge Bellosillo dated September 11, 1964, it is hereby
ordered:
(a) That all cash collections should be deposited in the joint account of the estates of Linnie Jane
Hodges and estates of C.N. Hodges;
(b) That whatever cash collections that had been deposited in the account of either of the estates
should be withdrawn and since then deposited in the joint account of the estate of Linnie Jane
Hodges and the estate of C.N. Hodges;
(c) That the PCIB should countersign the check in the amount of P250 in favor of Administratrix
Avelina A. Magno as her compensation as administratrix of the Linnie Jane Hodges estate chargeable
to the testate estate of Linnie Jane Hodges only;
(d) That Administratrix Magno is hereby directed to allow the PCIB to inspect whatever records,
documents and papers she may have in her possession in the same manner that Administrator PCIB
is also directed to allow Administratrix Magno to inspect whatever records, documents and papers it
may have in its possession;
(e) That the accountant of the estate of Linnie Jane Hodges shall have access to all records of the
transactions of both estates for the protection of the estate of Linnie Jane Hodges; and in like
manner the accountant or any authorized representative of the estate of C.N. Hodges shall have
access to the records of transactions of the Linnie Jane Hodges estate for the protection of the
estate of C.N. Hodges.
Once the estates' office shall have been opened by Administratrix Magno in the presence of the PCIB
or its duly authorized representative and deputy clerk Albis or his duly authorized representative,
both estates or any of the estates should not close it without previous consent and authority from
this court.
SO ORDERED.
As may be noted, in this order, the respondent court required that all collections from the properties in the name of
Hodges should be deposited in a joint account of the two estates, which indicates that seemingly the so-
called modus operandi was no longer operative, but again there is nothing to show when this situation started.
Likewise, in paragraph 3 of the petitioner's motion of September 14, 1964, on pages 188-201 of the Green Record
on Appeal, (also found on pp. 83-91 of the Yellow Record on Appeal) it is alleged that:
3. On January 24, 1964 virtually all of the heirs of C.N. Hodges, Joe Hodges and Fernando P. Mirasol
acting as the two co-administrators of the estate of C.N. Hodges, Avelina A. Magno acting as the
 administratrix of the estate of Linnie Jane Hodges and Messrs. William Brown and Ardell Young
acting for all of the Higdon family who claim to be the sole beneficiaries of the estate of Linnie Jane
Hodges and various legal counsel representing the aforementioned parties entered into an amicable
agreement, which was approved by this Honorable Court, wherein the parties thereto agreed that
certain sums of money were to be paid in settlement of different claims against the two estates and
that the assets (to the extent they existed) of both estates would be administered jointly by the PCIB
as administrator of the estate of C.N. Hodges and Avelina A. Magno as administratrix of the estate of
Linnie Jane Hodges, subject, however, to the aforesaid October 5, 1963 Motion, namely, the PCIB's
claim to exclusive possession and ownership of one hundred percent (100%) (or, in the alternative,
seventy-five percent (75%) of all assets owned by C.N. Hodges or Linnie Jane Hodges situated in the
Philippines. On February 1, 1964 (pp. 934-935, CFI Rec., S.P. No. 1672) this Honorable Court
amended its order of January 24, 1964 but in no way changed its recognition of the afore-described
basic demand by the PCIB as administrator of the estate of C.N. Hodges to one hundred percent
(100%) of the assets claimed by both estates.
but no copy of the mentioned agreement of joint administration of the two estates exists in the record, and so, We
are not informed as to what exactly are the terms of the same which could be relevant in the resolution of the
issues herein.
On the other hand, the appealed order of November 3, 1965, on pages 313-320 of the Green Record on Appeal,
authorized payment by respondent Magno of, inter alia, her own fees as administratrix, the attorney's fees of her
lawyers, etc., as follows:
Administratrix Magno thru Attys. Raul S. Manglapus and Rizal. R. Quimpo filed a Manifestation and
Urgent Motion dated June 10, 1964 asking for the approval of the Agreement dated June 6, 1964
which Agreement is for the purpose of retaining their services to protect and defend the interest of
the said Administratrix in these proceedings and the same has been signed by and bears the express
conformity of the attorney-in-fact of the late Linnie Jane Hodges, Mr. James L. Sullivan. It is further
prayed that the Administratrix of the Testate Estate of Linnie Jane Hodges be directed to pay the
retailers fee of said lawyers, said fees made chargeable as expenses for the administration of the
estate of Linnie Jane Hodges (pp. 1641-1642, Vol. V, Sp. 1307).
An opposition has been filed by the Administrator PCIB thru Atty. Herminio Ozaeta dated July 11,
1964, on the ground that payment of the retainers fee of Attys. Manglapus and Quimpo as prayed
for in said Manifestation and Urgent Motion is prejudicial to the 100% claim of the estate of C. N.
Hodges; employment of Attys. Manglapus and Quimpo is premature and/or unnecessary; Attys.
Quimpo and Manglapus are representing conflicting interests and the estate of Linnie Jane Hodges
should be closed and terminated (pp. 1679-1684, Vol, V, Sp. 1307).
Atty. Leon P. Gellada filed a memorandum dated July 28, 1964 asking that the Manifestation and
Urgent Motion filed by Attys. Manglapus and Quimpo be denied because no evidence has been
presented in support thereof. Atty. Manglapus filed a reply to the opposition of counsel for the
Administrator of the C. N. Hodges estate wherein it is claimed that expenses of administration
include reasonable counsel or attorney's fees for services to the executor or administrator. As a
matter of fact the fee agreement dated February 27, 1964 between the PCIB and the law firm of
Ozaeta, Gibbs & Ozaeta as its counsel (Pp. 1280-1284, Vol. V, Sp. 1307) which stipulates the fees for
said law firm has been approved by the Court in its order dated March 31, 1964. If payment of the
fees of the lawyers for the administratrix of the estate of Linnie Jane Hodges will cause prejudice to
the estate of C. N. Hodges, in like manner the very agreement which provides for the payment of
attorney's fees to the counsel for the PCIB will also be prejudicial to the estate of Linnie Jane Hodges
(pp. 1801-1814, Vol. V, Sp. 1307).
Atty. Herminio Ozaeta filed a rejoinder dated August 10, 1964 to the reply to the opposition to the
Manifestation and Urgent Motion alleging principally that the estates of Linnie Jane Hodges and C.
N. Hodges are not similarly situated for the reason that C. N. Hodges is an heir of Linnie Jane
Hodges whereas the latter is not an heir of the former for the reason that Linnie Jane Hodges
predeceased C. N. Hodges (pp. 1839-1848, Vol. V, Sp. 1307); that Attys. Manglapus and Quimpo
formally entered their appearance in behalf of Administratrix of the estate of Linnie Jane Hodges on
June 10, 1964 (pp. 1639-1640, Vol. V, Sp. 1307).
Atty. Manglapus filed a manifestation dated December 18, 1964 stating therein that Judge Bellosillo
issued an order requiring the parties to submit memorandum in support of their respective
contentions. It is prayed in this manifestation that the Manifestation and Urgent Motion dated June
10, 1964 be resolved (pp. 6435-6439, Vol. VII, Sp. 1307).
Atty. Roman Mabanta, Jr. for the PCIB filed a counter- manifestation dated January 5, 1965 asking
that after the consideration by the court of all allegations and arguments and pleadings of the PCIB
in connection therewith (1) said manifestation and urgent motion of Attys. Manglapus and Quimpo
be denied (pp. 6442-6453, Vol. VII, Sp. 1307). Judge Querubin issued an order dated January 4, 1965
 approving the motion dated June 10, 1964 of the attorneys for the administratrix of the estate of
Linnie Jane Hodges and agreement annexed to said motion. The said order further states: "The
Administratrix of the estate of Linnie Jane Hodges is authorized to issue or sign whatever check or
checks may be necessary for the above purpose and the administrator of the estate of C. N. Hodges
is ordered to countersign the same. (pp. 6518-6523, Vol VII, Sp. 1307).
Atty. Roman Mabanta, Jr. for the PCIB filed a manifestation and motion dated January 13, 1965
asking that the order of January 4, 1965 which was issued by Judge Querubin be declared null and
void and to enjoin the clerk of court and the administratrix and administrator in these special
proceedings from all proceedings and action to enforce or comply with the provision of the
aforesaid order of January 4, 1965. In support of said manifestation and motion it is alleged that the
order of January 4, 1965 is null and void because the said order was never delivered to the deputy
clerk Albis of Branch V (the sala of Judge Querubin) and the alleged order was found in the drawer
of the late Judge Querubin in his office when said drawer was opened on January 13, 1965 after the
death of Judge Querubin by Perfecto Querubin, Jr., the son of the judge and in the presence of
Executive Judge Rovira and deputy clerk Albis (Sec. 1, Rule 36, New Civil Code) (Pp. 6600-6606, Vol.
VIII, Sp. 1307).
Atty. Roman Mabanta, Jr. for the PCIB filed a motion for reconsideration dated February 23, 1965
asking that the order dated January 4, 1964 be reversed on the ground that:
1. Attorneys retained must render services to the estate not to the personal heir;
2. If services are rendered to both, fees should be pro-rated between them;
3. Attorneys retained should not represent conflicting interests; to the prejudice of the other heirs
not represented by said attorneys;
4. Fees must be commensurate to the actual services rendered to the estate;
5. There must be assets in the estate to pay for said fees (Pp. 6625-6636, Vol. VIII, Sp. 1307).
Atty. Quimpo for Administratrix Magno of the estate of Linnie Jane Hodges filed a motion to submit
dated July 15, 1965 asking that the manifestation and urgent motion dated June 10, 1964 filed by
Attys. Manglapus and Quimpo and other incidents directly appertaining thereto be considered
submitted for consideration and approval (pp. 6759-6765, Vol. VIII, Sp. 1307).
Considering the arguments and reasons in support to the pleadings of both the Administratrix and
the PCIB, and of Atty. Gellada, hereinbefore mentioned, the Court believes that the order of January
4, 1965 is null and void for the reason that the said order has not been filed with deputy clerk Albis
of this court (Branch V) during the lifetime of Judge Querubin who signed the said order. However,
the said manifestation and urgent motion dated June 10, 1964 is being treated and considered in
this instant order. It is worthy to note that in the motion dated January 24, 1964 (Pp. 1149- 1163, Vol.
V, Sp. 1307) which has been filed by Atty. Gellada and his associates and Atty. Gibbs and other
lawyers in addition to the stipulated fees for actual services rendered. However, the fee agreement
dated February 27, 1964, between the Administrator of the estate of C. N. Hodges and Atty. Gibbs
which provides for retainer fee of P4,000 monthly in addition to specific fees for actual appearances,
reimbursement for expenditures and contingent fees has also been approved by the Court and said
lawyers have already been paid. (pp. 1273-1279, Vol. V, Sp. Proc. 1307 pp. 1372-1373, Vol. V, Sp.
Proc. 1307).
WHEREFORE, the order dated January 4, 1965 is hereby declared null and void.
The manifestation and motion dated June 10, 1964 which was filed by the attorneys for the
administratrix of the testate estate of Linnie Jane Hodges is granted and the agreement annexed
thereto is hereby approved.
The administratrix of the estate of Linnie Jane Hodges is hereby directed to be needed to implement
the approval of the agreement annexed to the motion and the administrator of the estate of C. N.
Hodges is directed to countersign the said check or checks as the case may be.
SO ORDERED.
thereby implying somehow that the court assumed the existence of independent but simultaneous administrations.
Be that as it may, again, it appears that on August 6, 1965, the court, acting on a motion of petitioner for the
approval of deeds of sale executed by it as administrator of the estate of Hodges, issued the following order, also
on appeal herein:
Acting upon the motion for approval of deeds of sale for registered land of the PCIB, Administrator
of the Testate Estate of C. N. Hodges in Sp. Proc. 1672 (Vol. VII, pp. 2244-2245), dated July 16, 1965,
filed by Atty. Cesar T. Tirol in representation of the law firms of Ozaeta, Gibbs and Ozaeta and Tirol
and Tirol and the opposition thereto of Atty. Rizal R. Quimpo (Vol. VIII, pp. 6811-6813) dated July 22,
1965 and considering the allegations and reasons therein stated, the court believes that the deeds of
sale should be signed jointly by the PCIB, Administrator of the Testate Estate of C. N. Hodges and
Avelina A. Magno, Administratrix of the Testate Estate of Linnie Jane Hodges and to this effect the
 PCIB should take the necessary steps so that Administratrix Avelina A. Magno could sign the deeds
of sale.
SO ORDERED. (p. 248, Green Record on Appeal.)
Notably this order required that even the deeds executed by petitioner, as administrator of the Estate of Hodges,
involving properties registered in his name, should be co-signed by respondent Magno.3 And this was not an
isolated instance.
In her brief as appellee, respondent Magno states:
After the lower court had authorized appellee Avelina A. Magno to execute final deeds of sale
pursuant to contracts to sell executed by C. N. Hodges on February 20, 1963 (pp. 45-46, Green ROA),
motions for the approval of final deeds of sale (signed by appellee Avelina A. Magno and the
administrator of the estate of C. N. Hodges, first Joe Hodges, then Atty. Fernando Mirasol and later
the appellant) were approved by the lower court upon petition of appellee Magno's counsel, Atty.
Leon P. Gellada, on the basis of section 8 of Rule 89 of the Revised Rules of Court. Subsequently, the
appellant, after it had taken over the bulk of the assets of the two estates, started presenting these
motions itself. The first such attempt was a "Motion for Approval of Deeds of Sale for Registered
Land and Cancellations of Mortgages" dated July 21, 1964 filed by Atty. Cesar T. Tirol, counsel for the
appellant, thereto annexing two (2) final deeds of sale and two (2) cancellations of mortgages signed
by appellee Avelina A. Magno and D. R. Paulino, Assistant Vice-President and Manager of the
appellant (CFI Record, Sp. Proc. No. 1307, Vol. V, pp. 1694-1701). This motion was approved by the
lower court on July 27, 1964. It was followed by another motion dated August 4, 1964 for the
approval of one final deed of sale again signed by appellee Avelina A. Magno and D. R. Paulino (CFI
Record, Sp. Proc. No. 1307. Vol. V, pp. 1825-1828), which was again approved by the lower court on
August 7, 1964. The gates having been opened, a flood ensued: the appellant subsequently filed
similar motions for the approval of a multitude of deeds of sales and cancellations of mortgages
signed by both the appellee Avelina A. Magno and the appellant.
A random check of the records of Special Proceeding No. 1307 alone will show Atty. Cesar T. Tirol as
having presented for court approval deeds of sale of real properties signed by both appellee Avelina
A. Magno and D. R. Paulino in the following numbers: (a) motion dated September 21, 1964 — 6
deeds of sale; (b) motion dated November 4, 1964 — 1 deed of sale; (c) motion dated December 1,
1964 — 4 deeds of sale; (d) motion dated February 3, 1965 — 8 deeds of sale; (f) motion dated May
7, 1965 — 9 deeds of sale. In view of the very extensive landholdings of the Hodges spouses and the
many motions filed concerning deeds of sale of real properties executed by C. N. Hodges the lower
court has had to constitute special separate expedientes in Special Proceedings Nos. 1307 and 1672
to include mere motions for the approval of deeds of sale of the conjugal properties of the Hodges
spouses.
As an example, from among the very many, under date of February 3, 1965, Atty. Cesar T. Tirol, as
counsel for the appellant, filed "Motion for Approval of Deeds of Sale for Registered Land and
Cancellations of Mortgages" (CFI Record, Sp. Proc. No. 1307, Vol. VIII, pp. 6570-6596) the allegations
of which read:
"1. In his lifetime, the late C. N. Hodges executed "Contracts to Sell" real property, and the
prospective buyers under said contracts have already paid the price and complied with the terms
and conditions thereof;
"2. In the course of administration of both estates, mortgage debtors have already paid their debts
secured by chattel mortgages in favor of the late C. N. Hodges, and are now entitled to release
therefrom;
"3. There are attached hereto documents executed jointly by the Administratrix in Sp. Proc. No. 1307
and the Administrator in Sp. Proc. No. 1672, consisting of deeds of sale in favor —
Fernando Cano, Bacolod City, Occ. Negros
Fe Magbanua, Iloilo City
Policarpio M. Pareno, La Paz, Iloilo City
Rosario T. Libre, Jaro, Iloilo City
Federico B. Torres, Iloilo City
Reynaldo T. Lataquin, La Paz, Iloilo City
Anatolio T. Viray, Iloilo City
Benjamin Rolando, Jaro, Iloilo City
and cancellations of mortgages in favor of —
Pablo Manzano, Oton, Iloilo
Ricardo M. Diana, Dao, San Jose, Antique
Simplicio Tingson, Iloilo City
Amado Magbanua, Pototan, Iloilo
Roselia M. Baes, Bolo, Roxas City
 William Bayani, Rizal Estanzuela, Iloilo City
Elpidio Villarete, Molo, Iloilo City
Norma T. Ruiz, Jaro, Iloilo City
"4. That the approval of the aforesaid documents will not reduce the assets of the
estates so as to prevent any creditor from receiving his full debt or diminish his
dividend."
And the prayer of this motion is indeed very revealing:
"WHEREFORE, it is respectfully prayed that, under Rule 89, Section 8 of the Rules of Court, this
honorable court approve the aforesaid deeds of sale and cancellations of mortgages." (Pp. 113-117,
Appellee's Brief.)
None of these assertions is denied in Petitioner's reply brief.
Further indicating lack of concrete perspective or orientation on the part of the respondent court and its hesitancy
to clear up matters promptly, in its other appealed order of November 23, 1965, on pages 334-335 of the Green
Record on Appeal, said respondent court allowed the movant Ricardo Salas, President of appellee Western Institute
of Technology (successor of Panay Educational Institutions, Inc.), one of the parties with whom Hodges had
contracts that are in question in the appeals herein, to pay petitioner, as Administrator of the estate of Hodges
and/or respondent Magno, as Administrator of the estate of Mrs. Hodges, thus:
Considering that in both cases there is as yet no judicial declaration of heirs nor distribution of
properties to whomsoever are entitled thereto, the Court believes that payment to both the
administrator of the testate estate of C. N. Hodges and the administratrix of the testate estate of
Linnie Jane Hodges or to either one of the two estates is proper and legal.
WHEREFORE, movant Ricardo T. Salas can pay to both estates or either of them.
SO ORDERED.
(Pp. 334-335, Green Record on Appeal.)
On the other hand, as stated earlier, there were instances when respondent Magno was given authority to act
alone. For instance, in the other appealed order of December 19, 1964, on page 221 of the Green Record on
Appeal, the respondent court approved payments made by her of overtime pay to some employees of the court
who had helped in gathering and preparing copies of parts of the records in both estates as follows:
Considering that the expenses subject of the motion to approve payment of overtime pay dated
December 10, 1964, are reasonable and are believed by this Court to be a proper charge of
administration chargeable to the testate estate of the late Linnie Jane Hodges, the said expenses are
hereby APPROVED and to be charged against the testate estate of the late Linnie Jane Hodges. The
administrator of the testate estate of the late Charles Newton Hodges is hereby ordered to
countersign the check or checks necessary to pay the said overtime pay as shown by the bills
marked Annex "A", "B" and "C" of the motion.
SO ORDERED.
(Pp. 221-222, Green Record on Appeal.)
Likewise, the respondent court approved deeds of sale executed by respondent Magno alone, as Administratrix of
the estate of Mrs. Hodges, covering properties in the name of Hodges, pursuant to "contracts to sell" executed by
Hodges, irrespective of whether they were executed by him before or after the death of his wife. The orders of this
nature which are also on appeal herein are the following:
1. Order of March 30, 1966, on p. 137 of the Green Record on Appeal, approving the deed of sale executed by
respondent Magno in favor of appellee Lorenzo Carles on February 24, 1966, pursuant to a "contract to sell" signed
by Hodges on June 17, 1958, after the death of his wife, which contract petitioner claims was cancelled by it for
failure of Carles to pay the installments due on January 7, 1965.
2. Order of April 5, 1966, on pp. 139-140, id., approving the deed of sale executed by respondent Magno in favor of
appellee Salvador Guzman on February 28, 1966 pursuant to a "contract to sell" signed by Hodges on September
13, 1960, after the death of his wife, which contract petitioner claims it cancelled on March 3, 1965 in view of failure
of said appellee to pay the installments on time.
3. Order of April 20, 1966, on pp. 167-168, id., approving the deed of sale executed by respondent Magno in favor
of appellee Purificacion Coronado on March 28, 1966 pursuant to a "contract to sell" signed by Hodges on August
14, 1961, after the death of his wife.
4. Order of April 20, 1966, on pp. 168-169, id., approving the deed of sale executed by respondent Magno in favor
of appellee Florenia Barrido on March 28, 1966, pursuant to a "contract to sell" signed by Hodges on February 21,
1958, after the death of his wife.
5. Order of June 7, 1966, on pp. 184-185, id., approving the deed of sale executed by respondent Magno in favor of
appellee Belcezar Causing on May 2, 1966, pursuant to a "contract to sell" signed by Hodges on February 10, 1959,
after the death of his wife.
6. Order of June 21, 1966, on pp. 211-212, id., approving the deed of sale executed by respondent Magno in favor
of appellee Artheo Thomas Jamir on June 3, 1966, pursuant to a "contract to sell" signed by Hodges on May 26,
1961, after the death of his wife.
7. Order of June 21, 1966, on pp. 212-213, id., approving the deed of sale executed by respondent Magno in favor
of appellees Graciano Lucero and Melquiades Batisanan on June 6 and June 3, 1966, respectively, pursuant to
"contracts to sell" signed by Hodges on June 9, 1959 and November 27, 1961, respectively, after the death of his
wife.
8. Order of December 2, 1966, on pp. 303-304, id., approving the deed of sale executed by respondent Magno in
favor of appellees Espiridion Partisala, Winifredo Espada and Rosario Alingasa on September 6, 1966, August 17,
1966 and August 3, 1966, respectively, pursuant to "contracts to sell" signed by Hodges on April 20, 1960, April 18,
1960 and August 25, 1958, respectively, that is, after the death of his wife.
9. Order of April 5, 1966, on pp. 137-138, id., approving the deed of sale executed by respondent Magno in favor of
appellee Alfredo Catedral on March 2, 1966, pursuant to a "contract to sell" signed by Hodges on May 29, 1954,
before the death of his wife, which contract petitioner claims it had cancelled on February 16, 1966 for failure of
appellee Catedral to pay the installments due on time.
10. Order of April 5, 1966, on pp. 138-139, id., approving the deed of sale executed by respondent Magno in favor
of appellee Jose Pablico on March 7, 1966, pursuant to a "contract to sell" signed by Hodges on March 7, 1950,
after the death of his wife, which contract petitioner claims it had cancelled on June 29, 1960, for failure of appellee
Pablico to pay the installments due on time.
11. Order of December 2, 1966, on pp. 303-304, id., insofar as it approved the deed of sale executed by respondent
Magno in favor of appellee Pepito Iyulores on September 6, 1966, pursuant to a "contract to sell" signed by Hodges
on February 5, 1951, before the death of his wife.
12. Order of January 3, 1967, on pp. 335-336, id., approving three deeds of sale executed by respondent Magno,
one in favor of appellees Santiago Pacaonsis and two in favor of appellee Adelfa Premaylon on December 5, 1966
and November 3, 1966, respectively, pursuant to separate "promises to sell" signed respectively by Hodges on May
26, 1955 and January 30, 1954, before the death of his wife, and October 31, 1959, after her death.
In like manner, there were also instances when respondent court approved deeds of sale executed by petitioner
alone and without the concurrence of respondent Magno, and such approvals have not been the subject of any
appeal. No less than petitioner points this out on pages 149-150 of its brief as appellant thus:
The points of fact and law pertaining to the two abovecited assignments of error have already been
discussed previously. In the first abovecited error, the order alluded to was general, and as already
explained before, it was, as admitted by the lower court itself, superseded by the particular orders
approving specific final deeds of sale executed by the appellee, Avelina A. Magno, which are subject
of this appeal, as well as the particular orders approving specific final deeds of sale executed by the
appellant, Philippine Commercial and Industrial Bank, which were never appealed by the appellee,
Avelina A. Magno, nor by any party for that matter, and which are now therefore final.
Now, simultaneously with the foregoing incidents, others of more fundamental and all embracing significance
developed. On October 5, 1963, over the signature of Atty. Allison J. Gibbs in representation of the law firm of
Ozaeta, Gibbs & Ozaeta, as counsel for the co-administrators Joe Hodges and Fernando P. Mirasol, the following
self-explanatory motion was filed:
URGENT MOTION FOR AN ACCOUNTING AND DELIVERY TO ADMINISTRATION OF
THE ESTATE OF C. N. HODGES OF ALL OF THE ASSETS OF THE CONJUGAL
PARTNERSHIP OF THE DECEASED LINNIE JANE HODGES AND C N. HODGES EXISTING
AS OF MAY 23, 1957 PLUS ALL THE RENTS, EMOLUMENTS AND INCOME THEREFROM.
COMES NOW the co-administrator of the estate of C. N. Hodges, Joe Hodges, through his
undersigned attorneys in the above-entitled proceedings, and to this Honorable Court respectfully
alleges:
(1) On May 23, 1957 Linnie Jane Hodges died in Iloilo City.
(2) On June 28, 1957 this Honorable Court admitted to probate the Last Will and Testament of the
deceased Linnie Jane Hodges executed November 22, 1952 and appointed C. N. Hodges as Executor
of the estate of Linnie Jane Hodges (pp. 24-25, Rec. Sp. Proc. 1307).
(3) On July 1, 1957 this Honorable Court issued Letters Testamentary to C. N. Hodges in the Estate of
Linnie Jane Hodges (p. 30, Rec. Sp. Proc. 1307).
(4) On December 14, 1957 this Honorable Court, on the basis of the following allegations in a
Motion dated December 11, 1957 filed by Leon P. Gellada as attorney for the executor C. N. Hodges:
"That herein Executor, (is) not only part owner of the properties left as conjugal, but
also, the successor to all the properties left by the deceased Linnie Jane Hodges."
(p. 44, Rec. Sp. Proc. 1307; emphasis supplied.)
issued the following order:
"As prayed for by Attorney Gellada, counsel for the Executory, for the reasons stated in
his motion dated December 11, 1957 which the court considers well taken, all the sales,
conveyances, leases and mortgages of all properties left by the deceased Linnie Jane
Hodges are hereby APPROVED. The said executor is further authorized to execute
subsequent sales, conveyances, leases and mortgages of the properties left by the
 said deceased Linnie Jane Hodges in consonance with the wishes contained in the last
will and testament of the latter."
(p. 46, Rec. Sp. Proc. 1307; emphasis supplied.)
(5) On April 21, 1959 this Honorable Court approved the inventory and accounting submitted by C.
N. Hodges through his counsel Leon P. Gellada on April 14, 1959 wherein he alleged among other
things
"That no person interested in the Philippines of the time and place of examining the
herein account, be given notice, as herein executor is the only devisee or legatee of the
deceased, in accordance with the last will and testament already probated by the
Honorable Court."
(pp. 77-78, Rec. Sp. Proc. 1307; emphasis supplied.).
(6) On July 30, 1960 this Honorable Court approved the "Annual Statement of Account" submitted
by C. N. Hodges through his counsel Leon P. Gellada on July 21, 1960 wherein he alleged among
other things:
"That no person interested in the Philippines of the time and place of examining the
herein account, be given notice as herein executor is the only devisee or legatee of the
deceased Linnie Jane Hodges, in accordance with the last will and testament of the
deceased, already probated by this Honorable Court."
(pp. 81-82. Rec. Sp. Proc. 1307; emphasis supplied.)
(7) On May 2, 1961 this Honorable court approved the "Annual Statement of Account By The
Executor for the Year 1960" submitted through Leon P. Gellada on April 20, 1961 wherein he alleged:
That no person interested in the Philippines be given notice, of the time and place of
examining the herein account, as herein Executor is the only devisee or legatee of the
deceased Linnie Jane Hodges, in accordance with the last will and testament of the
deceased, already probated by this Honorable Court.
(pp. 90-91. Rec. Sp. Proc. 1307; emphasis supplied.)
(8) On December 25, 1962, C.N. Hodges died.
(9) On December 25, 1962, on the Urgent Ex-parte Motion of Leon P. Gellada filed only in Special
Proceeding No. 1307, this Honorable Court appointed Avelina A. Magno
"Administratrix of the estate of Linnie Jane Hodges and as Special Administratrix of the estate of
Charles Newton Hodges, in the latter case, because the last will of said Charles Newton Hodges is
still kept in his vault or iron safe and that the real and personal properties of both spouses may be
lost, damaged or go to waste, unless a Special Administratrix is appointed."
(p. 100. Rec. Sp. Proc. 1307)
(10) On December 26, 1962 Letters of Administration were issued to Avelina Magno pursuant to this
Honorable Court's aforesaid Order of December 25, 1962
"With full authority to take possession of all the property of said deceased in any
province or provinces in which it may be situated and to perform all other acts
necessary for the preservation of said property, said Administratrix and/or Special
Administratrix having filed a bond satisfactory to the Court."
(p. 102, Rec. Sp. Proc. 1307)
(11) On January 22, 1963 this Honorable Court on petition of Leon P. Gellada of January 21, 1963
issued Letters of Administration to:
(a) Avelina A. Magno as Administratrix of the estate of Linnie Jane Hodges;
(b) Avelina A. Magno as Special Administratrix of the Estate of Charles Newton Hodges; and
(c) Joe Hodges as Co-Special Administrator of the Estate of Charles Newton Hodges.
(p. 43, Rec. Sp. Proc. 1307)
(12) On February 20, 1963 this Honorable Court on the basis of a motion filed by Leon P. Gellada as
legal counsel on February 16, 1963 for Avelina A. Magno acting as Administratrix of the Estate of
Charles Newton Hodges (pp. 114-116, Sp. Proc. 1307) issued the following order:
"... se autoriza a aquella (Avelina A. Magno) a firmar escrituras de venta definitiva de
propiedades cubiertas por contratos para vender, firmados, en vida, por el finado
Charles Newton Hodges, cada vez que el precio estipulado en cada contrato este
totalmente pagado. Se autoriza igualmente a la misma a firmar escrituras de
cancelacion de hipoteca tanto de bienes reales como personales cada vez que la
consideracion de cada hipoteca este totalmente pagada.
"Cada una de dichas escrituras que se otorguen debe ser sometida para la
aprobacion de este Juzgado."
(p. 117, Sp. Proc. 1307).
[Par 1 (c), Reply to Motion For Removal of Joe Hodges]
 (13) On September l6, 1963 Leon P. Gellada, acting as attorney for Avelina A. Magno as
Administratrix of the estate of Linnie Jane Hodges, alleges:
3. — That since January, 1963, both estates of Linnie Jane Hodges and Charles
Newton Hodges have been receiving in full, payments for those "contracts to sell"
entered into by C. N. Hodges during his lifetime, and the purchasers have been
demanding the execution of definite deeds of sale in their favor.
4. — That hereto attached are thirteen (13) copies deeds of sale executed by the
Administratrix and by the co-administrator (Fernando P. Mirasol) of the estate of
Linnie Jane Hodges and Charles Newton Hodges respectively, in compliance with the
terms and conditions of the respective "contracts to sell" executed by the parties
thereto."
(14) The properties involved in the aforesaid motion of September 16, 1963 are all registered in the
name of the deceased C. N. Hodges.
(15) Avelina A. Magno, it is alleged on information and belief, has been advertising in the newspaper
in Iloilo thusly:
For Sale
Testate Estate of Linnie Jane Hodges and Charles Newton Hodges.
All Real Estate or Personal Property will be sold on First Come First Served Basis.
Avelina A. Magno
Administratrix
(16) Avelina A. Magno, it is alleged on information and belief, has paid and still is paying sums of
money to sundry persons.
(17) Joe Hodges through the undersigned attorneys manifested during the hearings before this
Honorable Court on September 5 and 6, 1963 that the estate of C. N. Hodges was claiming all of the
assets belonging to the deceased spouses Linnie Jane Hodges and C. N. Hodges situated in
Philippines 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.
L
THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEE,
BELCESAR CAUSING, EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF
LAND OWNED BY THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL
COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME.
LI
THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF THE APPELLEE,
BELCESAR CAUSING, ALTHOUGH HE WAS IN ARREARS IN THE PAYMENTS AGREED UPON IN THE
ORIGINAL CONTRACT TO SELL WHICH HE EXECUTED WITH THE DECEASED, CHARLES NEWTON
HODGES, IN THE AMOUNT OF P2,337.50.
LII
THE LOWER COURT ERRED IN APPROVING THE DEED OF SALE IN FAVOR OF THE APPELLEE,
BELCESAR CAUSING, ALTHOUGH THE SAME WAS NOT EXECUTED IN ACCORDANCE WITH THE
RULES OF COURT.
LIII to LXI
THE LOWER COURT ERRED IN ORDERING THE APPELLANT, PHILIPPINE COMMERCIAL AND
INDUSTRIAL BANK TO SURRENDER THE OWNER'S DUPLICATE CERTIFICATES OF TITLE OVER THE
RESPECTIVE LOTS COVERED BY THE DEEDS OF SALE EXECUTED BY THE APPELLEE, AVELINA A.
 MAGNO, IN FAVOR OF THE OTHER APPELLEES, JOSE PABLICO, ALFREDO CATEDRAL, SALVADOR S.
GUZMAN, 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
I
As to the Alleged Tardiness
of the Present Appeals
The priority question raised by respondent Magno relates to the alleged tardiness of all the aforementioned thirty-
three appeals of PCIB. Considering, however, that these appeals revolve around practically the same main issues
and that it is admitted that some of them have been timely taken, and, moreover, their final results 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.
Zaldivar, Castro, Esguerra and Fernandez, JJ., concur.
Makasiar, Antonio, Muñoz Palma and Aquino, JJ., concur in the result.

Separate Opinions

FERNANDO, J., concurring:

I concur on the basis of the procedural pronouncements in the opinion.
TEEHANKEE, J., concurring:
I concur in the result of dismissal of the petition for certiorari and prohibition in Cases L-27860 and L-27896 and
with the affirmance of the appealed orders of the probate court in Cases L-27936-37.
I also concur with the portion of the dispositive part of the judgment penned by Mr. Justice Barredo decreeing
the lifting of the Court's writ of preliminary injunction of August 8, 1967 as amended on October 4, and December
6, 19671 and ordering in lieu thereof that the Court's resolution of September 8, 19722 which directed
that petitioner-appellant PCIB as administrator of C. N. (Charles Newton) Hodges' estate (Sp. Proc. No. 1672 and
respondent-appellee Avelina A. Magno as administratrix of Linnie Jane Hodges' estate (Sp. Proc. No. 1307) should
act always conjointly never independently from each other, as such administrators, is reiterated and shall continue
in force and made part of the judgment.
It is manifest from the record that petitioner-appellant PCIB's primal contention in the cases at bar belatedly filed by
it with this Court on August 1, 1967 (over ten (10) years after Linnie Jane Hodges' death on May 23, 1957 and (over
five (5) years after her husband C.N. Hodges' death on December 25, 1962 — during which time both estates have
been pending settlement and distribution to the decedents' respective rightful heirs all this time up to now) — that
the probate court per its order of December 14, 1957 (supplementing an earlier order of May 25, 1957)3 in granting
C. N. Hodges' motion as Executor of his wife Linnie's estate to continue their "business of buying and selling
personal and real properties" and approving "all sales, conveyances, leases and mortgages" made and to be made
by him as such executor under his obligation to submit his yearly accounts in effect declared him as sole heir of his
wife's estate and nothing remains to be done except to formally close her estate (Sp. Proc. No. 1307) as her estate
was thereby merged with his own so that nothing remains of it that may be adjudicated to her brothers and sisters
as her designated heirs after him,4 — is wholly untenable and deserves scant consideration.
Aside from having been put forth as an obvious afterthought much too late in the day, this contention of PCIB that
there no longer exists any separate estate of Linnie Jane Hodges after the probate court's order of December 14,
1957 goes against the very acts and judicial admissions of C.N. Hodges as her executor whereby he consistently
recognized the separate existence and identity of his wife's estate apart from his own separate estate and from his
own share of their conjugal partnership and estate and "never considered the whole estate as a single one
belonging exclusively to himself" during the entire period that he survived her for over five (5) years up to the time
of his own death on December 25, 19625 and against the identical acts and judicial admissions of PCIB as
administrator of C.N. Hodges' estate until PCIB sought in 1966 to take over both estates as pertaining to its sole
administration.
PCIB is now barred and estopped from contradicting or taking a belated position contradictory to or inconsistent
with its previous admissions 6 (as well as those of C.N. Hodges himself in his lifetime and of whose estate PCIB is
merely an administrator) recognizing the existence and identity of Linnie Jane Hodges' separate estate and the legal
rights and interests therein of her brothers and sisters as her designated heirs in her will.
PCIB's petition for certiorari and prohibition to declare all acts of the probate court in Linnie Jane Hodges' estate
subsequent to its order of December 14, 1957 as "null and void for having been issued without jurisdiction" must
therefore be dismissed with the rejection of its belated and untenable contention that there is no longer any estate
of Mrs. Hodges of which respondent Avelina Magno is the duly appointed and acting administratrix.
PCIB's appeal7 from the probate court's various orders recognizing respondent Magno as administratrix of Linnie's
estate (Sp. Proc No. 1307) and sanctioning her acts of administration of said estate and approving the sales
contracts executed by her with the various individual appellees, which involve basically the same primal issue raised
in the petition as to whether there still exists a separate estate of Linnie of which respondent-appellee Magno may
continue to be the administratrix, must necessarily fail — a result of the Court's main opinion at bar that
there does exist such an estate and that the two estates (husband's and wife's) must be administered cojointly by
their respective administrators (PCIB and Magno).
The dispositive portion of the main opinion
The main opinion disposes that:
IN VIEW OF ALL THE FOREGOING PREMISES, judgment is hereby rendered DISMISSING the petition
in G. R. Nos. L-27860 and L-27896, and AFFIRMING, in G. R. Nos. L-27936-37 and the other thirty-
one numbers hereunder ordered to be added after payment of the corresponding docket fees, all
the orders of the trial court under appeal enumerated in detail on pages 35 to 37 and 80 to 82 of
this decision:
The existence of the Testate Estate of Linnie Jane Hodges, with respondent-appellee Avelina A.
Magno, as administratrix thereof is recognized, and
It is declared that, until final judgment is ultimately rendered regarding (1) the manner of applying
Article 16 of the Civil Code of the Philippines to the situation obtaining in these cases and (2) the
factual and legal issues of whether or not Charles Newton Hodges has effectively and legally
renounced his inheritance under the will of Linnie Jane Hodges, the said estate consists of one-
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 deduction whatsoever are to be made from
said estate;
In consequence, the preliminary injunction of August 8, 1967, as amended on October 4 and
December 6, 1967, is lifted and the resolution of September 8, 1972, directing that petitioner-
appellant PCIB, as Administrator of the Testate Estate of Charles Newton Hodges in Special
Proceedings 1672, and respondent-appellee Avelina A. Magno, as Administratrix of the Testate
Estate of Linnie Jane Hodges in Special Proceedings 1307, should act thenceforth always conjointly,
never independently from each other, as such administrators, is reiterated, and the same is made part
of this judgment and shall continue in force, pending the liquidation of the conjugal partnership of
the deceased spouses and the determination and segregation from each other of their respective
estates; provided, that upon the finality of this judgment, the trial court should immediately proceed
to the partition of the presently combined estates of the spouses, to the end that the one-half share
thereof of Mrs. Hodges may be properly and clearly identified;
Thereafter, the trial court should forthwith segregate the remainder of the one-fourth herein
adjudged to be her estate and cause the same to be turned over or delivered to respondent for
her exclusive administration in Special Proceedings 1307, while the other one-fourth shall remain
under the joint administrative of said respondent and petitioner under a joint proceedings in Special
Proceedings 1307 and 1672, whereas the half unquestionably pertaining to Hodges shall
be administered by petitioner exclusively in Special Proceedings 1672, without prejudice to the
resolution by the trial court of the pending motions for its removal as administrator;
And this arrangement shall be maintained until the final resolution of the two issues
of renvoi and renunciation hereby reserved for further hearing and determination, and the
corresponding 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.8
Minimum estimate of Mrs. Hodges' estate:
One-fourth of conjugal properties.
The main opinion in declaring the existence of a separate estate of Linnie Jane Hodges which shall pass to her
brothers and sisters with right of representation (by their heirs) as her duly designated heirs declares that her estate
consists as a minimum (i.e. assuming (1) that under Article 16 of the Philippine Civil Code C. N. Hodges as surviving
husband was entitled to one-half of her estate as legitime and (2) that he had not effectively and
legally renounced his inheritance under her will) of "one-fourth of the community properties of the said spouses, as
of the time of the death of the wife on May 23, 1957, minus whatever the husband had
already gratuitously disposed of in favor of third persons from said date until his death," with the proviso that
proceeds of remunerative dispositions or sales for valuable consideration made by C. N. Hodges after his wife
Linnie's death shall continue to be part of her estate unless subsequently disposed of by him gratuitously to third
parties subject to the condition, however, that if he is held to have validly and effectively renounced his inheritance
under his wife's will, no deductions of any dispositions made by Hodges even if gratuitously are to be made from his
wife Linnie's estate which shall pass intact to her brothers and sisters as her designated heirs called in her will to
succeed to her estate upon the death of her husband C. N. Hodges.
Differences with the main opinion
I do not share the main opinion's view that Linnie Jane Hodges instituted her husband as her heir under her will "to
have dominion over all her estate during his lifetime ... as absolute owner of the properties ..."9 and that she
bequeathed "the whole of her estate to be owned and enjoyed by him as universal and sole heir with absolute
dominion over them only during his lifetime, which means that while he could completely and absolutely dispose of
any portion thereof inter vivos to anyone other than himself, he was not free to do so mortis causa, and all his rights
to what might remain upon his death would cease entirely upon the occurrence of that contingency, inasmuch as
the right of his brothers and sisters-in-law to the inheritance, although vested already upon the death of Mrs.
Hodges, would automatically become operative upon the occurrence of the death of Hodges in the event of actual
existence of any remainder of her estate then." 10
As will be amplified hereinafter, I do not subscribe to such a view that Linnie Jane Hodges willed "full and absolute
ownership" and "absolute dominion" over her estate to her husband, but rather that she named her husband C. N.
Hodges and her brothers and sisters as instituted heirs with a term under Article 885 of our Civil Code, to wit,
Hodges as instituted heir with a resolutory term whereunder his right to the succession ceased in diem upon arrival
of the resolutory term of his death on December 25, 1962 and her brothers and sisters as instituted heirs with
a suspensive term whereunder their right to the succession commenced ex die upon arrival of the suspensive term of
the death of C. N. Hodges on December 25, 1962.
Hence, while agreeing with the main opinion that the proceeds of all remunerative dispositions made by C. N.
Hodges after his wife's death remain an integral part of his wife's estate which she willed to her brothers and sisters,
I submit that C. N. Hodges could not validly make gratuitous dispositions of any part or all of his wife's estate —
"completely and absolutely dispose of any portion thereof inter vivos to anyone other than himself" in the language
of the main opinion, supra — and thereby render ineffectual and nugatory her institution of her brothers and sisters
as her designated heirs to succeed to her whole estate "at the death of (her) husband." If according to the main
opinion, Hodges could not make such gratuitous "complete and absolute dispositions" of his wife Linnie's estate
"mortis causa," it would seem that by the same token and rationale he was likewise proscribed by the will from
making such dispositions of Linnie's estate inter vivos.
I believe that the two questions of renvoi and renunciation should be resolved preferentially and expeditiously by
the probate court ahead of the partition and segregation of the minimum one-fourth of the conjugal or community
properties constituting Linnie Jane Hodges' separate estate, which task considering that it is now seventeen (17)
years since Linnie Jane Hodges' death and her conjugal estate with C. N. Hodges has remained unliquidated up to
now might take a similar number of years to unravel with the numerous items, transactions and details of the
sizable estates involved.
Such partition of the minimum one-fourth would not be final, since if the two prejudicial questions
of renvoi and renunciation were resolved favorably to Linnie's estate meaning to say that if it should be held that C.
N. Hodges is not entitled to any legitime of her estate and at any rate he had totally renounced his inheritance
under the will), then Linnie's estate would consist not only of the minimum one-fourth but one-half of the conjugal
or community properties of the Hodges spouses, which would require again the partition and segregation of still
another one-fourth of said. properties to complete Linnie's separate estate.
My differences with the main opinion involve further the legal concepts, effects and consequences of the
testamentary dispositions of Linnie Jane Hodges in her will and the question of the best to reach a solution of the
pressing question of expediting the closing of the estates which after all do not appear to involve any outstanding
debts nor any dispute between the heirs and should therefore be promptly settled now after all these years without
any further undue complications and delays and distributed to the heirs for their full enjoyment and benefit. As no
consensus appears to have been reached thereon by a majority of the Court, I propose to state views as concisely
as possible with the sole end in view that they may be of some assistance to the probate court and the parties in
reaching an expeditious closing and settlement of the estates of the Hodges spouses.
Two Assumptions
As indicated above, the declaration of the minimum of Mrs. Hodges' estate as one-fourth of the conjugal properties
is based on two assumptions most favorable to C. N. Hodges' estate and his heirs, namely (1) that the probate court
must accept the renvoi or "reference back" 11 allegedly provided by the laws of the State of Texas (of which state
the Hodges spouses were citizens) whereby the civil laws of the Philippines as the domicile of the Hodges spouses
would govern their succession notwithstanding the provisions of Article 16 of our Civil Code (which provides that
the national law of the decedents, in this case, of Texas, shall govern their succession) with the result that her estate
would consist of no more than one-fourth of the conjugal properties since the legitime of her husband (the other
one-fourth of said conjugal properties or one-half of her estate, under Article 900 of our Civil Code) could not then
be disposed of nor burdened with any condition by her and (2) that C.N. Hodges had not effectively and
legally renounced his inheritance under his wife's will.
These two assumptions are of course flatly disputed by respondent-appellee Magno as Mrs. Hodges' administratrix,
who avers that the law of the State of Texas governs her succession and does not provide for and legitime, hence,
her brothers and sisters are entitled to succeed to the whole of her share of the conjugal properties which is one-
half thereof and that in any event, Hodges had totally renounced all his rights under the will.
The main opinion concedes that "(I)n the interest of settling the estates herein involved soonest, it would be best,
indeed, if these conflicting claims of the parties were determined in these proceedings." It observes however that
this cannot be done due to the inadequacy of the evidence submitted by the parties in the probate court and of the
parties' discussion, viz, "there is no clear and reliable proof of what the possibly applicable laws of Texas are. Then
also, the genuineness of the documents relied upon by respondent Magno [re Hodges' renunciation] is
disputed." 12
Hence, the main opinion expressly reserves resolution and determination on these two conflicting claims and issues
which it deems "are not properly before the Court
now," 13 and specifically holds that "(A)ccordingly, the only question that remains to be settled in the further
proceedings hereby ordered to be held in the court below is how much more than as fixed above is the estate of
Mrs. Hodges, and this would depend on (1) whether or not the applicable laws of Texas do provide in effect for
more, such as, when there is no legitime provided therein, and (2) whether or not Hodges has validly waived his
whole inheritance from Mrs. Hodges." 14
Suggested guidelines
Considering that the only unresolved issue has thus been narrowed down and in consonance with the ruling spirit
of our probate law calling for the prompt settlement of the estates of deceased persons for the benefit of creditors
and those entitled to the residue by way of inheritance — considering that the estates have been long pending
settlement since 1957 and 1962, respectively — it was felt that the Court should lay down specific guidelines for the
guidance of the probate court towards the end that it may expedite the closing of the protracted estates
proceedings below to the mutual satisfaction of the heirs and without need of a dissatisfied party elevating its
resolution of this only remaining issue once more to this Court and dragging out indefinitely the proceedings.
After all, the only question that remains depends for its determination on the resolution of the two questions
of renvoi and renunciation, i.e. as to whether C. N. Hodges can claim a legitime and whether he had renounced the
inheritance. But as already indicated above, the Court without reaching a consensus which would finally resolve the
conflicting claims here and now in this case opted that "these and other relevant matters should first be threshed
out fully in the trial court in the proceedings hereinafter to be held for the purpose of ascertaining and/or
distributing the estate of Mrs. Hodges to her heirs in accordance with her duly probated will." 15
The writer thus feels that laying down the premises and principles governing the nature, effects and consequences
of Linnie Jane Hodges' testamentary dispositions in relation to her conjugal partnership and co-ownership of
properties with her husband C. N. Hodges and "thinking out" the end results, depending on whether the evidence
directed to be formally received by the probate court would bear out that under renvoi C. N. Hodges was or was
not entitled to claim a legitime of one-half of his wife Linnie's estate and/or that he had or had not effectively and
validly renounced his inheritance should help clear the decks, as it were, and assist the probate court in resolving
the only remaining question of how much more than the minimum one-fourth of the community properties of the
Hodges spouses herein finally determined should be awarded as the separate estate of Linnie, particularly since the
views expressed in the main opinion have not gained a consensus of the Court. Hence, the following suggested
guidelines, which needless to state, represent the personal opinion and views of the writer:
1. To begin with, as pointed out in the main opinion, "according to Hodges' own inventory submitted by him as
executor of the estate of his wife, practically all their properties were conjugal which means that the spouses
have equal shares therein." 16
2. Upon the death of Mrs. Hodges on May 23, 1957, and the dissolution thereby of the marriage, the law imposed
upon Hodges as surviving husband the duty of inventorying, administering and liquidating the conjugal or
community property. 17 Hodges failed to discharge this duty of liquidating the conjugal partnership and estate. On
the contrary, he sought and obtained authorization from the probate court
to continue the conjugal partnership's business of buying and selling real and personal properties.
In his annual accounts submitted to the probate court as executor of Mrs. Hodges' estate, Hodges
thus consistently reported the considerable combined income (in six figures) of the conjugal partnership or
coownership and then divided the same equally between himself and Mrs. Hodges' estate and as consistently
filed separate income tax returns and paid the income taxes for each resulting half of such combined income
corresponding to his own and to Mrs. Hodges' estate. 18 (Parenthetically, he could not in law do this, had he
adjudicated Linnie's entire estate to himself, thus supporting the view advanced even in the main opinion that
"Hodges waived not only his rights to the fruits but to the properties themselves." 19
By operation of the law of trust 20 as well as by his own acknowledgment and acts, therefore, all transactions made
by Hodges after his wife's death were deemed for and on behalf of their unliquidated conjugal partnership
and community estate and were so reported and treated by him.
3. With this premise established that all transactions of Hodges after his wife's death were for and on behalf of
their unliquidated conjugal partnership and community estate, share and share alike, it should be clear that
no gratuitous dispositions, if any, made by C. N. Hodges from his wife Linnie's estate should be deducted from
her separate estate as held in the main opinion. On the contrary, any such gratuitous dispositions should be
charged to his own share of the conjugal estate since he had no authority or right to make
any gratuitous dispositions of Linnie's properties to the prejudice of her brothers and sisters whom she called to her
succession upon his death, not to mention that the very authority obtained by him from the probate court per its
orders of May 25, and December 14, 1957 was to continue the conjugal partnership's business of buying and selling
real properties for the account of their unliquidated conjugal estate and co-ownership, share and share alike
and not to make any free dispositions of Linnie's estate.
4. All transactions as well after the death on December 25, 1962 of Hodges himself appear perforce and necessarily
to have been conducted, on the same premise, for and on behalf of their unliquidated conjugal partnership and/or
co-ownership, share and share alike — since the conjugal partnership remained unliquidated — which is another
way of saying that such transactions, purchases and sales, mostly the latter, must be deemed in effect to have been
made for the respective estates of C. N. Hodges and of his wife Linnie Jane Hodges, as both estates continued to
have an equal stake and share in the conjugal partnership which was not only left unliquidated but continued as a
co-ownership or joint business with the probate court's approval by Hodges during the five-year period that he
survived his wife.
This explains the probate court's action of requiring that deeds of sale executed by PCIB as Hodges' estate's
administrator be "signed jointly" by respondent Magno as Mrs. Hodges' estate's administratrix, as well as its order
authorizing payment by lot purchasers from the Hodges to either estate, since "there is as yet no judicial
declaration of heirs nor distribution of properties to whomsoever are entitled thereto." 22
And this equally furnishes the rationale of the main opinion for continued conjoint administration by the
administrators of the two estates of the deceased spouses, "pending the liquidation of the conjugal
partnership," 23 since "it is but logical that both estates should be administered jointly by the representatives of
both, pending their segregation from each other. Particularly ... because the actuations so far of PCIB evince a
determined, albeit groundless, intent to exclude the other heirs of Mrs. Hodges from their inheritance." 24 5. Antly
by the representatives of both, pending their segregation from each other. Particularly ... because the actuations so
far of PCIB evince a determined, albeit groundless, intent to exclude the other heirs of Mrs. Hodges from their
inheritance." 24
5. As stressed in the main opinion, the determination of the only unresolved issue of how much more than the
minimum of one-fourth of the community or conjugal properties of the Hodges spouses pertains to Mrs. Hodges'
estate depends on the twin questions of renunciation and renvoi. It directed consequently that "a joint hearing of
the two probate proceedings herein involved" be held by the probate court for the reception of "further evidence"
in order to finally resolved these twin questions. 25
(a) On the question of renunciation, it is believed that all that the probate court has to do is to receive formally in
evidence the various documents annexed to respondent Magno's answer at bar, 26 namely: Copy of the U.S. Estate
Tax Return filed on August 8, 1958 by C. N. Hodges for his wife Linnie's estate wherein he purportedly declared that
he was renouncing his inheritance under his wife's will in favor of her brothers and sisters as co-heirs designated
with him and that it was his "intention (as) surviving husband of the deceased to distribute the remaining property
and interests of the deceased in their community estate to the devisee and legatees named in the will when the
debts, liabilities, taxes and expenses of administration are finally determined and paid;" 27 and
The affidavit of ratification of such renunciation (which places him in estoppel) allegedly executed on August 9, 1962
by C. N. Hodges in Iloilo City wherein he reaffirmed that "... on August 8, 1958, I renounced and disclaimed any and
all right to receive the rents, emoluments and income from said estate" and further declared that "(T)he purpose of
this affidavit is to ratify and confirm, and I do hereby ratify and confirm, the declaration made in schedule M of said
return and hereby formally disclaim and renounce any right on my part to receive any of the said rents, emoluments
and income from the estate of my deceased wife, Linnie Jane Hodges. This affidavit is made to absolve me or my
estate from any liability for the payment of income taxes on income which has accrued to the estate of Linnie Jane
Hodges since the death of the said Linnie Jane Hodges on May 23, 1957." 28
(b) On the question of renvoi, all that remains for the probate court to do is to formally receive in evidence duly
authenticated copies of the laws of the State of Texas governing the succession of Linnie Jane Hodges and her
husband C. N. Hodges as citizens of said State at the time of their respective deaths on May 23, 1957 and December
25, 1962. 29
6. The text and tenor of the declarations by C. N. Hodges of renunciation of his inheritance from his wife in favor of
her other named heirs in her will (her brothers and sisters and their respective heirs) as ratified and
reiterated expressly in his affidavit of renunciation executed four years later for the avowed purpose of not being
held liable for payment of income taxes on income which has accrued to his wife's estate since her death indicate a
valid and effective renunciation.
Once the evidence has been formally admitted and its genuineness and legal effectivity established by the probate
court, the renunciation by C. N. Hodges must be given due effect with the result that C. N. Hodges therefore
acquired no part of his wife's one-half share of the community properties since he removed himself as an heir by
virtue of his renunciation. By simple substitution then under Articles 857 and 859 of our Civil Code 30 and by virtue
of the will's institution of heirs, since "the heir originally instituted C. N. Hodges) does not become an heir" 31 by
force of his renunciation, Mrs. Hodges' brothers and sisters whom she designated as her heirs upon her husband's
death are called immediately to her succession.
Consequently, the said community and conjugal properties would then pertain pro indiviso share and share alike to
their respective estates, with each estate, however, shouldering its own expenses of administration, estate and
inheritance taxes, if any remain unpaid, attorneys' fees and other like expenses and the net remainder to be
adjudicated directly to the decedents' respective brothers and sisters (and their heirs) as the heirs duly designated
in their respective wills. The question of renvoi becomes immaterial since most laws and our
laws permit such renunciation of inheritance.
7. If there were no renunciation (or the same may somehow be declared to have not been valid and effective) by C.
N. Hodges of his inheritance from his wife, however, what would be the consequence?
(a) If the laws on succession of the State of Texas do provide for renvoi or "reference back" to Philippine law as the
domiciliary law of the Hodges' spouses governing their succession, then petitioners' view that Mrs. Hodges' estate
would consist only of the minimum of "one-fourth of the community properties of the said spouses, as of the time
of (her) death on May 23, 1957" would have to be sustained and C. N. Hodges' estate would consist of three-
fourths of the community properties, comprising his own one-half (or two-fourths) share and the other fourth of
Mrs. Hodges' estate as the legitime granted him as surviving spouse by Philippine law (Article 900 of the Civil Code)
which could not be disposed of nor burdened with any condition by Mrs. Hodges as testatrix.
(b) If the laws on succession of the State of Texas do not provide for such renvoi and respondent Magno's assertion
is correct that the Texas law which would then prevail, provides for no legitime for C. N. Hodges as the surviving
spouse, then respondent Magno's assertion that Mrs. Hodges' estate would consist of one-half of the community
properties (with the other half pertaining to C. N. Hodges) would have to be sustained. The community and
conjugal properties would then pertain share and share alike to their respective estates, with each estate
shouldering its own expenses of administration in the same manner stated in the last paragraph of paragraph 6
hereof. .
8. As to the nature of the institution of heirs made by Mrs. Hodges in her will, the main opinion holds that "(T)he
brothers and sisters of Mrs. Hodges are not substitutes for Hodges; rather, they are also heirs
instituted simultaneously with Hodges," but goes further and holds that "it was not the usufruct alone of her estate
... that she bequeathed to Hodges during his lifetime, but the full ownership thereof, although the same was to last
also during his lifetime only, even as there was no restriction against his disposing or conveying the whole or any
portion thereof anybody other than himself" and describes Hodges "as universal and sole heir with absolute
dominion over Mrs. Hodges' estate (except over their Lubbock, Texas property ), 32 adding that "Hodges was not
obliged to preserve anything for them" (referring to Mrs. Hodges' brothers and sisters as instituted co-heirs). 33
Contrary to this view of the main opinion, the writer submits that the provisions of Mrs. Hodges' will did not grant
to C.N. Hodges "full ownership" nor "absolute dominion" over her estate, such that he could as "universal and sole
heir" by the mere expedient of gratuitously disposing to third persons her whole estate during his
lifetime nullify her institution of her brothers and sisters as his co-heirs to succeed to her whole estate "at the death
of (her) husband," deprive them of any inheritance and make his own brothers and sisters in effect sole heirs not
only of his own estate but of his wife's estate as well.
Thus, while Linnie Jane Hodges did not expressly name her brothers and sisters as substitutes for Hodges because
she willed that they would enter into the succession upon his death, still it cannot be gainsaid, as the main opinion
concedes, "that they are also heirs instituted simultaneously with Hodges, subject however to certain conditions,
partially resolutory insofar as Hodges was concerned and correspondingly suspensive with reference to his brothers
and sisters-in-law." 34
Hence, if Hodges is found to have validly renounced his inheritance, there would be a substitution of heirs in fact
and in law since Linnie's brothers and sisters as the heirs "simultaneously instituted" with a suspensive term would
be called immediately to her succession instead of waiting for the arrival of suspensive term of Hodges' death, since
as the heir originally instituted he does not become an heir by force of his renunciation and therefore they would
"enter into the inheritance in default of the heir originally instituted" (Hodges) under the provisions of Article 857
and 859 of our Civil Code, supra, 35 thus accelerating their succession to her estate as a consequence of Hodges'
renunciation.
Consequently, Linnie Jane Hodges willed that her husband C.N. Hodges would "during his natural lifetime
... manage, control, use and enjoy said estate" and that only "all rents, emoluments and income" alone shall belong to
him. She further willed that while he could sell and purchase properties of her estate, and "use any part of the
principal estate," such principal notwithstanding "any changes in the physical properties of said estate"(i.e. new
properties acquired or exchanged) would still pertain to her estate, which at the time of his death would pass in full
dominion to her brothers and sisters as the ultimate sole and universal heirs of her estate. 36
The testatrix Linnie Jane Hodges in her will thus principally provided that "I give, devise and bequeath all of the rest,
residue and remainder of my estate, both personal and real ... to my beloved husband, Charles Newton Hodges, to
have and to hold with him ... during his natural lifetime;" 37 that "(he) shall have the right to manage, control,
use and enjoy said estate during his lifetime, ... to make any changes in the physical properties of said estate,
by sale ... and the purchase of any other or additional property as he may think best ... . All rents,
emoluments and income from said estate shall belong to him and he is further authorized to use any part of the
principal of said estate as he may need or desire, ... he shall not sell or otherwise dispose of any of the improved
property now owned by us, located at ... City of Lubbock, Texas ... . He shall have the right
to subdivide any farm land and sell lots therein, and may sell unimproved town lots;" 38 that "(A)t the death of my
said husband, Charles Newton, I give, devise and bequeath all of the rest, residue and remainder of my estate, both
personal and real, ... to be equally divided among my brothers and sisters, share and share alike, namely: Esta
Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie Rascoe, Era Roman and Nimroy Higdon;" 39 and that
"(I)n case of the death of any of my brothers and/or sisters ... prior to the death of my husband ... the heirs of such
deceased brother or sister shall take jointly the share which would have gone to such brother or sister had she or he
survived." 40
Such provisions are wholly consistent with the view already fully expounded above that all transactions and sales
made by Hodges after his wife Linnie's death were by operation of the law of trust as well as
by his own acknowledgment and acts deemed for and on behalf of their unliquidated conjugal partnership and
community estate, share and share alike, with the express authorization of the probate court per its orders of May
25, and December 14, 1957 granting Hodges' motion to continue the conjugal partnership business of buying and
selling real estate even after her death. By the same token, Hodges could not conceivably be deemed to have had
any authority or right to dispose gratuitously of any portion of her estate to whose succession she had called her
brothers and sisters upon his death.
9. Such institutions of heirs with a term are expressly recognized and permitted under Book III, Chapter 2, section 4
of our Civil Code dealing with "conditional testamentary dispositions and testamentary dispositions with a term." 41
Thus, Article 885 of our Civil Code expressly provides that:
ART 885. The designation of the day or time when the effects of the institution of an heir
shall commence or cease shall be valid.
In both cases, the legal heir shall be considered as called to the succession until the arrival of the
period or its expiration. But in the first case he shall not enter into possession of the property until
after having given sufficient security, with the intervention of the instituted heir.
Accordingly, under the terms of Mrs. Hodges' will, her husband's right to the succession as the instituted heir
ceased in diem, i.e. upon the arrival of the resolutory term of his death on December 25, 1962, while her brothers'
and sisters' right to the succession also as instituted heirs commenced ex die, i.e. upon the expiration of the
suspensive term (as far as they were concerned) of the death of C. N. Hodges on December 25, 1962 . 42
As stated in Padilla's treatise on the Civil Code, "A term is a period whose arrival is certain although the exact date
thereof may be uncertain. A term may have either a suspensive or a resolutory effect. The designation of the day
when the legacy "shall commence" is ex die, or a term with a suspensive effect, from a certain day. The designation
of the day when the legacy "shall cease" is in diem or a term with a resolutory effect, until a certain day." He adds
that "A legacy based upon a certain age or upon the death of a person is not a condition but a term. If the arrival of
the term would commence the right of the heir, it is suspensive. If the arrival of the term would terminate his right,
it is resolutory" and that "upon the arrival of the period, in case of a suspensive term, the instituted heir is entitled
to the succession, and in case of a resolutory term, his right terminates." 43
10. The sizable estates herein involved have now been pending settlement for a considerably protracted period (of
seventeen years counted from Linnie's death in 1957), and all that is left to be done is to resolve the only remaining
issue (involving the two questions of renunciation and renvoi) hereinabove discussed in order to close up the
estates and finally effect distribution to the deceased spouses' respective brothers and sisters and their heirs as the
heirs duly instituted in their wills long admitted to probate. Hence, it is advisable for said instituted heirs and their
heirs in turn 44 to come to terms for the adjudication and distribution to them pro-indiviso of the up to now
unliquidated community properties of the estates of the Hodges spouses (derived from their unliquidated conjugal
partnership) rather than to get bogged down with the formidable task of physically segregating and partitioning the
two estates with the numerous transactions, items and details and physical changes of properties involved. The
estates proceedings would thus be closed and they could then name their respective attorneys-in-fact to work out
the details of segregating, dividing or partitioning the unliquidated community properties or liquidating them —
which can be done then on their own without further need of intervention on the part of the probate court as well
as allow them meanwhile to enjoy and make use of the income and cash and liquid assets of the estates in such
manner as may be agreed upon between them.
Such a settlement or modus vivendi between the heirs of the unliquidated two estates for the mutual benefit of all
of them should not prove difficult, considering that it appears as stated in the main opinion that 22.968149% of the
share or undivided estate of C. N. Hodges have already been acquired by the heirs of Linnie Jane Hodges from
certain heirs of her husband, while certain other heirs representing 17.34375% of Hodges' estate were joining cause
with Linnie's heirs in their pending and unresolved motion for the removal of petitioner PCIB as administrator of
Hodges' estate, 45 apparently impatient with the situation which has apparently degenerated into a running battle
between the administrators of the two estates to the common prejudice of all the heirs.
11. As earlier stated, the writer has taken the pain of suggesting these guidelines which may serve to guide the
probate court as well as the parties towards expediting the winding up and closing of the estates and the
distribution of the net estates to the instituted heirs and their successors duly entitled thereto. The probate court
should exert all effort towards this desired objective pursuant to the mandate of our probate law, bearing in mind
the Court's admonition in previous cases that "courts of first instance should exert themselves to close up estate
within twelve months from the time they are presented, and they may refuse to allow any compensation to
executors and administrators who do not actively labor to that end, and they may even adopt harsher measures." 46
Timeliness of appeals and imposition of
thirty-one (31) additional docket fees
Two appeals were docketed with this Court, as per the two records on appeal submitted (one with a green cover
and the other with a yellow cover). As stated at the outset, these appeals involve basically the same primal issue
raised in the petition for certiorari as to whether there still exists a separate estate of Linnie Jane Hodges which has
to continue to be administered by respondent Magno. Considering the main opinion's ruling in the affirmative and
that her estate and that of her husband (since they jointly comprise unliquidated community properties) must be
administered conjointly by their respective administrators (PCIB and Magno), the said appeals (involving thirty-three
different orders of the probate court approving sales contracts and other acts of administration executed and
performed by respondent Magno on behalf of Linnie's estate) have been necessarily overruled by the Court's
decision at bar.
(a) The "priority question" raised by respondent Magno as to the patent failure of the two records on appeal to
show on their face and state the material data that the appeals were timely taken within the 30-day reglamentary
period as required by Rule 41, section 6 of the Rules of Court, has been brushed aside by the main opinion with the
statement that it is "not necessary to pass upon the timeliness of any of said appeals" since they "revolve around
practically the same main issues and ... it is admitted that some of them have been timely taken." 47 The main
opinion thus proceeded with the determination of the thirty-three appealed orders despite the grave defect of the
appellant PCIB's records on appeal and their failure to state the required material data showing the timeliness of
the appeals.
Such disposition of the question of timeliness deemed as "mandatory and jurisdictional" in a number of cases
merits the writer's concurrence in that the question raised has been subordinated to the paramount considerations
of substantial justice and a "liberal interpretation of the rules" applied so as not to derogate and detract from the
primary intent and purpose of the rules, viz "the proper and just determination of a litigation"48 — which calls for
"adherence to a liberal construction of the procedural rules in order to attain their objective of substantial justice
and of avoiding denials of substantial justice due to procedural technicalities." 49
Thus, the main opinion in consonance with the same paramount considerations of substantial justice has likewise
overruled respondents' objection to petitioner's taking the recourse of "the present remedy of certiorari and
prohibition" — "despite the conceded availability of appeal" — on the ground that "there is a common thread
among the basic issues involved in all these thirty-three appeals — (which) deal with practically the same basic
issues that can be more expeditiously resolved or determined in a single special civil action . . . " 50
(b) Since the basic issues have been in effect resolved in the special civil action at bar (as above stated) with the
dismissal of the petition by virtue of the Court's judgment as to the continued existence of a separate estate of
Linnie Jane Hodges and the affirmance as a necessary consequence of the appealed orders approving and
sanctioning respondent Magno's sales contracts and acts of administration, some doubt would arise as to the
propriety of the main opinion requiring the payment by PCIB of thirty-one (31) additional appeal docket fees. This
doubt is further enhanced by the question of whether it would make the cost of appeal unduly expensive or
prohibitive by requiring the payment of a separate appeal docket fee for each incidental order questioned when the
resolution of all such incidental questioned orders involve basically one and the same main issue (in this case, the
existence of a separate estate of Linnie Jane Hodges) and can be more expeditiously resolved or determined in
a single special civil action" (for which a single docket fee is required) as stated in the main opinion. 51 Considering
the importance of the basic issues and the magnitude of the estates involved, however, the writer has pro hac
vice given his concurrence to the assessment of the said thirty-one (31) additional appeal docket fees.
MAKALINTAL, C.J., concurring:
I concur in the separate opinion of Justice Teehankee, which in turn agrees with the dispositive portion of the main
opinion of Justice Barredo insofar as it dismisses the petition for certiorari and prohibition in Cases L-27860 and L-
27896 and affirms the appealed orders of the probate court in cases L-27936-37.
However, I wish to make one brief observation for the sake of accuracy. Regardless of whether or not C. N. Hodges
was entitled to a legitime in his deceased wife's estate — which question, still to be decided by the said probate
court, may depend upon what is the law of Texas and upon its applicability in the present case — the said estate
consists of one-half, not one-fourth, of the conjugal properties. There is neither a minimum of one-fourth nor a
maximum beyond that. It is important to bear this in mind because the estate of Linnie Hodges consists of her
share in the conjugal properties, is still under administration and until now has not been distributed by order of the
court.
The reference in both the main and separate opinions to a one-fourth portion of the conjugal properties as Linnie
Hodges' minimum share is a misnomer and is evidently meant only to indicate that if her husband should
eventually be declared entitled to a legitime, then the disposition made by Linnie Hodges in favor of her collateral
relatives would be valid only as to one-half of her share, or one-fourth of the conjugal properties, since the
remainder, which constitutes such legitime, would necessarily go to her husband in absolute ownership,
unburdened by any substitution, term or condition, resolutory or otherwise. And until the estate is finally settled
and adjudicated to the heirs who may be found entitled to it, the administration must continue to cover Linnie's
entire conjugal share.

Separate Opinions
FERNANDO, J., concurring:
I concur on the basis of the procedural pronouncements in the opinion.
TEEHANKEE, J., concurring:
I concur in the result of dismissal of the petition for certiorari and prohibition in Cases L-27860 and L-27896 and
with the affirmance of the appealed orders of the probate court in Cases L-27936-37.
I also concur with the portion of the dispositive part of the judgment penned by Mr. Justice Barredo decreeing
the lifting of the Court's writ of preliminary injunction of August 8, 1967 as amended on October 4, and December
6, 19671 and ordering in lieu thereof that the Court's resolution of September 8, 19722 which directed
that petitioner-appellant PCIB as administrator of C. N. (Charles Newton) Hodges' estate (Sp. Proc. No. 1672 and
respondent-appellee Avelina A. Magno as administratrix of Linnie Jane Hodges' estate (Sp. Proc. No. 1307) should
act always conjointly never independently from each other, as such administrators, is reiterated and shall continue
in force and made part of the judgment.
It is manifest from the record that petitioner-appellant PCIB's primal contention in the cases at bar belatedly filed by
it with this Court on August 1, 1967 (over ten (10) years after Linnie Jane Hodges' death on May 23, 1957 and (over
five (5) years after her husband C.N. Hodges' death on December 25, 1962 — during which time both estates have
been pending settlement and distribution to the decedents' respective rightful heirs all this time up to now) — that
the probate court per its order of December 14, 1957 (supplementing an earlier order of May 25, 1957)3 in granting
C. N. Hodges' motion as Executor of his wife Linnie's estate to continue their "business of buying and selling
personal and real properties" and approving "all sales, conveyances, leases and mortgages" made and to be made
by him as such executor under his obligation to submit his yearly accounts in effect declared him as sole heir of his
wife's estate and nothing remains to be done except to formally close her estate (Sp. Proc. No. 1307) as her estate
was thereby merged with his own so that nothing remains of it that may be adjudicated to her brothers and sisters
as her designated heirs after him,4 — is wholly untenable and deserves scant consideration.
Aside from having been put forth as an obvious afterthought much too late in the day, this contention of PCIB that
there no longer exists any separate estate of Linnie Jane Hodges after the probate court's order of December 14,
1957 goes against the very acts and judicial admissions of C.N. Hodges as her executor whereby he consistently
recognized the separate existence and identity of his wife's estate apart from his own separate estate and from his
own share of their conjugal partnership and estate and "never considered the whole estate as a single one
belonging exclusively to himself" during the entire period that he survived her for over five (5) years up to the time
of his own death on December 25, 19625 and against the identical acts and judicial admissions of PCIB as
administrator of C.N. Hodges' estate until PCIB sought in 1966 to take over both estates as pertaining to its sole
administration.
PCIB is now barred and estopped from contradicting or taking a belated position contradictory to or inconsistent
with its previous admissions 6 (as well as those of C.N. Hodges himself in his lifetime and of whose estate PCIB is
merely an administrator) recognizing the existence and identity of Linnie Jane Hodges' separate estate and the legal
rights and interests therein of her brothers and sisters as her designated heirs in her will.
PCIB's petition for certiorari and prohibition to declare all acts of the probate court in Linnie Jane Hodges' estate
subsequent to its order of December 14, 1957 as "null and void for having been issued without jurisdiction" must
therefore be dismissed with the rejection of its belated and untenable contention that there is no longer any estate
of Mrs. Hodges of which respondent Avelina Magno is the duly appointed and acting administratrix.
PCIB's appeal7 from the probate court's various orders recognizing respondent Magno as administratrix of Linnie's
estate (Sp. Proc No. 1307) and sanctioning her acts of administration of said estate and approving the sales
contracts executed by her with the various individual appellees, which involve basically the same primal issue raised
in the petition as to whether there still exists a separate estate of Linnie of which respondent-appellee Magno may
continue to be the administratrix, must necessarily fail — a result of the Court's main opinion at bar that
there does exist such an estate and that the two estates (husband's and wife's) must be administered cojointly by
their respective administrators (PCIB and Magno).
The dispositive portion of the main opinion
The main opinion disposes that:
IN VIEW OF ALL THE FOREGOING PREMISES, judgment is hereby rendered DISMISSING the petition
in G. R. Nos. L-27860 and L-27896, and AFFIRMING, in G. R. Nos. L-27936-37 and the other thirty-
one numbers hereunder ordered to be added after payment of the corresponding docket fees, all
the orders of the trial court under appeal enumerated in detail on pages 35 to 37 and 80 to 82 of
this decision:
The existence of the Testate Estate of Linnie Jane Hodges, with respondent-appellee Avelina A.
Magno, as administratrix thereof is recognized, and
It is declared that, until final judgment is ultimately rendered regarding (1) the manner of applying
Article 16 of the Civil Code of the Philippines to the situation obtaining in these cases and (2) the
factual and legal issues of whether or not Charles Newton Hodges has effectively and legally
renounced his inheritance under the will of Linnie Jane Hodges, the said estate consists of one-
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 deduction whatsoever are to be made from
said estate;
In consequence, the preliminary injunction of August 8, 1967, as amended on October 4 and
December 6, 1967, is lifted and the resolution of September 8, 1972, directing that petitioner-
appellant PCIB, as Administrator of the Testate Estate of Charles Newton Hodges in Special
Proceedings 1672, and respondent-appellee Avelina A. Magno, as Administratrix of the Testate
Estate of Linnie Jane Hodges in Special Proceedings 1307, should act thenceforth always conjointly,
never independently from each other, as such administrators, is reiterated, and the same is made part
of this judgment and shall continue in force, pending the liquidation of the conjugal partnership of
the deceased spouses and the determination and segregation from each other of their respective
estates; provided, that upon the finality of this judgment, the trial court should immediately proceed
to the partition of the presently combined estates of the spouses, to the end that the one-half share
thereof of Mrs. Hodges may be properly and clearly identified;
Thereafter, the trial court should forthwith segregate the remainder of the one-fourth herein
adjudged to be her estate and cause the same to be turned over or delivered to respondent for
her exclusive administration in Special Proceedings 1307, while the other one-fourth shall remain
under the joint administrative of said respondent and petitioner under a joint proceedings in Special
Proceedings 1307 and 1672, whereas the half unquestionably pertaining to Hodges shall
be administered by petitioner exclusively in Special Proceedings 1672, without prejudice to the
resolution by the trial court of the pending motions for its removal as administrator;
And this arrangement shall be maintained until the final resolution of the two issues
of renvoi and renunciation hereby reserved for further hearing and determination, and the
corresponding 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.8
Minimum estimate of Mrs. Hodges' estate:
One-fourth of conjugal properties.
The main opinion in declaring the existence of a separate estate of Linnie Jane Hodges which shall pass to her
brothers and sisters with right of representation (by their heirs) as her duly designated heirs declares that her estate
consists as a minimum (i.e. assuming (1) that under Article 16 of the Philippine Civil Code C. N. Hodges as surviving
husband was entitled to one-half of her estate as legitime and (2) that he had not effectively and
legally renounced his inheritance under her will) of "one-fourth of the community properties of the said spouses, as
of the time of the death of the wife on May 23, 1957, minus whatever the husband had
already gratuitously disposed of in favor of third persons from said date until his death," with the proviso that
proceeds of remunerative dispositions or sales for valuable consideration made by C. N. Hodges after his wife
Linnie's death shall continue to be part of her estate unless subsequently disposed of by him gratuitously to third
parties subject to the condition, however, that if he is held to have validly and effectively renounced his inheritance
under his wife's will, no deductions of any dispositions made by Hodges even if gratuitously are to be made from his
wife Linnie's estate which shall pass intact to her brothers and sisters as her designated heirs called in her will to
succeed to her estate upon the death of her husband C. N. Hodges.
Differences with the main opinion
I do not share the main opinion's view that Linnie Jane Hodges instituted her husband as her heir under her will "to
have dominion over all her estate during his lifetime ... as absolute owner of the properties ..."9 and that she
bequeathed "the whole of her estate to be owned and enjoyed by him as universal and sole heir with absolute
dominion over them only during his lifetime, which means that while he could completely and absolutely dispose of
any portion thereof inter vivos to anyone other than himself, he was not free to do so mortis causa, and all his rights
to what might remain upon his death would cease entirely upon the occurrence of that contingency, inasmuch as
the right of his brothers and sisters-in-law to the inheritance, although vested already upon the death of Mrs.
Hodges, would automatically become operative upon the occurrence of the death of Hodges in the event of actual
existence of any remainder of her estate then." 10
As will be amplified hereinafter, I do not subscribe to such a view that Linnie Jane Hodges willed "full and absolute
ownership" and "absolute dominion" over her estate to her husband, but rather that she named her husband C. N.
Hodges and her brothers and sisters as instituted heirs with a term under Article 885 of our Civil Code, to wit,
Hodges as instituted heir with a resolutory term whereunder his right to the succession ceased in diem upon arrival
of the resolutory term of his death on December 25, 1962 and her brothers and sisters as instituted heirs with
a suspensive term whereunder their right to the succession commenced ex die upon arrival of the suspensive term of
the death of C. N. Hodges on December 25, 1962.
Hence, while agreeing with the main opinion that the proceeds of all remunerative dispositions made by C. N.
Hodges after his wife's death remain an integral part of his wife's estate which she willed to her brothers and sisters,
I submit that C. N. Hodges could not validly make gratuitous dispositions of any part or all of his wife's estate —
"completely and absolutely dispose of any portion thereof inter vivos to anyone other than himself" in the language
of the main opinion, supra — and thereby render ineffectual and nugatory her institution of her brothers and sisters
as her designated heirs to succeed to her whole estate "at the death of (her) husband." If according to the main
opinion, Hodges could not make such gratuitous "complete and absolute dispositions" of his wife Linnie's estate
"mortis causa," it would seem that by the same token and rationale he was likewise proscribed by the will from
making such dispositions of Linnie's estate inter vivos.
I believe that the two questions of renvoi and renunciation should be resolved preferentially and expeditiously by
the probate court ahead of the partition and segregation of the minimum one-fourth of the conjugal or community
properties constituting Linnie Jane Hodges' separate estate, which task considering that it is now seventeen (17)
years since Linnie Jane Hodges' death and her conjugal estate with C. N. Hodges has remained unliquidated up to
now might take a similar number of years to unravel with the numerous items, transactions and details of the
sizable estates involved.
Such partition of the minimum one-fourth would not be final, since if the two prejudicial questions
of renvoi and renunciation were resolved favorably to Linnie's estate meaning to say that if it should be held that C.
N. Hodges is not entitled to any legitime of her estate and at any rate he had totally renounced his inheritance
under the will), then Linnie's estate would consist not only of the minimum one-fourth but one-half of the conjugal
or community properties of the Hodges spouses, which would require again the partition and segregation of still
another one-fourth of said. properties to complete Linnie's separate estate.
My differences with the main opinion involve further the legal concepts, effects and consequences of the
testamentary dispositions of Linnie Jane Hodges in her will and the question of the best to reach a solution of the
pressing question of expediting the closing of the estates which after all do not appear to involve any outstanding
debts nor any dispute between the heirs and should therefore be promptly settled now after all these years without
any further undue complications and delays and distributed to the heirs for their full enjoyment and benefit. As no
consensus appears to have been reached thereon by a majority of the Court, I propose to state views as concisely
as possible with the sole end in view that they may be of some assistance to the probate court and the parties in
reaching an expeditious closing and settlement of the estates of the Hodges spouses.
Two Assumptions
As indicated above, the declaration of the minimum of Mrs. Hodges' estate as one-fourth of the conjugal properties
is based on two assumptions most favorable to C. N. Hodges' estate and his heirs, namely (1) that the probate court
must accept the renvoi or "reference back" 11 allegedly provided by the laws of the State of Texas (of which state
the Hodges spouses were citizens) whereby the civil laws of the Philippines as the domicile of the Hodges spouses
would govern their succession notwithstanding the provisions of Article 16 of our Civil Code (which provides that
the national law of the decedents, in this case, of Texas, shall govern their succession) with the result that her estate
would consist of no more than one-fourth of the conjugal properties since the legitime of her husband (the other
one-fourth of said conjugal properties or one-half of her estate, under Article 900 of our Civil Code) could not then
be disposed of nor burdened with any condition by her and (2) that C.N. Hodges had not effectively and
legally renounced his inheritance under his wife's will.
These two assumptions are of course flatly disputed by respondent-appellee Magno as Mrs. Hodges' administratrix,
who avers that the law of the State of Texas governs her succession and does not provide for and legitime, hence,
her brothers and sisters are entitled to succeed to the whole of her share of the conjugal properties which is one-
half thereof and that in any event, Hodges had totally renounced all his rights under the will.
The main opinion concedes that "(I)n the interest of settling the estates herein involved soonest, it would be best,
indeed, if these conflicting claims of the parties were determined in these proceedings." It observes however that
this cannot be done due to the inadequacy of the evidence submitted by the parties in the probate court and of the
parties' discussion, viz, "there is no clear and reliable proof of what the possibly applicable laws of Texas are. Then
also, the genuineness of the documents relied upon by respondent Magno [re Hodges' renunciation] is
disputed." 12
Hence, the main opinion expressly reserves resolution and determination on these two conflicting claims and issues
which it deems "are not properly before the Court
now," 13 and specifically holds that "(A)ccordingly, the only question that remains to be settled in the further
proceedings hereby ordered to be held in the court below is how much more than as fixed above is the estate of
Mrs. Hodges, and this would depend on (1) whether or not the applicable laws of Texas do provide in effect for
more, such as, when there is no legitime provided therein, and (2) whether or not Hodges has validly waived his
whole inheritance from Mrs. Hodges." 14
Suggested guidelines
Considering that the only unresolved issue has thus been narrowed down and in consonance with the ruling spirit
of our probate law calling for the prompt settlement of the estates of deceased persons for the benefit of creditors
and those entitled to the residue by way of inheritance — considering that the estates have been long pending
settlement since 1957 and 1962, respectively — it was felt that the Court should lay down specific guidelines for the
guidance of the probate court towards the end that it may expedite the closing of the protracted estates
proceedings below to the mutual satisfaction of the heirs and without need of a dissatisfied party elevating its
resolution of this only remaining issue once more to this Court and dragging out indefinitely the proceedings.
After all, the only question that remains depends for its determination on the resolution of the two questions
of renvoi and renunciation, i.e. as to whether C. N. Hodges can claim a legitime and whether he had renounced the
inheritance. But as already indicated above, the Court without reaching a consensus which would finally resolve the
conflicting claims here and now in this case opted that "these and other relevant matters should first be threshed
out fully in the trial court in the proceedings hereinafter to be held for the purpose of ascertaining and/or
distributing the estate of Mrs. Hodges to her heirs in accordance with her duly probated will." 15
The writer thus feels that laying down the premises and principles governing the nature, effects and consequences
of Linnie Jane Hodges' testamentary dispositions in relation to her conjugal partnership and co-ownership of
properties with her husband C. N. Hodges and "thinking out" the end results, depending on whether the evidence
directed to be formally received by the probate court would bear out that under renvoi C. N. Hodges was or was
not entitled to claim a legitime of one-half of his wife Linnie's estate and/or that he had or had not effectively and
validly renounced his inheritance should help clear the decks, as it were, and assist the probate court in resolving
the only remaining question of how much more than the minimum one-fourth of the community properties of the
Hodges spouses herein finally determined should be awarded as the separate estate of Linnie, particularly since the
views expressed in the main opinion have not gained a consensus of the Court. Hence, the following suggested
guidelines, which needless to state, represent the personal opinion and views of the writer:
1. To begin with, as pointed out in the main opinion, "according to Hodges' own inventory submitted by him as
executor of the estate of his wife, practically all their properties were conjugal which means that the spouses
have equal shares therein." 16
2. Upon the death of Mrs. Hodges on May 23, 1957, and the dissolution thereby of the marriage, the law imposed
upon Hodges as surviving husband the duty of inventorying, administering and liquidating the conjugal or
community property. 17 Hodges failed to discharge this duty of liquidating the conjugal partnership and estate. On
the contrary, he sought and obtained authorization from the probate court
to continue the conjugal partnership's business of buying and selling real and personal properties.
In his annual accounts submitted to the probate court as executor of Mrs. Hodges' estate, Hodges
thus consistently reported the considerable combined income (in six figures) of the conjugal partnership or
coownership and then divided the same equally between himself and Mrs. Hodges' estate and as consistently
filed separate income tax returns and paid the income taxes for each resulting half of such combined income
corresponding to his own and to Mrs. Hodges' estate. 18 (Parenthetically, he could not in law do this, had he
adjudicated Linnie's entire estate to himself, thus supporting the view advanced even in the main opinion that
"Hodges waived not only his rights to the fruits but to the properties themselves." 19
By operation of the law of trust 20 as well as by his own acknowledgment and acts, therefore, all transactions made
by Hodges after his wife's death were deemed for and on behalf of their unliquidated conjugal partnership
and community estate and were so reported and treated by him.
3. With this premise established that all transactions of Hodges after his wife's death were for and on behalf of
their unliquidated conjugal partnership and community estate, share and share alike, it should be clear that
no gratuitous dispositions, if any, made by C. N. Hodges from his wife Linnie's estate should be deducted from
her separate estate as held in the main opinion. On the contrary, any such gratuitous dispositions should be
charged to his own share of the conjugal estate since he had no authority or right to make
any gratuitous dispositions of Linnie's properties to the prejudice of her brothers and sisters whom she called to her
succession upon his death, not to mention that the very authority obtained by him from the probate court per its
orders of May 25, and December 14, 1957 was to continue the conjugal partnership's business of buying and selling
real properties for the account of their unliquidated conjugal estate and co-ownership, share and share alike
and not to make any free dispositions of Linnie's estate.
4. All transactions as well after the death on December 25, 1962 of Hodges himself appear perforce and necessarily
to have been conducted, on the same premise, for and on behalf of their unliquidated conjugal partnership and/or
co-ownership, share and share alike — since the conjugal partnership remained unliquidated — which is another
way of saying that such transactions, purchases and sales, mostly the latter, must be deemed in effect to have been
made for the respective estates of C. N. Hodges and of his wife Linnie Jane Hodges, as both estates continued to
have an equal stake and share in the conjugal partnership which was not only left unliquidated but continued as a
co-ownership or joint business with the probate court's approval by Hodges during the five-year period that he
survived his wife.
This explains the probate court's action of requiring that deeds of sale executed by PCIB as Hodges' estate's
administrator be "signed jointly" by respondent Magno as Mrs. Hodges' estate's administratrix, as well as its order
authorizing payment by lot purchasers from the Hodges to either estate, since "there is as yet no judicial
declaration of heirs nor distribution of properties to whomsoever are entitled thereto." 22
And this equally furnishes the rationale of the main opinion for continued conjoint administration by the
administrators of the two estates of the deceased spouses, "pending the liquidation of the conjugal
partnership," 23 since "it is but logical that both estates should be administered jointly by the representatives of
both, pending their segregation from each other. Particularly ... because the actuations so far of PCIB evince a
determined, albeit groundless, intent to exclude the other heirs of Mrs. Hodges from their inheritance." 24 5. Antly
by the representatives of both, pending their segregation from each other. Particularly ... because the actuations so
far of PCIB evince a determined, albeit groundless, intent to exclude the other heirs of Mrs. Hodges from their
inheritance." 24
5. As stressed in the main opinion, the determination of the only unresolved issue of how much more than the
minimum of one-fourth of the community or conjugal properties of the Hodges spouses pertains to Mrs. Hodges'
estate depends on the twin questions of renunciation and renvoi. It directed consequently that "a joint hearing of
the two probate proceedings herein involved" be held by the probate court for the reception of "further evidence"
in order to finally resolved these twin questions. 25
(a) On the question of renunciation, it is believed that all that the probate court has to do is to receive formally in
evidence the various documents annexed to respondent Magno's answer at bar, 26 namely: Copy of the U.S. Estate
Tax Return filed on August 8, 1958 by C. N. Hodges for his wife Linnie's estate wherein he purportedly declared that
he was renouncing his inheritance under his wife's will in favor of her brothers and sisters as co-heirs designated
with him and that it was his "intention (as) surviving husband of the deceased to distribute the remaining property
and interests of the deceased in their community estate to the devisee and legatees named in the will when the
debts, liabilities, taxes and expenses of administration are finally determined and paid;" 27 and
The affidavit of ratification of such renunciation (which places him in estoppel) allegedly executed on August 9, 1962
by C. N. Hodges in Iloilo City wherein he reaffirmed that "... on August 8, 1958, I renounced and disclaimed any and
all right to receive the rents, emoluments and income from said estate" and further declared that "(T)he purpose of
this affidavit is to ratify and confirm, and I do hereby ratify and confirm, the declaration made in schedule M of said
return and hereby formally disclaim and renounce any right on my part to receive any of the said rents, emoluments
and income from the estate of my deceased wife, Linnie Jane Hodges. This affidavit is made to absolve me or my
estate from any liability for the payment of income taxes on income which has accrued to the estate of Linnie Jane
Hodges since the death of the said Linnie Jane Hodges on May 23, 1957." 28
(b) On the question of renvoi, all that remains for the probate court to do is to formally receive in evidence duly
authenticated copies of the laws of the State of Texas governing the succession of Linnie Jane Hodges and her
husband C. N. Hodges as citizens of said State at the time of their respective deaths on May 23, 1957 and December
25, 1962. 29
6. The text and tenor of the declarations by C. N. Hodges of renunciation of his inheritance from his wife in favor of
her other named heirs in her will (her brothers and sisters and their respective heirs) as ratified and
reiterated expressly in his affidavit of renunciation executed four years later for the avowed purpose of not being
held liable for payment of income taxes on income which has accrued to his wife's estate since her death indicate a
valid and effective renunciation.
Once the evidence has been formally admitted and its genuineness and legal effectivity established by the probate
court, the renunciation by C. N. Hodges must be given due effect with the result that C. N. Hodges therefore
acquired no part of his wife's one-half share of the community properties since he removed himself as an heir by
virtue of his renunciation. By simple substitution then under Articles 857 and 859 of our Civil Code 30 and by virtue
of the will's institution of heirs, since "the heir originally instituted C. N. Hodges) does not become an heir" 31 by
force of his renunciation, Mrs. Hodges' brothers and sisters whom she designated as her heirs upon her husband's
death are called immediately to her succession.
Consequently, the said community and conjugal properties would then pertain pro indiviso share and share alike to
their respective estates, with each estate, however, shouldering its own expenses of administration, estate and
inheritance taxes, if any remain unpaid, attorneys' fees and other like expenses and the net remainder to be
adjudicated directly to the decedents' respective brothers and sisters (and their heirs) as the heirs duly designated
in their respective wills. The question of renvoi becomes immaterial since most laws and our
laws permit such renunciation of inheritance.
7. If there were no renunciation (or the same may somehow be declared to have not been valid and effective) by C.
N. Hodges of his inheritance from his wife, however, what would be the consequence?
(a) If the laws on succession of the State of Texas do provide for renvoi or "reference back" to Philippine law as the
domiciliary law of the Hodges' spouses governing their succession, then petitioners' view that Mrs. Hodges' estate
would consist only of the minimum of "one-fourth of the community properties of the said spouses, as of the time
of (her) death on May 23, 1957" would have to be sustained and C. N. Hodges' estate would consist of three-
fourths of the community properties, comprising his own one-half (or two-fourths) share and the other fourth of
Mrs. Hodges' estate as the legitime granted him as surviving spouse by Philippine law (Article 900 of the Civil Code)
which could not be disposed of nor burdened with any condition by Mrs. Hodges as testatrix.
(b) If the laws on succession of the State of Texas do not provide for such renvoi and respondent Magno's assertion
is correct that the Texas law which would then prevail, provides for no legitime for C. N. Hodges as the surviving
spouse, then respondent Magno's assertion that Mrs. Hodges' estate would consist of one-half of the community
properties (with the other half pertaining to C. N. Hodges) would have to be sustained. The community and
conjugal properties would then pertain share and share alike to their respective estates, with each estate
shouldering its own expenses of administration in the same manner stated in the last paragraph of paragraph 6
hereof. .
8. As to the nature of the institution of heirs made by Mrs. Hodges in her will, the main opinion holds that "(T)he
brothers and sisters of Mrs. Hodges are not substitutes for Hodges; rather, they are also heirs
instituted simultaneously with Hodges," but goes further and holds that "it was not the usufruct alone of her estate
... that she bequeathed to Hodges during his lifetime, but the full ownership thereof, although the same was to last
also during his lifetime only, even as there was no restriction against his disposing or conveying the whole or any
portion thereof anybody other than himself" and describes Hodges "as universal and sole heir with absolute
dominion over Mrs. Hodges' estate (except over their Lubbock, Texas property ), 32 adding that "Hodges was not
obliged to preserve anything for them" (referring to Mrs. Hodges' brothers and sisters as instituted co-heirs). 33
Contrary to this view of the main opinion, the writer submits that the provisions of Mrs. Hodges' will did not grant
to C.N. Hodges "full ownership" nor "absolute dominion" over her estate, such that he could as "universal and sole
heir" by the mere expedient of gratuitously disposing to third persons her whole estate during his
lifetime nullify her institution of her brothers and sisters as his co-heirs to succeed to her whole estate "at the death
of (her) husband," deprive them of any inheritance and make his own brothers and sisters in effect sole heirs not
only of his own estate but of his wife's estate as well.
Thus, while Linnie Jane Hodges did not expressly name her brothers and sisters as substitutes for Hodges because
she willed that they would enter into the succession upon his death, still it cannot be gainsaid, as the main opinion
concedes, "that they are also heirs instituted simultaneously with Hodges, subject however to certain conditions,
partially resolutory insofar as Hodges was concerned and correspondingly suspensive with reference to his brothers
and sisters-in-law." 34
Hence, if Hodges is found to have validly renounced his inheritance, there would be a substitution of heirs in fact
and in law since Linnie's brothers and sisters as the heirs "simultaneously instituted" with a suspensive term would
be called immediately to her succession instead of waiting for the arrival of suspensive term of Hodges' death, since
as the heir originally instituted he does not become an heir by force of his renunciation and therefore they would
"enter into the inheritance in default of the heir originally instituted" (Hodges) under the provisions of Article 857
and 859 of our Civil Code, supra, 35 thus accelerating their succession to her estate as a consequence of Hodges'
renunciation.
Consequently, Linnie Jane Hodges willed that her husband C.N. Hodges would "during his natural lifetime
... manage, control, use and enjoy said estate" and that only "all rents, emoluments and income" alone shall belong to
him. She further willed that while he could sell and purchase properties of her estate, and "use any part of the
principal estate," such principal notwithstanding "any changes in the physical properties of said estate"(i.e. new
properties acquired or exchanged) would still pertain to her estate, which at the time of his death would pass in full
dominion to her brothers and sisters as the ultimate sole and universal heirs of her estate. 36
The testatrix Linnie Jane Hodges in her will thus principally provided that "I give, devise and bequeath all of the rest,
residue and remainder of my estate, both personal and real ... to my beloved husband, Charles Newton Hodges, to
have and to hold with him ... during his natural lifetime;" 37 that "(he) shall have the right to manage, control,
use and enjoy said estate during his lifetime, ... to make any changes in the physical properties of said estate,
by sale ... and the purchase of any other or additional property as he may think best ... . All rents,
emoluments and income from said estate shall belong to him and he is further authorized to use any part of the
principal of said estate as he may need or desire, ... he shall not sell or otherwise dispose of any of the improved
property now owned by us, located at ... City of Lubbock, Texas ... . He shall have the right
to subdivide any farm land and sell lots therein, and may sell unimproved town lots;" 38 that "(A)t the death of my
said husband, Charles Newton, I give, devise and bequeath all of the rest, residue and remainder of my estate, both
personal and real, ... to be equally divided among my brothers and sisters, share and share alike, namely: Esta
Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie Rascoe, Era Roman and Nimroy Higdon;" 39 and that
"(I)n case of the death of any of my brothers and/or sisters ... prior to the death of my husband ... the heirs of such
deceased brother or sister shall take jointly the share which would have gone to such brother or sister had she or he
survived." 40
Such provisions are wholly consistent with the view already fully expounded above that all transactions and sales
made by Hodges after his wife Linnie's death were by operation of the law of trust as well as
by his own acknowledgment and acts deemed for and on behalf of their unliquidated conjugal partnership and
community estate, share and share alike, with the express authorization of the probate court per its orders of May
25, and December 14, 1957 granting Hodges' motion to continue the conjugal partnership business of buying and
selling real estate even after her death. By the same token, Hodges could not conceivably be deemed to have had
any authority or right to dispose gratuitously of any portion of her estate to whose succession she had called her
brothers and sisters upon his death.
9. Such institutions of heirs with a term are expressly recognized and permitted under Book III, Chapter 2, section 4
of our Civil Code dealing with "conditional testamentary dispositions and testamentary dispositions with a term." 41
Thus, Article 885 of our Civil Code expressly provides that:
ART 885. The designation of the day or time when the effects of the institution of an heir
shall commence or cease shall be valid.
In both cases, the legal heir shall be considered as called to the succession until the arrival of the
period or its expiration. But in the first case he shall not enter into possession of the property until
after having given sufficient security, with the intervention of the instituted heir.
Accordingly, under the terms of Mrs. Hodges' will, her husband's right to the succession as the instituted heir
ceased in diem, i.e. upon the arrival of the resolutory term of his death on December 25, 1962, while her brothers'
and sisters' right to the succession also as instituted heirs commenced ex die, i.e. upon the expiration of the
suspensive term (as far as they were concerned) of the death of C. N. Hodges on December 25, 1962 . 42
As stated in Padilla's treatise on the Civil Code, "A term is a period whose arrival is certain although the exact date
thereof may be uncertain. A term may have either a suspensive or a resolutory effect. The designation of the day
when the legacy "shall commence" is ex die, or a term with a suspensive effect, from a certain day. The designation
of the day when the legacy "shall cease" is in diem or a term with a resolutory effect, until a certain day." He adds
that "A legacy based upon a certain age or upon the death of a person is not a condition but a term. If the arrival of
the term would commence the right of the heir, it is suspensive. If the arrival of the term would terminate his right,
it is resolutory" and that "upon the arrival of the period, in case of a suspensive term, the instituted heir is entitled
to the succession, and in case of a resolutory term, his right terminates." 43
10. The sizable estates herein involved have now been pending settlement for a considerably protracted period (of
seventeen years counted from Linnie's death in 1957), and all that is left to be done is to resolve the only remaining
issue (involving the two questions of renunciation and renvoi) hereinabove discussed in order to close up the
estates and finally effect distribution to the deceased spouses' respective brothers and sisters and their heirs as the
heirs duly instituted in their wills long admitted to probate. Hence, it is advisable for said instituted heirs and their
heirs in turn 44 to come to terms for the adjudication and distribution to them pro-indiviso of the up to now
unliquidated community properties of the estates of the Hodges spouses (derived from their unliquidated conjugal
partnership) rather than to get bogged down with the formidable task of physically segregating and partitioning the
two estates with the numerous transactions, items and details and physical changes of properties involved. The
estates proceedings would thus be closed and they could then name their respective attorneys-in-fact to work out
the details of segregating, dividing or partitioning the unliquidated community properties or liquidating them —
which can be done then on their own without further need of intervention on the part of the probate court as well
as allow them meanwhile to enjoy and make use of the income and cash and liquid assets of the estates in such
manner as may be agreed upon between them.
Such a settlement or modus vivendi between the heirs of the unliquidated two estates for the mutual benefit of all
of them should not prove difficult, considering that it appears as stated in the main opinion that 22.968149% of the
share or undivided estate of C. N. Hodges have already been acquired by the heirs of Linnie Jane Hodges from
certain heirs of her husband, while certain other heirs representing 17.34375% of Hodges' estate were joining cause
with Linnie's heirs in their pending and unresolved motion for the removal of petitioner PCIB as administrator of
Hodges' estate, 45 apparently impatient with the situation which has apparently degenerated into a running battle
between the administrators of the two estates to the common prejudice of all the heirs.
11. As earlier stated, the writer has taken the pain of suggesting these guidelines which may serve to guide the
probate court as well as the parties towards expediting the winding up and closing of the estates and the
distribution of the net estates to the instituted heirs and their successors duly entitled thereto. The probate court
should exert all effort towards this desired objective pursuant to the mandate of our probate law, bearing in mind
the Court's admonition in previous cases that "courts of first instance should exert themselves to close up estate
within twelve months from the time they are presented, and they may refuse to allow any compensation to
executors and administrators who do not actively labor to that end, and they may even adopt harsher measures." 46
Timeliness of appeals and imposition of
thirty-one (31) additional docket fees
Two appeals were docketed with this Court, as per the two records on appeal submitted (one with a green cover
and the other with a yellow cover). As stated at the outset, these appeals involve basically the same primal issue
raised in the petition for certiorari as to whether there still exists a separate estate of Linnie Jane Hodges which has
to continue to be administered by respondent Magno. Considering the main opinion's ruling in the affirmative and
that her estate and that of her husband (since they jointly comprise unliquidated community properties) must be
administered conjointly by their respective administrators (PCIB and Magno), the said appeals (involving thirty-three
different orders of the probate court approving sales contracts and other acts of administration executed and
performed by respondent Magno on behalf of Linnie's estate) have been necessarily overruled by the Court's
decision at bar.
(a) The "priority question" raised by respondent Magno as to the patent failure of the two records on appeal to
show on their face and state the material data that the appeals were timely taken within the 30-day reglamentary
period as required by Rule 41, section 6 of the Rules of Court, has been brushed aside by the main opinion with the
statement that it is "not necessary to pass upon the timeliness of any of said appeals" since they "revolve around
practically the same main issues and ... it is admitted that some of them have been timely taken." 47 The main
opinion thus proceeded with the determination of the thirty-three appealed orders despite the grave defect of the
appellant PCIB's records on appeal and their failure to state the required material data showing the timeliness of
the appeals.
Such disposition of the question of timeliness deemed as "mandatory and jurisdictional" in a number of cases
merits the writer's concurrence in that the question raised has been subordinated to the paramount considerations
of substantial justice and a "liberal interpretation of the rules" applied so as not to derogate and detract from the
primary intent and purpose of the rules, viz "the proper and just determination of a litigation"48 — which calls for
"adherence to a liberal construction of the procedural rules in order to attain their objective of substantial justice
and of avoiding denials of substantial justice due to procedural technicalities." 49
Thus, the main opinion in consonance with the same paramount considerations of substantial justice has likewise
overruled respondents' objection to petitioner's taking the recourse of "the present remedy of certiorari and
prohibition" — "despite the conceded availability of appeal" — on the ground that "there is a common thread
among the basic issues involved in all these thirty-three appeals — (which) deal with practically the same basic
issues that can be more expeditiously resolved or determined in a single special civil action . . . " 50
(b) Since the basic issues have been in effect resolved in the special civil action at bar (as above stated) with the
dismissal of the petition by virtue of the Court's judgment as to the continued existence of a separate estate of
Linnie Jane Hodges and the affirmance as a necessary consequence of the appealed orders approving and
sanctioning respondent Magno's sales contracts and acts of administration, some doubt would arise as to the
propriety of the main opinion requiring the payment by PCIB of thirty-one (31) additional appeal docket fees. This
doubt is further enhanced by the question of whether it would make the cost of appeal unduly expensive or
prohibitive by requiring the payment of a separate appeal docket fee for each incidental order questioned when the
resolution of all such incidental questioned orders involve basically one and the same main issue (in this case, the
existence of a separate estate of Linnie Jane Hodges) and can be more expeditiously resolved or determined in
a single special civil action" (for which a single docket fee is required) as stated in the main opinion. 51 Considering
the importance of the basic issues and the magnitude of the estates involved, however, the writer has pro hac
vice given his concurrence to the assessment of the said thirty-one (31) additional appeal docket fees.
MAKALINTAL, C.J., concurring:
I concur in the separate opinion of Justice Teehankee, which in turn agrees with the dispositive portion of the main
opinion of Justice Barredo insofar as it dismisses the petition for certiorari and prohibition in Cases L-27860 and L-
27896 and affirms the appealed orders of the probate court in cases L-27936-37.
However, I wish to make one brief observation for the sake of accuracy. Regardless of whether or not C. N. Hodges
was entitled to a legitime in his deceased wife's estate — which question, still to be decided by the said probate
court, may depend upon what is the law of Texas and upon its applicability in the present case — the said estate
consists of one-half, not one-fourth, of the conjugal properties. There is neither a minimum of one-fourth nor a
maximum beyond that. It is important to bear this in mind because the estate of Linnie Hodges consists of her
share in the conjugal properties, is still under administration and until now has not been distributed by order of the
court.
The reference in both the main and separate opinions to a one-fourth portion of the conjugal properties as Linnie
Hodges' minimum share is a misnomer and is evidently meant only to indicate that if her husband should
eventually be declared entitled to a legitime, then the disposition made by Linnie Hodges in favor of her collateral
relatives would be valid only as to one-half of her share, or one-fourth of the conjugal properties, since the
remainder, which constitutes such legitime, would necessarily go to her husband in absolute ownership,
unburdened by any substitution, term or condition, resolutory or otherwise. And until the estate is finally settled
and adjudicated to the heirs who may be found entitled to it, the administration must continue to cover Linnie's
entire conjugal share.
Footnotes
1 Actually, the affidavit reads as follows:
"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 of respondent Avelina
Magno, p. 264, L-27860 Rollo.)
2 The will of Hodges executed on November 14, 1953 contained mutually similar dispositions as
those of his wife as follows:
xxx xxx xxx
"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 the rest, residue and remainder of my estate, both personal
and real, wherever situated, or located, to my beloved wife, Linnie Jane Hodges, to have and to hold
unto her, my said wife, during her natural lifetime.
THIRD: I desire, direct and provide that my wife, Linnie Jane Hodges, shall have the right to manage,
control, use and enjoy said estate during her lifetime, and she is hereby given the right to make any
changes in the physical properties of said estate, by sale or any part thereof which she 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 she 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 she may elect to sell. All
rents, emoluments and income from said estate shall belong to her, and she is further authorized to
use any part of the principal of said estate as she may need or desire. It is provided herein, however,
that she 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 she shall have the full right to lease, manage
and enjoy the same during her lifetime, as above provided. She shall have the right to subdivide any
farm land and sell lots therein, and may sell unimproved town lots.
xxx xxx xxx
FIFTH: At the death of my beloved wife, Linnie Jane Hodges, I give, devise and bequeath to the heirs
of my half brother, Robert Hodges, who is now deceased, a half brother's share of my estate.
SIXTH: At the death of my said wife, Linnie Jane Hodges, I give, devise and bequeath to the heirs of
my deceased full sister, Mattie Hodges Simpkins, a full sister's share of my estate.
SEVENTH: At the death of my said wife, Linnie Jane Hodges, I give, devise and bequeath to the heirs
of my deceased half sister, Barbara O'dell, a half sister's share of my estate.
EIGHT: At the death of my said wife, Linnie Jane Hodges, I give, devise and bequeath to the heirs of
my full brother, Joe Hodges, deceased, a full brother's share of my estate. .
NINTH: At the death of my said wife, Linnie Jane Hodges, I give, devise and bequeath to the heirs of
my half brother, Willie Carver, deceased, a half brother's share of my estate.
TENTH: At the death of my said wife, Linnie Jane 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 other full brothers and full sisters, share and share alike, namely: J. A.
Hodges, B. F. Hodges, Laura Holland and Addie Elliot.
ELEVENTH: In case of the death of any of my full brothers and/or full sisters named in Item Tenth
above, prior to the death of my wife, Linnie Jane Hodges, then it is my will and bequest that the heirs
of such deceased full brother or full sister shall take jointly the share which would have gone to such
full brother or full sister had he or she survived.
xxx xxx xxx
All erasures and interlineations made before signing."
3 None of the two records on appeal contains any copy of the motion and the opposition upon
which the court acted.
4 More specific factual details related to these appeals will be stated later in the course of the
distribution of the assignments of error.
5 It should be noted that in his affidavit, Hodges ratified and confirmed the "declaration made in
Schedule M (of the inheritance tax return he filed in the U.S.)" wherein he declared that no property
interests passed to him as the surviving spouse, except for purposes of administration and
distribution to the devisees and legatees named in the will of his wife, and further disclaimed and
renounced any right on his part to receive rents, emoluments and income therefrom because he
wanted to be "absolved ... from liability for the payment of income taxes on income that has accrued
to the estate of" his wife. While We cannot make any definite ruling on the point now, We might at
least express the impression that reading all these statements together, one can hardly escape the
conclusion that in the literal sense the idea conveyed by them is that Hodges waived not only his
rights to the fruits but to the properties themselves.
6 With the exception of the limitations referring to the Texas properties.
7 "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."
(Article 16, Civil Code.)
7* The question of what is the law of a foreign country is one of fact subject to proof like any other
factual issue. (Sy Joc Lien vs. Sy Quia, 16 Phil. 137; Ching Huat vs. Co Heong 77 Phil. 988.)
8 PCIB claims that pursuant to the laws of Texas, Mrs. Hodges' estate is only one-fourth of the
conjugal estate, while, on the other hand, Magno contends that under said laws, it is one-half of said
estate since there is no legitime for the surviving spouse provided in said laws.
9 The motion for contempt will be separately taken up in due time.
10 The issues We have expressly reserved for later resolution. (See pp. 111-114 of this opinion.)
11 If it should be found by the court later that Hodges did renounce his inheritance from Mrs.
Hodges, as seems to be indicated in the documents mentioned in the opinion, Schedule M of the
Inheritance Tax Return filed by Hodges in the United States, Annex 4 of the Answer in G. R. Nos. L-
27860 & L-27896, and the affidavit of Hodges, Annex 5 also of the same answer, it is likely that
Hodges did not have to pay any inheritance tax, and it would only be after these proceedings are
finally terminated with a judgment favorable to the brothers and sisters of Mrs. Hodges that taxes
could be assessed against them according to their respective individual shares.
11* See page 114-I ante.
12 See page 89-A of this decision.
TEEHANKEE J., CONCURRING:
1 This writ enjoined respondent court from acting in Sp. Proc. No. 1307 (Testate Estate of Linnie Jane
Hodges) and respondent-appellee Avelina A. Magno from interfering and intervening
therein, pending determination of the main issue raised by petitioner-appellant PCIB as to whether
or not Mrs. Hodges' estate continued to exist as such so as to require the services of said Avelina A.
Magno as administratrix thereof in view of PCIB's contention that her (Mrs. Hodges') entire estate
had been adjudicated in 1957 by the probate court to her surviving husband C. N. Hodges as "the
only devisee or legatee" under her will, which contention has now been rejected in the Court's
decision at bar.
2 This resolution was based on "the inherent fairness of allowing the administratrix of the estate of
Mrs. Hodges [Avelina A. Magno] to jointly administer the properties, rights and interests comprising
both estates [Linnie Jane Hodges' and that of her husband C. N. Hodges] until they are separated
from each other" in order to give adequate protection to the rights and interests of their respective
brothers and sisters as their designated heirs rather than "if the whole [both] proceedings were to be
under the administration of the estate of Mr. Hodges [PCIB] to the exclusion of any representative of
the heirs of Mrs. Hodges."
3 See page 5 et seq of main opinion.
4 See page 91 et seq of main opinion.
5 See page 100 of main opinion.
6 "Sec. 2. Judicial Admissions. — Admissions made by the parties in the pleadings, or in the course of
the trial or other proceedings do not require proof and can not be contradicted unless previously
shown to have been made through palpable mistake." (Rule 129). See also 5 Moran's 1970 Ed. 65
and cases cited.
7 See p. 114-1 et seq. of main opinion.
8 At pp., 136-137 of main opinion; paragraphing and emphasis supplied.
9 At page 121 of main opinion.
10 At pages 110-11 of main opinion.
11 See In re: Testate Estate of Edward E. Christiansen, deceased, Aznar vs. Garcia, 7 SCRA 95, 103, 107
(1963).
12 At p. 112, main opinion. See also p. 103, where the main opinion refers to still other
documents evidencing Hodges' renunciation and observes that "we cannot close our eyes to their
existence in the record." (emphasis supplied).
13 At p. 113, main opinion.
14 At p. 114-I, main opinion, emphasis supplied.
15 At page 112, main opinion.
16 At page 109, main opinion; emphasis supplied.
17 "SEC 2. Where estate settled upon dissolution of marriage. — 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." (Rule 73) 18 At pp. 129-130, main opinion.
19 At page 103, main opinion, fn. 5.
20 Pamittan vs. Lasam, 60 Phil. 908 (1934), where the Court stressed the "high degree of trust"
reposed in the surviving husband as "owner of a half interest in his own right of the conjugal estate
which he was charged to administer" and that the conjugal property which thus comes into his
possession upon his wife's death "remains conjugal property, a continuing and subsisting trust" for as
long as it remains unliquidated.
21 Order of August 6, 1965, p. 248 Green Record on Appeal; see p. 30, main opinion.
22 Appealed order of November 23, 1965 against Western Institute of Technology, Inc. as purchaser-
appellee, pp. 334-335, Green Rec. on App. see pp. 33-34, main opinion.
23 At p. 137, main opinion.
24 At pp. 108-109, main opinion.
25 At p. 114, main opinion, which notes that "the question of what are the laws of Texas governing
the matter here in issue is . . . one of fact, not of law."
26 See p. 102 et seq. main opinion; Annexes 4 and 5 Answer, pp. 163-264 of Rollo.
27 Annex 4, Answer, p. 263 of Rollo; emphasis supplied. 28 Annex 5, Answer, see p. 103, main
opinion; emphasis supplied. 29 See pp. 114 et seq. main opinion.
30 "ART. 857. Substitution is the appointment of another heir so that he may enter into the
inheritance in default of the heir originally instituted." (Civil Code)
"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." (Civil Code,
emphasis supplied)
31 6 Manresa 116, cited in III Padilla's Civil Code 1973 Ed., p. 241.
32 At pp. 110-112, main opinion; emphasis supplied.
33 At p. 134, main opinion.
34 At page 110, main opinion.
35 Text reproduced in fn. 30 hereof.
36 C.N. Hodges' own will contained identical provisions in favor of his wife, Linnie Jane Hodges to
"manage, control, use and enjoy (his)estate during her lifetime" and making specific bequests of his
whole estate to his full and half-brothers and sisters in clauses Fifth to Tenth thereof all "at the death
of my said wife, Linnie Jane Hodges. "At p. 18 et seq. main opinion.
37 Second of seven clauses of will, emphasis supplied.
38 Third clause of will, idem.
39 Fourth clause of will, idem.
40 Fifth clause of will, idem.
41 Art. 871, Civil Code provides that "(T)he institution of an heir may he made conditionally, or for a
certain purpose or cause."
42 An analogous case is found in Crisologo vs. Singson, 4 SCRA 491 (1962) where the testatrix
provided that the property willed by her to a grandniece was to pass to her brothers "to be effective
or to take place upon the death of the (grandniece)" — whether this happens before or after the
testatrix's own death.
43 Padilla's Civil Code, 1973 Ed. p. 284. The main opinion at pp. 110-111 also concedes the
suspensive and resolutory effects of Mrs. Hodges' institution of heirs.
44 Linnie Jane Hodges' brothers and sisters at her death on May 23, 1957 had ages ranging from 62
to 74 yrs. (except for Nimroy Higdon who was then 50 yrs. old) and most likely have all passed away
or are already too old to enjoy their inheritance. Green Rec. on Appeal, p. 2.
45 At page 89-a, main opinion.
46 Medina et al. vs. C. A., L-34760, September 28, 1973, citing Lizarraga Hnos. vs. Abada, 40 Phil. 124
and other cases.
47 At p. 90, main opinion.
48 Ronquillo vs. Marasigan, 5 SCRA 304, cited in Berkenkotter vs. C.A., L-36629, September 28, 1973,
per Esguerra, J.
49 See the writer's concurring op. in Sison vs. Gatchalian, L-34709, June 15, 1973 and dissenting op.
in Velasco vs. C.A., L-31018, June 29, 1973.
50 At pp. 90-91, main opinion.
51 At p. 91, main opinion.
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.
Barredo (Chairman), Concepcion, Jr., De Castro, Ericta and Escolin, JJ., concur.
Aquino J., took no part.