Suarez vs.

CA This petition, filed under Rule 65 of the Rules of Court, assails the Court of Appeals (CA) Decision[1] and Resolution[2] in CA-G.R. SP No. 58090 which reversed, set aside and recalled the Regional Trial Court (RTC) Orders[3] in Civil Case No. 51203. First, the long settled facts. Marcelo and Teofista Isagon Suarez [4] marriage was blessed with both material wealth and progeny in herein respondents, namely, Danilo,[5] Eufrocina, Marcelo Jr., Evelyn, and Reggineo, [6]all surnamed Suarez. During their marriage, governed by the conjugal partnership of gains regime, they acquired numerous properties, which included the following: (1) a parcel of land situated in Barrio Caniogan, Pasig with an area of 348 square meters covered by Transfer Certificate of Title (TCT) No. 30680; (2) property located in Pinagbuhatan, Pasig, with an area of 1,020 square meters under Tax Declaration No. A-016-01003; and (3) Lot Nos. 5, 6 & 7, Block 2 covered by Tax Declaration No. A-01700723 (subject properties). After the death of Marcelo Sr. in 1955, Teofista and herein respondents, as well as Elpidio Suarez,[7] executed an Extrajudicial Settlement of Estate,[8] partitioning Marcelo Sr.s estate, thus: WHEREAS, the said deceased is survived by the parties hereto who are his only legal heirs: TEOFISTA ISAGON, being the surviving spouse, and EUFROCINA S. ANDRES, ELPIDIO SUAREZ, DANILO SUAREZ, EVELYN SUAREZ, MARCELO SUAREZ, JR. and REGGINEO SUAREZ, being the legitimate children of the deceased with the said TEOFISTA ISAGON; WHEREAS, the minors ELPIDIO, SUAREZ, DANILO SUAREZ, EVELYN SUAREZ, MARCELO SUAREZ, JR. and REGGINEO SUAREZ are represented herein by EUFROCINA S. ANDRES, in her capacity as the guardian and legal administrator of the property of the said minors; WHEREAS, there are no known debts or financial obligations of whatever nature and amount against the estate of the deceased; NOW, THEREFORE, in consideration of the foregoing premises, the Parties have agreed to settle and liquidate the assets of the conjugal partnership between the deceased and TEOFISTA ISAGON, and to settle and adjudicate the estate of the said deceased, by and pursuance to these presents, in the following manner, to wit: 1. That TEOFISTA ISAGON, as the surviving spouse and partner of the deceased, shall receive in absolute and exclusive ownership the following properties as her lawful share in the assets of the conjugal partnership of gains between her and the deceased, to wit: (a) Half (1/2) interest and participation in the parcel of land covered by Tax Declaration No. 6938, situated at Sitio Pantayan, Municipality of Taytay, Province of Rizal; Half (1/2) interest and participation in the parcel of land covered by Tax Declaration No. 6939, situated at Sitio Pantayan, Municipality of Taytay, Province of Rizal; Half (1/2) interest and participation in the parcel of land covered by TCT No. 38291, situated at Barrio Rosario, Municipality of Pasig, Province of Rizal; Half (1/2) interest and participation in the parcel of land covered by TCT No. 38290, situated at Barrio Rosario, Municipality of Pasig, Province of Rizal; TWELVE THOUSAND FIVE HUNDRED THIRTY PESOS AND NINETY (P12,530.90) deposited with the Commercial Bank and Trust Company of the Philippines, and THIRTY-NINE PESOS (P39.00) deposited with Prudential Bank.

(b)

(c)

(d)

(e)

2. That the Parties TEOFISTA ISAGON, EUFROCINA S. ANDRES, ELPIDIO SUAREZ, DANILO SUAREZ, EVELYN SUAREZ, MARCELO SUAREZ, JR. and REGGINEO SUAREZ, shall each and all receive and be entitled to a share equivalent to oneseventh (1/7) of the estate of the deceased MARCELO SUAREZ, which estate is comprised of the following properties, to wit: (a) A parcel of land covered by TCT No. 30680, situated at Barrio Kaniogan, Municipality ofPasig, Province of Rizal, with an assessed value of P4,150.00. Three (3) parcels of land covered by TCT Nos. 33982, 33983 and 33984, situated at Barrio Pineda, Municipality of Pasig, Province of Rizal, with an assessed value of P560.00. A parcel of land covered by TCT 33986, situated at Barrio Pineda, Municipality of Pasig,Province of Rizal, with an assessed value of P440.00.

(b)

(c)

(d) Two (2) parcels of land, being Lots Nos. 42 and 44 of the amendment-subdivision plan TY-4653-Amd., being a portion of Lot 2 described on the original plan II-4653, G.L.R.O. Record No. _____, situated at Barrio Santolan, Municipality of Pasig, Province of Rizal, with a total assessed value of P590.00. (e) Two parcels of land, being Lots Nos. 43 and 45 of the amendmentsubdivision plan TY-4653-Amd., being a portion of Lot 2 described on the original plan II-4653, G.L.R.O. Record No. _______, situated at Barrio Santolan, Municipality of Pasig, Province of Rizal, with a total assessed value of P1,190.00. A parcel of land, being Lot No. 6, Block 269 of the subdivision plan pos-112, being a portion of Lot 2, Block 348, Psd-3188, G.L.R.O. Record Nos. 375,699 and 917, situated at San Felipe Neri, Province of Rizal, with an assessed value of P6,340.00. A parcel of land covered by OCT No. 391, situated in the Municipality of Taytay, Province of Rizal, with an assessed value of P1,840.00. TWELVE THOUSAND (12,000) shares of stock of the Consolidated Mines, Inc. represented by Certificate No. 71-5-B (for 1,000 shares) and Certificate No. 12736 (for 11,000 shares).

(f)

(g) (h)

PROVIDED, that their title to the properties hereinabove mentioned shall be in common and the share of each heir being pro indiviso.

Curiously, despite the partition, title to the foregoing properties, explicitly identified in the Extrajudicial Settlement of Estate as forming part of Marcelos and Isagons property regime, remained in the couples name. Not surprisingly, Teofista continued to administer and manage these properties. On the whole, apart from those now owned exclusively by Teofista, all the properties were held pro indiviso by Teofista and her children; and respective titles thereto were not changed, with Teofista as de facto administrator thereof. In 1975, Rizal Realty Corporation (Rizal Realty) and Teofista, the latter owning ninety percent (90%) of the formers shares of stock, were sued by petitioner Valente Raymundo, his wife Violeta,Virginia Banta and Maria Concepcion Vito (plaintiffs) in consolidated cases for Rescission of Contract and Damages, docketed as Civil Case Nos. 21736 to 21739. Thereafter, in 1975, the then Court of First Instance (CFI) of Rizal, Branch 1, rendered judgment: (1) rescinding the respective contracts of plaintiffs with Rizal Realty and Teofista, and (2) holding the two defendants solidarily liable to plaintiffs for damages in the aggregate principal amount of about P70,000.00.[9] When the judgment of the CFI became final and executory, herein subject properties were levied and sold on execution on June 24, 1983 to satisfy the judgment against Teofista and Rizal

Realty. The aforementioned plaintiffs were the highest bidder, and bought the levied properties for the amount of P94,170.00. As a result, a certificate of sale was issued to them and registered in their favor on August 1, 1983. On July 31, 1984, the Provincial Sheriff of Rizal issued a final deed of sale over the subject properties. Parenthetically, before expiration of the redemption period, or on June 21, 1984, herein respondents filed a revindicatory action against petitioner Valente, Violeta, Virginia and Maria Concepcion, docketed as Civil Case No. 51203, for the annulment of the auction sale and recovery of ownership of the levied properties. Essentially, respondents alleged in their complaint that they cannot be held liable for the judgment rendered against their mother, Teofista, not having been impleaded therein; and consequently, the subject properties, which they own pro indiviso with their mother, can neither be levied nor be sold on execution. Meanwhile, the RTC, Branch 151, formerly the CFI, Branch 1, in Civil Case Nos. 21376 to 21379, issued an Order[10] directing Teofista: (1) to vacate the subject properties, (2) to desist from despoiling, dismantling, removing or alienating the improvements thereon, (3) to place petitioner Valente, Violeta, Virginia and Maria Concepcion in peaceful possession

thereof, and (4) to surrender to them the owners duplicate copy of the torrens title and other pertinent documents. Herein respondents, joined by their mother, Teofista, filed a Motion for Reconsideration arguing that the subject properties are co-owned by them and further informing the RTC of the filing and pendency of Civil Case No. 51203. Nonetheless, the trial court denied Teofistas and herein respondents motion, reiterated its previous order, which included, among others, the order for Teofista and all persons claiming right under her, to vacate the lots subject of the judicial sale. Undaunted, Teofista and herein respondents filed a petition for certiorari before the CA to annul the foregoing orders. The appellate court, on July 6, 1987, dismissed Teofistas and herein respondents petition, thus: We believe this petition cannot prosper for two reasons. First, as purported case for certiorari it fails to show how the respondent judge had acted without or in excess of jurisdiction or with grave abuse of discretion. The two orders being assailed were preceded by a final judgment, a corresponding writ of execution, a levy on execution and a judicial sale, all of which enjoy a strong sense presumption of regularity. Secondly, as far as [petitioner] Teofista Suarez is concerned, she cannot complain about the levy because she was a party in the consolidated cases where judgment was rendered against her in her personal capacity. Since she did not appeal from the decision, she cannot say that the judgment is erroneous for an obligation that belong to the corporation. And with respect to the children of Teofista Suarez, who are co-petitioners in this proceedings [herein respondents], suffice it to point out that not being parties in the consolidated cases, what they should have done was to immediately file a third party claim. The moment levy was made on the parcels of land, which they claim are theirs by virtue of hereditary succession, they should have seasonably filed such claim to protect their rights. As the record discloses, however, the children chose to remain silent, and even allowed the auction sale to be held, filing almost a year later a half-hearted complaint to annul the proceedings which they allowed to be dismissed by not diligently prosecuting it. In Santos v. Mojica (10 SCRA 318), a partition case with third- party claimants, the Supreme Court came out with the following ruling: The procedure (a petition for certiorari) followed by him (a petitioner not party to the original partition case) in vindicating his right is not the one sanctioned by law, for he should have filed a separate and independent action making parties therein the sheriff and the plaintiffs responsible for the execution xxx. It can, therefore, be said that (he) acted

improperly in filing the present petition because his remedy was to file a separate and independent action to vindicate his ownership over the land. WHEREFORE, the petition is denied and the restraining order previously issued is DISSOLVED, with costs against petitioners.[11] On the other litigation front concerning Civil Case No. 51203, a writ of preliminary injunction was issued by the RTC Pasig, Branch 155, on February 25, 1985, enjoining petitioner Valente, Violeta, Virginia and Maria Concepcion from transferring to third parties the levied properties based on its preliminary finding that the auctioned properties are co-owned by Teofista and herein respondents. Subsequently, however, Civil Case No. 51203 was dismissed by the RTC, Branch 155, at the instance of petitioner Valente for failure of herein respondents to prosecute. But in yet another turn of events, the RTC, Branch 155, lifted its previous order of dismissal and directed the issuance of alias summons. Thus, it was now petitioner Valentes, Violetas, Virginias and Maria Concepcions turn to file a petition for certiorari with the CA, assailing the various orders of the RTC, Branch 155, which all rejected their bid to dismiss Civil Case No. 51203. The CA granted their petition, thus: And the fact that herein private respondents, as the legal heirs of Teofista Vda. de Suarez and supposedly not parties in Civil Case Nos. 21376 - 21379 does not preclude the application of the doctrine of res judicata since, apart from the requisites constitutive of this procedural tenet, they were admittedly the children of Teofista Suarez, who is the real partyin-interest in the previous final judgment. As successors-in-interest of Teofista Suarez, private respondents merely stepped into the shoes of their mother in regard to the levied pieces of property. Verily, there is identity of parties, not only where the parties in both actions are the same, but where there is privity with them as in the cases of successors-ininterest by title subsequent to the commencement of the action or where there is substantial identity. Finally, the action to annul the judicial sale filed by herein private respondents is not the reinvindicatory suit, much less the third party claim contemplated by Section 17 of Rule 39. WHEREFORE, the petition for certiorari is hereby granted and the questioned orders dated February 25, 1985, May 19, 1989 and February 26, 1990 issued in Civil Case No. 51203 are hereby annulled; further respondent judge is ordered to dismiss Civil Case No. 51203.[12] From this ruling, herein respondents appealed to the Supreme Court. In Suarez v. Court of Appeals,[13] we reversed the appellate court, thus: Even without touching on the incidents and issues raised by both petitioner [herein respondents] and private respondents [petitioner Valente, Violeta, Virginia and Maria Concepcion] and the developments subsequent to the filing of the complaint, [w]e cannot but notice the glaring error committed by the trial court. It would be useless to discuss the procedural issue on the validity of the execution and the manner of publicly selling en masse the subject properties for auction. To start with, only one-half of the 5 parcels of land [subject properties] should have been the subject of the auction sale. The law in point is Article 777 of the Civil Code, the law applicable at the time of the institution of the case: The rights to the succession are transmitted from the moment of the death of the decedent. Article 888 further provides: The legitime of the legitimate children and descendants consists of onehalf of the hereditary estate of the father and of the mother.

The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided. Article 892, par. 2 likewise provides: If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children or descendants. Thus, from the foregoing, the legitime of the surviving spouse is equal to the legitime of each child. The proprietary interest of petitioners [herein respondents] in the levied and auctioned property is different from and adverse to that of their mother [Teofista]. Petitioners [herein respondents] became co-owners of the property not because of their mother [Teofista] but through their own right as children of their deceased father [Marcelo Sr.]. Therefore, petitioners [herein respondents] are not barred in any way from instituting the action to annul the auction sale to protect their own interest. WHEREFORE, the decision of the Court of Appeals dated July 27, 1990 as well as its Resolution of August 28, 1990 are hereby REVERSED and set aside; and Civil Case No. 51203 is reinstated only to determine that portion which belongs to petitioners and to annul the sale with regard to said portion.

It was at this point when another series of events transpired, culminating in the present petition. Upon our reinstatement of Civil Case No. 51203, each and every pleading filed by herein respondents, as plaintiffs therein, was hotly contested and opposed by therein defendants, including petitioner Valente. Moreover, even at that stage, when the case had been remanded with a directive to determine that portion which belongs to [herein respondents] and to annul the sale with regard to said portion, Civil Case No. 51203 had to be re-raffled and transferred, for varied reasons, to the different court branches in Pasig City. In between all these, petitioner Valente, along with the other defendants, repeatedly filed a Motion to Dismiss Civil Case No. 51203 for the purported failure of herein respondents to prosecute the case. Most of these Motions to Dismiss were denied. With each transfer of Civil Case No. 51203, the judge to which the case was raffled had to study the records anew. Expectedly, part of the records went missing and were lost. On April 12, 1993, the Clerk of Court of RTC, Branch 71, to which Civil Case No. 51203 was remanded, filed a report on the records of the case, to wit: 1. The first volume of the record in the above-entitled case was recorded as received on June 20, 1990, by Sheriff Alejandro O. Loquinario; 2. That the staff of Branch 71 at this time was sharing a small room with Branch 161 at the First Floor of the Justice Hall, and as the Branch was newly formed, it had no equipment or furniture of its own, and was still undermanned; 3. That sometime in August 1990, Branch 71 moved to the staffroom of Branch 159 at the Second Floor of the Justice Hall; 4. That on October 25, 1990, this Court received a Notice of Judgment dated October 22, 1990 from the Court of Appeals that ruled the dismissal of the above-entitled case, and as per standing instructions of Judge Graduacion A. ReyesClaravall, the same was bound as volume 2 of the case; 5. That just before the Christmas vacation in 1991, the branch was forced to hastily move all of its records and equipment to branch 69, because of the unexpected notice we received that the room we were occupying was to be demolished in order to meet the schedule for the renovation of the building; 6. That unfortunately, the room was demolished before the undersigned could make a last check to see if everything was transferred;

7. That it was only later on that this office discovered that important documents were indeed lost, including transcripts of stenographic notes in a case that was submitted for decision; 8. That sometime in May 1992, the branch moved its Office to its present location; 9. That on March 8, 1993, this Court received a copy of a Decision of the Supreme Court reversing the earlier ruling of the Court of Appeals; 10. That it was at this time that the first volume of this case, which was bundled along with other cases which were decided and/or archived, was reported as missing; 11. That from the time the same was found to be missing, Judge Claravall ordered that a search for the same be made in all of the offices wherein this branch was forced to share a room with, as well as the Court of Appeals, in the event that the same was transmitted to said Court; 12. anywhere; That all the efforts were in vain, as said record could not be located

13. That the undersigned now concludes that the first volume of the above-entitled case was probably lost during the renovation of the Justice Hall Building, and will have to be reconstituted with the use of documents in the possession of the parties, or documents entered as exhibits in other Courts. [14] In this regard, herein respondents filed a Motion for Reconstitution of Records [15] of the case. Initially, petitioner Valente, and the other defendants -- Violeta, Virginia and Maria Concepcion -- opposed the motion.[16] However, the trial court eventually granted the motion for reconstitution, and ordered petitioner Valente and the other defendants to submit a copy of their Answer filed thereat and copies of other pleadings pertinent to the case. [17] Thereafter, three (3) incidents, among numerous others, set off by the parties pleadings, are worth mentioning, to wit: 1. A Motion for Leave to File and Admit Supplemental Complaint [18] filed by herein

respondents. The Supplemental Complaint additionally prayed that the levy and sale at public auction of the subject properties be annulled and set aside, as the bid price was unconscionable and grossly inadequate to the current value of the subject properties. The Supplemental Complaint further sought a re-bidding with respect to Teofistas share in the subject properties. Finally, it prayed that TCT No. 6509 in the name of petitioner Valente, Violeta, Virginia and Maria Concepcion be cancelled and TCT No. 30680 in the name of Marcelo Suarez, married to Teofista Isagon, be reinstated. 2. A Manifestation and Motion (to Execute/Enforce Decision dated September 4, 1992 of

the Supreme Court)[19] filed by herein respondents pointing out that the Supreme Court itself had noted the current increased value of the subject properties and that petitioner Valente, Violeta, Virginia and Maria Concepcion unjustly enriched themselves in appropriating the subject properties worth millions then, for a measly bid price of P94,170.00, for a judgment obligation worth onlyP70,000.00. 3. An Urgent Motion [to direct compliance by plaintiffs (herein respondents) with

Supreme Court Decision or to consider the matter submitted without evidence on the part of plaintiffs][20] filed by therein defendants, including herein petitioner Valente, pointing out that plaintiffs (herein respondents) have yet to comply with the RTC, Branch 67 Order commanding them to submit (to the RTC) any evidence showing settlement of the estate of the

deceased Marcelo Suarez, in order for the court to determine the portion in the estate which belongs to Teofista. The Urgent Motion stated in paragraph 2, thus: 2. The defendants [including herein petitioner Valente] did everything possible to expedite the disposition of this case while the plaintiffs [herein respondents] did everything possible to DELAY the disposition of the same obviously because the plaintiffs [herein respondents] are in full possession and enjoyment of the property in dispute. In its decision of September 4, 1992, the SUPREME COURT nullified TWO final and executory DECISIONS of the Court of Appeals in an unprecedented action. In said decision, the Supreme Court ordered the plaintiffs [herein respondents] to establish with evidence their personality as heirs of Marcelo Suarez, and after being able to do so, to adduce evidence that would determine what portion belongs to plaintiffs hence the above matters need be litigated upon before the RTC can annul the sale with regard to said portion (belonging to the plaintiffs alleged heirs).

On these incidents, the records reveal the following Orders issued by the different branches of the RTC: 1. Order dated March 17, 1995, issued by Presiding Judge Rodrigo B. Lorenzo of Branch

266, Pasig City, admitting herein respondents Supplemental Complaint. [21] 2. Order dated January 22, 1996, issued by Judge Apolinario B. Santos resolving: (a)

herein respondents Manifestation and Motion (to execute/enforce Decision dated September 4, 1992 of the Supreme Court), and (b) therein defendants (including herein petitioner Valentes) Request for Answer to Written Interrogatories.[22] The RTC, Branch 67, resolved the incidents, thus: From the foregoing uncontroverted facts, this Court is convinced beyond a shadow of doubt that the Decision of the Supreme Court of September 4, 1992, being the final arbiter in any judicial dispute, should be implemented for the following reasons: xxxx On the request for Answers to Written Interrogatories filed by the defendants, it is obvious that at this stage of the proceedings where the Supreme Court had already pronounced the undisputed facts, which binds this court, the answer sought to be elicited through written interrogatories, therefore, are entirely irrelevant, aside from having been filed way out of time. WHEREFORE, premises considered, this court, implements the decision of the Supreme Court dated September 4, 1992 which mandates that: xxx and Civil Case No. 51203 is reinstated only to determine that portion which belongs to petitioner and to annul the sale with regard to said portion. In order to enforce such mandate of the Supreme Court, this court orders that: a. The auction sale of the five (5) parcels of land and all prior and subsequent proceedings in relation thereto are declared null and void. b. Transfer Certificate of Title No. 6509 in the name of defendant Valente Raymundo is also declared null and void, and the Register of Deeds of Rizal, Pasig City, is ordered to issue a new one in the name of the deceased Marcelo Suarez or to reinstate Transfer Certificate of Title No. 30680 in the name of Marcelo Suarez. c. Teofista Suarez is ordered to reimburse the amount of P94,170.00, plus legal interest from the date of issuance of this order, and failing which, the portion of the estate of Marcelo Suarez belonging to the surviving spouse, Teofista Suarez, may be levied on execution.

d. [Herein respondents], including Teofista Suarez, are hereby ordered to submit to this court any evidence showing settlement of the estate of the deceased, Marcelo Suarez, in order for this court to determine the portion in the estate which belongs to Teofista Suarez.

Therein defendants, including petitioner Valente, filed a Motion for Reconsideration which the trial court denied on May 29, 1996. 3. Order dated September 10, 1996, issued by Judge Santos denying the appeal

interposed by petitioner Valente from the January 22, 1996 and May 29, 1996 Orders, ruling that these are interlocutory orders, and, therefore, not appealable. [23] 4. thus: Considering that counsel for the plaintiffs does not have the birth certificates of the heirs of the plaintiff to prove their affiliation with the deceased which is one of the matters written in the decision of the higher court which must be complied with, and in order for counsel for the plaintiffs [herein respondents] to have the opportunity to complete all documentary evidence and in view of abbreviating the proceedings and as prayed for, todays scheduled pre-trial is re-set for the last time to May 19, 1999 at 8:30 a.m. In this connection, counsel for plaintiffs [herein respondents] is advised to secure all the documentary evidence she needs material to this case which will expedite the disposition of this case.[24] Order dated April 8, 1999, issued by Pairing Judge Santiago Estrella which declared,

This last Order and therein defendants Urgent Motion spawned another contentious issue between the parties. In this connection, Judge Estrella issued an Order [25] requiring the parties to file their respective position papers due to the divergent views on the nature of the hearing that should be conducted in compliance with our decision in Suarez. Both parties duly filed their position papers, with herein respondents attaching thereto a copy of the Extrajudicial Settlement of Estate executed by the heirs of Marcelo Suarez in 1957. In resolving this latest crossfire between the parties, the RTC, Branch 67, issued an Order dated January 11, 2000, which reads, in part: This Court is of the view that the Honorable Supreme Court is not a trier of facts, precisely it directed that the records of this case be remanded to the Regional Trial Court for further proceedings. xxxx It is a matter of record that there was no trial on the merits completed in the Regional Trial Court. xxx The Supreme Court reversed the judgment of the Court of Appeals and ordered the reinstatement of Civil Case No. 51203. Naturally, there was no trial on the merits before this Court that allowed the parties to adduce evidence to establish their respective claims in the plaintiffs [herein respondents] complaint and in the defendants [including petitioner Valente] counter-claim, respectively. It is in this context that the Honorable Supreme Court reinstated the action [of herein respondents] to annul the auction sale to protect their [herein respondents] own interest. While this Court is of the view that trial on the merits is necessary for the purpose of giving the plaintiffs [herein respondents] a chance to adduce evidence to sustain their complaint and the defendants [including petitioner Valente] to prove their defense, consistent with the directive of the Honorable Supreme Court (in its Decision promulgated on September 4, 1992), the Court is, however, confronted with the very recent decision of

the Honorable Supreme Court in Heirs of Guido Yaptinchay, et al. vs. Del Rosario, et al., G.R. No. 124320, March 2, 1999 where it held that The declaration of heirship must be made in an administration proceeding, and not in an independent civil action. This doctrine was reiterated in Solve vs. Court of Appeals (182 SCRA 119, 128). The trial court cannot make a declaration of heirship in the civil action for the reason that such a declaration can only be made in a special proceeding. Under Section 3, Rule 1 of the 1997 Revised Rules of Court, a civil action is defined as one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong while a special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact. It is then decisively clear that the declaration of heirship can be made only in a special proceeding inasmuch as the petitioners here are seeking the establishment of a status or right. In as much as the leading case on the matter is that of Heirs of Yaptinchay v. Del Rosario, G.R. No. 124320, March 2, 1999 it is left with no choice but to obey said latter doctrine. WHEREFORE, the foregoing premises considered, this Court holds that in the light of the doctrine laid down in the case of Heirs of Yaptinchay vs. Del Rosario, G.R. No. 124320, March 2, 1999 this case is dismissed without prejudice to the plaintiffs [herein respondents] filing a special proceeding consistent with said latest ruling.[26]

Herein respondents moved for reconsideration thereof which, however, was denied by the RTC, Branch 67 on March 14, 2000.[27] Consequently, herein respondents filed a petition for certiorari before the CA alleging grave abuse of discretion in the trial courts order dismissing Civil Case No. 51203 without prejudice. All the defendants in the trial court were impleaded as private respondents in the petition. Yet, curiously, only petitioner Valente filed a Comment thereto. The appellate court granted the petition, recalled and set aside RTC, Branch 67s Orders dated January 11, 2000 and March 14, 2000, and reinstated Judge Santos Orders dated May 29, 1996 and September 6, 1996. It disposed of the petition, thus: We agree with [herein respondents]. On September 4, 1992, the Supreme Court (G.R. No. 94918) reversed the decision of the Court of Appeals and mandates that Civil Case No. 51203 be reinstated in order to determine the portion in the estate which belongs to Teofista Suarez. The sale of the parcels of land was declared null and void. Necessarily, the title (TCT No. 5809) in the name of respondents was also declared null and void. xxx xxxx Hon. Apolinario Santos of Br. 67, Regional Trial Court, Pasig City, on January 22, 1996 and on motion of [herein respondents], issued an order to execute/enforce the decision of the Supreme Court xxx. xxxx [Petitioner Valente, Violeta, Virginia and Maria Concepcion] filed a notice of appeal on the order of Judge Santos. The appeal, on motion of [herein respondents] was denied on September 10, 1996.Obviously, the decision of the Supreme Court had become final and executory. Likewise, both orders of Judge Santos dated May 29, 1996 denying the motion for reconsideration and the denial of the notice of appeal dated September 6, 1996 had also become final and executory.

The denial of petitioner Valentes Motion for Reconsideration prompted the filing of this present petition for certiorari.

Petitioner Valente posits that the appellate court committed grave abuse of discretion in recalling and setting aside the Orders of Judge Estrella and reinstating those of Judge Santos because: 1. The CA ruled that the Orders dated May 29, 1996 and September 6, 1996 issued by

Judge Santos were final and executory, and yet the latter did not allow an appeal to be taken therefrom ratiocinating that the questioned orders were interlocutory, and therefore, not appealable; and 2. The CA ignored and violated the Supreme Courts ruling in Heirs of Yaptinchay v. Del Rosario[28] which held that a declaration of heirship must be made in a special proceeding and not in a civil action. We find the petition bereft of merit. At the outset, we note that petitioner Valente incorrectly filed a petition for certiorari to appeal the CA decision. Petitioner should have filed a petition for review on certiorari under Rule 45 of the Rules of Court. Simply imputing in a petition that the decision sought to be reviewed is tainted with grave abuse of discretion does not magically transform a petition into a special civil action forcertiorari. The CA decision disposed of the merits of a special civil action, an original petition, filed thereat by herein respondents. That disposition is a final and executory order, appealable to, and may be questioned before, this Court by persons aggrieved thereby, such as petitioner Valente, via Rule 45. On this score alone, the petition should have been dismissed outright. However, we have disregarded this procedural flaw and now resolve this case based on the merits or lack thereof. Petitioner asseverates that the assailed CA ruling is unfair and it amounts to a trickery to prevent an appeal against a final order by claiming that the appealed order is merely interlocutory and later maintain that the same order has become final after declaring it to be interlocutory. We reject petitioners paltry contention. Petitioner apparently does not comprehend the distinction between an interlocutory order which is final and executory, and a final order which disposes of the controversy or case; much less, understand the available remedies therefrom. We have defined an interlocutory order as referring to something between the commencement and the end of the suit which decides some point or matter but it is not the final decision on the whole controversy. [29] It does not terminate or finally dismiss or finally dispose of the case, but leaves something to be done by the court before the case is finally decided on the merits.[30] Upon the other hand, a final order is one which leaves to the court nothing more to do to resolve the case.[31] On more than one occasion, we laid down the test to ascertain whether an order is interlocutory or final i.e., Does it leave something to be done in the trial court with respect to the merits of the case? If it does, it is interlocutory; if it does not, it is final. The key test to what is interlocutory is when there is something more to be done on the merits of the case. [32] The Orders dated May 29, 1996 and September 6, 1996 issued by Judge Santos are interlocutory, and therefore, not appealable, as they leave something more to be done on the merits of the case. In

fact, in paragraph (d) of Judge Santos Order dated May 29, 1996, herein respondents were directed to submit evidence showing settlement of the estate of the deceased Marcelo Sr. Contrary to petitioner Valentes stance, there is no trickery or chicanery in the CAs distinction between an interlocutory and a final order. Indeed, as ruled by the CA, the RTC Order denying petitioner Valentes Notice of Appeal attained finality when he failed to file a petition forcertiorari under Rule 65 of the Rules of Court. We cannot overemphasize the rule that the correct identification of the nature of an assailed order determines the remedies available to an aggrieved party. The old Rules of Court in Section 2, Rule 41 reads, thus: SEC. 2. Judgments or orders subject to appeal .Only final judgments or orders shall be subject to appeal. No interlocutory or incidental judgment or order shall stay the progress of an action, nor shall it be the subject of appeal until final judgment or order is rendered for one party or the other. xxxx With the advent of the 1997 Rules of Civil Procedure, Section 1, Rule 41 now provides for the appropriate remedy to be taken from an interlocutory order, thus: SECTION 1. Subject of appeal. An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable. No appeal may be taken from: xxx (c) xxx In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65. An interlocutory order;

Clearly, the denial of therein defendants (including petitioner Valentes) appeal from the Orders dated May 29, 1996 and September 6, 1996 was in order. Thus, the CA decision affirming the RTCs denial was correct.

Further, on this crucial distinction as applied to this case, petitioner Valente filed a petition forcertiorari from the CA decision in CA-G.R. SP No. 58090, which is not an interlocutory order. It is a final order which completely disposed of the merits of the case with nothing more left to be done therein. The correct and available remedy available to petitioner Valente was, as previously discussed, a petition for review on certiorari under Rule 45 of the Rules of Court. In fine, petitioner Valente erroneously sought relief through reversed remedies. He tried to appeal the interlocutory orders of the RTC which are unappealable. Thus, the RTC properly denied his Notice of Appeal, and the CA correctly upheld the RTC. He should have filed a petition forcertiorari; under Rule 65. On the other hand, from the final order of the CA, he comes before this Court on a petition for certiorari under Rule 65, when the proper remedy is an appeal by certiorariunder Rule 45. In the recent case of Jan-Dec Construction Corporation v. Court of Appeals [33] we ruled in this wise:

As a rule, the remedy from a judgment or final order of the CA is appeal via petition for review under Rule 45 of the Rules. Under Rule 45, decisions, final orders or resolutions of the CA in any case, i.e., regardless of the nature of the action or proceedings involved, may be appealed to the Court by filing a petition for review, which would be but a continuation of the appellate process over the original case. It seeks to correct errors of judgment committed by the court, tribunal, or officer. In contrast, a special civil action for certiorariunder Rule 65 is an independent action based on the specific grounds therein provided and proper only if there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law. It is an extraordinary process for the correction of errors of jurisdiction and cannot be availed of as a substitute for the lost remedy of an ordinary appeal.

Independently of this procedural infirmity, even on the merits of the case, the petition does not fare otherwise. It must be dismissed for lack of merit. Petitioner Valente insists that, following our ruling in Heirs of Yaptinchay v. Del Rosario ,
[34]

herein respondents must first be declared heirs of Marcelo Sr. before they can file an action to

annul the judicial sale of what is, undisputedly, conjugal property of Teofista and Marcelo Sr. We disagree. Our ruling in Heirs of Yaptinchay is not applicable. Herein respondents status as legitimate children of Marcelo Sr. and Teofista and thus, Marcelo Sr.s heirs has been firmly established, and confirmed by this Court in Suarez v. Court of Appeals.[35] True, this Court is not a trier of facts, [36] but as the final arbiter of disputes, [37] we found and so ruled that herein respondents are children, and heirs of their deceased father, Marcelo Sr. This having been settled, it should no longer have been a litigated issue when we ordered a remand to the lower court. In short, petitioner Valentes, Violetas, Virginias, and Maria Concepcions representation in the RTC that our ruling in Suarez required herein respondents to present evidence of their affiliation with the deceased, Marcelo Sr., is wrong. As was set forth in the dispositive portion of Suarez, Civil Case No. 51203 is reinstated only to determine that portion which belongs to [herein respondents] and to annul the sale with regard to said portion. There is clearly no intimation in our decision for the RTC to have to determine an already settled issue i.e., herein respondents status as heirs of Marcelo Sr. Moreover, petitioner Valente cannot assail, directly or indirectly, the status of herein respondents as legitimate children of Marcelo Sr. and Teofista, and likewise demand that herein respondents first prove their filiation to Marcelo Sr. The following records bear out Marcelo, Sr.s and Teofistas paternity of herein respondents, and the latters status as legitimate children: 1. The CA decision in CA-G.R. SP Nos. 10646 to 10649 where Teofista, along with herein

respondents, questioned the RTC, Branch 151s Orders dated October 10, 1984 and October 14, 1986. Although the CA ruled against Teofista and herein respondents, it explicitly recognized the latters status as legitimate children of Teofista and Marcelo Sr.; and [38] 2. The CA decision in CA-G.R. SP No. 20320 which incorrectly ruled that herein

respondents were, as children of Teofista, merely successors-in-interest of the latter to the property and by virtue thereof, bound by the judgment in Civil Case Nos. 21376 to 21379 consistent with the doctrine of res judicata.[39] We subsequently reversed this ruling on the wrong application of res

judicata in the conclusive case of Suarez. We retained and affirmed, however, the CAs factual finding of herein respondents status as heirs of Marcelo Sr. We categorically held therein that the proprietary interest of [herein respondents] in the levied and auctioned [properties] is different from and adverse to that of [Teofista]. [Herein respondents] became co-owners of the property not because of [Teofista] but through their own right as children of their deceased father [, Marcelo Sr.]. Clearly, herein respondents long possessed status of legitimate children of Marcelo Sr. and Teofista cannot be indirectly or directly attacked by petitioner Valente in an action to annul a judicial sale. Articles 262,[40] 263,[41] 265 and 266[42] of the Civil Code, the applicable law at the time of Marcelos death, support the foregoing conclusion, to wit: Art. 262. The heirs of the husband may impugn the legitimacy of the child only in the following cases: (1) If the husband should die before the expiration of the period fixed for bringing his action; (2) If the husband should die after the filing of the complaint, without having desisted from the same; (3) If the child was born after the death of the husband.

Art. 263. The action to impugn the legitimacy of the child shall be brought within one year from the recording of birth in the Civil Register, if the husband should be in the same place, or in a proper case, any of his heirs. If he or his heirs are absent, the period shall be eighteen months if they should reside in thePhilippines; and two years if abroad. If the birth of the child has been concealed, the term shall be counted from the discovery of the fraud. Art. 265. The filiation of legitimate children is proved by the record of birth appearing in the Civil Register, or by an authentic document or a final judgment. Art. 266. In the absence of the titles indicated in the preceding article, the filiation shall be proved by the continuous possession of status of a legitimate child.

In Heirs of Yaptinchay, the complaint for annulment and/or declaration of nullity of certain TCTs was dismissed for failure of the petitioners to demonstrate any proof or even a semblance of it that they had been declared the legal heirs of the deceased couple, the spouses Yaptinchay. In stark contrast, the records of this case reveal a document, an Extrajudicial Settlement of Marcelo Sr.s estate, which explicitly recognizes herein respondents as Marcelo Sr.s legitimate children and heirs. The same document settles and partitions the estate of Marcelo Sr. specifying Teofistas paraphernal properties, and separates the properties she owns in common with her children, herein respondents. Plainly, there is no need to re-declare herein respondents as heirs of Marcelo Sr., and prolong this case interminably. Petitioner Valente, along with Violeta, Virginia and Maria Concepcion, became owners of the subject properties only by virtue of an execution sale to recover Teofistas judgment obligation. This judgment obligation is solely Teofistas, and payment therefor cannot be made through an execution sale of properties not absolutely owned by her. These properties were evidently conjugal properties and were, in fact, even titled in the name of Marcelo, Sr. married to Teofista. Thus, upon Marcelo Sr.s death, by virtue of compulsory succession, Marcelo Sr.s share in the conjugal partnership was transmitted by operation of law to his compulsory heirs.

Compulsory succession is a distinct kind of succession, albeit not categorized as such in Article 778[43] of the Civil Code. It reserves a portion of the net estate of the decedent in favor of certain heirs, or group of heirs, or combination of heirs, prevailing over all kinds of succession.
[44]

The portion that is so reserved is the legitime. Article 886 of the Civil Code defines legitime as

that part of the testators property which he cannot dispose of because the law has reserved it for certain heirs who are, therefore, called compulsory heirs. Herein respondents are primary compulsory heirs,[45] excluding secondary compulsory heirs,[46] and preferred over concurring compulsory heirs in the distribution of the decedents estate.[47] Even without delving into the Extrajudicial Settlement of Marcelo Sr.s estate in 1957, it must be stressed that herein respondents rights to the succession vested from the moment of their fathers death.[48] Herein respondents ownership of the subject properties is no longer inchoate; it became absolute upon Marcelos death, although their respective shares therein remained pro indiviso. Ineluctably, at the time the subject properties were sold on execution sale to answer for Teofistas judgment obligation, the inclusion of herein respondents share therein was null and void. In fine, Teofistas ownership over the subject properties is not absolute. Significantly, petitioner Valente does not even attempt to dispute the conjugal nature of the subject properties. Since Teofista owns only a portion of the subject properties, only that portion could have been, and was actually, levied upon and sold on auction by the provincial sheriff of Rizal. Thus, a separate declaration of heirship by herein respondents is not necessary to annul the judicial sale of their share in the subject properties. We note the recent case of Portugal v. Portugal-Beltran,[49] where we scrutinized our rulings in Heirs of Yaptinchay and the cited cases of Litam v. Rivera[50] and Solivio v. Court of Appeals ,[51] and Guilas v. CFI Judge of Pampanga [52] cited inSolivio. We ruled thus: The common doctrine in Litam, Solivio and Guilas in which the adverse parties are putative heirs to the estate of a decedent or parties to the special proceedings for its settlement is that if the special proceedings are pending, or if there are no special proceedings filed but there is, under the circumstances of the case, a need to file one, then the determination of, among other issues, heirship should be raised and settled in said special proceedings. Where special proceedings had been instituted but had been finally closed and terminated, however, or if a putative heirs has lost the right to have himself declared in the special proceedings as co-heir and he can no longer ask for its re-opening, then an ordinary civil action can be filed for his declaration as heir in order to bring about the annulment of the partition or distribution or adjudication of a property or properties belonging to the estate of the deceased. In the case at bar, respondent, believing rightly or wrongly that she was the sole heir to Portugals estate, executed on February 15, 1988 the questioned Affidavit of Adjudication under the second sentence of Rule 74, Section of the Revised Rules of Court. Said rule is an exception to the general rule that when a person dies leaving property, it should be judicially administered and the competent court should appoint a qualified administrator, in the order established in Sec. 6, Rule 78 in case the deceased left no will, or in case he did, he failed to name an executor therein. xxx It appearing, however, that in the present case the only property of the intestate estate of Portugal is the Caloocan parcel of land, to still subject it, under the circumstances of the case, to a special proceeding which could be long, hence, not expeditious, just to establish the status of petitioners as heirs is not only impractical; it is burdensome to the estate with the costs and expenses of an administration proceedings. And it is superfluous in light of the fact that the parties to the civil case subject of the present case, could and had already in fact presented evidence

before the trial court which assumed jurisdiction over the case upon the issues it defined during pre-trial. In fine, under the circumstances of the present case, there being no compelling reason to still subject Portugals estate to administration proceedings since a determination of petitioners status as heirs could be achieved in the civil case filed by petitioners xxx.[53] All told, under the circumstances, in addition to the already settled status of herein respondents as heirs of Marcelo Sr., there is no need to dismiss Civil Case No. 51203 and require herein respondents to institute a separate special proceeding for a declaration of their heirship. WHEREFORE, premises considered, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. SP No. 58090 is AFFIRMED. The Orders dated May 29, 1996 and September 6, 1996 issued by Judge Santos are REINSTATED. Costs against the petitioner. SO ORDERED. Articles 265 and 266 of the Civil Code are now Article 172 of the Family Code. [43] Art. 778. Succession may be: (1) Testamentary; (2) Legal or intestate; or (3) Mixed. [44] Balane, Jottings and Jurisprudence in Civil Law (2002), p. 278. [45] See Art. 887, paragraph 1 of the Civil Code: The following are compulsory heirs: (1) Legitimate children and descendants, with respect to their legitimate parents and ascendants. [46] Id., paragraph 2: (2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants. [47] The legitime of the legitimate children/descendants of the decedent shall be satisfied first before that of the surviving spouse. The legitime of the surviving spouse, in the maximum portion allotted by law, never exceeds the share of a legitimate child when there is more than 1 legitimate child to inherit. In case the compulsory heirs are only 1 legitimate child and 1 surviving spouse, the share of the latter is only of the estate of the decedent. [48] See Article 777 of the Civil Code: The rights to the succession are transmitted from the moment of the death of the decedent.
[42]

G.R. No. L-22595

November 1, 1927

Testate Estate of Joseph G. Brimo, JUAN MICIANO, administrator, petitioner-appellee, vs. ANDRE BRIMO, opponent-appellant.

ROMUALDEZ, J.: The partition of the estate left by the deceased Joseph G. Brimo is in question in this case. The judicial administrator of this estate filed a scheme of partition. Andre Brimo, one of the brothers of the deceased, opposed it. The court, however, approved it. The errors which the oppositor-appellant assigns are: (1) The approval of said scheme of partition; (2) denial of his participation in the inheritance; (3) the denial of the motion for reconsideration of the order approving the partition; (4) the approval of the purchase made by the Pietro Lana of the deceased's business and the deed of transfer of said business; and (5) the declaration that the Turkish laws are impertinent to this cause, and the failure not to postpone the approval of the scheme of partition and the delivery of the deceased's business to Pietro Lanza until the receipt of the depositions requested in reference to the Turkish laws. The appellant's opposition is based on the fact that the partition in question puts into effect the provisions of Joseph G. Brimo's will which are not in accordance with the laws of his Turkish nationality, for which reason they are void as being in violation or article 10 of the Civil Code which, among other things, provides the following: Nevertheless, legal and testamentary successions, in respect to the order of succession as well as to the amount of the successional rights and the intrinsic validity of their provisions, shall be regulated by the national law of the person whose succession is in question, whatever may be the nature of the property or the country in which it may be situated. But the fact is that the oppositor did not prove that said testimentary dispositions are not in accordance with the Turkish laws, inasmuch as he did not present any evidence showing what the Turkish laws are on the matter, and in the absence of evidence on such laws, they are presumed to be the same as those of the Philippines. (Lim and Lim vs. Collector of Customs, 36 Phil., 472.) It has not been proved in these proceedings what the Turkish laws are. He, himself, acknowledges it when he desires to be given an opportunity to present evidence on this point; so much so that he assigns as an error of the court in not having deferred the approval of the scheme of partition until the receipt of certain testimony requested regarding the Turkish laws on the matter. The refusal to give the oppositor another opportunity to prove such laws does not constitute an error. It is discretionary with the trial court, and, taking into consideration that the oppositor was granted ample opportunity to introduce competent evidence, we find no abuse of discretion on the part of the court in this particular. There is, therefore, no evidence in the record that the national law of the testator Joseph G. Brimo was violated in the testamentary dispositions in question which, not being contrary to our laws in force, must be complied with and executed. lawphil.net Therefore, the approval of the scheme of partition in this respect was not erroneous. In regard to the first assignment of error which deals with the exclusion of the herein appellant as a legatee, inasmuch as he is one of the persons designated as such in will, it must be taken into consideration that such exclusion is based on the last part of the second clause of the will, which says: Second. I like desire to state that although by law, I am a Turkish citizen, this citizenship having been conferred upon me by conquest and not by free choice, nor by nationality and, on the other hand, having resided for a considerable length of time in the Philippine Islands where I succeeded in acquiring all of the property that I now possess, it is my wish that the distribution of my property and everything in connection with this, my will, be made and disposed of in accordance with the laws in force in the Philippine islands, requesting all of my relatives to respect this wish, otherwise, I annul and cancel beforehand whatever disposition found in this will favorable to the person or persons who fail to comply with this request. The institution of legatees in this will is conditional, and the condition is that the instituted legatees must respect the testator's will to distribute his property, not in accordance with the laws of his nationality, but in accordance with the laws of the Philippines. If this condition as it is expressed were legal and valid, any legatee who fails to comply with it, as the herein oppositor who, by his attitude in these proceedings has not respected the will of the testator, as expressed, is prevented from receiving his legacy.

The fact is, however, that the said condition is void, being contrary to law, for article 792 of the civil Code provides the following: Impossible conditions and those contrary to law or good morals shall be considered as not imposed and shall not prejudice the heir or legatee in any manner whatsoever, even should the testator otherwise provide. And said condition is contrary to law because it expressly ignores the testator's national law when, according to article 10 of the civil Code above quoted, such national law of the testator is the one to govern his testamentary dispositions. Said condition then, in the light of the legal provisions above cited, is considered unwritten, and the institution of legatees in said will is unconditional and consequently valid and effective even as to the herein oppositor. It results from all this that the second clause of the will regarding the law which shall govern it, and to the condition imposed upon the legatees, is null and void, being contrary to law. All of the remaining clauses of said will with all their dispositions and requests are perfectly valid and effective it not appearing that said clauses are contrary to the testator's national law. Therefore, the orders appealed from are modified and it is directed that the distribution of this estate be made in such a manner as to include the herein appellant Andre Brimo as one of the legatees, and the scheme of partition submitted by the judicial administrator is approved in all other respects, without any pronouncement as to costs. So ordered.

Miciano vs Brimo | 50 Phil 867 FACTS: Juan Miciano, judicial administrator of the estate in question, filed a schemeof partition. Andre Brimo, one of the brothers of the deceased (Joseph Brimo) opposed Micianos participation in the inheritance. Joseph Brimo is aTurkish citizen. ISSUE: Whether Turkish law or Philippine law will be the basis on the distribution of Joseph Brimos estates. HELD: Though the last part of the second clause of the will expressly said that it be made and disposed of in accordance with the laws in force in the Philippine Island, this condition, described as impossible conditions, shall be considered as not imposed and shall not prejudice the heir or legatee in anymanner whatsoever, even should the testator otherwise provide. Impossibleconditions are further defined as those contrary to law or good morals. Thus,national law of the testator shall govern in his testamentary dispositions.The court approved the scheme of partition submitted by the judicialadministrator, in such manner as to include Andre Brimo, as one of thelegatees.

G.R. No. L-23678

June 6, 1967

TESTATE ESTATE OF AMOS G. BELLIS, deceased. PEOPLE'S BANK and TRUST COMPANY, executor. MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS, oppositors-appellants,

vs. EDWARD A. BELLIS, ET AL., heirs-appellees. This is a direct appeal to Us, upon a question purely of law, from an order of the Court of First Instance of Manila dated April 30, 1964, approving the project of partition filed by the executor in Civil Case No. 37089 therein.1wph1.t The facts of the case are as follows: Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the United States." By his first wife, Mary E. Mallen, whom he divorced, he had five legitimate children: Edward A. Bellis, George Bellis (who pre-deceased him in infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman; by his second wife, Violet Kennedy, who survived him, he had three legitimate children: Edwin G. Bellis, Walter S. Bellis and Dorothy Bellis; and finally, he had three illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis. On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that after all taxes, obligations, and expenses of administration are paid for, his distributable estate should be divided, in trust, in the following order and manner: (a) $240,000.00 to his first wife, Mary E. Mallen; (b) P120,000.00 to his three illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis, Miriam Palma Bellis, or P40,000.00 each and (c) after the foregoing two items have been satisfied, the remainder shall go to his seven surviving children by his first and second wives, namely: Edward A. Bellis, Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis, and Dorothy E. Bellis, in equal shares.1wph1.t Subsequently, or on July 8, 1958, Amos G. Bellis died a resident of San Antonio, Texas, U.S.A. His will was admitted to probate in the Court of First Instance of Manila on September 15, 1958. The People's Bank and Trust Company, as executor of the will, paid all the bequests therein including the amount of $240,000.00 in the form of shares of stock to Mary E. Mallen and to the three (3) illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis, various amounts totalling P40,000.00 each in satisfaction of their respective legacies, or a total of P120,000.00, which it released from time to time according as the lower court approved and allowed the various motions or petitions filed by the latter three requesting partial advances on account of their respective legacies. On January 8, 1964, preparatory to closing its administration, the executor submitted and filed its "Executor's Final Account, Report of Administration and Project of Partition" wherein it reported, inter alia, the satisfaction of the legacy of Mary E. Mallen by the delivery to her of shares of stock amounting to $240,000.00, and the legacies of Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis in the amount of P40,000.00 each or a total of P120,000.00. In the project of partition, the executor pursuant to the "Twelfth" clause of the testator's Last Will and Testament divided the residuary estate into seven equal portions for the benefit of the testator's seven legitimate children by his first and second marriages. On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective oppositions to the project of partition on the ground that they were deprived of their legitimes as illegitimate children and, therefore, compulsory heirs of the deceased. Amos Bellis, Jr. interposed no opposition despite notice to him, proof of service of which is evidenced by the registry receipt submitted on April 27, 1964 by the executor. 1 After the parties filed their respective memoranda and other pertinent pleadings, the lower court, on April 30, 1964, issued an order overruling the oppositions and approving the executor's final account, report and administration and project of partition. Relying upon Art. 16 of the Civil Code, it applied the national law of the decedent, which in this case is Texas law, which did not provide for legitimes. Their respective motions for reconsideration having been denied by the lower court on June 11, 1964, oppositors-appellants appealed to this Court to raise the issue of which law must apply Texas law or Philippine law. In this regard, the parties do not submit the case on, nor even discuss, the doctrine of renvoi, applied by this Court in Aznar v. Christensen Garcia, L-16749, January 31, 1963. Said doctrine is usually pertinent where the decedent is a national of one country, and a domicile of another. In the present case, it is not disputed that the decedent was both a national of Texas and a domicile thereof at the time of his death.2 So that even assuming Texas has a conflict of law rule providing that the domiciliary system (law of the domicile) should govern, the same would not result in a reference back (renvoi) to Philippine law, but would still refer to Texas law. Nonetheless, if Texas has a conflicts rule adopting the situs theory (lex rei sitae) calling for the application of the law of the place where the properties are situated, renvoi would arise, since the properties here involved

are found in the Philippines. In the absence, however, of proof as to the conflict of law rule of Texas, it should not be presumed different from ours.3Appellants' position is therefore not rested on the doctrine of renvoi. As stated, they never invoked nor even mentioned it in their arguments. Rather, they argue that their case falls under the circumstances mentioned in the third paragraph of Article 17 in relation to Article 16 of the Civil Code. Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the decedent, in intestate or testamentary successions, with regard to four items: (a) the order of succession; (b) the amount of successional rights; (e) the intrinsic validity of the provisions of the will; and (d) the capacity to succeed. They provide that ART. 16. 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 he the nature of the property and regardless of the country wherein said property may be found. ART. 1039. Capacity to succeed is governed by the law of the nation of the decedent. Appellants would however counter that Art. 17, paragraph three, of the Civil Code, stating that Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. prevails as the exception to Art. 16, par. 2 of the Civil Code afore-quoted. This is not correct. Precisely, Congressdeleted the phrase, "notwithstanding the provisions of this and the next preceding article" when they incorporated Art. 11 of the old Civil Code as Art. 17 of the new Civil Code, while reproducing without substantial change the second paragraph of Art. 10 of the old Civil Code as Art. 16 in the new. It must have been their purpose to make the second paragraph of Art. 16 a specific provision in itself which must be applied in testate and intestate succession. As further indication of this legislative intent, Congress added a new provision, under Art. 1039, which decrees that capacity to succeed is to be governed by the national law of the decedent. It is therefore evident that whatever public policy or good customs may be involved in our System of legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For it has specifically chosen to leave, inter alia, the amount of successional rights, to the decedent's national law. Specific provisions must prevail over general ones. Appellants would also point out that the decedent executed two wills one to govern his Texas estate and the other his Philippine estate arguing from this that he intended Philippine law to govern his Philippine estate. Assuming that such was the decedent's intention in executing a separate Philippine will, it would not alter the law, for as this Court ruled in Miciano v. Brimo, 50 Phil. 867, 870, a provision in a foreigner's will to the effect that his properties shall be distributed in accordance with Philippine law and not with his national law, is illegal and void, for his national law cannot be ignored in regard to those matters that Article 10 now Article 16 of the Civil Code states said national law should govern. The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and that under the laws of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic validity of the provision of the will and the amount of successional rights are to be determined under Texas law, the Philippine law on legitimes cannot be applied to the testacy of Amos G. Bellis. Wherefore, the order of the probate court is hereby affirmed in toto, with costs against appellants. So ordered. Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ., concur. Footnotes
1

He later filed a motion praying that as a legal heir he be included in this case as one of the oppositors-appellants; to file or adopt the opposition of his sisters to the project of partition; to submit his brief after paying his proportionate share in the expenses incurred in the printing of the record on appeal; or to allow him to adopt the briefs filed by his sisters but this Court resolved to deny the motion.
2

San Antonio, Texas was his legal residence.

Lim vs. Collector, 36 Phil. 472; In re Testate Estate of Suntay, 95 Phil. 500.

Facts: Amos G. Bellis was a citizen and resident of Texas at the time of his death. Before he died, he made two wills, one disposing his Texas properties, the other disposing his Philippine properties. In both wills, the recognized illegitimate children were not given any share. Texas has no conflict rule (Rule of Private International Law) governing successional rights. Furthermore, under Texas law, there are no compulsory heirs.

Issue: Whether or not such illegitimate children of Bellis be entitled to successional rights.

Held: The said illegitimate children are not entitled to their legitimes. Under Texas law, there are no legitimes. Even if the other will was executed in the Philippines, his national law, still, will govern the properties for succession even if it is stated in his testate that it shall be governed by the Philippine law.

G.R. No. L-4113

June 30, 1952

Testamentaria del finado William R. Giberson. LELA G. DALTON, solicitante-apelante, vs. SPRING GIBERSON, opositor-apelado. RULE 78, SECTION 1. Wills proved outside Philippines may be allowed here. Wills proved and allowed in a foreign country,according to the laws of such country, may be allowed, filed, and recorded by the proper Court of First Instance in the Philippines. SEC. 637. Wills proved outside islands may be allowed here. Wills proved and allowed in the United States, or any State or Territory thereof, or in a foreign state or country, according to the laws of such State, Territory, or country, may be allowed, filed,and recorded in the Court of First Instance of the province in which the testator has real or personal estate on which such will may operate.

G.R. No. L-28328

October 2, 1928

In the matter of the will of Jennie Rider Babcock. BEATRICE BABCOCK TEMPLETON, petitioner-appellee, vs. WILLIAM RIDER BABCOCK, opponent-appellant. Appeal from an order of the Court of First Instance of Manila admitting to probate the holographic will of Jennie Rider Babcock. The petition in this case was filed in the Court of First Instance of Manila on September 8, 1926, by Beatrice Babcock Templeton to secure probate of a paper writing purporting to express the wishes of Jennie Rider Babcock, deceased, with reference to the post mortem disposition of all her property, consisting of corporate stock, jewelry, personal effects and money. This paper bears date of May 26, 1926, is written wholly in the handwriting of the deceased and bears her proper signature. It was found among the effects of the deceased shortly after her death, which occurred on September 3, 1926. When found, it was contained in an envelope indorsed with the name of her daughter, Mrs. G. D. Templeton, and son, Mr. W. R. Babcock. The purport of the paper is to the effect that the writer leaves her stock and money to her three grandchildren, bearing the surname Templeton, namely, G. Douglas Templeton, Jr., Constance Babcock Templeton, and Billy Babcock Templeton, but the writer further states that all interest and dividends are to be given to her only daughter, Mrs. Templeton, as well as her jewelry and personal effects "for their support until the youngest is of age." The aforesaid instrument is admittedly of a testamentary character, but it is not executed as a will under the provisions of law generally governing the execution of the wills made in the Philippine Islands. The instrument therefore is not offered for probate under section 618 and related provisions of the Code of Civil Procedure but under section 636, which authorizes probate by our courts of a will made within the Philippine Islands by a citizen or subject of another state or country, when such will is executed in accordance with the law of the state or country of which the testator is a citizen of subject, and which might be proved under the law of such state or country. It is alleged in the petition that the testatrix was at the time of her death a resident of the State of California, though temporarily residing in Manila at the time of her death; and the parties have agreed that this paper could be proved in the State of California as the holographic will of the deceased. The sole question in controversy therefore now is, whether the testatrix, at the time will was made, had the status of a citizen of the State of California, as required by section 636 of our Code of Civil Procedure. But, under the first paragraph of the Fourteenth Amendment to the Constitution of the United States, the citizenship of a person born in the United States, as was the testatrix in this case, is dependent upon the place of residence, or domicile; and the question before us ultimately resolves itself into a contention over the point whether the testatrix had ever acquired a legal domicile in the State of California and whether, supposing such domicile to have been acquired, she may not have lost it as a result of her removal from that state. The proponent of the will, Beatrice Babcock Templeton, mother of the three children who are principal beneficiaries of the will, contends that the testatrix acquired a legal domicile in the State of California by residence therein over two periods of time between 1917 and 1923, and that such domicile was never lost. William Rider Babcock, the brother of the proponent, resist the probate of the will on the ground that the testatrix had never acquired a legal domicile in the State of California, or that, if she had, such domicile had been lost under the conditions presently to be discussed. It appears that Jennie Rider Babcock had spent her married life in the State of Massachusetts; but, her husband having died in 1908, she removed a year later to Manila where she lived with her son, W. R. Babcock, until in 1917, when she joined the family of her daughter, Mrs. B. B. Templeton in San Francisco, California. During these years W. R. Babcock and G. D. Templeton, son and son-inlaw, respectively, of the testatrix, were running a business in Manila, which had been incorporated under the style of Babcock & Templeton, Inc., with Babcock as president of the company and Templeton as its vice-president. As a branch office had been opened in San Francisco requiring the presence of an officer of the company, Templeton took up his abode in San Francisco for the purpose of managing the business of said branch. The testatrix, it may be noted, had acquired stock in the company and had no other independent source of income than the dividends derived therefrom. After remaining with the Templetons in San Francisco for several months, the testatrix returned to Manila in July, 1918. During this stay in Manila she occupied an apartment in the house of her son, where she remained until August, 1920. She then returned to San Francisco and lived with the Templetons until May, 1923. From a legal point of view, the character and incidents of this second sojourn in San Francisco constitute the most important fact in the case, since the trial court deduced from her acts and statements the conclusion that she had acquired a domicile in California. Among the features of importance which characterize the incident we note the following:

First, her son-in-law, Templeton, owned a home in San Francisco in which he lived, without any apparent intention of removing from the state; secondly, upon arriving in San Francisco, the testatrix established herself as a practitioner in Christian Science, a cult to which she was attached: thirdly she engaged in political activities, taking part in a parade advertising a cause in which she was interested, and she voted in at least one general election that occurred in that state; fourthly, she formed an attachment for California, and in many conversations thereafter with intimate friends, she referred to California as her home state expressed her intention of returning there and building a home in which to live. Indeed, it appears in evidence that only a short time before her death in Manila she was acquiring a few pieces of Spanish furniture to take back to her to California. In the year 1923, Babcock & Templeton, Inc., decided to close its office in San Francisco and to open a branch in New York City. This made it necessary for G.D. Templeton to remove with his family to New York State. He accordingly sold his home in San Francisco and went to live in New York. This step on the part of the Templetons determined the course of the testatrix, who gathered her personal effects together and accompanied them to New York, leaving behind in the care of friends three pieces of furniture to which she was especially attached and which she perhaps thought she might use later in California. Upon arriving in New York State, the Templetons established themselves in White Plains, near New York City. Here the testatrix occupied part of the apartment which the Templetons had taken, but she appears to have supplied the furniture necessary for her own use. Not long thereafter, the testatrix announced herself again in the Christian Science Journal as a practitioner of Christian Science in White Plains. The sojourn of the testatrix in New York was apparently not congenial, since, after a few months of experience in that city, she returned to Manila, arriving at this place in January, 1924. The impression that conditions in New York made upon her may be gauged by a statement subsequently made by her to one of her friends in Manila, "Deliver me from living in New York." What really brought her back to the Philippine Islands, apart from her dislike to the environment in New York, is not certain, but she suggested to friends here, after arriving, that a desire to economize the cost of living may have had a part in her course. A circumstance to which importance is attached by the appellant is that, in the Passenger Manifest of the vessel upon which she came to Manila, she caused New York City to be entered opposite her name in the column indicating "Last Permanent Residence," it being insisted that this is an admission on her part tending to show the acquisition by her of a domicile in New York State. We consider this circumstance of no probative force in connection with the issues of this lawsuit. The Passenger Manifest gave the passenger no choice about indicating whether New York was the place of last residence or the place of last permanent residence, and of course when she told the ship's official that she was from New York City, the name of this place necessarily had to go down in the column mentioned. As little importance is to be attached to her Baggage Declaration and Entry, made on the same voyage before disembarking at Manila, in which she stated that she was a resident of Manila. Papers of this character are not commonly written with legal precision; and the circumstances that she had lived many years in Manila and was coming back to this city, sufficiently explains why she claimed to be a resident of Manila in that declaration without making any conclusive commitment as to the place of her domicile in law. Of some importance, as throwing light upon the state of her mind towards California and the intention with which she removed from that state, are the numerous conversations, after her return to Manila in 1924, in which she revealed an intention of returning to live in California. It is evident from the proof that the removal of the testatrix from California to New York did not proceed from her volition but resulted from circumstances over which she had no primary control, her motive being found in her desire to be with her daughter and grandchildren. It may also be here stated that the testatrix had kin in New York State whom she had visited more than once during her above in California; and she appears to have inherited some property from a sister who had been living in New York and who died before the return of the testatrix to the Philippine Islands. The finding of the trial court to the effect that the deceased had acquired a domicile in the State of California is in our opinion based upon facts which sufficiently support said finding. In particular, we are of the opinion that the trial court committed no error in attaching importance to the circumstance that the deceased had voted in California elections. Though not of course conclusive of acquisition of domicile, voting in a place is an important circumstance and, where the evidence is scanty, may have decisive weight. The exercise of the franchise is one of the highest prerogatives of citizenship, and in no other act of his life does the citizen identify his interests with the state in which he lives more than in the act of voting. 1awph!l.net This record supplies no material with which to refute the conclusion of the trial court that a domicile was thus acquired by the testatrix in the state of California; and what we consider the more critical question is whether or not the domicile thus acquired was subsequently lost by removal from said state. But upon this point also, we are of the opinion that the conclusion of the trial court, to the effect that acquired domicile had not been lost, is in conformity with the evidence. It is a recognized rule that the intention with which removal is made from a particular state determines whether or not the domicile is abandoned; and intention is revealed only in the acts and declaration of the person concerned.

In the case before us there are no declarations of the testatrix in evidence which would tend to show that, upon removal to New York, she had any intention of acquiring a legal domicile in that state. On the contrary her short stay there and her repeated statements made thereafter show that she could not possibly have had any intention of making that state a place of permanent abode. As was pointed out by this court in In Re Estate of Johnson (39 Phil., 156), a person transferring his domicile from one state of the American Union to another loses his domicile in the state of his earlier abode upon acquiring a domicile, or citizenship, in the state of his new abode. The acquisition of the new legal domicile extinguishes the old. Certainly in this case it cannot be said with any propriety that the domicile of the testatrix in California was suppressed by the acquisition on a new domicile in New York State. But it is said that, even supposing that the testatrix had not acquired a domicile in New York, yet she was a resident of the Philippine Islands at the same time of her death, and that, having established herself in these Islands as a place of permanent abode, her will should not be admitted to probate as the will of a citizen of another state. But the proof shows that however long the testatrix had resided in the Philippine Islands, she at no time had any intention of residing here permanently. In the contrary, her repeated declarations reveal a fixed intention of returning ultimately to the United States. Again, it is a rule that a citizen of the United States cannot acquire citizenship in the Philippine Islands by residence here, however long continued (In Re Estate of Johnson, 39 Phil., 156). The testatrix therefore remained at the time of her death a citizen of the United States. Her will is therefore provable under section 636 of the Code of Civil Procedure as the will of a citizen of another state or country; and the only question to be determined in this case is, which state of the American Union has the best claim to her citizenship, a question, which, as we have already seen, turns upon domicile; and there is no other state whose citizenship she can claim, according the evidence in this record, with as good right as the State of California. Massachusetts, the place of her marital abode, has not been entered in the competition, and we must decide between California and New York. As between these two states, California was surely the state of her legal domicile, acquired by choice and by residing therein. Furthermore, this California domicile has not been supplanted by a later domicile acquired in New York. It results that the trial court committed no error in considering the testatrix a citizen of the State of California, for the purpose of admitting this will to probate. The judgment will therefore be affirmed, and it is so ordered, with costs against the appellant.

G.R. No. 82027 March 29, 1990 ROMARICO G. VITUG, petitioner, vs. THE HONORABLE COURT OF APPEALS and ROWENA FAUSTINO-CORONA, respondents. This case is a chapter in an earlier suit decided by this Court 1 involving the probate of the two wills of the late Dolores Luchangco Vitug, who died in New York, U. S.A., on November 10, 1980, naming private respondent Rowena Faustino-Corona executrix. In our said decision, we upheld the appointment of Nenita Alonte as co-special administrator of Mrs. Vitug's estate with her (Mrs. Vitug's) widower, petitioner Romarico G. Vitug, pending probate. On January 13, 1985, Romarico G. Vitug filed a motion asking for authority from the probate court to sell certain shares of stock and real properties belonging to the estate to cover allegedly his advances to the estate in the sum of P667,731.66, plus interests, which he claimed were personal funds. As found by the Court of Appeals, 2the alleged advances consisted of P58,147.40 spent for the payment of estate tax, P518,834.27 as deficiency estate tax, and P90,749.99 as "increment thereto." 3 According to Mr. Vitug, he withdrew the sums of P518,834.27 and P90,749.99 from savings account No. 35342-038 of the Bank of America, Makati, Metro Manila. On April 12, 1985, Rowena Corona opposed the motion to sell on the ground that the same funds withdrawn from savings account No. 35342-038 were conjugal partnership properties and part of the estate, and hence, there was allegedly no ground for reimbursement. She also sought his ouster for failure to include the sums in question for inventory and for "concealment of funds belonging to the estate." 4 Vitug insists that the said funds are his exclusive property having acquired the same through a survivorship agreement executed with his late wife and the bank on June 19, 1970. The agreement provides: We hereby agree with each other and with the BANK OF AMERICAN NATIONAL TRUST AND SAVINGS ASSOCIATION (hereinafter referred to as the BANK), that all money now or hereafter deposited by us or any or either of us with the BANK in our joint savings current account shall be the property of all or both of us and shall be payable to and collectible or withdrawable by either or any of us during our lifetime, and after the death of either or any of us shall belong to and be the sole property of the survivor or survivors, and shall be payable to and collectible or withdrawable by such survivor or survivors. We further agree with each other and the BANK that the receipt or check of either, any or all of us during our lifetime, or the receipt or check of the survivor or survivors, for any payment or withdrawal made for our above-mentioned account shall be valid and sufficient release and discharge of the BANK for such payment or withdrawal. 5 The trial courts 6 upheld the validity of this agreement and granted "the motion to sell some of the estate of Dolores L. Vitug, the proceeds of which shall be used to pay the personal funds of Romarico Vitug in the total sum of P667,731.66 ... ." 7 On the other hand, the Court of Appeals, in the petition for certiorari filed by the herein private respondent, held that the above-quoted survivorship agreement constitutes a conveyance mortis causa which "did not comply with the formalities of a valid will as prescribed by Article 805 of the Civil Code," 8 and secondly, assuming that it is a mere donation inter vivos, it is a prohibited donation under the provisions of Article 133 of the Civil Code. 9 The dispositive portion of the decision of the Court of Appeals states: WHEREFORE, the order of respondent Judge dated November 26, 1985 (Annex II, petition) is hereby set aside insofar as it granted private respondent's motion to sell certain properties of the estate of Dolores L. Vitug for reimbursement of his alleged advances to the estate, but the same order is sustained in all other respects. In addition, respondent Judge is directed to include provisionally the deposits in Savings Account No. 35342-038 with the Bank of America, Makati, in the inventory of

actual properties possessed by the spouses at the time of the decedent's death. With costs against private respondent. 10 In his petition, Vitug, the surviving spouse, assails the appellate court's ruling on the strength of our decisions inRivera v. People's Bank and Trust Co. 11 and Macam v. Gatmaitan 12 in which we sustained the validity of "survivorship agreements" and considering them as aleatory contracts. 13 The petition is meritorious. The conveyance in question is not, first of all, one of mortis causa, which should be embodied in a will. A will has been defined as "a personal, solemn, revocable and free act by which a capacitated person disposes of his property and rights and declares or complies with duties to take effect after his death." 14 In other words, the bequest or device must pertain to the testator. 15 In this case, the monies subject of savings account No. 35342-038 were in the nature of conjugal funds In the case relied on, Rivera v. People's Bank and Trust Co., 16 we rejected claims that a survivorship agreement purports to deliver one party's separate properties in favor of the other, but simply, their joint holdings: ... Such conclusion is evidently predicated on the assumption that Stephenson was the exclusive owner of the funds-deposited in the bank, which assumption was in turn based on the facts (1) that the account was originally opened in the name of Stephenson alone and (2) that Ana Rivera "served only as housemaid of the deceased." But it not infrequently happens that a person deposits money in the bank in the name of another; and in the instant case it also appears that Ana Rivera served her master for about nineteen years without actually receiving her salary from him. The fact that subsequently Stephenson transferred the account to the name of himself and/or Ana Rivera and executed with the latter the survivorship agreement in question although there was no relation of kinship between them but only that of master and servant, nullifies the assumption that Stephenson was the exclusive owner of the bank account. In the absence, then, of clear proof to the contrary, we must give full faith and credit to the certificate of deposit which recites in effect that the funds in question belonged to Edgar Stephenson and Ana Rivera; that they were joint (and several) owners thereof; and that either of them could withdraw any part or the whole of said account during the lifetime of both, and the balance, if any, upon the death of either, belonged to the survivor. 17 In Macam v. Gatmaitan,
18

it was held:

This Court is of the opinion that Exhibit C is an aleatory contract whereby, according to article 1790 of the Civil Code, one of the parties or both reciprocally bind themselves to give or do something as an equivalent for that which the other party is to give or do in case of the occurrence of an event which is uncertain or will happen at an indeterminate time. As already stated, Leonarda was the owner of the house and Juana of the Buick automobile and most of the furniture. By virtue of Exhibit C, Juana would become the owner of the house in case Leonarda died first, and Leonarda would become the owner of the automobile and the furniture if Juana were to die first. In this manner Leonarda and Juana reciprocally assigned their respective property to one another conditioned upon who might die first, the time of death determining the event upon which the acquisition of such right by the one or the other depended. This contract, as any other contract, is binding upon the parties thereto. Inasmuch as Leonarda had died before Juana, the latter thereupon acquired the ownership of the house, in the same manner as Leonarda would have acquired the ownership of the automobile and of the furniture if Juana had died first. 19 xxx xxx xxx There is no showing that the funds exclusively belonged to one party, and hence it must be presumed to be conjugal, having been acquired during the existence of the marita. relations.

20

Neither is the survivorship agreement a donation inter vivos, for obvious reasons, because it was to take effect after the death of one party. Secondly, it is not a donation between the spouses because it involved no conveyance of a spouse's own properties to the other. It is also our opinion that the agreement involves no modification petition of the conjugal partnership, as held by the Court of Appeals, 21 by "mere stipulation" 22 and that it is no "cloak" 23 to circumvent the law on conjugal property relations. Certainly, the spouses are not prohibited by law to invest conjugal property, say, by way of a joint and several bank account, more commonly denominated in banking parlance as an "and/or" account. In the case at bar, when the spouses Vitug opened savings account No. 35342-038, they merely put what rightfully belonged to them in a money-making venture. They did not dispose of it in favor of the other, which would have arguably been sanctionable as a prohibited donation. And since the funds were conjugal, it can not be said that one spouse could have pressured the other in placing his or her deposits in the money pool.

The validity of the contract seems debatable by reason of its "survivor-take-all" feature, but in reality, that contract imposed a mere obligation with a term, the term being death. Such agreements are permitted by the Civil Code. 24 Under Article 2010 of the Code: ART. 2010. By an aleatory contract, one of the parties or both reciprocally bind themselves to give or to do something in consideration of what the other shall give or do upon the happening of an event which is uncertain, or which is to occur at an indeterminate time. Under the aforequoted provision, the fulfillment of an aleatory contract depends on either the happening of an event which is (1) "uncertain," (2) "which is to occur at an indeterminate time." A survivorship agreement, the sale of a sweepstake ticket, a transaction stipulating on the value of currency, and insurance have been held to fall under the first category, while a contract for life annuity or pension under Article 2021, et sequentia, has been categorized under the second. 25 In either case, the element of risk is present. In the case at bar, the risk was the death of one party and survivorship of the other. However, as we have warned: xxx xxx xxx But although the survivorship agreement is per se not contrary to law its operation or effect may be violative of the law. For instance, if it be shown in a given case that such agreement is a mere cloak to hide an inofficious donation, to transfer property in fraud of creditors, or to defeat the legitime of a forced heir, it may be assailed and annulled upon such grounds. No such vice has been imputed and established against the agreement involved in this case. 26 xxx xxx xxx There is no demonstration here that the survivorship agreement had been executed for such unlawful purposes, or, as held by the respondent court, in order to frustrate our laws on wills, donations, and conjugal partnership. The conclusion is accordingly unavoidable that Mrs. Vitug having predeceased her husband, the latter has acquired upon her death a vested right over the amounts under savings account No. 35342-038 of the Bank of America. Insofar as the respondent court ordered their inclusion in the inventory of assets left by Mrs. Vitug, we hold that the court was in error. Being the separate property of petitioner, it forms no more part of the estate of the deceased. WHEREFORE, the decision of the respondent appellate court, dated June 29, 1987, and its resolution, dated February 9, 1988, are SET ASIDE. No costs. SO ORDERED. 21 In the words of the Appellate Court: "Since private respondent and his late wife did not enter into a marriage settlement before marriage, their property relationship was that of conjugal partnership governed by the Civil Code. The system of conjugal partnership prohibits, as already mentioned, donation between the spouses during the marriage, except that which takes effect after the death of the donor, in which case, the donation shall comply with the formalities of a will (Arts. 133, 728, 805). To allow the prohibited donation by giving it a cloak of aleatory contract would sanction a (modification) of a marriage settlement during marriage by a mere stipulation. As mandated by Art. 52, the nature, consequences and incidents of marriage, which is not a mere contract but an inviolable social institution are governed by law, and not subject to stipulation."

G.R. No. 71939 January 25, 1988 ELIGIO T. LEYVA, petitioner, vs. COURT OF APPEALS, FRANCISCO LAIZ and MANUELA JANDOC, respondents. This is a petition for review on certiorari of the April 14, 1981 Decision * of the then Intermediate Appellate Court in AC-G.R. No. CV-62591, "Francisco Laiz vs. Manuela Jandoc, et. al." affirming in toto the July 6, 1977 Decision of the then Court of First Instance of South Cotabato; and the August 21, 1985 Resolution ** of the same Court denying herein petitioner's motion for reconsideration. In the Resolution dated April 8, 1987, the petition was given due course and the parties were required to file their respective memoranda (Ibid., p. 132). Private respondent Francisco Laiz filed his Memorandum on June 2, 1987 (Ibid., pp. 157-184), petitioner on June 18, 1987 (Ibid., pp. 187210), while private respondent Jandoc, failed to file her memorandum. Petitioner raised seven (7) assignments of error, to wit: I. II. RESPONDENT INTERMEDIATE APPELLATE COURT ERRED GRAVELY, ON QUESTIONS OF LAW, IN NOT HOLDING THAT LEYVA'S RIGHTS OF OWNERSHIP OF LOT 1-H-3 PREVAIL OVER LAIZ'S CLAIMS THERETO, UNDER THE ESTABLISHED AND UNDISPUTED FACTS; RESPONDENT INTERMEDIATE APPELLATE COURT ERRED GRAVELY, ON QUESTIONS OF LAW, IN HOLDING THAT UNDER THE COMPROMISE AGREEMENT OF 1963 BETWEEN LEYVA AND JANDOC, THE LATTER WAS TO RECOGNIZE THE CLAIM OF LEYVA OVER THE SAME PROPERTY WHICH SHE SOUGHT TO BE REGISTERED IN HER NAME; RESPONDENT INTERMEDIATE APPELLATE COURT ERRED GRAVELY, ON QUESTIONS OF LAW, IN HOLDING THAT THE LAND IN QUESTION COULD NOT BE THE SUBJECT OF A CONTRACT BETWEEN JANDOC AND LEYVA BECAUSE IT WAS THEN STILL GOVERNMENT LAND; RESPONDENT INTERMEDIATE APPELLATE COURT ERRED GRAVELY, ON QUESTIONS OF LAW, IN HOLDING THAT LAIZ HAS A BETTER RIGHT TO THE PROPERTY BECAUSE HE HAS BEEN A POSSESSOR THEREIN IN GOOD FAITH SINCE 1954; RESPONDENT INTERMEDIATE APPELLATE COURT ERRED GRAVELY, ON QUESTIONS OF LAW, IN NOT HOLDING THAT LEYVA'S 1963 COMPROMISE PREVAILS OVER LAIZ'S 1970 DEED OF ABSOLUTE SALE; RESPONDENT INTERMEDIATE APPELLATE COURT ERRED GRAVELY, ON QUESTIONS OF LAW, IN NOT ORDERING JANDOC TO RECONVEY LOT 4, PSU-124647-AMD TO LEYVA; AND RESPONDENT INTERMEDIATE APPELLATE COURT ERRED GRAVELY, ON QUESTIONS OF LAW, IN NOT REVERSING THE DECISION OF THE TRIAL COURT, AND NOT RENDERING JUDGMENT IN FAVOR OF LEYVA.

III.

IV.

V.

VI.

VII.

The instant petition is without merit. The pivotal issue in this case is who, as between petitioner Leyva and private respondent Laiz, has a preferred right of ownership over Lot, 1-H-3 which is the property in question.

This case was originally filed by private respondent LAIZ in the then Court of First Instance of Cotabato as a petition for the Cancellation of Adverse Claim, annotated on the back of his Transfer Certificate of Title No. T-7225, at the instance of petitioner LEYVA in the Office of the Register of Deeds of General Santos, covering Lot 1-H-3. This land is a portion of a bigger parcel known as Lot 1-H PSU 124647, AMD-2 registered in the name of Manuela Jandoc. Petitioner anchors his claim on his alleged Compromise Agreement with Manuela Jandoc, which is undated although claimed to have been executed in 1963 but actually notarized on September 4, 1972. It provides among others, that the Leyva spouses will withdraw their opposition to the Land Registration Case No. N-78 (filed by applicant Jandoc) on the condition that upon the issuance of the title in favor of Jandoc, certain properties covered thereunder which include Lot 1-H-3 will automatically belong to the former. On the other hand, private respondent Francisco Laiz bases his claim on a private agreement of sale executed between him and Manuela Jandoc on April 3, 1959 regarding the same lot. His rights thereto were confirmed not only by Manuela Jandoc herself in a Deed of Transfer executed on February 2, 1 970 but also by a final judgment of the Court of First Instance of South Cotabato, General Santos City *** in an action for Specific Performance whereby Jandoc was compelled to execute the necessary documents which led to the issuance of the Transfer Certificate of Title on the lot in question, in favor of private respondent Laiz. In evaluating the authenticity and due execution of the aforesaid documents of the contending parties, the findings of fact of both the trial court and the Court of Appeals are as follows: I. On the Compromise Agreement between Leyva and Jandoc : (1) The agreement besides being undated with a belated notarization, is null and void for lack of subject matter, the same having been previously sold by Jandoc on April 2, 1959 to Francisco Laiz per Agreement of Sale. (2) The claim that the compromise agreement was executed in 1963 was belied by Leyva himself when in his letter dated February 6, 1968 requiring Laiz to vacate the premises, he did not mention any such agreement but only of conflicting claims between him and Jandoc, thereby confirming that the conflict in the land registration case still subsists. (3) In the application for registration of Manuela Jandoc, Laiz was mentioned as one of the adverse possessors but not Leyva. (4) Leyva's opposition to said registration proceedings on the basis of a foreshore lease contract with the government was disallowed by the trial court whose ruling was sustained by the Court of Appeals and finally by the Supreme Court (Rollo, p. 75). (5) In his testimony Leyva himself declared that despite the Compromise Agreement, he continued opposing the registration of the property in favor of Jandoc, obviously in violation of the terms of the alleged compromise agreement thereby negating bad faith (Rollo, p. 78); and (6) It is incredible that after Jandoc won in the Land Case No. N-78 in the lower court, in the Court of Appeals and in the Supreme Court, she will still enter into a Compromise Agreement with Leyva either in 1963 or in 1972 (Rollo, pp. 7376). On the Agreement of Sale between Jandoc and Laiz: (1) The transfer of rights executed on April 2, 1959 is a valid and binding contract between the parties, as it was duly executed with the receipt of P200.00 as earnest money considered as part of the price and proof of the perfection of the contract (Record on Appeal, p. 28). (2) Said agreement was confirmed by a deed of transfer executed by Jandoc on February 2, 1970. (3) Its due execution was testified to by Provincial Fiscal Jose B. Sarinas whose testimony was corroborated by Jose Catolico, one of the signatories therein (Record on Appeal, p. 87) and by the Notary Public Victorio Versoza, against all of whom there is no evidence on record that they are biased witnesses who would fabricate a tale in support of the authenticity and due execution of aforesaid document (Rollo, p. 71). (4) It has been established that the lot in question has been occupied by Laiz since 1954 although disturbed off and on by Eligio T. Leyva (Record on Appeal, p. 81); and (5) Laiz was issued a Transfer Certificate of Title over Lot 1-H-3 by virtue of a final judgment in the Specific Performance Case (Rollo, P. 76).

II.

Upon consideration of the foregoing, the Court of appeals concluded that the Compromise Agreement whether executed in 1963 or 1972 between Leyva and Jandoc cannot prevail over the Agreement of Sale between Laiz and Jandoc and that Laiz has a better right over the property in question than Leyva (Ibid.). But Leyva lays much stress on the findings of Francisco Cruz, Jr., a handwriting expert of the PC Crime Laboratory, Camp Crame who testified that the purported signature of Jandoc appeared to be of another person and of Col. Crispin B. Garcia, formerly Chief of the Chemistry Branch in the PC Crime Laboratory who testified that the Agreement could have been written within the years 1964 to 1967 (Rollo, p. 67). Both the trial court and the Court of Appeals gave more weight to the testimony of Fiscal Sarinas as corroborated by Catolico and Versoza, upholding the validity of the assailed Sale Agreement.

This Court has ruled in the case of Vda. de Roxas v. Roxas (87 Phil. 692 [1950]) that "the positive testimony of the three attesting witnesses ought to prevail over the expert opinions which cannot be mathematically precise but which on the contrary, are subject to inherent infirmities." In any event, it is well established that the appellate court will not disturb the factual findings of the lower court for the latter is in a better position to gauge credibility of witnesses (People v. Mercado, 131 SCRA 501 [1984]; People v. Danes 131 SCRA 286 [1984]; People v. Lopez, 132 SCRA 189 [1984]; People v. Jones, 137 SCRA 166 [1985]; People v. Pasco, Jr., 137 SCRA 137 [1985]; People v. Adones, 144 SCRA 364 [1986]; People v. Tala, 141 SCRA 240 [1986]). It is evident that what petitioner seeks from this Court is a review of the findings of fact of the Court of Appeals which affirmed the findings of the trial court. Indeed, it has long been established to the point of being elementary, that the factual findings of the Court of Appeals are final and may not be reviewed by this Court except in certain instances which have no application here. PREMISES CONSIDERED, the petition is DENIED and the assailed decision of the Court of Appeals is AFFIRMED. SO ORDERED.

G.R. No. L-28946

January 16, 1929

In re estate of Piraso, deceased. SIXTO ACOP, petitioner-appellant, vs. SALMING PIRASO, ET AL., opponents-appellees. This appeal was taken from the judgment of the Court of First Instance of Benguet, denying the probate of the instrument Exhibit A, as the last will and testament of the deceased Piraso. The proponent-appellant assigns the following as alleged errors of the lower court: 1. In holding that in order to be valid the will in question should have been drawn up in the Ilocano dialect. 2. In not holding that the testator Piraso did not know the Ilocano dialect well enough to understand a will drawn up in said dialect. 3. In refusing to admit the will in question to probate. The fundamental errors assigned refer chiefly to the part of the judgment which reads as follows: The evidence shows that Piraso knew how to speak the Ilocano dialect, although imperfectly, and could make himself understood in that dialect, and the court is of the opinion that his will should have been written in that dialect. Such statements were not unnecessary for the decision of the case, once it has been proved without contradiction, that the said deceased Piraso did not know English, in which language the instrument Exhibit A, alleged to be his will, is drawn. Section 628 of the Code of Civil Procedure, strictly provides that: "No will, except as provides in the preceding section" (as to wills executed by a Spaniard or a resident of the Philippine Islands, before the present Code of Civil Procedure went into effect), "shall be valid to pass any estate, real or personal, nor charge or affect the same, unless it be written in the language or dialect known by the testator ," etc. (Emphasis supplied.) Nor can the presumption in favor of the will established by this court in Abangan vs. Abangan (40 Phil., 476), to the effect that the testator is presumed to know the dialect of the locality where he resides, unless there is proof to the contrary, even he invoked in support of the probate of said document Exhibit A, as a will, because, in the instant case, not only is it not proven that English is the language of the City of Baguio where the deceased Piraso lived and where Exhibit A was drawn, but that the record contains positive proof that said Piraso knew no other language than the Igorrote dialect, with a

smattering of Ilocano; that is, he did not know the English language in which Exhibit A is written. So that even if such a presumption could have been raised in this case it would have been wholly contradicted and destroyed. We consider the other question raised in this appeal needless and immaterial to the adjudication of this case, it having been, as it was, proven, that the instrument in question could not be probated as the last will and testament of the deceased Piraso, having been written in the English language with which the latter was unacquainted. Such a result based upon solidly established facts would be the same whether or not it be technically held that said will, in order to be valid, must be written in the Ilocano dialect; whether or not the Igorrote or Inibaloi dialect is a cultivated language and used as a means of communication in writing, and whether or not the testator Piraso knew the Ilocano dialect well enough to understand a will written in said dialect. The fact is, we repeat, that it is quite certain that the instrument Exhibit A was written in English which the supposed testator Piraso did not know, and this is sufficient to invalidate said will according to the clear and positive provisions of the law, and inevitably prevents its probate. The judgment appealed from is affirmed, with the costs of this instance against the appellant. So ordered.

G.R. No. L-15153

August 31, 1960

In the Matter of the summary settlement of the Estate of the deceased ANACLETA ABELLANA. LUCIO BALONAN, petitioner-appellee, vs. EUSEBIA ABELLANA, et al., oppositors-appellants. Appeal from a decision of the Court of First Instance of Zamboanga City admitting to probate the will of one Anacleta Abellana. The case was originally appealed to the Court of Appeals where the following assignment of error is made: The appellants respectfully submit that the Trial Court erred in holding that the supposed testament, Exh. "A", was signed in accordance with law; and in admitting the will to probate. In view of the fact that the appeal involves a question of law the said court has certified the case to us. The facts as found by the trial court are as follows: It appears on record that the last Will and Testament (Exhibit "A"), which is sought to be probated, is written in the Spanish language and consists of two (2) typewritten pages (pages 4 and 5 of the record) double space. The first page is signed by Juan Bello and under his name appears typewritten "Por la testadora Anacleta Abellana, residence Certificate A1167629, Enero 20, 1951, Ciudad de Zamboanga', and on the second page appears the signature of three (3) instrumental witnesses Blas Sebastian, Faustino Macaso and Rafael Ignacio, at the bottom of which appears the signature of T. de los Santos and below his signature is his official designation as the notary public who notarized the said testament. On the first page on the left margin of the said instrument also appear the signatures of the instrumental witnesses. On the second page, which is the last page of said last Will and Testament, also appears the signature of the three (3) instrumental witnesses and on that second page on the left margin appears the signature of Juan Bello under whose name appears handwritten the following phrase, "Por la Testadora Anacleta Abellana'. The will is duly acknowledged before Notary Public Attorney Timoteo de los Santos. (Emphasis supplied) The appeal squarely presents the following issue: Does the signature of Dr. Juan A. Abello above the typewritten statement "Por la Testadora Anacleta Abellana . . ., Ciudad de Zamboanga," comply with the requirements of law prescribing the manner in which a will shall be executed?

The present law, Article 805 of the Civil Code, in part provides as follows: Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witness in the presence of the testator and of one another. (Emphasis supplied.) The clause "must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence and by his express direction," is practically the same as the provisions of Section 618 of the Code of Civil Procedure (Act No. 190) which reads as follows: No will, except as provided in the preceding section shall be valid to pass any estate, real or personal, nor charge or affect the same, unless it be in writing and signed by the testator, or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of each other. . . . (Emphasis supplied). Note that the old law as well as the new require that the testator himself sign the will, or if he cannot do so, the testator's name must be written by some other person in his presence and by his express direction. Applying this provision this Court said in the case of Ex Parte Pedro Arcenas, et al., Phil., 700: It will be noticed from the above-quoted section 618 of the Code of Civil Procedure that where the testator does not know how, or is unable, to sign, it will not be sufficient that one of the attesting witnesses signs the will at the testator's request, the notary certifying thereto as provided in Article 695 of the Civil Code, which, in this respect, was modified by section 618 above referred to, but it is necessary that the testator's name be written by the person signing in his stead in the place where he could have signed if he knew how or was able to do so, and this in the testator's presence and by his express direction; so that a will signed in a manner different than that prescribed by law shall not be valid and will not be allowed to be probated. Where a testator does not know how, or is unable for any reason, to sign the will himself, it shall be signed in the following manner: John Doe by the testator, Richard Doe; or in this form: "By the testator, John Doe, Richard Doe." All this must be written by the witness signing at the request of the testator. Therefore, under the law now in force, the witness Naval A. Vidal should have written at the bottom of the will the full name of the testator and his own name in one forms given above. He did not do so, however, and this is failure to comply with the law is a substantial defect which affects the validity of the will and precludes its allowance, notwithstanding the fact that no one appeared to oppose it. The same ruling was laid down in the case of Cuison vs. Concepcion, 5 Phil., 552. In the case of Barut vs. Cabacungan, 21 Phil., 461, we held that the important thing is that it clearly appears that the name of the testatrix was signed at her express direction; it is unimportant whether the person who writes the name of the testatrix signs his own or not. Cases of the same import areas follows: (Ex Parte Juan Ondevilla, 13 Phil., 479, Caluya vs.Domingo, 27 Phil., 330; Garcia vs. Lacuesta, 90 Phil., 489). In the case at bar the name of the testatrix, Anacleta Abellana, does not appear written under the will by said Abellana herself, or by Dr. Juan Abello. There is, therefore, a failure to comply with the express requirement in the law that the testator must himself sign the will, or that his name be affixed thereto by some other person in his presence and by his express direction. It appearing that the above provision of the law has not been complied with, we are constrained to declare that the said will of the deceased Anacleta Abellana may not be admitted to probate. WHEREFORE, the decision appealed from is hereby set aside and the petition for the probate of the will denied. With costs against petitioner.

GONZALES NEYRA v. IMMIGRATION AND NATURALIZATION SERVICE Marco Antonio GONZALES-NEYRA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. 96-70467.No. Argued and Submitted June 10, 1997. -- September 15, 1997 Before: SCHROEDER, KLEINFELD, Circuit Judges, and WALLACH, U.S. Court of International Trade Judge.* Randall Caudle, San Francisco, CA, for Petitioner.Marshall Tamor Golding, Ann V. Crowley, United States Department of Justice, Washington, DC, for Respondent. As a result, he received threats on his business and his life, and he fled the country. Upon concluding that they were revolutionaries whose cause he politically opposed, he told them so and refused to comply with their demands any longer. Petitioner paid protection money to Sendero Luminoso (also known as Shining Path) guerrillas while he believed that they were Peruvian police officers. 1158(a), 1253(h). Marco Antonio Gonzales-Neyra is a native and citizen of Peru who petitions for review of the Board of Immigration Appeals' denial of his application for asylum and withholding of deportation, 8 U.S.C. In so holding, the majority of the BIA, and the immigration judge, overlooked the uncontradicted evidence that petitioner's life and business had been threatened only after he expressed his political disagreement with the guerrilla organization, and only after he made clear that his refusal to make further payments was on account of that disagreement.A divided BIA denied his application, holding that he had not established a well-founded fear of persecution on account of political opinion.

We conclude that any rational factfinder who took that evidence into account, as the BIA was required to do in this case, would be compelled to reach a contrary conclusion: that the persecution Gonzales-Neyra suffered was on account of political opinion; that given Gonzales-Neyra's showing of past persecution, his fear of future persecution was reasonable; and that there is a clear probability that Gonzales-Neyra will be persecuted if he were returned to Peru. Therefore, we grant Gonzales-Neyra's petition for review. BACKGROUND The immigration judge expressly found his testimony credible because there were no inconsistencies in that testimony and no contradictory evidence regarding the events that took place before petitioner fled Peru.The facts are as petitioner testified. Every month thereafter, from May 1990 until January 1991, two men dressed in police uniforms came to Gonzales-Neyra's video store to demand payment. When they demanded that he pay $300 per month, Gonzales-Neyra complied. These men told Gonzales-Neyra that if he did not pay, they were going to see to it that [his] business was [declared] illegal, or that they would do whatever possible to harass [him] in [his] business or close [his] business. The demands upon him began in April of 1990, when two men dressed in police uniform, purporting to be members of the Peruvian national police, demanded that he provide protection money for police use. Petitioner operated a video game business in Lima. Like many other business people in Peru, he became the target of extortion demands. He began to suspect that the men to whom he was paying the protection money were not members of the national police force, but rather members of the Shining Path. Because he did not share the Shining Path guerrillas' ideology, and in fact, as a university student had been a member of the Christian Popular Party, whose ideas were to enrich and increment democracy within the country[,] in stark contrast to the goals of the Shining Path, Gonzales-Neyra decided that he would no longer make the payments. He testified this meant that they were destroying businesses and killing people. As of December of 1990, Gonzales-Neyra began hearing rumors that the Shining Path guerrillas were using the same kind of extortionist tactics as the police, to obtain money from business persons. The men also ordered him to close his business soon, because it was not in accordance with their ideology, and that if [he] didn't do it, they were going to kill him. They said that in their opinion, a video game business such as his distracted the youth, made them stupid, and diverted their attention from national problems. In addition, the guerrillas chastised him for being involved in the video game business. They were going to destroy [his] business and [him] inside of it. They responded that if he didn't do it, they were going to kill [him]. At that point, Gonzales-Neyra told them that he would no longer give money to support their armed struggle. When he demanded to know if they were in fact Shining Path guerrillas, they clarified [his] suspicions, because they confirmed that they were members of the Sendero Luminoso Communist Party. In January of 1991, Gonzales-Neyra confronted the men who came to get the protection payment. The press reported that the police had identified them as members of the Shining Path. Believing that the guerrilla group might now retaliate against him thinking that he was the one who had reported the men to the police, Gonzales-Neyra's fear became even stronger. Before fleeing, however, he learned from a newspaper that the police had detained two men whom he recognized as the men who had first come to his establishment in 1990. Soon after the incident, GonzalesNeyra fled his home and business. Petitioner testified that he paid the $300 to the guerrillas that day because he was afraid he would be killed on the spot, but that he specifically told them that he was not going to collaborate [with] them [anymore], because that was not part of [his] idea; that [he] was not going to collaborate with a group that was trying to destroy [his] country. Because of that threat, his brother went into hiding for a year. In February of 1991, GonzalesNeyra's family was threatened that if it did not disclose his whereabouts, his younger brother would be harmed. In addition, Gonzales-Neyra's father began observing unknown people loitering on several occasions on the street in front of the family home. After his departure from Peru, Gonzales-Neyra was told by his family that people would call his parents' home, saying that it was

urgent that he be in touch, and demanding that the family provide information as to his whereabouts. Because Gonzales-Neyra's family knew who his friends were, they did not believe that these people had innocent motives. Unknown persons, who claimed to be his friends, started coming to his family's house, asking for him. Sometime soon after his confrontation with the guerrillas, and while Gonzales-Neyra was living in hiding at his girlfriend's house before his departure from Peru, his family reported disturbing incidents. In affirming the immigration judge's order, the BIA rested on similar reasoning. The judge reasoned that while the guerrillas may have extorted money from Gonzales-Neyra in order to fund their armed struggle, they had not targeted him for extortion because of his political opinion. The immigration judge concluded that Gonzales-Neyra had failed to show that his fear was on account of political opinion. This point was brought out dramatically by BIA member Rosenberg, who dissented from the BIA's decision. The BIA relied upon portions of a State Department report, Peru: Profile of Asylum Claims and Country Conditions (February 1995), which, when reviewed as a whole, supports petitioner's claim of continued Shining Path insurrection in the country at least as strongly as it supports the BIA's position that conditions have changed for the better. The BIA also found that Gonzales-Neyra had not established a well-founded fear of future persecution because conditions in Peru had changed. The breadth of the guerrilla efforts to destabilize the country was reflected in the variety of targets of their violence, including government officials, military and police personnel, politicians, industrialists, businessmen, bankers and other professionals, development and human rights workers, educators and students, labor leaders and workers, Indians, peasants, religious personnel and foreigners. In certain cases, applicants with credible cases of guerrilla mistreatment may merit administrative discretion.Because so many categories of Peruvians have been targeted, some asylum applicants may have difficulty providing evidence that they were threatened or abused on Convention-covered grounds, precisely because any person or group perceived by the Shining Path as in a position to aid or thwart its efforts to overthrow the government is a potential target of its threats or violence. ANALYSIS Prasad v. INS, [Kamla Prasad], 47 F.3d 336, 338 (9th Cir.1995) (citation omitted). The alien must do this by offering credible, direct, and specific evidence [.] Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir.1997) (citing Ghaly v. INS, 58 F.3d 1425, 1428 (9th Cir.1995)). The burden of proof is on the alien to establish eligibility for asylum. 1101(a)(42)(A). 8 U.S.C. A refugee is an alien who is unable or unwilling to return to the country of his nationality because of persecution or a wellfounded fear of persecution on account of political opinion. 1158(a). 8 U.S.C. An alien is eligible for asylum and may be granted asylum at the discretion of the Attorney General, if he establishes that he is a statutory refugee. Likewise an asylum seeker claiming well-founded fear of persecution must show the second, third and fourth elements, though not necessarily the first.Sangha, 103 F.3d at 1487. After the Supreme Court's decision in INS v. Elias-Zacarias, 502 U.S. 478, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992), an asylum seeker claiming to be a victim of persecution on account of political opinion must offer evidence that (1) he has been a victim of persecution; (2) he holds a political opinion; (3) his political opinion is known to his persecutors; and (4) the persecution has been or will be on account of his political opinion. INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 483-84, 112 S.Ct. 812, 815 n. 1, 816-17, 117 L.Ed.2d 38 (1992); Sangha, 103 F.3d at 1487.We may reverse the BIA's decision only if the evidence presented by Gonzales-Neyra is such that a reasonable factfinder would be compelled to conclude that the requisite fear of persecution existed. We therefore conclude that petitioner proved through compelling and undisputed evidence that the threats to his life and business constituted persecution causally connected to his political

opposition to the Shining Path. See Sangha, 103 F.3d at 1486. Gonzales-Neyra provided evidence that he was persecuted, that he had a political opinion, that he expressed it to his persecutors, and that they threatened him only after he expressed his opinion. The persecution of which Gonzales-Neyra complains is not the extortion, but the threats upon his life and business that were made after the guerrillas learned of his political orientation. Thus, the fact that the guerrillas may have initially chosen Gonzales-Neyra as a target for money because he was a successful businessman, does not relate to their subsequent motivation for persecuting him. The government's focus on the Shining Path's economic motivation for the extortion demands is misplaced, as was the immigration judge's and the BIA's. It ignores the evidence that the Shining Path representatives made it quite clear to Gonzales-Neyra that his political views motivated their hostility and threats after the January 1991 confrontation. Indeed, everything in the record suggests that he was financially able to pay and that his business, which was derided by the guerrillas, was economically viable. In addition, we find no basis for the government's suggestion that the threats were on account of Gonzales-Neyra's economic inability to provide payments. 208.13(b)(1)(i)). See Prasad v. INS [Gaya Prasad], 101 F.3d 614, 617 (9th Cir.1996) (citing 8 C.F.R. Because we conclude that Gonzales-Neyra established past persecution on account of his political opinion, we also hold that he was entitled to a rebuttable presumption that he had a well-founded fear that he would be similarly persecuted in the future. Because Gonzales-Neyra's evidence was not rebutted by the INS, we hold that petitioner was eligible for asylum on account of political opinion. As noted earlier, and pointed out by the dissenting BIA member, much of the report supports petitioner's claim that he has reason to fear similar persecution in the future. The State Department report, on which the BIA selectively relied to find that the situation in Peru had changed, does not rebut the presumption raised by GonzalesNeyra's evidence of past persecution. The BIA stated that even if Gonzales-Neyra had shown past persecution on account of political opinion, the BIA would still not exercise its discretion in his favor given the unlikelihood of future persecution[,] and given the fact that Gonzales-Neyra had failed to establish[ ] that any mistreatment of him was so severe as to merit a discretionary grant of asylum to him particularly in light of the [changed political climate in Peru.] This hypothetical exercise of discretion rests on no firmer ground than the BIA's conclusion that petitioner was ineligible for asylum consideration, and constitutes an abuse of discretion.1158(a). Kazlauskas v. INS, 46 F.3d 902, 905 (9th Cir.1995); 8 U.S.C. Eligibility, however, does not automatically entitle an alien to asylum: the grant of asylum is discretionary. The regulation provides:208.16(b)(2)). Surita v. INS, 95 F.3d 814, 821 (9th Cir.1996) (quoting to 8 C.F.R. Even though the standard for withholding of deportation is more stringent than the wellfounded fear of persecution standard, Cardoza-Fonseca, 480 U.S. at 427-32, 107 S.Ct. at 1210-13 [s]ome forms of past persecution trigger a presumption that the applicant is entitled to withholding of deportation. Ghaly, 58 F.3d at 1429 (citations omitted). A petitioner's deportation must be withheld if the petitioner has established a clear probability of persecution, in other words that it is more likely than not that the alien would be persecuted if he were returned to his country. 1253(h); INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987); INS v. Stevic, 467 U.S. 407, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). 8 U.S.C. While the granting of asylum is discretionary, withholding of deportation to a particular country is mandatory if the Attorney General determines that the alien's life or freedom would be threatened in such country on account of political opinion. If the applicant is determined to have suffered persecution in the past such that his life or freedom was threatened in the proposed country of deportation on account of political opinion, it shall be presumed that his life or freedom would be threatened on return to that country unless a preponderance of the evidence establishes that conditions in the country have changed to such an extent that it is no longer more likely than not that the applicant would be so persecuted there.

Thus, we hold that Gonzales-Neyra has met the requirements for withholding of deportation. The INS did not establish by a preponderance of the evidence that conditions in Peru have changed to such an extent that it is no longer more likely than not that Gonzales-Neyra would be persecuted upon his return. As a result of the Shining Path threats, this petitioner left his business, went into hiding, and was hunted thereafter. Vilorio-Lopez v. INS, 852 F.2d 1137, 1141 (9th Cir.1988). We have observed that [a] key factor in finding evidence sufficient for withholding of deportation is whether harm or threats of harm were aimed against petitioner specifically. 208.16(b)(2). 8 C.F.R. PETITION GRANTED, REMANDED for further proceedings.