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[G.R. No. 31703. February 13, 1930.] CARMEN G.

DE PEREZ, trustee of the estate of Ana Maria Alcantara, plaintiff-appellee, vs. MARIANO GARCHITORENA, and JOSE CASIMIRO, Sheriff of the Court of First Instance of Manila, defendants-appellants. L.D. Lockwood and Jose M. Casal, for appellants. Eduardo Gutierrez Repide and Leoncio B. Monzon, for appellee. SYLLABUS 1.WILLS; INSTITUTION OF HEIRS; FIDEICOMMISSARY HEIR. The institution of heirs made in the will in question is in the nature of a fideicommissum: there is an heiress primarily called to enjoy the estate; an obligation clearly imposed upon her to preserve and transmit the whole of the estate to certain third persons; and there are secondary heirs. 2.ID.; ID.; ID.; DISTINCTION BETWEEN FIDEICOMMISSUM AND TRUST. The heir instituted, or fideicommissioner, as article 783 of the Civil Code has it, is entitled to the enjoyment of the estate. The fideicommissum thus arising from a fideicommissary substitution, which is of Roman origin, is not exactly equivalent to, and should not be confused with, the English "trust." DECISION ROMUALDEZ, J p: The amount of P21,428.58 is on deposit in the plaintiff's name with the association known as La Urbana in Manila, as the final payment of the liquidated credit of Ana Maria Alcantara, deceased, whose heiress is said plaintiff, against Andres Garchitorena, also deceased, represented by his son, the defendant Mariano Garchitorena. And as said Mariano Garchitorena held a judgment for P7,872.23 against Joaquin Perez Alcantara, husband of the plaintiff, Carmen G. de Perez, the sheriff pursuant to the writ of execution issued in said judgment, levied an attachment on said amount deposited with La Urbana. The plaintiff, alleging that said deposit belongs to the fideicommissary heirs of the decedent Ana Maria Alcantara, secured a preliminary injunction restraining the execution of said judgment on the sum so attached. The defendants contend that the plaintiff is the decedent's universal heiress, and pray for the dissolution of the injunction. The court below held that said La Urbana deposit belongs to the plaintiff's children as fideicommissary heirs of Ana Maria Alcantara, and granted a final writ of injunction. The defendants insist in their contentions, and, in their appeal from the decision of the trial court, assign the following errors:

"1.The lower court erred in holding that a trust was created by the will of Doa Ana Maria Alcantara. "2.The lower court erred in concluding and declaring that the amount of P21,428.58 deposited with La Urbana is the property of the children of the plaintiff as 'herederos fidei-comisarios.' "3.The lower court erred in making the injunction permanent and condemning defendant to pay the costs." The question here raised is confined to the scope and meaning of the institution of heirs made in the will of the late Ana Maria Alcantara already admitted to probate, and whose legal force and effect is not in dispute. The clauses of said will relevant to the points in dispute, between the parties are the ninth, tenth, and eleventh, quoted below: "Ninth. Being single and without any forced heir, to show my gratitude to my niece-in-law, Carmen Garchitorena, of age, married to my nephew, Joaquin Perez Alcantara, and living in this same house with me, I institute her as my sole and universal heiress to the remainder of my estate after the payment of my debts and legacies, so that upon my death and after probate of this will, and after the report of the committee on claims and appraisal has been rendered and approved, she will receive from my executrix the properties composing my hereditary estate, that she may enjoy them with God's blessing and my own. "Tenth. Should my heiress Carmen Garchitorena die, I order that my whole estate shall pass unimpaired to her surviving children; and should any of these die, his share shall serve to increase the portions of his surviving brothers (and sisters) by accretion, in such wise that my estate shall never pass out of the hands of my heiress or her children in so far as it is legally possible. "Eleventh. Should my aforesaid heiress, Carmen Garchitorena, die after me while her children are still in their minority, I order that my estate be administered by my executrix, Mrs. Josefa Laplana, and in her default, by Attorney Ramon Salinas and in his default, by his son Ramon Salinas; but the direction herein given must not be considered as an indication of lack of confidence in my nephew Joaquin Perez Alcantara, whom I relieve front he duties of administering my estate, because I recognize that his character is not adapted to management and administration." The appellants contend that in these clauses the testatrix has ordered a simple substitution, while the appellee contends that it is a fideicommissary substitution. This will certainly provides for a substitution of heirs, and of the three cases that might give rise to a simple substitution (art. 774, Civil Code), only the death of the instituted heiress before the testatrix would in the instant case give place to such substitution, inasmuch as nothing is said of the waiver of inheritance, or incapacity to accept it. As a matter of fact, however, clause XI provides for the administration of the estate in case the heiress instituted should die after the testatrix and while the substitute heirs are still under age. And it is evident that, considering the

nature of simple substitution by the heir's death before the testator, and the fact by clause XI in connection with clause X, the substitution is ordered where the heiress instituted dies after the testatrix, this cannot be a case of simple substitution. The existence of a substitution in the will is not and cannot be denied, and since it cannot be a simple substitution in the light of the considerations above stated, let us now see whether the instant case is a fideicommissary substitution. In clause IX, the testatrix institutes the plaintiff herein her sole and universal heiress, and provides that upon her death (the testatrix's) and after probate of the will and approval of the report of the committee on claims and appraisal, said heiress shall receive and enjoy the whole hereditary estate. Although this clause provides nothing explicit about substitution, it does not contain anything in conflict with the idea of fideicommissary substitution. The fact that the plaintiff was instituted the sole and universal heiress does not prevent her children from receiving, upon her death and in conformity with the express desire of the testatrix, the latter's hereditary estate, as provided in the following (above quoted) clauses, which cannot be disregarded if we are to give a correct interpretation of the will. The word sole does not necessarily exclude the idea of substitute heirs; and taking these three clauses together, such word means that the plaintiff if the sole heiress instituted in the first instance. The disposition contained in clause IX, that said heiress shall receive and enjoy the estate, is not incompatible with a fideicommissary substitution (it certainly is incompatible with the idea of simple substitution, where the heiress instituted does not receive the inheritance). In fact the enjoyment of the inheritance is in conformity with the idea of fideicommissary substitution, by virtue of which the heir instituted receives the inheritance and enjoys it, although at the same time he preserves it in order to pass it on to the second heir. On this point the illustrious Manresa, in his Civil Code (Vol. 6, pp. 142 and 143, 5th ed.), says: "Or, what amounts to the same thing, the fideicommissary substitution, as held in the Resolutions of June 25, 1895, February 10, 1899, and July 19, 1909, requires three things: "1.A first heir called primarily to the enjoyment of the estate. "2.An obligation clearly imposed upon him to preserve and transmit to a third person the whole or a part of the estate. "3.A second heir. "To these requisites, the decision of November 18, 1918 adds another, namely that the fideicommissarius be entitled to the estate from the time the testator dies, since he is to inherit from the latter and not from the fiduciary." (Emphasis ours.) It appears from this quotation that the heir instituted or the fiduciary to enjoy the inheritance. And it might here be observed, as a timely remark, that the fideicommissum arising from a fideicommissary substitution, which is of Roman origin, is not exactly equivalent to, nor may it be confused with, the English "trust."

It should also be noted that said clause IX vests in the heiress only the right to enjoy but not the right to dispose of the estate. It says, she may enjoy it, but does not say she may dispose of it. This is an indication of the usufruct inherent in fideicommissary substitution. Clause X expressly provides for the substitution. It is true that it does not say whether the death of the heiress herein referred to is before or after that of the testatrix; but from the whole context it appears that in making the provisions contained in this clause X, the testatrix had in mind a fideicommissary substitution, since she limits the transmission of her estate to the children of the heiress by this provision, "in such wise that my estate shall never pass out of the hands of my heiress or her children in so far as it is legally possible." Here it clearly appears that the testatrix tried to avoid the possibility that the substitution might later be legally declared null for transcending the limits fixed by article 781 of the Civil Code which prescribes that fideicommissary substitutions shall be valid "provided they do not go beyond the second degree." Another clear and outstanding indication of fideicommissary substitution in clause X is the provision that the whole estate shall pass unimpaired to the heiress's children, that is to say the heiress is required to preserve the whole estate, without diminution, in order to pass it on in due time to the fideicommissary heirs. This provision complies with another of the requisites of fideicommissary substitution according to our quotation from Manresa inserted above.

Lastly, clause XI clearly indicates the idea of fideicommissary substitution, when a provision is therein made in the event the heiress should die after the testatrix. That is, said clause anticipates the case-where the instituted heiress should die after the testatrix and after receiving and enjoying the inheritance. The foregoing leads us to the conclusion that all the requisites of a fideicommissary substitution, according to the quotation from Manresa above inserted, are present in the case of substitution now under consideration, to wit: 1.A first heir primarily called to the enjoyment of the estate. In this case the plaintiff was instituted an heiress, called to the enjoyment of the estate, according to clause IX of the will. 2.An obligation clearly imposed upon the heir to preserve and transmit to a third person the whole or a part of the estate. Such an obligation is imposed in clause X which provides that the "whole estate shall pass unimpaired to her (heiress's) surviving children;" thus, instead of leaving the heiress at liberty to dispose of the estate by will, or of leaving the law to take its course in case she dies intestate, said clause not only disposes of the estate in favor of the heiress instituted, but also provides for the disposition thereof in case she could die after the testatrix. 3.A second heir. Such are the children of the heiress instituted, who are referred to as such second heirs both in clause X and in clause XI.

Finally, the requisite added by the decision of November 18, 1918, to wit, that the fideicommissarius or second heir should be entitled to the estate from the time of the testator's death, which in the instant case, is, rather than a requisite, a necessary consequence derived from the nature of the fideicommissary substitution, in which the second heir does not inherit from the heir first instituted, but from the testator. By virtue of this consequence, the inheritance in question does not belong to the heiress instituted, the plaintiff herein, as her absolute property, but to her children, from the moment of the death of the testatrix, Ana Maria Alcantara. Therefore, said inheritance, of which the amount referred to at the beginning, which is on deposit with the association known as La Urbana in the plaintiff's name, is a part, does not belong to her nor can it be subject to the execution of the judgment against Joaquin Perez, who is not one of the fideicommissary heirs. The judgment appealed from is affirmed, with costs against the appellant, Mariano Garchitorena. So ordered. Johnson, Malcolm, Villamor, Ostrand, Johns and Villa-Real, JJ., concur.

perez v. garchitorena (1930) Facts: The amount of P21,428.58 is on deposit in the plaintiff's name with the association known as La Urbana in Manila, as the final payment of the liquidated credit of Ana Maria Alcantara, deceased, whose heiress is said plaintiff, against Andres Garchitorena, also deceased, represented by his son, the defendant Mariano Garchitorena. And as said Mariano Garchitorena held a judgment for P7,872.23 against Joaquin Perez Alcantara, husband of the plaintiff, Carmen G. de Perez, the sheriff pursuant to the writ of execution issued in said judgment, levied an attachment on said amount deposited with La Urbana. The plaintiff, alleging that said deposit belongs to the fideicommissary heirs of the decedent Ana Maria Alcantara, secured a preliminary injunction restraining the execution of said judgment on the sum so attached. The defendants contend that the plaintiff is the decedent's universal heiress, and pray for the dissolution of the injunction.

Issues:

1. Whether the amount deposited is the property of the children of the late Ana Maria Alcantara as fideicommissary.

Ruling: Fideicommissary substitution requires three things: 1. A first heir called primarily to the enjoyment of the estate. 2. An obligation clearly imposed upon him to preserve and transmit to a third person the whole or a part of the estate. 3. A second heir.

The fideicommissarius or second heir should be entitled to the estate from the time of the testator's death, which in the instant case, is, rather than a requisite, a necessary consequence derived from the nature of the fideicommissary substitution, in which the second heir does not inherit from the heir first instituted, but from the testator. By virtue of this consequence, the inheritance in question does not belong to the heiress instituted, the plaintiff herein, as her absolute property, but to her children, from the moment of the death of the testatrix, Ana Maria Alcantara. Therefore, said inheritance, of which the amount referred to at the beginning, which is on deposit with the association known as La Urbana in the plaintiff's name, is a part, does not belong to her nor can it be subject to the execution of the judgment against Joaquin Perez, who is not one of the fideicommissary heirs.

PCIB v ESCOLIN 56 SCRA 266 BARREDO; March 29, 1974

DISCLAIMER. These are the facts, issue, and ruling pertinent to our topic. This case, as admitted by J. Barredo is unusually extensive because of the 78 assignments of error regarding 30 separate orders of the lower court. Hopefully, hindi ito kasama sa evidence outline (may stuff about admissions by a party related to the effects of foreign laws, which have to be proven in our courts like any other controverted fact, create estoppels.* Bwahahaha!)

FACTS The spouses Hodges are American citizens living in the Philippines.

Linnie Jane Hodges will contained:

xxx I give, devise and bequeath all of the rest, residue and remainder [after payment of debts, taxes, and funeral expenses] of my estate, both personal and real, wherever situated, or located, to my beloved husband, Charles Newton Hodges, to have and to hold unto him, my said husband, during his natural lifetime. xxx At the death of my said husband, Charles Newton Hodges, I give, devise and bequeath all of the rest, residue and remainder of my estate, both real and personal, wherever situated or located, to be equally divided among my brothers and sisters, share and share alike xxx Charles Newton Hodges will was pretty much the same, including the part about Mrs. Hodges brothers and sisters. (Aw he loves her) Mrs. died 5 yrs. before Mr. Both died in the Philippines. Each estate had its own administrator.

ISSUE WON there was fideicommisary substitution.

HELD NO. Mrs. Hodges simultaneously instituted her brothers and sisters as co-heirs with her husband, with the condition, however, that the latter would have complete rights of dominion over the whole estate during his lifetime and what would go to the former would be only the remainder thereof at the time of Mr. Hodges' death. In other words, whereas they are not to inherit only in case of default of Hodges, on the other hand, Hodges was not obliged to preserve anything for them. Clearly then, the essential elements of testamentary substitution are absent; the provision in question is a simple case of conditional simultaneous institution of heirs, whereby the institution of Hodges is subject to a partial resolutory condition the operative contingency of which is coincidental with that of the suspensive condition of the institution of his brothers and sisters-in-law, which manner of institution is not prohibited by law.

* Basically, what the case was all about is whether there was any part of Mrs. Hodges estate left that didnt pass on to Mr. Hodges thru succession. It was ruled that meron nga natirang estate ni Mrs. Hogdes (foreign law issue).

LESSON. Masakit sa ulo mamatay ng mayaman at mag-iwan ng magulong will. Ok fine, mahal nila ang isat isa.

[G.R. Nos. L-27860 & L-27896. March 29, 1974.] PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, Administrator of the Testate Estate of Charles Newton Hodges (Sp. Proc. No. 1672 of the Court of First Instance of Iloilo) , petitioner, vs. THE HONORABLE VENICIO ESCOLIN, Presiding Judge of the Court of First Instance of Iloilo, Branch II, and AVELINA A. MAGNO, respondents. [G.R. Nos. L-27936 & L-27937. March 29, 1974.] TESTATE ESTATE OF THE LATE LINNIE JANE HODGES (Sp. Proc. No. 1307). TESTATE ESTATE OF THE LATE CHARLES NEWTON HODGES (Sp. Proc. No. 1672). PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, administrator-appellant, vs. LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL, SALVADOR GUZMAN, BELCESAR CAUSING, FLORENIA BARRIDO, PURIFICACION CORONADO, GRACIANO LUCERO, ARITEO THOMAS JAMIR, MELQUIADES BATISANAN, PEPITO IYULORES, ESPERIDION PARTISALA, WINIFREDO ESPADA, ROSARIO ALINGASA, ADELFA PREMAYLON, SANTIAGO PACAONSIS, and AVELINA A. MAGNO, the last as Administratrix in Sp. Proc. No. 1307, appellees, WESTERN INSTITUTE OF TECHNOLOGY, INC., movant-appellee. San Juan, Africa, Gonzales & San Agustin for Philippine Commercial & Industrial Bank. Manglapus Law Office, Antonio Law Office and Rizal R. Quimpo for private respondents and appellees Avelina A. Magno, etc., et al. DECISION BARREDO, J p: Certiorari and prohibition with preliminary injunction; certiorari to "declare all acts of the respondent court in the Testate Estate of Linnie Jane Hodges (Sp. Proc. No. 1307 of the Court of First Instance of Iloilo) subsequent to the order of December 14, 1957 as null and void for having been issued without jurisdiction"; prohibition to enjoin the respondent court from allowing, tolerating, sanctioning, or abetting private respondent Avelina A. Magno to perform or do any acts of administration, such as those enumerated in the petition, and from exercising any authority or power as Regular Administratrix of above-named Testate Estate, by entertaining manifestations, motion and pleadings filed by her and acting on them, and also to enjoin said court from allowing said private respondent to interfere, meddle or take part in any manner in the administration of the Testate Estate of Charles Newton Hodges (Sp. Proc. No. 1672 of the same court and branch); with prayer for preliminary injunction, which was issued by this Court on August 8, 1967 upon a bond of P5,000; the petition being particularly directed against the orders of the respondent court of October 12, 1966 denying petitioner's motion of April 22, 1966 and its order of July 18, 1967 denying the motion for reconsideration of said order. Related to and involving basically the same main issue as the foregoing petition, thirty-three (33) appeals from different orders of the same respondent court approving or otherwise

sanctioning the acts of administration of the respondent Magno on behalf of the testate Estate of Mrs. Hodges. THE FACTS On May 23, 1957, Linnie Jane Hodges died in Iloilo City leaving a will executed on November 22, 1952 pertinently providing as follows: "FIRST: I direct that all my just debts and funeral expenses be first paid out of my estate. SECOND: I give, devise and bequeath all of the rest, residue and remainder of my estate, both personal and real, wherever situated, or located, to my beloved husband, Charles Newton Hodges, to have and to hold unto him, my said husband, during his natural lifetime. THIRD: I desire, direct and provide that my husband, Charles Newton Hodges, shall have the right to manage, control, use and enjoy said estate during his lifetime, and he is hereby given the right to make any changes in the physical properties of said estate, by sale or any part thereof which he may think best, and the purchase of any other or additional property as he may think best; to execute conveyances with or without general or special warranty, conveying in fee simple or for any other term or time, any property which he may deem proper to dispose of; to lease any of the real property for oil, gas and/or other minerals, and all such deeds or leases shall pass the absolute fee simple title to the interest so conveyed in such property as he may elect to sell. All rents, emoluments and income from said estate shall belong to him, and he is further authorized to use any part of the principal of said estate as he may need or desire. It is provided herein, however, that he shall not sell or otherwise dispose of any of the improved property now owned by us located at, in or near the City of Lubbock, Texas, but he shall have the full right to lease, manage and enjoy the same during his lifetime, above provided. He shall have the right to subdivide any farm land and sell lots therein, and may sell unimproved town lots. aisa dc FOURTH: At the death of my said husband, Charles Newton Hodges, I give, devise and bequeath all of the rest, residue and remainder of my estate, both real and personal, wherever situated or located, to be equally divided among my brothers and sisters, share and share alike, namely: Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Saddie Rascoe, Era Roman and Nimroy Higdon. FIFTH: In case of the death of any of my brothers and/or sisters named in item Fourth, above, prior to the death of my husband, Charles Newton Hodges, then it is my will and bequest that the heirs of such deceased brother or sister shall take jointly the share which would have gone to such brother or sister had she or he survived. SIXTH: I nominate and appoint my said husband, Charles Newton Hodges, to be executor of this, my last will and testament, and direct that no bond or other security be required of him as such executor.

SEVENTH: It is my will and bequest that no action be had in the probate court, in the administration of my estate, other than that necessary to prove and record this will and to return an inventory and appraisement of my estate and list of claims." (Pp. 2-4, Petition.) This will was subsequently probated in aforementioned Special Proceedings No. 1307 of respondent court on June 28, 1957, with the widower Charles Newton Hodges being appointed as Executor, pursuant to the provisions thereof. Previously, on May 27, 1957, the said widower (hereafter to be referred to as Hodges) had been appointed Special Administrator, in which capacity he filed a motion on the same date as follows: "URGENT EX-PARTE MOTION TO ALLOW OR AUTHORIZE PETITIONER TO CONTINUE THE BUSINESS IN WHICH HE WAS ENGAGED AND TO PERFORM ACTS WHICH HE HAD BEEN DOING WHILE DECEASED WAS LIVING Come petitioner in the above-entitled special proceedings, thru his undersigned attorneys, to the Hon. Court, most respectfully states: 1.That Linnie Jane Hodges died leaving her last will and testament, a copy of which is attached to the petition for probate of the same. 2.That in said last will and testament herein petitioner Charles Newton Hodges is directed to have the right to manage, control use and enjoy the estate of deceased Linnie Jane Hodges, in the same way, a provision was placed in paragraph two, the following: 'I give, devise and bequeath all of the rest, residue and remainder of my estate, to my beloved husband, Charles Newton Hodges, to have and (to) hold unto him, my said husband, during his natural lifetime.' 3.That during the lifetime of Linnie Jane Hodges, herein petitioner was engaged in the business of buying and selling personal and real properties, and do such acts which petitioner may think best. 4.That deceased Linnie Jane Hodges died leaving no descendants or ascendants, except brothers and sisters and herein petitioner as the surviving spouse, to inherit the properties of the decedent. "5.That the present motion is submitted in order not to paralyze the business of petitioner and the deceased, especially in the purchase and sale of properties. That proper accounting will be had also in all these transactions. WHEREFORE, it is most respectfully prayed that, petitioner C. N. Hodges (Charles Newton Hodges) be allowed or authorized to continue the business in which he was engaged and to perform acts which he had been doing while deceased Linnie Jane Hodges was living. City of Iloilo, May 27, 1957." (Annex "D", Petition.) which the respondent court immediately granted in the following order:

"It appearing in the urgent ex-parte motion filed by petitioner C. N. Hodges, that the business in which said petitioner and the deceased were engaged will be paralyzed, unless and until the Executor is named and appointed by the Court, the said petitioner is allowed or authorized to continue the business in which he was engaged and to perform acts which he had been doing while the deceased was living. SO ORDERED. City of Iloilo, May 27, 1957." (Annex "E", Petition.) Under date of December 11, 1957, Hodges filed as such Executor another motion thus: "MOTION TO APPROVE ALL SALES, CONVEYANCES, LEASES, MORTGAGES THAT THE EXECUTOR HAD MADE FURTHER AND SUBSEQUENT TRANSACTIONS WHICH THE EXECUTOR MAY DO IN ACCORDANCE WITH THE LAST WISH OF THE DECEASED LINNIE JANE HODGES. "Comes the Executor in the above-entitled proceedings, thru his undersigned attorney, to the Hon. Court, most respectfully states: 1.That according to the last will and testament of the deceased Linnie Jane Hodges, the executor as the surviving spouse and legatee named in the will of the deceased; has the right to dispose of all the properties left by the deceased, portion of which is quoted as follows: Second: I give, devise and bequeath all of the rest, residue and remainder of my estate, both personal and real, wherever situated, or located, to my beloved husband, Charles Newton Hodges, to have and to hold unto him, my said husband, during his natural lifetime. Third: I desire, direct and provide that my husband, Charles Newton Hodges, shall have the right to manage, control, use and enjoy said estate during his lifetime, and he is hereby given the right to make any changes in the physical properties of said estate, by sale or any part thereof which he may think best, and the purchase of any other or additional property as he may think best; to execute conveyances with or without general or special warranty, conveying in fee simple or for any other term or time, any property which he may deem proper to dispose of; to lease any of the real property for oil, gas and/or other minerals, and all such deeds or leases shall pass the absolute fee simple title to the interest so conveyed in such property as he may elect to sell. All rents, emoluments and income from said estate shall belong to him, and he is further authorized to use any part of the principal of said estate as he may need or desire. . . . .

2.That herein Executor, is not only part owner of the properties left as conjugal, but also, the successor to all the properties left by the deceased Linnie Jane Hodges. That during the lifetime of herein Executor, as Legatee, has the right to sell, convey, lease or dispose of the properties in the Philippines. That inasmuch as C. N. Hodges was and is engaged in the buy and sell of real and personal properties, even before the death of Linnie Jane Hodges, a motion to

authorize said C. N. Hodges was filed in Court, to allow him to continue in the business of buy and sell, which motion was favorably granted by the Honorable Court. 3.That since the death of Linnie Jane Hodges, Mr. C. N. Hodges had been buying and selling real and personal properties, in accordance with the wishes of the late Linnie Jane Hodges. 4.That the Register of Deeds for Iloilo, had required of late the herein Executor to have all the sales, leases, conveyances or mortgages made by him, approved by the Hon. Court. 5.That it is respectfully requested, all the sales, conveyances leases and mortgages executed by the Executor, be approved by the Hon. Court and subsequent sales conveyances, leases and mortgages in compliances with the wishes of the late Linnie Jane Hodges, and within the scope of the terms of the last will and testament, also be approved; 6.That the Executor is under obligation to submit his yearly accounts, and the properties conveyed can also be accounted for, especially the amounts received. "WHEREFORE, it is most respectfully prayed that, all the sales, conveyances, leases, and mortgages executed by the Executor, be approved by the Hon. Court, and also the subsequent sales, conveyances, leases, and mortgages, in consonance with the wishes of the deceased contained in her last will and testament, be with authorization and approval of the Hon. Court. City of Iloilo, December 11, 1967." (Annex "G", Petition.) which again was promptly granted by the respondent court on December 14, 1957 as follows: ORDER As prayed for by Attorney Gellada, counsel for the Executor for the reasons stated in his motion dated December 11, 1957, which the Court considers well taken all the sales, conveyances, leases and mortgages of all properties left by the deceased Linnie Jane Hodges executed by the Executor Charles N. Hodges are hereby APPROVED. The said Executor is further authorized to execute subsequent sales, conveyances, leases and mortgages of the properties left by the said deceased Linnie Jane Hodges in consonance with the wishes conveyed in the last will and testament of the latter. So ordered. Iloilo City, December 14,1957." (Annex "H", Petition.) On April 14, 1959, in submitting his first statement of account as Executor for approval, Hodges alleged: "Pursuant to the provisions of the Rules of Court, herein executor of the deceased, renders the following account of his administration covering the period from January 1, 1958 to December

31, 1958, which account may he found in detail in the individual income tax return filed for the estate of deceased Linnie Jane Hodges, to wit: That a certified public accountant has examined the statement of net worth of the estate of Linnie Jane Hodges, the assets and liabilities, as well as the income and expenses, copy of which is hereto attached and made integral part of this statement of account as Annex "A". IN VIEW OF THE FOREGOING, it is most respectfully prayed that the statement of net worth of the estate of Linnie Jane Hodges the assets and liabilities, income and expenses as shown in the individual income tax return for the estate of the deceased and marked as Annex "A", be approved by the Honorable Court, as substantial compliance with the requirements of the Rules of Court. That no person interested in the Philippines of the time and place of examining the herein accounts be given notice, as herein executor is the only devisee or legatee of the deceased, in accordance with the last will and testament already probated by the Honorable Court. City of Iloilo April 14, 1959." (Annex "I", Petition.) The respondent court approved this statement of account on April 21, 1959 in its order worded thus: "Upon petition of Atty. Gellada, in representation of the Executor, the statement of net worth of the estate of Linnie Jane Hodges, the assets and liabilities, income and expenses as shown in the individual income tax return for the estate of the deceased and marked as Annex "A" is approved. SO ORDERED. cd City of Iloilo, April 21, 1959." (Annex "J", Petition.) His accounts for the periods January 1, 1959 to December 31, 1959 and January 1, 1960 to December 31, 1960 were submitted likewise accompanied by allegations identical mutatis mutandis to those of April 14, 1959, quoted above; and the respective orders approving the same, dated July 30, 1960 and May 2, 1961, were substantially identical to the above-quoted order of April 21, 1959. In connection with the statements of account just mentioned, the following assertions related thereto made by respondent-appellee Magno in her brief do not appear from all indications discernible in the record to be disputable: "Under date of April 14, 1959, C. N. Hodges filed his first 'Account by the Executor' of the estate of Linnie Jane Hodges. In the 'Statement of Networth of Mr. C. N. Hodges and the Estate of Linnie Jane Hodges' as of December 31, 1958 annexed thereto, C. N. Hodges reported that the combined conjugal estate earned a net income of P328,402.62, divided evenly between him and the estate of Linnie Jane Hodges. Pursuant to this, he filed an 'individual income tax return'

for calendar year 1958 on the estate of Linnie Jane Hodges reporting, under oath, the said estate as having earned income of P164,201.31, exactly one-half of the net income of his combined personal assets and that of the estate of Linnie Jane Hodges." (P 91, Appellee's Brief.). xxx xxx xxx "Under date of July 21, 1960, C. N. Hodges filed his second 'Annual Statement of Account by the Executor' of the estate of Linnie Jane Hodges. In the 'Statement of Networth of Mr. C. N. Hodges and the Estate of Linnie Jane Hodges' as of December 31, 1959 annexed thereto, C. N. Hodges reported that the combined conjugal estate earned a net income of P270,623.32, divided evenly between him and the estate of Linnie Jane Hodges. Pursuant to this, he filed an 'individual income tax return' for calendar year 1959 on the estate of Linnie Jane Hodges reporting, under oath, the said (state as having earned income of P135,311.66, exactly one-half of the net income of his combined personal assets and that of the estate or Linnie Jane Hodges." (Pp. 91-92, Appellee's Brief.) xxx xxx xxx "Under date of April 20, 1961, C. N. Hodges filed his third 'Annual Statement of Account by the Executor for the Year 1960' of the estate of Linnie Jane Hodges. In the 'Statement of Net Worth of Mr. C. N. Hodges and the Estate of Linnie Jane Hodges' as of December 31, 1960 annexed thereto, C. N. Hodges reported that the combined conjugal estate earned a net income of P314,857.94, divided evenly between him and the estate of Linnie Jane Hodges. Pursuant to this, he filed an 'individual income tax return' for calendar year 1960 on the estate of Linnie Jane Hodges reporting, under oath, the aid estate as having earned income of P157,428.97, exactly one-half of the net income of his combined personal assets and that of the estate of Linnie Jane Hodges." (Pp. 92-93, Appellee's Brief.) Likewise the following: "In the petition for probate that he (Hodges) filed, he listed the seven brothers and sisters of Linnie Jane as her 'heirs' (see p. 2, Green ROA). The order of the court admitting the will to probate unfortunately omitted one of the heirs, Roy Higdon (see p. 14, Green ROA). Immediately, C. N. Hodges filed a verified motion to have Roy Higdon's name included as an heir, stating that he wanted to straighten the records 'in order the heirs of deceased Roy Higdon may not think or believe they were omitted, and that they were really and are interested in the estate of deceased Linnie Jane Hodges. "As an executor, he was bound to file tax returns for the estate he was administering under American law. He did file such as estate tax return on August 8, 1958. In Schedule 'M' of such return, he answered 'Yes' to the question as to whether he was contemplating 'renouncing the will'. On the question as to what property interests passed to him as the surviving spouse, he answered: 'None, except for purposes of administering the Estate, paying debts, taxes and other legal charges. It is the intention of the surviving husband of deceased to distribute the remaining

property and interests of the deceased in their Community estate to the devisees and legatees named in the will when the debts, liabilities, taxes and expenses of administration are finally determined and paid.' "Again, on August 9, 1962, barely four months before his death, he executed an 'affidavit' wherein he ratified and confirmed all that he stated in Schedule 'M' of his estate tax returns as to his having renounced what was given him by his wife's will. 1 "As appointed executor, C. N. Hodges filed an 'Inventory' dated May 12, 1958. He listed all the assets of his conjugal partnership with Linnie Jane Hodges on a separate balance sheet and then stated expressly that her estate which has come into his possession as executor was 'onehalf of all the items' listed in said balance sheet." (Pp. 89-90, Appellee's Brief.) Parenthetically, it may be stated, at this juncture, that We are taking pains to quote wholly or at least, extensively from some of the pleadings and orders whenever We feel that it is necessary to do so for a more comprehensive and clearer view of the important and decisive issues raised by the parties and a more accurate appraisal of their respective positions in regard thereto.

The records of these cases do not show that anything else was done in the above-mentioned Special Proceedings No. 1307 until December 26, 1962, when on account of the death of Hodges the day before, the same lawyer, Atty. Leon P. Gellada, who had been previously acting as counsel for Hodges in his capacity as Executor of his wife's estate, and as such had filed the aforequoted motions and manifestations, filed the following: "URGENT EX-PARTE MOTION FOR THE APPOINTMENT OF A SPECIAL ADMINISTRATRIX COMES the undersigned attorney for the Executor in the above-entitled proceedings, to the Honorable Court, most respectfully states: 1.That in accordance with the Last Will and Testament of Linnie Jane Hodges (deceased), her husband, Charles Newton Hodges was to act as Executor, and in fact, in an order issued by this Hon. Court dated June 28, 1957, the said Charles Newton Hodges was appointed Executor and had performed the duties as such. 2.That last December 22, 1962, the said Charles Newton Hodges was stricken ill, and brought to the Iloilo Mission Hospital for treatment, but unfortunately, he died on December 25, 1962, as shown by a copy of the death certificate hereto attached and marked as Annex 'A'. 3.That in accordance with the provisions of the last will and testament of Linnie Jane Hodges, whatever real and personal properties that may remain at the death of her husband Charles Newton Hodges, the said properties shall be equally divided among their heirs. That there are real and personal properties left by Charles Newton Hodges, which need to be administered and taken care of. 4.That the estate of deceased Linnie Jane Hodges, as well as that of Charles Newton Hodges, have not as yet been determined or ascertained, and there is necessity for the appointment of a

general administrator to liquidate and distribute the residue of the estate to the heirs and legatees of both spouses. That in accordance with the provisions of Section 2 of Rule 75 of the Rules of Court, the conjugal partnership of Linnie Jane Hodges and Charles Newton Hodges shall be liquidated in the testate proceedings of the wife. 5.That the undersigned counsel, has perfect personal knowledge of the existence of the last will and testament of Charles Newton Hodges, with similar provisions as that contained in the last will and testament of Linnie Jane Hodges. However, said last will and testament of Charles Newton Hodges is kept inside the vault or iron safe in his office, and will be presented in due time before this Honorable Court. 6.That in the meantime, it is imperative and indispensable that, an Administratrix be appointed for the estate of Linnie Jane Hodges and a Special Administratrix for the estate of Charles Newton Hodges, to perform the duties required by law, to administer, collect, and take charge of the goods, chattels, rights, credits, and estate of both spouses, Charles Newton Hodges and Linnie Jane Hodges, as provided for in Section 1 and 2, Rule 81 of the Rules of Court. 7.That there is delay in granting letters testamentary or of administration, because the last will and testament of deceased, Charles Newton Hodges, is still kept in his safe or vault, and in the meantime, unless an administratrix (and,) at the same time, a Special Administratrix is appointed, the estate of both spouses are in danger of being lost, damaged or go to waste. 8.That the most trusted employee of both spouses Linnie Jane Hodges and C. N. Hodges, who had been employed for around thirty (30) years, in the person of Miss Avelina Magno, (should) be appointed Administratrix of the estate of Linnie Jane Hodges and at the same time Special Administratrix of the estate of Charles Newton Hodges. That the said Miss Avelina Magno is of legal age, a resident of the Philippines, the most fit, competent, trustworthy and well-qualified person to serve the duties of Administratrix and Special Administratrix and is willing to act as such. 9.That Miss Avelina Magno is also willing to file bond in such sum which the Hon. Court believes reasonable. WHEREFORE, in view of all the foregoing, it is most respectfully prayed that, Miss AVELINA A. MAGNO be immediately appointed Administratrix of the estate of Linnie Jane Hodges and as Special Administratrix of the estate of Charles Newton Hodges, with powers and duties provided for by law. That the Honorable Court fix the reasonable bond of P1,000.00 to be filed by Avelina A. Magno." (Annex "O", Petition.) which respondent court readily acted on in its order of even date thus: "For the reasons alleged in the Urgent Ex-Parte Motion filed by counsel for the Executor dated December 25, 1962, which the Court finds meritorious, Miss AVELINA A. MAGNO, is hereby appointed Administratrix of the estate of Linnie Jane Hodges and as Special Administratrix of the estate of Charles Newton Hodges, in the latter case, because the last will of said Charles Newton Hodges is still kept in his vault or iron safe and that the real and personal properties of

both spouses may be lost, damaged or go to waste, unless a Special Administratrix is appointed. Miss Avelina A. Magno is required to file bond in the sum of FIVE THOUSAND PESOS (P5,000.00), and after having done so, let letters of Administration be issued to her." (Annex "P", Petition.) On December 29, 1962, however, upon urgent ex-parte petition of respondent Magno herself, thru Atty. Gellada, Harold, R. Davies, "a representative of the heirs of deceased Charles Newton Hodges (who had) arrived from the United States of America to help in the administration of the estate of said deceased" was appointed as Co-Special Administrator of the estate of Hodges, (pp. 29-33, Yellow Record on Appeal) only to be replaced as such co-special administrator on January 22, 1963 by Joe Hodges, who, according to the motion of the same attorney, is "the nephew of the deceased (who had) arrived from the United States with instructions from the other heirs of the deceased to administer the properties or estate of Charles Newton Hodges in the Philippines", (Pp. 47-50, id.) Meanwhile, under date of January 9, 1963, the same Atty. Gellada filed in Special Proceedings 1672 a petition for the probate of the will of Hodges, 2 with a prayer for the issuance of letters of administration to the same Joe Hodges, albeit the motion was followed on February 22, 1963 by a separate one asking that Atty. Fernando Mirasol be appointed as his co-administrator. On the same date this latter motion was filed, the court issued the corresponding order of probate and letters of administration to Joe Hodges and Atty. Mirasol, as prayed for. At this juncture, again, it may also be explained that just as, in her will, Mrs. Hodges bequeathed her whole estate to her husband to have and to hold unto him, my said husband, during his natural lifetime", she, at the same time or in like manner, provided that "at the death of my said husband I give devise and bequeath all of the rest, residue and remainder of my estate, both real and personal, wherever situated or located, to be equally divided among my brothers and sisters, share and share alike ". Accordingly, it became incumbent upon Hodges, as executor of his wife's will, to duly liquidate the conjugal partnership, half of which constituted her estate, in order that upon the eventuality of his death, "the rest, residue and remainder" thereof could be determined and correspondingly distributed or divided among her brothers and sisters And it was precisely because no such liquidation was done, furthermore, there is the issue of whether the distribution of her estate should be governed by the laws of the Philippines or those of Texas, of which State she was a national, and, what is more, as already stated, Hodges made official and sworn statements or manifestations indicating that as far as he was concerned no "property interests passed to him as surviving spouse 'except for purposes of administering the estate, paying debts, taxes and other legal charges' and it was the intention of the surviving husband of the deceased to distribute the remaining property and interests of the deceased in their Community Estate to the devisees and legatees named in the will when the debts, liabilities, taxes and expenses of administration are finally determined and paid", that the incidents and controversies now before Us for resolution arose. As may be observed, the situation that ensued upon the death of Hodges became rather unusual and so, quite

understandably, the lower court's actuations presently under review are apparently wanting in consistency and seemingly lack proper orientation. cdt Thus, We cannot discern clearly from the record before Us the precise perspective from which the trial court proceeded in issuing its questioned orders. And, regretably, none of the lengthy briefs submitted by the parties is of valuable assistance in clearing up the matter. To begin with, We gather from the two records on appeal filed by petitioner, as appellant in the appealed cases, one with green cover and the other with a yellow cover, that at the outset, a sort of modus operandi had been agreed upon by the parties under which the respective administrators of the two estates were supposed to act conjointly, but since no copy of the said agreement can be found in the record before Us, We have no way of knowing when exactly such agreement was entered into and under what specific terms. And while reference is made to said modus operandi in the order of September 11, 1964, on pages 205-206 of the Green Record on Appeal, reading thus: "The present incident is to hear the side of administratrix, Miss Avelina A. Magno, in answer to the charges contained in the motion filed by Atty. Cesar Tirol on September 3, 1964. In answer to the said charges, Miss Avelina A. Magno, through her counsel, Atty. Rizal Quimpo, filed a written manifestation. "After reading the manifestation here of Atty. Quimpo, for and in behalf of the administratrix, Miss Avelina A. Magno, the Court finds that everything that happened before September 3, 1964, which was resolved on September 8, 1964, to the satisfaction of parties, was simply due to a misunderstanding between the representative of the Philippine Commercial and Industrial Bank and Miss Magno and in order to restore the harmonious relations between the parties, the Court ordered the parties to remain in status quo as to their modus operandi before September 1, 1964, until after the Court can have a meeting with all the parties and their counsels on October 3, as formerly agreed upon between counsels, Attys. Ozaeta, Gibbs and Ozaeta, Attys. Tirol and Tirol and Atty. Rizal Quimpo.

"In the meantime, the prayers of Atty. Quimpo as stated in his manifestation shall not be resolved by this Court until October 3, 1964. SO ORDERED." there is nothing in the record indicating whatever happened to it afterwards, except that again, reference thereto was made in the appealed order of October 27, 1965, on pages 292-295 of the Green Record on Appeal, as follows: "On record is an urgent motion to allow PCIB to open all doors and locks in the Hodges Office at 206-208 Guanco street, Iloilo city, to take immediate and exclusive possession thereof and to place its own locks and keys for security purposes of the PCIB dated October 27, 1965 thru Atty. Cesar Tirol. It is alleged in said urgent motion that Administratrix Magno of the testate estate of Linnie Jane Hodges refused to open the Hodges Office at 206-208 Guanco Street,

Iloilo City where PCIB holds office and therefore PCIB is suffering great moral damage and prejudice as a result of said act. It is prayed that an order be issued authorizing it (PCIB) to open all doors and locks in the said office, to take immediate and exclusive possession thereof and place thereon its own locks and keys for security purposes; instructing the clerk of court or any available deputy to witness and supervise the opening of all doors and locks and taking possession of the PCIB. "A written opposition has been filed by Administratrix Magno of even date (Oct. 27) thru counsel Rizal Quimpo stating therein that she was compelled to close the office for the reason that the PCIB failed to comply with the order of this Court signed by Judge Anacleto I. Bellosillo dated September 11, 1964 to the effect that both estates should remain in status quo as to their modus operandi as of September 1, 1964. "To arrive at a happy solution of the dispute and in order not to interrupt the operation of the office of both estates, the Court aside from the reasons stated in the urgent motion and opposition heard the verbal arguments of Atty. Cesar Tirol for the PCIB and Atty. Rizal Quimpo for Administratrix Magno. "After due consideration, the Court hereby orders Magno to open all doors and locks in the Hodges Office at 206-208 Guanco Street, Iloilo city in the presence of the PCIB or its duly authorized representative and deputy clerk of court Albis of this branch not later than 7:30 tomorrow morning October 28, 1965 in order that the office of said estates could operate for business. "Pursuant to the order of this Court thru Judge Bellosillo dated September 11, 1964, it is hereby ordered: (a)That all cash collections should be deposited in the joint account of the estates of Linnie Jane Hodges and estate of C. N. Hodges; (b)That whatever cash collections that had been deposited in the account of either of the estates should be withdrawn and since then deposited in the joint account of the estate of Linnie Jane Hodges and the estate of C. N. Hodges; (c)That the PCIB should countersign the check in the amount of P250 in favor of Administratrix Avelina A, Magno as her compensation as administratrix of the Linnie Jane Hodges estate chargeable to the testate estate of Linnie Jane Hodges only; (d)That Administratrix Magno is hereby directed to allow the PCIB to inspect whatever records, documents and papers she may have in her possession in the same manner that Administrator PCIB is also directed to allow Administratrix Magno to inspect whatever records, documents and papers it may have in its possession; (e)That the accountant of the estate of Linnie Jane Hodges shall have access to all records of the transactions of both estates for the protection of the estate of Linnie Jane Hodges; and in like manner the accountant or any authorized representative of the estate of C. N. Hodges shall

have access to the records of transactions of the Linnie Jane Hodges estate for the protection of the estate of C. N. Hodges. "Once the estates' office shall have been opened by Administratrix Magno in the presence of the PCIB or its duly authorized representative and deputy clerk Albis or his duly authorized representative, both estates or any of the estates should not close it without previous consent and authority from this court. SO ORDERED." As may be noted, in this order, the respondent court required that all collections from the properties in the name of Hodges should be deposited in a joint account of the two estates, which indicates that seemingly the so-called modus operandi was no longer operative, but again there is nothing to show when this situation started. Likewise, in paragraph 3 of the petitioner's motion of September 14, 1964, on pages 188-201 of the Green Record on Appeal, (also found on pp. 83-91 of the Yellow Record on Appeal) it is alleged that: "3.On January 24, 1964 virtually all of the heirs of C. N. Hodges, Joe Hodges and Fernando P. Mirasol acting as the two co-administrators of the estate of C. N. Hodges, Avelina A. Magno acting as the administratrix of the estate of Linnie Jane Hodges, and Messrs. William Brown and Ardell Young acting for all of the Higdon family who claim to be the sole beneficiaries of the estate of Linnie Jane Hodges and various legal counsel representing the aforementioned parties entered into an amicable agreement, which was approved by this Honorable Court, wherein the parties thereto agreed that certain sums of money were to be paid in settlement of different claims against the two estates and that the assets (to the extent they existed) of both estates would be administered jointly by the PCIB as administrator of the estate of C. N. Hodges and Avelina A. Magno as administratrix of the estate of Linnie Jane Hodges, subject, however, to the aforesaid October 5, 1963 Motion, namely, the PCIB's claim to exclusive possession and ownership of one hundred percent (100%) (or, in the alternative, seventy-five percent (75%) of all assets owned by C. N. Hodges or Linnie Jane Hodges situated in the Philippines. On February 1, 1964 (pp. 934-935, CFI Rec., S.P. No. 1672) this Honorable Court amended its order of January 24, 1964 but in no way changed its recognition of the aforedescribed basic demand by the PCIB as administrator of the estate of C. N. Hodges to one hundred percent (100%) of the assets claimed by both estates." but no copy of the mentioned agreement of joint administration of the two estates exists in the record, and so, We are not informed as to what exactly are the terms of the same which could be relevant in the resolution of the issues herein. On the other hand, the appealed order of November 3, 1965, on pages 313-320 of the Green Record on Appeal, authorized payment by respondent Magno of, inter alia, her own fees as administratrix, the attorney's fees of her lawyers, etc., as follows: "Administratrix Magno thru Attys. Raul S. Manglapus and Rizal R. Quimpo filed a Manifestation and Urgent Motion dated June 10, 1964 asking for the approval of the Agreement dated June 6,

1964 which Agreement is for the purpose of retaining their services to protect and defend the interest of the said Administratrix in these proceedings and the same has been signed by and bears the express conformity of the attorney-in-fact of the late Linnie Jane Hodges, Mr. James L. Sullivan. It is further prayed that the Administratrix of the Testate Estate of Linnie Jane Hodges be directed to pay the retainers fee of said lawyers, said fees made chargeable as expenses for the administration of the estate of Linnie Jane Hodges (pp. 1641-1642, Vol. V, Sp. 1307). "An opposition has been filed by the Administrator PCIB thru Atty. Herminio Ozaeta dated July 11, 1964, on the ground that payment of the retainers fee of Attys. Manglapus and Quimpo as prayed for in said Manifestation and Urgent Motion is prejudicial to the 100% claim of the estate of C. N. Hodges; employment of Attys. Manglapus and Quimpo is premature and/or unnecessary; Attys. Quimpo and Manglapus are representing conflicting interests and the estate of Linnie Jane Hodges should be closed and terminated (pp. 1679-1684, Vol. V, Sp. 1307). "Atty. Leon P. Gellada filed a memorandum dated July 28, 1964 asking that the Manifestation and Urgent Motion filed by Attys. Manglapus and Quimpo be denied because no evidence has been presented in support thereof. Atty. Manglapus filed a reply to the opposition of counsel for the Administrator of the C. N. Hodges estate wherein it is claimed that expenses of administration include reasonable counsel or attorney's fees for services to the executor or administrator. As a matter of fact the fee agreement dated February 27, 1964 between the PCIB and the law firm of Ozaeta, Gibbs & Ozaeta as its counsel (Pp. 1280-1284, Vol. V, Sp. 1307) which stipulates the fees for said law firm has been approved by the Court in its order dated March 31, 1964. If payment of the fees of the lawyers for the administratrix of the estate of Linnie Jane Hodges will cause prejudice to the estate of C. N. Hodges, in like manner the very agreement which provides for the payment of attorney's fees to the counsel for the PCIB will also be prejudicial to the estate of Linnie Jane Hodges (pp. 1801-1814, Vol. V, Sp. 1307). "Atty. Herminio Ozaeta filed a rejoinder dated August 10, 1964 to the reply to the opposition to the Manifestation and Urgent Motion alleging principally that the estates of Linnie Jane Hodges and C. N. Hodges are not similarly situated for the reason that C. N. Hodges is an heir of Linnie Jane Hodges whereas the latter is not an heir of the former for the reason that Linnie Jane Hodges predeceased C. N. Hodges (pp. 1839-1848, Vol. V, Sp. 1307); that Attys. Manglapus and Quimpo formally entered their appearance in behalf of Administratrix of the estate of Linnie Jane Hodges on June 10, 1964 (pp. 1639-1640, Vol. V, Sp. 1307). "Atty. Manglapus filed a manifestation dated December 18, 1964 stating therein that Judge Bellosillo issued an order requiring the parties to submit memorandum in support of their respective contentions. It is prayed in this manifestation that the Manifestation and Urgent Motion dated June 10, 1964 be resolved (pp. 6435-6439, Vol. VII, Sp. 1307).

"Atty. Roman Mabanta, Jr. for the PCIB filed a counter manifestation dated January 5, 1965 asking that after the consideration by the court of all allegations and arguments and pleadings of

the PCIB in connection therewith (1) said manifestation and urgent motion of Attys. Manglapus and Quimpo be denied (pp. 6442-6453, Vol. VII, Sp. 1307). Judge Querubin issued an order dated January 4, 1965 approving the motion dated June 10, 1964 of the attorneys for the administratrix of the estate of Linnie Jane Hodges and agreement annexed to said motion. The said order further states: "The Administratrix of the estate of Linnie Jane Hodges is authorized to issue or sign whatever check or checks may be necessary for the above purpose and the administrator of the estate of C. N. Hodges is ordered to countersign the same." (pp. 65186523, Vol. VII, Sp. 1307). "Atty. Roman Mabanta, Jr. for the PCIB filed a manifestation and motion dated January 13, 1965 asking that the order of January 4, 1965 which was issued by Judge Querubin be declared null and void and to enjoin the clerk of court and the administratrix and administrator in these special proceedings from all proceedings and action to enforce or comply with the provision of the aforesaid order of January 4, 1965. In support of said manifestation and motion it is alleged that the order of January 4, 1965 is null and void because the said order was never delivered to the deputy clerk Albis of Branch V (the sala of Judge Querubin) and the alleged order was found in the drawer of the late Judge Querubin in his office when said drawer was opened on January 13, 1965 after the death of Judge Querubin by Perfecto Querubin, Jr., the son of the judge and in the presence of Executive Judge Rovira and deputy clerk Albis (Sec. 1, Rule 36, New Civil Code) (Pp. 6600-6606, Vol. VIII, Sp. 1307). "Atty. Roman Mabanta, Jr. for the PCIB filed a motion for reconsideration dated February 23, 1965 asking that the order dated January 4, 1964 be reversed on the ground that: 1.Attorneys retained must render services to the estate not to the personal heir; 2.If services are rendered to both, fees should be pro-rated between them; 3.Attorneys retained should not represent conflicting interests to the prejudice of the other heirs not represented by said attorneys; 4.Fees must be commensurate to the actual services rendered to the estate; "5.There must be assets in the estate to pay for said fees (Pp. 6625-6636, Vol. VIII, Sp. 1307). "Atty. Quimpo for Administratrix Magno of the estate of Linnie Jane Hodges filed a motion to submit dated July 15, 1965 asking that the manifestation and urgent motion dated June 10, 1964 filed by Attys. Manglapus and Quimpo and other incidents directly appertaining thereto he considered submitted for consideration and approval (pp. 6759-6765, Vol. VIII, Sp. 1307). "Considering the arguments and reasons in support to the pleadings of both the Administratrix and the PCIB, and of Atty. Gellada, herein before mentioned, the Court believes that the order of January 4, 1965 is null and void for the reason that the said order has not been filed with deputy clerk Albis of this court (Branch V) during the lifetime of Judge Querubin who signed the said order. However, the said manifestation and urgent motion dated June 10, 1964 is being treated and considered in this instant order. It is worthy to note that in the motion dated January 24, 1964 (Pp. 1149-1163, Vol. V, Sp. 1307) which has been filed by Atty. Gellada and his

associates and Atty. Gibbs and other lawyers in addition to the stipulated fees for actual services rendered. However, the fee agreement dated February 27, 1964, between the Administrator of the estate of C. N. Hodges and Atty. Gibbs which provides for retainer fee of P4,000 monthly in addition to specific fees for actual appearances, reimbursement for expenditures and contingent fees has also been approved by the Court and said lawyers have already been paid. (pp. 1273-1279, Vol. V, Sp. Proc. 1307 pp. 1372-1373, Vol. V, Sp. Proc. 1307). "WHEREFORE, the order dated January 4, 1965 is hereby declared null and void. "The manifestation and motion dated June 10, 1964 which was filed by the attorneys for the administratrix of the testate estate of Linnie Jane Hodges is granted and the agreement annexed thereto is hereby approved. "The administratrix of the estate of Linnie Jane Hodges is hereby directed to be needed to implement the approval of the agreement annexed to the motion and the administrator of the estate of C. N. Hodges is directed to countersign the said check or checks as the case may be. SO ORDERED." thereby implying somehow that the court assumed the existence of independent but simultaneous administrations. Be that as it may, again, it appears that on August 6, 1965, the court, acting on a motion of petitioner for the approval of deeds of sale executed by it as administrator of the estate of Hodges, issued the following order, also on appeal herein: "Acting upon the motion for approval of deeds of sale for registered land of the PCIB, Administrator of the Testate Estate of C. N. Hodges in Sp. Proc. 1672 (Vol. VII, pp. 2244-2245), dated July 16, 1965, filed by Atty. Cesar T. Tirol in representation of the law firms of Ozaeta, Gibbs and Ozaeta and Tirol and Tirol and the opposition thereto of Atty. Rizal R. Quimpo (Vol. VIII, pp. 6811-6813) dated July 22, 1965 and considering the allegations and reasons therein stated, the court believes that the deeds of sale should be signed jointly by the PCIB, Administrator of the Testate Estate of C. N. Hodges and Avelina A. Magno, Administratrix of the Testate Estate of Linnie Jane Hodges and to this effect the PCIB should take the necessary steps so that Administratrix Avelina A. Magno could sign the deeds of sale. SO ORDERED." (P. 248, Green Record on Appeal.) Notably, this order required that even the deeds executed by petitioner, as administrator of the Estate of Hodges, involving properties registered in his name, should be co-signed by respondent Magno. 3 And this was not an isolated instance. In her brief as appellee, respondent Magno states: "After the lower court had authorized appellee Avelina A. Magno to execute final deeds of sale pursuant to contracts to sell executed by C. N. Hodges on February 20, 1963 (pp. 45-46, Green ROA), motions for the approval of final deeds of sale (signed by appellee Avelina A. Magno and

the administrator of the estate of C. N. Hodges first Joe Hodges, then Atty. Fernando Mirasol and later the appellant) were approved by the lower court upon petition of appellee Magno's counsel, Atty. Leon P. Gellada, on the basis of section 8 of Rule 89 of the Revised Rules of Court. Subsequently, the appellant, after it had taken over the bulk of the assets of the two estates, started presenting these motions itself. The first such attempt was a 'Motion for Approval of Deeds of Sale for Registered Land and Cancellations of Mortgages' dated July 21, 1964 filed by Atty. Cesar T. Tirol, counsel for the appellant, thereto annexing two (2) final deeds of sale and two (2) cancellations of mortgages signed by appellee Avelina A. Magno and D. R. Paulino, Assistant Vice-President and Manager of the appellant (CFI Record, Sp. Proc. No. 1307, Vol. V, pp. 1694-1701). This motion was approved by the lower court on July 27, 1964. It was followed by another motion dated August 4, 1964 for the approval of one final deed of sale again signed by appellee Avelina A. Magno and D. R. Paulino (CFI Record, Sp. Proc. No. 1307, Vol. V, pp. 1825-1828), which was again approved by the lower court on August 7, 1964. The gates having been opened, a flood ensued: the appellant subsequently filed similar motions for the approval of a multitude of deeds of sales and cancellations of mortgages signed by both the appellee Avelina A. Magno and the appellant. A random check of the records of Special Proceeding No. 1307 alone will show Atty. Cesar T. Tirol as having presented for court approval deeds of sale of real properties signed by both appellee Avelina A. Magno and D. R. Paulino in the following numbers: (a) motion dated September 21, 1964 6 deeds of sale; (b) motion dated November 4, 1964 1 deed of sale; (c) motion dated December 1, 1964 4 deeds of sale; (d) motion dated February 3, 1965 8 deeds of sale; (f) motion dated May 7, 1965 9 deeds of sale. In view of the very extensive landholdings of the Hodges spouses and the many motions filed concerning deeds of sale of real properties executed by C. N. Hodges the lower court has had to constitute special but separate expedientesin Special Proceedings Nos. 1307 and 1672 to include mere motions for the approval of deeds of sale of the conjugal properties of the Hodges spouses. As an example, from among the very many, under date of February 3, 1965, Atty. Cesar T. Tirol, as counsel for the appellant, filed a 'Motion for Approval of Deeds of Sale for Registered Land and Cancellations of Mortgages" (CFI Record, Sp. Proc. No. 1307, Vol. VIII, pp. 65706596) the allegations of which read: '1.In his lifetime, the late C. N. Hodges executed 'Contracts to Sell' real property, and the prospective buyers under said contracts have already paid the price and complied with the terms and conditions thereof; '2.In the course of administration of both estates, mortgage debtors have already paid the debts secured by chattel mortgages in favor of the late C. N. Hodges, and are now entitled to release therefrom; '3.There are attached hereto documents executed jointly by the Administratrix in Sp. Proc. No. 1307 and the Administrator in Sp. Proc. No. 1672, consisting of deeds of sale in favor Fernando Cano, Bacolod City, Occ. Negros

Fe Magbanua, Iloilo City Policarpio M. Pareno, La Paz, Iloilo city Rosario T. Libre, Jaro, Iloilo City Federico B. Torres, Iloilo City Reynaldo T. Lataquin, La Paz, Iloilo City Anatolio T. Viray, Iloilo City Benjamin Rolando, Jaro, Iloilo City

and cancellations of mortgages in favor of Pablo Manzano, Oton, Iloilo Ricardo M. Diana, Dao, San Jose, Antique Simplicio Tingson, Iloilo City Amado Magbanua, Pototan, Iloilo Roselia M. Baes, Bolo, Roxas City William Bayani, Rizal Estanzuela, Iloilo City Elpidio Villarete, Molo, Iloilo City Norma T. Ruiz, Jaro, Iloilo City. '4.That the approval of the aforesaid documents will not reduce the assets of the estates so as to prevent any creditor from receiving his full debt or diminish his dividend.' And the prayer of this motion is indeed very revealing: 'WHEREFORE, it is respectfully prayed that, under Rule 89, Section 8 of the Rules of Court, this honorable court approve the aforesaid deeds of sale and cancellations of mortgages.'" (Pp. 113117, Appellee's Brief.) None of these assertions is denied in petitioner's reply brief. Further indicating lack of concrete perspective or orientation on the part of the respondent court and its hesitancy to clear up matters promptly, in its other appealed order of November 23, 1965, on pages 334-335 of the Green Record on Appeal, said respondent court allowed the movant Ricardo Salas, President of appellee Western Institute of Technology (successor of Panay Educational Institutions, Inc.), one of the parties with whom Hodges had contracts that

are in question in the appeals herein, to pay petitioner, as Administrator of the estate of Hodges and/or respondent Magno, as Administrator of the estate of Mrs. Hodges, thus: "Considering that in both eases there is as yet no judicial declaration of heirs nor distribution of properties to whomsoever are entitled thereto, the Court believes that payment to both the administrator of the testate estate of C. N. Hodges and the administratrix of the testate estate of Linnie Jane Hodges or to either one of the two estates is proper and legal. WHEREFORE, movant Ricardo T. Salas can pay to both estates or either of them. SO ORDERED." (Pp. 334-335, Green Record on Appeal.) On the other hand, as stated earlier, there were instances when respondent Magno was given authority to act alone. For instance, in the other appealed order of December 19, 1964, on page 221 of the Green Record on Appeal, the respondent court approved payments made by her of overtime pay to some employees of the court who had helped in gathering and preparing copies of parts of the records in both estates as follows: "Considering that the expenses subject of the motion to approve payment of overtime pay dated December 10, 1964, are reasonable and are believed by this Court to be a proper charge of administration chargeable to the testate estate of the late Linnie Jane Hodges, the said expenses are hereby APPROVED and to be charged against the testate estate of the late Linnie Jane Hodges. The administrator of the testate estate of the late Charles Newton Hodges is hereby ordered to countersign the check or checks necessary to pay the said overtime pay as shown by the bills marked Annex 'A', 'B' and 'C' of the motion. SO ORDERED." (Pp. 221-222, Green Record on Appeal.) Likewise, the respondent court approved deeds of sale executed by respondent Magno alone, as Administratrix of the estate of Mrs. Hodges, covering properties in the name of Hodges, pursuant to "contracts to sell' executed by Hodges, irrespective of whether they were executed by him before or after the death of his wife. The orders of this nature which are also on appeal herein are the following: 1.Order of March 30, 1966, on p. 137 of the Green Record on Appeal, approving the deed of sale executed by respondent Magno in favor of appellee Lorenzo Carles on February 24, 1966, pursuant to a "contract to sell" signed by Hodges on June 17, 1958, after the death of his wife, which contract petitioner claims was cancelled by it for failure of Carles to pay the installments due on January 7, 1965. 2.Order of April 5, 1966, on pp. 139-140, id., approving the deed of sale executed by respondent Magno in favor of appellee Salvador Guzman on February 28, 1966 pursuant to a "contract to sell" signed by Hodges on September 13, 1960, after the death of his wife, which contract petitioner claims it cancelled on March 3, 1965 in view of failure of said appellee to pay the installments on time.

3.Order of April 20, 1966, on pp. 167-168, id., approving the deed of sale executed by respondent Magno in favor of appellee Purificacion Coronado on March 28, 1966 pursuant to a "contract to sell" signed by Hodges on August 14, 1961, after the death of his wife. 4.Order of April 20, 1966, on pp. 168-169, id., approving the deed of sale executed by respondent Magno in favor of appellee Florenia Barrido on March 28, 1966, pursuant to a "contract to sell" signed by Hodges on February 21, 1958, after the death of his wife. 5.Order of June 7, 1966, on pp. 184-185, id., approving the deed of sale executed by respondent Magno in favor of appellee Belcezar Causing on May 2, 1966, pursuant to a "contract to sell" signed by Hodges on February 10, 1959, after the death of his wife. 6.Order of June 21, 1966, on pp. 211-212, id., approving the deed of sale executed by respondent Magno in favor of appellee Artheo Thomas Jamir on June 3, 1966, pursuant to a "contract to sell" signed by Hodges on May 26, 1961, after the death of his wife. 7.Order of June 21, 1966, on pp. 212-213, id., approving the deed of sale executed by respondent Magno in favor of appellees Graciano Lucero and Melquiades Batisanan on June 6 and June 3, 1966, respectively, pursuant to "contracts to sell" signed by Hodges on June 9, 1959 and November 27, 1961, respectively, after the death of his wife. 8.Order of December 2, 1966, on pp. 303-304, id., approving the deed of sale executed by respondent Magno in favor of appellees Espiridion Partisala, Winifredo Espada and Rosario Alingasa on September 6, 1966, August 17, 1966 and August 3, 1966, respectively, pursuant to "contracts to sell" signed by Hodges on April 20, 1960, April 18, 1960 and August 25, 1958, respectively, that is, after the death of his wife. 9.Order of April 5, 1966, on pp. 137-138, id., approving the deed of sale executed by respondent Magno in favor of appellee Alfredo Catedral on March 2, 1966, pursuant to a "contract to sell" signed by Hodges on May 29, 1954, before the death of his wife, which contract petitioner claims it had cancelled on February 16, 1966 for failure of appellee Catedral to pay the installments due on time. 10.Order of April 5, 1966, on pp. 138-139, id., approving the deed of sale executed by respondent Magno in favor of appellee Jose Pablico on March 7, 1966, pursuant to a "contract to sell" signed by Hodges on March 7, 1950, after the death of his wife, which contract petitioner claims it had cancelled on June 29, 1960, for failure of appellee Pablico to pay the installments due on time. 11.Order of December 2, 1966, on pp. 303-304, id., in so far as it approved the deed of sale executed by respondent Magno in favor of appellee Pepito Iyulores on September 6, 1966, pursuant to a "contract to sell" signed by Hodges on February 5, 1951, before the death of his wife. 12.Order of January 3, 1967, on pp. 335-336, id., approving three deeds of sale executed by respondent Magno, one in favor of appellees Santiago Pacaonsis and two in favor of appellee Adelfa Premaylon on December 5, 1966 and November 3, 1966, respectively, pursuant to

separate "promises to sell" signed respectively by Hodges on May 26, 1955 and January 30, 1954, before the death of his wife, and October 31, 1959, after her death. In like manner, there were also instances when respondent court approved deeds of sale executed by petitioner alone and without the concurrence of respondent Magno, and such approvals have not been the subject of any appeal. No less than petitioner points this out on pages 149-150 of its brief as appellant thus: "The points of fact and law pertaining to the two abovecited assignments of error have already been discussed previously. In the first abovecited error, the order alluded to was general, and as already explained before, it was, as admitted by the lower court itself, superseded by the particular orders approving specific final deeds of sale executed by the appellee, Avelina A. Magno, which are subject of this appeal, as well as the particular orders approving specific final deeds of sale executed by the appellant, Philippine Commercial and Industrial Bank, which were never appealed by the appellee, Avelina A. Magno, nor by any party for that matter, and which are now therefore final." Now, simultaneously with the foregoing incidents, others of more fundamental and all embracing significance developed. On October 5, 1963, over the signature of Atty. Allison J. Gibbs in representation of the law firm of Ozaeta, Gibbs & Ozaeta, as counsel for the co-administrators Joe Hodges and Fernando P. Mirasol, the following self-explanatory motion was filed: "URGENT MOTION FOR AN ACCOUNTING AND DELIVERY TO ADMINISTRATION OF THE ESTATE OF C . N . HODGES OF ALL OF THE ASSETS OF THE CONJUGAL PARTNERSHIP OF THE DECEASED LINNIE JANE HODGES AND C . N. HODGES EXISTING AS OF MAY 23, 1957 PLUS ALL THE RENTS, EMOLUMENTS AND INCOME THEREFROM COMES NOW the co-administrator of the estate of C. N. Hodges, Joe Hodges, through his undersigned attorneys in the above-entitled proceedings, and to this Honorable Court respectfully alleges: (1)On May 23, 1957 Linnie Jane Hodges died in Iloilo City. (2)On June 28, 1957 this Honorable Court admitted to probate the Last Will and Testament of the deceased Linnie Jane Hodges executed November 22, 1952 and appointed C. N. Hodges as Executor of the estate of Linnie Jane Hodges (pp. 24-25, Rec. Sp. Proc. 1307). (3)On July 1, 1957 this Honorable Court issued Letters Testamentary to C. N. Hodges in the Estate of Linnie Jane Hodges (p. 30, Rec. Sp. Proc. 1307). (4)On December 14, 1957 this Honorable Court, on the basis of the following allegations in a Motion dated December 11, 1957 filed by Leon P. Gellada as attorney for the executor C. N. Hodges:

'That herein Executor, (is) not only part owner of the properties left as conjugal, but also, the successor to all the properties left by the deceased Linnie Jane Hodges.' (p. 44, Rec. Sp. Proc. 1307; emphasis supplied.) issued the following order: 'As prayed for by Attorney Gellada, counsel for the Executor, for the reasons stated in his motion dated December 11, 1957 which the court considers well taken, all the sales, conveyances, leases and mortgages of all properties left by the deceased Linnie Jane Hodges are hereby APPROVED. The said executor is further authorized to execute subsequent sales, conveyances, leases and mortgages of the properties lift by the said deceased Linnie Jane Hodges in consonance with the wishes contained in the last will and testament of the latter.' (p. 46, Rec. Sp. Proc. 1307; emphasis supplied.) (5)On April 21, 1959 this Honorable Court approved the inventory and accounting submitted by C. N. Hodges through his counsel Leon P. Gellada on April 14, 1959 wherein he alleged among other things. 'That no person interested in the Philippines of the time and place of examining the herein account, be given notice, as herein executor is the only devisee or legatee of the deceased, in accordance with the last will and testament already; probated by the Honorable Court.' (pp. 7778. Rec. Sp. Proc. 1307; emphasis supplied.) (6)On July 30, 1960 this Honorable Court approved the 'Annual Statement of Account' submitted by C. N. Hodges through his counsel Leon P. Gellada on July 21, 1960 wherein he alleged among other things: 'That no person interested in the Philippines of the time and place of examining the herein account, be given notice as herein executor is the only devisee or legatee of the deceased Linnie Jane Hodges, in accordance with the last will and testament of the deceased, already probated by this Honorable Court.' (pp. 81-82, Rec. Sp. Proc. 1307; emphasis supplied.) (7)On May 2, 1961 this Honorable court approved the 'Annual Statement of Account By The Executor For the Year 1960' submitted through Leon P. Gellada on April 20, 1961 wherein he alleged: 'That no person interested in the Philippines be given notice, of the time and place of examining the herein account, as herein Executor is the only devisee or legatee of the deceased Linnie Jane Hodges, in accordance with the last will and testament of the deceased, already probated by this Honorable Court.' (pp. 90-91, Rec. Sp. Proc. 1307; emphasis supplied.) (8)On December 25, 1962, C. N. Hodges died. (9)On December 25, 1962, on the Urgent Ex-Parte Motion of Leon P. Gellada filed only in Special Proceeding No. 1307, this Honorable Court appointed Avelina A. Magno. 'Administratrix of the estate of Linnie Jane Hodges and as Special Administratrix of the estate of Charles Newton Hodges, in the latter case because the last will of said Charles Newton Hodges

is still kept in his vault or iron safe and that the real and personal properties of both spouses may be lost, damaged or go to waste, unless a Special Administratrix is appointed.'(p. 100. Rec. Sp. Proc. 1307) (10)On December 26, 1962 Letters of Administration were issued to Avelina Magno pursuant to this Honorable Court's aforesaid Order of December 25, 1962. 'With full authority to take possession of all the property of said deceased in any province or provinces in which it may be situated and to perform all other acts necessary for the preservation of said property, said Administratrix and/or Special Administratrix having filed a bond satisfactory to the Court.' (p. 102. Rec. Sp. Proc. 1307) (11)On January 22, 1963 this Honorable Court on petition of Leon P. Gellada of January 21, 1963 issued Letters of Administration to: (a)Avelina A. Magno as Administratrix of the estate of Linnie Jane Hodges; (b)Avelina A. Magno as Special Administratrix of the Estate of Charles Newton Hodges; and (c)Joe Hodges as Co-Special Administrator of the Estate of Charles Newton Hodges. (p. 43, Rec. Sp. Proc. 1307) (12)On February 20, 1963 this Honorable Court on the basis of a motion filed by Leon P. Gellada as legal counsel on February 16, 1963 for Avelina A. Magno acting as Administratrix of the Estate of Charles Newton Hodges (pp. 114-116, Sp. Proc. 1307) issued the following order: '. . . se autoriza a aquella (Avelina A. Magno) a firmar escrituras de venta definitiva de propiedades cubiertas por contratos para vender, firmados, en vida, por el finado Charles Newton Hodges, cada vez que el precio estipulado en cada contrato este totalmente pagado. Se autoriza igualmente a la misma a firmar escrituras de cancelacion de hipoteca tanto de bienes reales como personales cada vez que la consideracion de cada hipoteca este totalmente pagada. 'Cada una de dichas escrituras que se otorguen debe ser sometida para la aprobacion de este Juzgado.'(p. 117, Sp. Proc. 1307). [Par. 1 (c), Reply to Motion For Removal of Joe Hodges] (13)On September 16, 1963 Leon P. Gellada, acting as attorney for Avelina A. Magno as Administratrix of the estate of Linnie Jane Hodges, alleges: '3.That since January, 1963, both estates of Linnie Jane Hodges and Charles Newton Hodges have been receiving in full, payments for those 'contracts to sell' entered into by C. N. Hodges during his lifetime, and the purchasers have been demanding the execution of definite deeds of sale in their favor.

'4.That hereto attached are thirteen (13) copies deeds of sale executed by the Administrative and by the co-administrator (Fernando P. Mirasol) of the estate of Linnie Jane Hodges and Charles Newton Hodges respectively, in compliance with the terms and conditions of the respective 'contracts to sell' executed by the parties thereto.' (14)The properties involved in the aforesaid motion of September 16, 1963 are all registered in the name of the deceased C. N. Hodges. (15)Avelina A. Magno, it is alleged on information and belief, has been advertising in the newspaper in Iloilo thusly: 'For Sale Testate Estate of Linnie Jane Hodges and Charles Newton Hodges. All Real Estate or Personal Property will be sold on First Come First Served Basis. Avelina A. Magno Administratrix (16)Avelina A. Magno, it is alleged on information and belief, has paid and still is paying sums of money to sundry persons. (17)Joe Hodges through the undersigned attorneys manifested during the hearings before this Honorable Court on September 5 and 6, 1963 that the estate of C. N. Hodges was claiming all of the assets belonging to the deceased spouses Linnie Jane Hodges and C. N. Hodges situated in Philippines cause of the aforesaid election by C. N. Hodges wherein he claimed and took possession as sole owner of all of said assets during the administration of the estate of Linnie Jane Hodges on the ground that he was the sole devisee and legatee under her Last Will and Testament. (18)Avelina A. Magno has submitted no inventory and accounting of her administration as Administratrix of the estate of Linnie Jane Hodges and Special Administratrix of the estate of C. N. Hodges. However, from manifestations made by Avelina A. Magno and her legal counsel, Leon P. Gellada, there is no question she will claim that at least fifty per cent (50%) of the conjugal assets of the deceased spouses and the rents, emoluments and income therefrom belong to the Higdon family who are named in paragraphs Fourth and Fifth of the Will of Linnie Jane Hodges (p. 5, Rec. Sp. Proc. 1307). WHEREFORE, premises considered, movant respectfully prays that this Honorable Court, after due hearing, order: (1)Avelina A. Magno to submit an inventory and accounting of all of the funds, properties and assets of any character belonging to the deceased Linnie Jane Hodges and C. N. Hodges which have come into her possession, with full details of what she has done with them;

(2)Avelina A. Magno to turn over and deliver to the Administrator of the estate of C. N. Hodges all of the funds, properties and assets of and character remaining in her possession; (3)Pending this Honorable Court's adjudication of the aforesaid issues, Avelina A. Magno to stop, unless she first secures the conformity of Joe Hodges (or his duly authorized representative, such as the undersigned attorneys) as the Co-administrator and attorney-in-fact of a majority of the beneficiaries of the estate of C. N. Hodges: (a)Advertising the sale and the sale of the properties of the estates: (b)Employing personnel and paying them any compensation. (4)Such other relief as this Honorable Court may deem just and equitable in the premises. (Annex "T", Petition.) Almost a year thereafter, or on September 14, 1964, after the co-administrators Joe Hodges and Fernando P. Mirasol were replaced by herein petitioner Philippine Commercial and Industrial Bank as sole administrator, pursuant to an agreement of all the heirs of Hodges approved by the court, and because the above motion of October 5, 1963 had not yet been heard due to the absence from the country of Atty. Gibbs, petitioner filed the following: "MANIFESTATION AND MOTION, INCLUDING MOTION TO SET FOR HEARING AND RESOLVE URGENT MOTION FOR AN ACCOUNTING AND DELIVERY TO ADMINISTRATORS OF THE ESTATE OF C. N. HODGES OF ALL THE ASSETS OF THE CONJUGAL PARTNERSHIP OF THE DECEASED LINNIE JANE HODGES AND C. N. HODGES EXISTING AS OF MAY 23, 1957 PLUS ALL OF THE RENTS, EMOLUMENTS AND INCOME THEREFROM OF OCTOBER 5, 1963. COMES NOW Philippine Commercial and Industrial Bank (hereinafter referred to as PCIB), the administrator of the estate of C. N. Hodges, deceased, in Special Proceedings No. 1672, through its undersigned counsel, and to this Honorable Court respectfully alleges that: 1.On October 5, 1963, Joe Hodges acting as the co-administrator of the estate of C. N. Hodges filed, through the undersigned attorneys, an 'Urgent Motion For An Accounting and Delivery To Administrator of the Estate of C. N. Hodges of all of The Assets of The Conjugal Partnership of The Deceased Linnie Jane Hodges and C. N. Hodges Existing as of May 23, 1957 Plus All of The Rents, Emoluments and Income Therefrom' (pp. 536-542, CFI Rec., S. P. No. 1672).

2.On January 24, 1964 this Honorable Court, on the basis of an amicable agreement entered into on January 23, 1964 by the two co-administrators of the estate of C. N. Hodges and virtually all of the heirs of C. N. Hodges (p. 912, CFI Rec., S. P. No. 1672), resolved the dispute over who should act as administrator of the estate of C. N. Hodges by appointing the PCIB as administrator of the estate of C. N. Hodges (pp. 905-906, CFI Rec., S. P. No. 1672) and issuing letters of administration to the PCIB.

3.On January 24, 1964 virtually all of the heirs of C. N. Hodges, Joe Hodges and Fernando P. Mirasol acting as the two co-administrators of the estate of C. N. Hodges, Avelina A. Magno acting as the administratrix of the estate of Linnie Jane Hodges, and Messrs. William Brown and Ardel Young Acting for all of the Higdon family who claim to be the sole beneficiaries of the estate of Linnie Jane Hodges and various legal counsel representing the aforenamed parties entered into an amicable agreement, which was approved by this Honorable Court, wherein the parties thereto agreed that certain sums of money were to be paid in settlement of different claims against the two estates and that the assets (to the extent they existed) of both estates would be administered jointly by the PCIB as administrator of the estate of C. N. Hodges and Avelina A. Magno as administratrix of the estate of Linnie Jane Hodges, subject, however, to the aforesaid October 5, 1963 Motion, namely, the PCIB's claim to exclusive possession and ownership of one-hundred percent (100%) (or, in the alternative, seventy-five percent [75%] of all assets owned by C. N. Hodges or Linnie Jane Hodges situated in the Philippines. On February 1, 1964 (pp. 934-935, CFI Rec., S. P. No. 1672) this Honorable Court amended its order of January 24, 1964 but in no way changes its recognition of the aforedescribed basic demand by the PCIB as administrator of the estate of C. N. Hodges to one hundred percent (100%) of the assets claimed by both estates. 4.On February 15, 1964 the PCIB filed a 'Motion to Resolve' the aforesaid Motion of October 5, 1963. This Honorable Court set for hearing on June 11, 1964 the Motion of October 5, 1963. 5.On June 11, 1964, because the undersigned Allison J. Gibbs was absent in the United States, this Honorable Court ordered the indefinite postponement of the hearing of the Motion of October 5, 1963. 6.Since its appointment as administrator of the estate of C. N. Hodges the PCIB has not been able to properly carry out its duties and obligations as administrator of the estate of C. N. Hodges because of the following acts, among others, of Avelina A. Magno and those who claim to act for her as administratrix of the estate of Linnie Jane Hodges: (a)Avelina A. Magno illegally acts as if she is in exclusive control of all of the assets in the Philippines of both estates including those claimed by the estate of C. N. Hodges as evidenced in part by her locking the premises at 206-208 Guanco Street, Iloilo City on August 31, 1964 and refusing to reopen same until ordered to do so by this Honorable Court on September 7, 1964. (b)Avelina A. Magno illegally acts as though she alone may decide how the assets of the estate of C. N. Hodges should be administered, who the PCIB shall employ and how much they may be paid as evidenced in party by her refusal to sign checks issued by the PCIB payable to the undersigned counsel pursuant to their fee agreement approved by this Honorable Court in its order dated March 31, 1964. (c)Avelina A. Magno illegally gives access to and turns over possession of the records and assets of the estate of C. N. Hodges to the attorney-in-fact of the Higdon Family, Mr. James L. Sullivan, as evidenced in part by the cashing of his personal checks.

(d)Avelina A. Magno illegally refuses to execute checks prepared by the PCIB drawn to pay expenses of the estate of C. N. Hodges as evidenced in part by the check drawn to reimburse the PCIB's advance of P48,445.50 to pay the 1964 income taxes reported due and payable by the estate of C.N. Hodges. 7.Under and pursuant to the orders of this Honorable Court, particularly those of January 24 and February 1, 1964, and the mandate contained in its Letters of Administration issued on January 24, 1964 to the PCIB, it has 'full authority to take possession of all the property of the deceased C. N. Hodges. 'and to perform all other acts necessary for the preservation of said property.' (p. 914, CFI Rec., S.P. No. 1672.) 8.As administrator of the estate of C. N. Hodges, the PCIB claims the right to the immediate exclusive possession and control of all of the properties, accounts receivables, court cases, bank accounts and other assets, including the documentary records evidencing same, which existed in the Philippines on the date of C. N. Hodges' death, December 25, 1962, and were in his possession and registered in his name alone. The PCIB knows of no assets in the Philippines registered in the name of Linnie Jane Hodges, the estate of Linnie Jane Hodges, or, C. N. Hodges, Executor of the Estate of Linnie Jane Hodges, on December 25, 1962. All of the assets of which the PCIB has knowledge are either registered in the name of C. N. Hodges, alone or were derived therefrom since his death on December 25, 1962. 9.The PCIB as the current administrator of the estate of C. N. Hodges, deceased, succeeded to all of the rights of the previously duly appointed administrators of the estate of C. N. Hodges, to wit: (a)On December 25, 1962, date of C. N. Hodges' death, this Honorable Court appointed Miss Avelina A. Magno simultaneously as: (i)Administratrix of the estate of Linnie Jane Hodges (p. 102, CFI Rec., S.P. No. 1307) to replace the deceased C. N. Hodges who on May 28, 1957 was appointed Special Administrator (p. 13, CFI Rec., S.P. No. 1307) and on July 1, 1957 Executor of the estate of Linnie Jane Hodges (p. 30, CFI Rec., S. P. No. 1307); (ii)Special Administration of the estate of C. N. Hodges (p. 102, CFI Rec. S.P. No. 1307). (b)On December 29, 1962 this Honorable Court appointed Harold K. Davies as co-special administrator of the estate of C.N. Hodges along with Avelina A. Magno (pp. 108-111, CFI Rec., S. P. No. 1307). (c)On January 22, 1963, with the conformity of Avelina A. Magno, Harold K. Davies resigned in favor of Joe Hodges (pp. 35-36, CFI Rec., S.P. No. 1672) who thereupon was appointed on January 22, 1963 by this Honorable Court as special co-administrator of the estate of C.N. Hodges (pp. 38-40 & 43, CFI Rec., S.P. No. 1672) along with Miss Magno who at that time was still acting as special co-administratrix of the estate of C. N. Hodges.

(d)On February 22, 1963, without objection on the part of Avelina A. Magno, this Honorable Court appointed Joe Hodges and Fernando P. Mirasol as co-administrators of the estate of C.N. Hodges (pp. 76-78, 81 & 85, CFI Rec., S.P. No. 1672). 10.Miss Avelina A. Magno, pursuant to the orders of this Honorable Court of December 25, 1962, took possession of all Philippine Assets now claimed by the two estates. Legally, Miss Magno could take possession of the assets registered in the name of C. N. Hodges alone only in her capacity as Special Administratrix of the Estate of C.N. Hodges. With the appointment by this Honorable Court on February 22, 1963 of Joe Hodges and Fernando P. Mirasol as the coadministrators of the estate of C.N. Hodges, they legally were entitled to take over from Miss Magno the full and exclusive possession of all of the assets of the estate of C.N. Hodges. With the appointment on January 24, 1964 of the PCIB as the sole administrator of the estate of C.N. Hodges in substitution of Joe Hodges and Fernando P. Mirasol, the PCIB legally became the only party entitled to the sole and exclusive possession of all of the assets of the estate of C. N. Hodges. 11.The PCIB's predecessors submitted their accounting and this Honorable Court approved same, to wit: (a)The accounting of Harold K. Davies dated January 18, 1963 (pp. 16-33, CFI Rec., S.P. No. 1672); which shows on its face the: (i)Conformity of Avelina A. Magno acting as 'Administratrix of the Estate of Linnie Jane Hodges and Special Administratrix of the Estate of C.N. Hodges'; (ii)Conformity of Leslie Echols, a Texas lawyer acting for the heirs of C. N. Hodges; and (iii)Conformity of William Brown, a Texas lawyer acting for the Higdon family who claim to be the only heirs of Linnie Jane Hodges (pp. 18, 25-33, CFI Rec., S.P. No. 1672). "Note: This accounting was approved by this Honorable Court on January 22, 1963 (p. 34, CFI Rec., S.P. No. 1672). (b)The accounting of Joe Hodges and Fernando P. Mirasol as of January 23, 1964, filed February 24, 1964 (pp. 990-1000, CFI Rec., S.P. No. 1672 and pp. 1806-1848, CFI Rec., S.P. No. 1307). Note: This accounting was approved by this Honorable Court on March 3, 1964. (c)The PCIB and its undersigned lawyers are aware of no report or accounting submitted by Avelina A. Magno of her acts as administratrix of the estate of Linnie Jane Hodges or special administratrix of the estate of C.N. Hodges, unless it is the accounting of Harold K. Davies as special co-administrator of the estate of C.N. Hodges dated January 18, 1963 to which Miss Magno manifested her conformity (supra). 12.In the aforesaid agreement of January 24, 1964, Miss Avelina A. Magno agreed to receive P10,000.00.

'for her services as administratrix of the estate of Linnie Jane Hodges' and in addition she agreed to be employed, starting February 1, 1964, at 'a monthly salary of P500.00 for her services as an employee of both estates.' 24 ems. 13.Under the aforesaid agreement of January 24, 1964 and the orders of this Honorable Court of same date, the PCIB as administrator of the estate of C. N. Hodges is entitled to the exclusive possession of all records, properties and assets in the name of C. N. Hodges as of the date of his death on December 25, 1962 which were in the possession of the deceased C. N. Hodges on that date and which then passed to the possession of Miss Magno in her capacity as Special Co-Administratrix of the estate of C. N. Hodges or the possession of Joe Hodges or Fernando P. Mirasol as co-administrators of the estate of C. N. Hodges.

14.Because of Miss Magno's refusal to comply with the reasonable request of PCIB concerning the assets of the estate of C. N. Hodges, the PCIB dismissed Miss Magno as an employee of the estate of C. N. Hodges effective August 31, 1964. On September 1, 1964 Miss Magno locked the premises at 206-208 Guanco Street and denied the PCIB access thereto. Upon the Urgent Motion of the PCIB dated September 3, 1964, this Honorable Court on September 7, 1964 ordered Miss Magno to reopen the aforesaid premises at 206-208 Guanco Street and permit the PCIB access thereto no later than September 8, 1964. 15.the PCIB pursuant to the aforesaid orders of this Honorable Court is again in physical possession of all of the assets of the estate of C. N. Hodges. However, the PCIB is not in exclusive control of the aforesaid records, properties and assets because Miss Magno continues to assert the claims hereinabove outlined in paragraph 6, continues to use her own locks to the doors of the aforesaid premises at 206-208 Guanco Street, Iloilo City and continues to deny the PCIB its right to know the combinations to the doors of the vault and safes situated within the premises at 206-208 Guanco Street despite the fact that said combinations were known to only C. N. Hodges during his lifetime. 16.The Philippine estate and inheritance taxes assessed the estate of Linnie Jane Hodges were assessed and paid on the basis that C. N. Hodges is the sole beneficiary of the assets of the estate of Linnie Jane Hodges situated in the Philippines. Avelina A. Magno and her legal counsel at no time have questioned the validity of the aforesaid assessment and the payment of the corresponding Philippine death taxes. 17.Nothing further remains to be done in the estate of Linnie Jane Hodges except to resolve the aforesaid Motion of October 5, 1963 and grant the PCIB the exclusive possession and control of all of the records, properties and assets of the estate of C. N. Hodges. 18.Such assets as may have existed of the estate of Linnie Jane Hodges were ordered by this Honorable Court in special Proceedings No. 1307 to be turned over and delivered to C. N.

Hodges alone. He in fact took possession of them before his death and asserted and exercised the right of exclusive ownership over the said assets as the sole beneficiary of the estate of Linnie Jane Hodges. WHEREFORE, premises considered, the PCIB respectfully petitions that this Honorable court. (1)Set the Motion of October 5, 1963 for hearing at the earliest possible date with notice to all interested parties; (2)Order Avelina A. Magno to submit an inventory and accounting as Administratrix of the Estate of Linnie Jane Hodges and Co-Administratrix of the Estate of C. N. Hodges of all of the funds, properties and assets of any character belonging to the deceased Linnie Jane Hodges and C. N. Hodges which have come into her possession, with full details of what she has done with them; (3)Order Avelina A. Magno to turn over and deliver to the PCIB as administrator of the estate of C. N. Hodges all of the funds, properties and assets of any character remaining in her possession; (4)Pending this Honorable Court's adjudication of the aforesaid issues, order Avelina A. Magno and her representatives to stop interfering with the administration of the estate of C. N. Hodges by the PCIB and its duly authorized representatives; (5)Enjoin Avelina A. Magno from working in the premises at 206-208 Guanco Street, Iloilo City as an employee of the estate of C. N. Hodges and approve her dismissal as such by the PCIB effective August 31, 1964; (6)Enjoin James L. Sullivan, Attorneys Manglapus and Quimpo and others allegedly representing Miss Magno from entering the premises at 206-208 Guanco Street, Iloilo City or any other properties of C. N. Hodges without the express permission of the PCIB; (7)Order such other relief as this Honorable Court finds just and equitable in the premises."(Annex "U", Petition.) On January 8, 1965, petitioner also filed a motion for "Official Declaration of Heirs of Linnie Jane Hodges Estate" alleging: COMES NOW Philippine Commercial and Industrial Bank (hereinafter referred to as PCIB), as administrator of the estate of the late C. N. Hodges, through the undersigned counsel, and to this Honorable Court respectfully alleges that: '1.During their marriage, spouses Charles Newton Hodges and Linnie Jane Hodges, American citizens originally from the State of Texas, U.S.A., acquired and accumulated considerable assets and properties in the Philippines and in the States of Texas and Oklahoma, United States of America. All said properties constituted their conjugal estate. 2.Although Texas was the domicile of origin of the Hodges spouses, this Honorable Court, in its orders dated March 31 and December 12, 1964 (CFI Record, Sp. Proc. No. 1307, pp. ----; Sp.

Proc. No. 1672, p. ----), conclusively found and categorically ruled that said spouses had lived and worked for more than 50 years in Iloilo City and had, therefore, acquired a domicile of choice in said city, which they retained until the time of their respective deaths. 3.On November 22, 1952, Linnie Jane Hodges executed in the City of Iloilo her Last Will and Testament, a copy of which is hereto attached as Annex "A". The bequests in said will pertinent to the present issue are the second, third, and fourth provisions, which we quote in full hereunder: "SECOND: I give, devise and bequeath all of the rest, residue and remainder of my estate, both personal and real, wherever situated, or located, to my husband, Charles Newton Hodges, to have and to hold unto him, my said husband during his natural lifetime. "THIRD: I desire, direct and provide that my husband, Charles Newton Hodges, shall have the right to manage, control, use and enjoy said estate during his lifetime, and he is hereby given the right to make and changes in the physical properties of said estate, by sale of any part thereof which he may think best, and the purchase of any other or additional property as he may think best; to execute conveyances with or without general or special warranty, conveying in fee simple or for any other term or time, any property which he may deem proper to dispose of; to lease any of the real property for oil, gas and/or other minerals, and all such deeds or leases shall pass the absolute fee simple title to the interest so conveyed in such property as he may elect to sell. All rents, emoluments and income from said estate shall belong to him, and he is further authorized to use any part of the principal of said estate as he may need or desire. It is provided herein, however, that he shall not sell or otherwise dispose of any of the improved property now owned by us located at, in or near the City of Lubbock, Texas, but he shall have the full right to lease, manage and enjoy the same during his lifetime, as above provided. He shall have the right to sub-divide any farmland and sell lots therein, and may sell unimproved town lots. "FOURTH: At the death of my said husband, Charles Newton Hodges, I give, devise and bequeath all of the rest, residue and remainder of my estate both real and personal, wherever situated or located, to be equally divided among my brothers and sisters, share and share alike, namely: 'Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie Rascoe, Era Boman and Nimray Higdon.' 4.On November 14, 1953, C. N. Hodges executed in the City of Iloilo his Last Will and Testament, a copy of which is hereto attached as Annex "B". In said Will, C. N. Hodges designated his wife, Linnie Jane Hodges, as his beneficiary using the identical language she used in the second and third provisos of her Will, supra. 5.On May 23, 1957 Linnie Jane Hodges died in Iloilo City, pre-deceasing her husband by more than five (5) years. At the time of her death, she had no forced or compulsory heir, except her husband, C. N. Hodges. She was survived also by various brothers and sisters mentioned in her Will (supra), which, for convenience, we shall refer to as the HIGDONS.

6.On June 28, 1957, this Honorable Court admitted to probate the Last Will and Testament of the deceased Linnie Jane Hodges (Annex "A"), and appointed C. N. Hodges as executor of her estate without bond. (CFI Record, Sp. Proc. No. 1307, pp. 24-25). On July 1, 1957, this Honorable Court issued letters testamentary to C. N. Hodges in the estate of Linnie Jane Hodges. (CFI Record, Sp. Proc. No. 1307, p. 30.) 7.The Will of Linnie Jane Hodges, with respect to the order of succession, the amount of successional rights, and the intrinsic validity of its testamentary provisions, should be governed by Philippine laws, because: (a)The testatrix, Linnie Jane Hodges, intended Philippine laws to govern her Will; (b)Article 16 of the Civil Code provides that "the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found", shall prevail. However, the Conflict of Law of Texas, which is the "national law" of the testatrix, Linnie Jane Hodges, provide that the domiciliary law (Philippine law see paragraph 2, supra) should govern the testamentary dispositions and successional rights over movables (personal properties), and the law of the situs of the property (also Philippine law as to properties located in the Philippines) with regards immovable (real properties). Thus applying the "Renvoi Doctrine", as approved and applied by our Supreme Court in the case of "In The Matter Of The Testate Estate of Eduard E. Christensen", G.R. No. L-16749, promulgated January 31, 1963, Philippine law should apply to the Will of Linnie Jane Hodges and to the successional rights to her estate insofar as her movable and immovable assets in the Philippines are concerned. We shall not, at this stage, discuss what law should govern the assets of Linnie Jane Hodges located in Oklahoma and Texas, because the only assets in issue in this motion are those within the jurisdiction of this Honorable Court in the two above-captioned Special Proceedings.

8.Under Philippine and Texas law, the conjugal or community estate of spouses shall, upon dissolution, be divided equally between them. Thus, upon the death of Linnie Jane Hodges on May 23, 1957, one-half (1/2) of the entirety of the assets of the Hodges spouses constituting their conjugal estate pertained automatically to Charles Newton Hodges, not by way of inheritance, but in his own right as partner in the conjugal partnership. The other one-half (1/2) portion of the conjugal estate constituted the estate of Linnie Jane Hodges. This is the only portion of the conjugal estate capable of inheritance by her heirs. 9.This one-half (1/2) portion of the conjugal assets pertaining to Linnie Jane Hodges cannot, under a clear and specific provision of her Will, be enhanced or increased by income, earnings, rents, or emoluments accruing after her death on May 23, 1957. Linnie Jane Hodges' Will provides that "all rents, emoluments and income from said estate shall belong to him (C. N. Hodges) and he is further authorized to use any part of the principal of said estate as he may need or desire." (Paragraph 3, Annex "A".) Thus, by specific provision of Linnie Jane Hodges' Will, "all rents, emoluments and income" must be credited to the one-half (1/2) portion of the conjugal estate pertaining to C. N. Hodges. Clearly, therefore the estate of Linnie Jane Hodges

capable of inheritance by her heirs, consisted exclusively of no more than one-half (1/2) of the conjugal estate, computed as of the time of her death on May 23, 1957. 10.Articles 900, 995 and 1001 of the New Civil Code provide that the surviving spouse of a deceased leaving no ascendants or descendants is entitled, as a matter of right and by way of irrevocable legitime, to at least one-half (1/2) of the estate of the deceased, and no testamentary disposition by the deceased can legally and validly affect this right of the surviving spouse. In fact, her husband is entitled to said one-half (1/2) portion of her estate by way of legitime. (Article 886, Civil Code.) Clearly, therefore, immediately upon the death of Linnie Jane Hodges, C. N. Hodges was the owner of at least three-fourths (3/4) or seventy-five (75%) percent of all of the conjugal assets of the spouses, (1/2 or 50% by way of conjugal partnership share and 1/4 or 25% by way of inheritance and legitime), plus all "rents, emoluments and income" accruing to said conjugal estate from the moment of Linnie Jane Hodges' death (see paragraph 9, supra). 11.The late Linnie Jane Hodges designated her husband C. N. Hodges as her sole and exclusive heir with full authority to do what he pleased, as exclusive heir and owner of all the assets constituting her estate, except only with regards certain properties "owned by us, located at, in or near the City of Lubbock, Texas". Thus, even without relying on our laws of succession and legitime, which we have cited above, C. N. Hodges, by specific testamentary designation of his wife, was entitled to the entirety to his wife's estate in the Philippines. 12.Article 777 of the New Civil Code provides that "the rights of the successor are transmitted from the death of the decedent". Thus, title to the estate of Linnie Jane Hodges was transmitted to C. N. Hodges immediately upon her death on May 23, 1957. For the convenience of this Honorable Court, we attached hereto as Annex "C" a graph of how the conjugal estate of the spouses Hodges should be divided in accordance with Philippine law and the Will of Linnie Jane Hodges. 13.In his capacity as sole heir and successor to the estate of Linnie Jane Hodges as abovestated, C. N. Hodges, shortly after the death of Linnie Jane Hodges, appropriated to himself the entirety of her estate. He operated all the assets, engaged in business and performed all acts in connection with the entirety of the conjugal estate, in his own name alone, just as he had been operating, engaging and doing while the late Linnie Jane Hodges was still alive. Upon his death on December 25, 1962, therefore, all said conjugal assets were in his sole possession and control, and registered in his name alone, not as executor, but as exclusive owner of all said assets. 14.All these acts of C. N. Hodges were authorized and sanctioned expressly and impliedly by various orders of this Honorable Court, as follows: (a)In an Order dated May 27, 1957, this Honorable Court ruled that C. N. Hodges "is allowed or authorized to continue the business in which he was engaged, and to perform acts which he had been doing while the deceased was living." (CFI Record, Sp. Proc. No. 1307, p. 11.)

(b)On December 14, 1957, this Honorable Court, on the basis of the following fact, alleged in the verified Motion dated December 11, 1957 filed by Leon P. Gellada as attorney for the executor C. N. Hodges: 'That herein Executor, (is) not only part owner of the properties left as conjugal, but also, the successor to all the properties left by the deceased Linnie Jane Hodges.' (CFI Record, Sp. Proc. No. 1307, p. 44; emphasis supplied.) issued the following order: 'As prayed for by Attorney Gellada, counsel for the Executor, for the reasons stated in his motion dated December 11, 1957, which the Court considers well taken, all the sales, conveyances, leases and mortgages of all the properties left by the deceased Linnie Jane Hodges executed by the Executor, Charles Newton Hodges are hereby APPROVED. The said Executor is further authorized to execute subsequent sales, conveyances, leases and mortgages of the properties left by the said deceased Linnie Jane Hodges in consonance with the wishes contained in the last will and testament of the latter." (CFI Record, Sp. Proc. No. 1307, p. 46; emphasis supplied.) 24 ems. (c)On April 21, 1959, this Honorable Court approved the verified inventory and accounting submitted by C. N. Hodges through his counsel Leon P. Gellada on April 14, 1959 wherein he alleged among other things, 'That no person interested in the Philippines of the time and place of examining the herein account, be given notice, as herein executor is the only devisee or legatee of the deceased, in accordance with the last will and testament already probated by the Honorable Court.' (CFI Record, Sp. Proc. No. 1307, pp 77-78; emphasis supplied.) (d)On July 20, 1960, this Honorable Court approved the verified "Annual Statement of Account" submitted by C. N. Hodges through his counsel Leon P. Gellada on July 21, 1960 wherein he alleged, among other things, 'That no person interested in the Philippines of the time and place of examining the herein account, be given notice as herein executor is the only devisee or legatee of the deceased Linnie Jane Hodges, in accordance with the last will and testament of the deceased, already probated by this Honorable Court.' (CFI Record, Sp. Proc. No 1307, pp. 81-82; emphasis supplied.) (e)On May 2, 1961, this Honorable Court approved the verified "Annual Statement of Account By The Executor For the Year 1960' submitted through Leon P. Gellada on April 20, 1961 wherein he alleged: 'That no person interested in the Philippines be given notice, of the time and place of examining the herein account, as herein executor is the only devisee or legatee of the deceased Linnie

Jane Hodges, in accordance with the last will and testament of the deceased, already probated by this Honorable Court.' (CFI Record, Sp. Proc. No. 1307, pp. 90-91; emphasis supplied.) 15.Since C. N. Hodges was the sole and exclusive heir of Linnie Jane Hodges, not only by law, but in accordance with the dispositions of her will, there was, in fact, no need to liquidate the conjugal estate of the spouses. The entirety of said conjugal estate pertained to him exclusively, therefore this Honorable Court sanctioned and authorized, as above-stated, C. N. Hodges to manage, operate and control all the conjugal assets as owner. 16.By expressly authorizing C. N. Hodges to act as he did in connection with the estate of his wife, this Honorable Court has (1) declared C. N. Hodges as the sole heir of the estate of Linnie Jane Hodges, and (2) delivered and distributed her estate to C. N. Hodges as sole heir in accordance with the terms and conditions of her Will. Thus, although the "estate of Linnie Jane Hodges" still exists as a legal and juridical personality, it had no assets or properties located in the Philippines registered in its name whatsoever at the time of the death of C. N. Hodges on December 25, 1962. 17.The Will of Linnie Jane Hodges (Annex "A"), fourth paragraph, provides as follows: 'At the death of my said husband, Charles Newton Hodges, I give, devise and bequeath all of the rest, residue and remainder of my estate both real and personal, wherever situated or located, to be equally divided among my brothers and sisters, share and share alike, namely: 'Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie Rascoe, Era Boman and Nimray Higdon.' Because of the facts hereinabove set out there is no "rest, residue and remainder", at least to the extent of the Philippine assets, which remains to vest in the HIGDONS, assuming this proviso in Linnie Jane Hodges' Will is valid and binding against the estate of C. N. Hodges. 18.Any claims by the HIGDONS under the above-quoted provision of Linnie Jane Hodges' Will is without merit because said provision is void and invalid at least as to the Philippine assets. It should not, in anyway, affect the rights of the estate of C. N. Hodges or his heirs to the properties, which C. N. Hodges acquired by way of inheritance from his wife Linnie Jane Hodges upon her death. (a)In spite of the above-mentioned provision in the Will of Linnie Jane Hodges, C. N. Hodges acquired, not merely a usufructuary right, but absolute title and ownership to her estate. In a recent case involving a very similar testamentary provision, the Supreme Court held that the heir first designated acquired full ownership of the property bequeathed by the will, not mere usufructuary rights. (Consolacion Florentino de Crisologo, et al., vs. Manuel Singson, G. R. No. L-13876, February 28, 1962.)

(b)Article 864, 872 and 886 of the New Civil Code clearly provide that no charge, condition or substitution whatsoever upon the legitime can be imposed by a testator. Thus, under the

provisions of Articles 900, 995 and 1001 of the New Civil Code, the legitime of a surviving spouse is 1/2 of the estate of the deceased spouse. Consequently, the above-mentioned provision in the Will of Linnie Jane Hodges is clearly invalid insofar as the legitime of C. N. Hodges was concerned, which consisted of 1/2 of the 1/2 portion of the conjugal estate, or 1/4 of the entire conjugal estate of the deceased. (c)There are generally only two kinds of substitution provided for and authorized by our Civil Code (Articles 857-870), namely, (1) simple or common substitution, sometimes referred to as vulgar substitution (Article 859), and (2) fideicommissary substitution (Article 863). All other substitutions are merely variations of these. The substitution provided for by paragraph four of the Will of Linnie Jane Hodges is not fideicommissary substitution, because there is clearly no obligation on the part of C. N. Hodges as the first heir designated, to preserve the properties for the substitute heirs. (Consolacion Florentino de Crisologo, et al. vs. Manuel Singson, G.R. No. L-13876.) At most, it is a vulgar or simple substitution. However, in order that a vulgar or simple substitution can be valid, three alternative conditions must be present, namely, that the first designated heir (1) should die before the testator; or (2) should not wish to accept the inheritance; or (3) should be incapacitated to do so. None of these conditions apply, to C. N. Hodges, and, therefore, the substitution provided for by the above-quoted provision of the Will is not authorized by the Code, and, therefore, it is void. Manresa, commenting on these kinds of substitution, meaningfully stated that: ". . . cuando el testador instituye un primer heredero, y por fallecimiento de este, nombra otro u otros, ha de entenderse que estas segundas designaciones solo han de llegar a tener efectividad en el caso de que el primer instituido muera antes que el testador, fuera o no esta su verdadera intencion. . . .". (6 Manresa, 7 a ed., pag. 175.) In other words, when another heir is designated to inherit upon the death of a first heir, the second designation can have effect only in case the first instituted heir dies before the testator, whether or not that was the true intention of said testator . Since C. N. Hodges did not die before Linnie Jane Hodges, the provision for substitution contained in Linnie Jane Hodges' Will is void. (d)In view of the invalidity of the provision for substitution in the Will, C. N. Hodges' inheritance to the entirety of the Linnie Jane Hodges estate is irrevocable and final. 19.Be that as it may, at the time of C. N. Hodges' death, the entirety of the conjugal estate appeared and was registered in him exclusively as owner. Thus, the presumption is that all said assets constituted his estate. Therefore (a)If the HIGDONS wish to enforce their dubious rights as substituted heirs to 1/4 of the conjugal estate (the other 1/4 is covered by the legitime of C. N. Hodges which can not be affected by any testamentary disposition), their remedy, if any, is to file their claim against the estate of C. N. Hodges, which should be entitled at the present time to full custody and control of all the conjugal estate of the spouses. (b)The present proceedings, in which two estates exist under separate administration, where the administratrix of the Linnie Jane Hodges estate exercises an officious right to object and intervene in matters affecting exclusively the C. N. Hodges estate, is anomalous.

WHEREFORE, it is most respectfully prayed that after trial and reception of evidence, this Honorable Court declare: 1.That the estate of Linnie Jane Hodges was and is composed exclusively of one-half (1/2) share in the conjugal estate of the spouses Hodges, computed as of the date of her death on May 23, 1957; 2.That the other half of the conjugal estate pertained exclusively to C. N. Hodges as his share as partner in the conjugal partnership; 3.That all "rents, emoluments and income" of the conjugal estate accruing after Linnie Jane Hodges' death pertains to C. N. Hodges; 4.That C. N. Hodges was the sole and exclusive heir of the estate of Linnie Jane Hodges; 5.That, therefore, the entire conjugal estate of the spouses located in the Philippines, plus all the "rents, emoluments and income" above-mentioned, now constitutes the estate of C. N. Hodges, capable of distribution to his heirs upon termination of Special Proceedings No. 1672; 6.That PCIB, as administrator of the estate of C. N. Hodges, is entitled to full and exclusive custody, control and management of all said properties; and 7.That Avelina A. Magno, as administratrix of the estate of Linnie Jane Hodges, as well as the HIGDONS, has no right to intervene or participate in the administration of the C. N. Hodges estate. PCIB further prays for such and other relief as may be deemed just and equitable in the premises."(Record, pp. 265-277) Before all of these motions of petitioner could be resolved, however, on December 21, 1965, private respondent Magno filed her own "Motion for the Official Declaration of Heirs of the Estate of Linnie Jane Hodges" as follows: "COMES NOW the Administratrix of the Estate of Linnie Jane Hodges and, through undersigned counsel, unto this Honorable Court most respectfully states and manifests: 1.That the spouses Charles Newton Hodges and Linnie Jane Hodges were American citizens who died at the City of Iloilo after having amassed and accumulated extensive properties in the Philippines; 2.That on November 22, 1952, Linnie Jane Hodges executed a last will and testament (the original of this will now forms part of the records of these proceedings as Exhibit 'C' and appears as Sp. Proc. No. 1307, Folio I, pp. 17-18); 3.That on May 23, 1957, Linnie Jane Hodges died at the City of Iloilo, at the time survived by her husband, Charles Newton Hodges, and several relatives named in her last will and testament;

4.That on June 28, 1957, a petition therefor having been priorly filed and duly heard, this Honorable Court issued an order admitting to probate the last will and testament of Linnie Jane Hodges (Sp. Proc. No. 1307, Folio I, pp. 24-25, 26-28); 5.That the required notice to creditors and to all others who may have any claims against the decedent, Linnie Jane Hodges, has already been printed, published and posted (Sp. Proc. No. 1307, Folio I, pp. 34-40) and the reglementary period for filing such claims has long ago lapsed and expired without any claims having been asserted against the estate of Linnie Jane Hodges, approved by the Administrator/Administratrix of the said estate, nor ratified by this Honorable Court; 6.That the last will and testament of Linnie Jane Hodges already admitted to probate contains an institution of heirs in the following words: "SECOND: I give, devise and bequeath all of the rest, residue and remainder of my estate, both personal and real, wherever situated or located, to my beloved husband, Charles Newton Hodges, to have and to hold unto him, my said husband, during his natural lifetime. THIRD: I desire, direct and provide that my husband, Charles Newton Hodges, shall have the right to manage, control, use and enjoy said estate during his lifetime, and he is hereby given the right to make any changes in the physical properties of said estate, by sale of any part thereof which he may think best, and the purchase of any other or additional property as he may think best; to execute conveyances with or without general or special warranty, conveying in fee simple or for any other term or time, any property which he may deem proper to dispose of; to lease any of the real property for oil, gas and/or other minerals, and all such deeds or leases shall pass the absolute fee simple title to the interest so conveyed in such property as he may elect to sell. All rents, emoluments and income from said estate shall belong to him, and he is further authorized to use any part of the principal of said estate as he may need or desire. It is provided herein, however, that he shall not sell or otherwise dispose of any of the improved property now owned by us located at, in or near the City of Lubbock, Texas, but he shall have the full right to lease, manage and enjoy the same during his lifetime, above provided. He shall have the right to subdivide any farm land and sell lots therein, and may sell unimproved town lots. FOURTH: At the death of my said husband, Charles Newton Hodges, I give, devise and bequeath all of the rest, residue and remainder of my estate, both real and personal, wherever situated or located, to be equally divided among my brothers and sisters, share and share alike, namely: Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie Rascoe, Era Boman and Nimroy Higdon. FIFTH: In case of the death of any of my brothers and/or sisters named in item Fourth, above, prior to the death of my husband, Charles Newton Hodges, then it is my will and bequest that the heirs of such deceased brother or sister shall take jointly the share which would have gone to such brother or sister had she or he survived.'

7.That under the provisions of the last will and testament already above-quoted, Linnie Jane Hodges gave a life-estate or a usufruct over all her estate to her husband, Charles Newton Hodges, and a vested remainder-estate or the naked title over the same estate to her relatives named therein; 8.That after the death of Linnie Jane Hodges and after the admission to probate of her last will and testament, but during the lifetime of Charles Newton Hodges, the said Charles Newton Hodges, with full and complete knowledge of the life-estate or usufruct conferred upon him by the will since he was then acting as Administrator of the estate and later as Executor of the will of Linnie Jane Hodges, unequivocably and clearly through oral and written declarations and sworn public statements, renounced, disclaimed and repudiated his life-estate and usufruct over the estate of Linnie Jane Hodges;

9.That, accordingly, the only heirs left to receive the estate of Linnie Jane Hodges, pursuant to her last will and testament, are her named brothers and sisters, or their heirs, to wit: Esta Higdon, Emma Howell, Leonard Higdon, Aline Higdon and David Higdon, the latter two being the wife and son respectively of the deceased Roy Higdon, Sadie Rascoe, Era Boman and Nimroy Higdon, all of legal ages, American citizens, with residence at the State of Texas, United States of America; 10.That at the time of the death of Linnie Jane Hodges on May 23, 1957, she was the co-owner (together with her husband Charles Newton Hodges) of an undivided one-half interest in their conjugal properties existing as of that date, May 23, 1957, which properties are now being administered sometimes jointly and sometimes separately by the Administratrix of the estate of Linnie Jane Hodges and/or the Administrator of the estate of C. N. Hodges but all of which are under the control and supervision of this Honorable Court; 11.That because there was no separation or segregation of the interests of husband and wife in the combined conjugal estate, as there has been no such separation or segregation up to the present, both interests have continually earned exactly the same amount of 'rents, emoluments and income', the entire estate having been continually devoted to the business of the spouses as if they were alive; 12.That the one-half interest of Linnie Jane Hodges in the combined conjugal estate was earning 'rents, emoluments and income' until her death on May 23, 1957, when it ceased to be saddled with any more charges or expenditures which are purely personal to her in nature, and her estate kept on earning such 'rents, emoluments and income' by virtue of their having been expressly renounced, disclaimed and repudiated by Charles Newton Hodges to whom they were bequeathed for life under the last will and testament of Linnie Jane Hodges; 13.That, on the other hand, the one-half interest of Charles Newton Hodges in the combined conjugal estate existing as of May 23, 1957, while it may have earned exactly the same amount of 'rents, emoluments and Income' as that of the share pertaining to Linnie Jane Hodges, continued to be burdened by charges, expenditures, and other dispositions which are purely

personal to him in nature, until the death of Charles Newton Hodges himself on December 25, 1962; 14.That of all the assets of the combined conjugal estate of Linnie Jane Hodges and Charles Newton Hodges as they exist today, the estate of Linnie Jane Hodges is clearly entitled to a portion more than fifty percent (50%) as compared to the portion to which the estate of Charles Newton Hodges may be entitled, which portions can be exactly determined by the following manner: a.An inventory must be made of the assets of the combined conjugal estate as they existed on the death of Linnie Jane Hodges on May 23, 1957 one-half of these assets belong to the estate of Linnie Jane Hodges; b.An accounting must be made of the 'rents, emoluments and income' of all these assets again one-half of these belong to the estate of Linnie Jane Hodges; c.Adjustments must be made, after making a deduction of charges disbursements and other dispositions made by Charles Newton Hodges personally and for his own personal account from May 23, 1957 up to December 25, 1962, as well as other charges, disbursements and other dispositions made for him and in his behalf since December 25, 1962 up to the present; 15.That there remains no other matter for disposition now insofar as the estate of Linnie Jane Hodges is concerned but to complete the liquidation of her estate, segregate them from the conjugal estate, and distribute them to her heirs pursuant to her last will and testament. WHEREFORE, premises considered, it is most respectfully moved and prayed that this Honorable Court, after a hearing on the factual matters raised by this motion, issue an order: a.Declaring the following persons, to wit: Esta Higdon, Emma Howell, Leonard Higdon, Aline Higdon, David Higdon, Sadie Rascoe, Era Boman and Nimroy Higdon, as the sole heirs under the last will and testament of Linnie Jane Hodges and as the only persons entitled to her estate; b.Determining the exact value of the estate of Linnie Jane Hodges in accordance with the system enunciated in paragraph 14 of this motion; c.After such determination ordering its segregation from the combined conjugal estate and its delivery to the Administratrix of the estate of Linnie Jane Hodges for distribution to the heirs to whom they properly belong and appertain." (Green Record on Appeal, pp. 382-391) whereupon, instead of further pressing on its motion of January 8, 1965 aforequoted, as it had been doing before, petitioner withdrew the said motion and in addition to opposing the above motion of respondent Magno, filed a motion on April 22, 1966 alleging in part that: "1.That it has received from the counsel for the administratrix of the supposed estate of Linnie Jane Hodges a notice to set her 'Motion for Official Declaration of Heirs of the Estate of Linnie Jane Hodges';

"2.That before the aforesaid motion could be heard, there are matters pending before this Honorable Court, such as: a.The examination already ordered by this Honorable Court of documents relating to the allegation of Avelina Magno that Charles Newton Hodges 'through . . . written declarations and sworn public statements, renounced, disclaimed and repudiated his life-estate and usufruct over the Estate of Linnie Jane Hodges'; b.That 'Urgent Motion for An Accounting and Delivery to the Estate of C. N. Hodges of All the Assets of the Conjugal Partnership of the Deceased Linnie Jane Hodges and C. N. Hodges Existing as of May 23, 1957 Plus All the Rents, Emoluments and Income Therefrom'; c.Various motions to resolve the aforesaid motion; d.Manifestation of September 14, 1964, detailing acts of interference of Avelina Magno under color of title as administratrix of the Estate of Linnie Jane Hodges; which are all prejudicial, and which involve no issues of fact, all facts involved therein being matters of record, and therefore require only the resolution of questions of law; "3.That whatever claims any alleged heirs or other persons may have could be very easily threshed out in the Testate Estate of Charles Newton Hodges; "4.That the maintenance of two separate estate proceedings and two administrators only results in confusion and is unduly burdensome upon the Testate Estate of Charles Newton Hodges, particularly because the bond filed by Avelina Magno is grossly insufficient to answer for the funds and property which she has inofficiously collected and held, as well as those which she continues to inofficiously collect and hold; "5.That it is a matter of record that such state of affairs affects and inconveniences not only the estate but also third-parties dealing with it," (Annex "V", Petition.) and then, after further reminding the court, by quoting them, of the relevant allegations of its earlier motion of September 14, 1964, Annex U, prayed that: "1.Immediately order Avelina Magno to account for and deliver to the administrator of the Estate of C. N. Hodges all the assets of the conjugal partnership of the deceased Linnie Jane Hodges and C. N. Hodges, plus all the rents, emoluments and income therefrom; "2.Pending the consideration of this motion, immediately order Avelina Magno to turn over all her collections to the administrator Philippine Commercial & Industrial Bank; "3.Declare the Testate Estate of Linnie Jane Hodges (Sp. Proc. No. 1307) closed; "4.Defer the hearing and consideration of the motion for declaration of heirs in the Testate Estate of Linnie Jane Hodges until the matters hereinabove set forth are resolved."(Prayer, Annex "V" of Petition.)

On October 12, 1966, as already indicated at the outset of this opinion, the respondent court denied the foregoing motion, holding thus: "O R D E R On record is a motion (Vol. X, Sp. 1672, pp. 4379-4390) dated April 22, 1966 of administrator PCIB praying that (1) Immediately order Avelina Magno to account for and deliver to the administrator of the estate of C. N. Hodges all assets of the conjugal partnership of the deceased Linnie Jane Hodges and C. N. Hodges, plus all the rents, emoluments and income therefrom; (2) Pending the consideration of this motion, immediately order Avelina Magno to turn over all her collections to the administrator PCIB; (3) Declare the Testate Estate of Linnie Jane Hodges (Sp. Proc. No. 1307) closed; and (4) Defer the hearing and consideration of the motion for declaration of heirs in the Testate Estate of Linnie Jane Hodges until the matters hereinabove set forth are resolved. This motion is predicated on the fact that there are matters pending before this court such as (a) the examination already ordered by this Honorable Court of documents relating to the allegation of Avelina Magno that Charles Newton Hodges thru written declaration and sworn public statements renounced, disclaimed and repudiated his life-estate and usufruct over the estate of Linnie Jane Hodges (b) the urgent motion for accounting and delivery to the estate of C. N. Hodges of all the assets of the conjugal partnership of the deceased Linnie Jane Hodges and C. N. Hodges existing as of May 23, 1957 plus all the rents, emoluments and income therefrom; (c) various motions to resolve the aforesaid motion; and (d) manifestation of September 14, 1964, detailing acts of interference of Avelina Magno under color of title as administratrix of the estate of Linnie Jane Hodges. These matters, according to the instant motion, are all prejudicial involving no issues of facts and only require the resolution of question of law; that in the motion of October 5, 1963 it is alleged that in a motion dated December 11, 1957 filed by Atty. Leon Gellada as attorney for the executor C. N. Hodges, the said executor C. N. Hodges is not only part owner of the properties left as conjugal but also the successor to all the properties left by the deceased Linnie Jane Hodges.

Said motion of December 11, 1957 was approved by the Court in consonance with the wishes contained in the last will and testament of Linnie Jane Hodges. That on April 21, 1959 this Court approved the inventory and accounting submitted by C. N. Hodges thru counsel Atty. Leon Gellada in a motion filed on April 14, 1959 stating therein that executor C. N. Hodges is the only devisee or legatee of Linnie Jane Hodges in accordance with the last will and testament already probated by the Court. That on July 13, 1960 the Court approved the annual statement of accounts submitted by the executor C. N. Hodges thru his counsel Atty. Gellada on July 21, 1960 wherein it is stated that the executor, C. N. Hodges is the only devisee or legatee of the deceased Linnie Jane Hodges; that on May 2, 1961 the Court approved the annual statement of accounts submitted by

executor, C. N. Hodges for the year 1960 which was submitted by Atty. Gellada on April 20, 1961 wherein it is stated that executor Hodges is the only devisee or legatee of the deceased Linnie Jane Hodges; That during the hearing on September 5 and 6, 1963 the estate of C. N. Hodges claimed all the assets belonging to the deceased spouses Linnie Jane Hodges and C. N. Hodges situated in the Philippines; that administratrix Magno has executed illegal acts to the prejudice of the testate estate of C. N. Hodges. An opposition (Sp. 1672, Vol. X, pp. 4415-4421) dated April 27, 1966 of administratrix Magno has been filed asking that the motion be denied for lack of merit and that the motion for the official declaration of heirs of the estate of Linnie Jane Hodges be set for presentation and reception of evidence. It is alleged in the aforesaid opposition that the examination of documents which are in the possession of administratrix Magno can be made prior to the hearing of the motion for the official declaration of heirs of the estate of Linnie Jane Hodges, during said hearing. That the matters raised in the PCIB's motion of October 5, 1963 (as well as the other motion) dated September 14, 1964 have been consolidated for the purpose of presentation and reception of evidence with the hearing on the determination of the heirs of the estate of Linnie Jane Hodges. It is further alleged in the opposition that the motion for the official declaration of heirs of the estate of Linnie Jane Hodges is the one that constitutes a prejudicial question to the motions dated October 5 and September 14, 1964 because if said motion is found meritorious and granted by the Court, the PCIB's motions of October 5, 1963 and September 14, 1964 will become moot and academic since they are premised on the assumption and claim that the only heir of Linnie Jane Hodges was C. N. Hodges; That the PCIB and counsel are estopped from further questioning the determination of heirs in the estate of Linnie Jane Hodges at this stage since it was PCIB as early as January 8, 1965 which filed a motion for official declaration of heirs of Linnie Jane Hodges; that the claim of any heirs of Linnie Jane Hodges can be determined only in the administration proceedings over the estate of Linnie Jane Hodges and not that of C. N. Hodges, since the heirs of Linnie Jane Hodges are claiming her estate and not the estate of C. N. Hodges. A reply (Sp. 1612, Vol. X, pp. 4436-4444) dated May 11, 1966 of the PCIB has been filed alleging that the motion dated April 22, 1966 of the PCIB is not to seek deferment of the hearing and consideration of the motion for official declaration of heirs of Linnie Jane Hodges but to declare the testate estate of Linnie Jane Hodges closed and for administratrix Magno to account for and deliver to the PCIB all assets of the conjugal partnership of the deceased spouses which has come to her possession plus all rents and income. A rejoinder (Sp. 1672, Vol. X, pp. 4458-4462) of administratrix Magno dated May 19, 1966 has been filed alleging that the motion dated December 11, 1957 only sought the approval of all conveyances made by C. N. Hodges and requested the Court authority for all subsequent conveyances that will be executed by C. N. Hodges; that the order dated December 14, 1967

only approved the conveyances made by C. N. Hodges; that C. N. Hodges represented by counsel never made any claim in the estate of Linnie Jane Hodges and never filed a motion to declare himself as the heir of the said Linnie Jane Hodges despite the lapse of more than five (5) years after the death of Linnie Jane Hodges; that it is further alleged in the rejoinder that there can be no order of adjudication of the estate unless there has been a prior express declaration of heirs and so far no declaration of heirs in the estate of Linnie Jane Hodges (Sp. 1307) has been made. Considering the allegations and arguments in the motion and reply of the PCIB as well as those in the opposition and rejoinder of administratrix Magno, the Court finds the opposition and rejoinder to be well taken for the reason that so far there has been no official declaration of heirs in the testate estate of Linnie Jane Hodges and therefore no disposition of her estate. WHEREFORE, the motion of the PCIB dated April 22, 1966 is hereby DENIED." (Annex "W", Petition) In its motion dated November 24, 1966 for the reconsideration of this order, petitioner alleged inter alia that: "It cannot be over-stressed that the motion of December 11, 1957 was based on the fact that. a.Under the last will and testament of the deceased, Linnie Jane Hodges, the late Charles Newton Hodges was the sole heir instituted insofar as her properties in the Philippines are concerned; b.Said last will and testament vested upon the said late Charles Newton Hodges rights over said properties which, in sum, spell ownership, absolute and in fee simple; c.Said late Charles Newton Hodges was, therefore, 'not only part owner of the properties left as conjugal, but also, the successor to all the properties left by the deceased Linnie Jane Hodges. "Likewise, it cannot be over-stressed that the aforesaid motion was granted by this Honorable Court 'for the reasons stated' therein. "Again, the motion of December 11, 1957 prayed that not only 'all the sales, conveyances, leases, and mortgages executed by' the late Charles Newton Hodges, but also all 'the subsequent sales, conveyances, leases, and mortgages . . .' be approved and authorized. This Honorable Court, in its order of December 14, 1957, 'for the reasons stated' in the aforesaid motion, granted the same, and not only approved all the sales, conveyances, leases and mortgages of all properties left by the deceased Linnie Jane Hodges executed by the late Charles Newton Hodges, but also authorized 'all subsequent sales, conveyances, leases and mortgages of the properties left by the said deceased Linnie Jane Hodges." (Annex "X", Petition) and reiterated its fundamental pose that the Testate Estate of Linnie Jane Hodges had already been factually, although not legally, closed with the virtual declaration of Hodges and adjudication to him, as sole universal heir of all the properties of the estate of his wife, in the

order of December 14, 1957, Annex G. Still unpersuaded, on July 18, 1967, respondent court denied said motion for reconsideration and held that "the court believes that there is no justification why the order of October 12, 1966 should be considered or modified", and, on July 19, 1967, the motion of respondent Magno "for official declaration of heirs of the estate of Linnie Jane Hodges", already referred to above, was set for hearing. In consequence of all these developments, the present petition was filed on August 1, 1967 (albeit petitioner had to pay another docketing fee on August 9, 1967, since the orders in question were issued in two separate testate estate proceedings, Nos. 1307 and 1672, in the court below). Together with such petition, there are now pending before Us for resolution herein, appeals from the following: 1.The order of December 19, 1964 authorizing payment by respondent Magno of overtime pay, (pp. 221, Green Record on Appeal) together with the subsequent orders of January 9, 1965, (pp. 231-232, id.) October 27, 1965, (pp. 227, id.) and February 15, 1966 pp. 455-456, id.) repeatedly denying motions for reconsideration thereof. 2.The order of August 6, 1965 (pp. 248, id.) requiring that deeds executed by petitioner to be cosigned by respondent Magno, as well as the order of October 27, 1965 (pp. 276-277) denying reconsideration. 3.The other of October 27, 1965 (pp. 292-295, id.) enjoining the deposit of all collections in a joint account and the same order of February 15, 1966 mentioned in No. 1 above which included the denial of the reconsideration of this order of October 27, 1965. 4.The order of November 3, 1965 (pp. 313-320, id.) directing the payment of attorney's fees, fees of the respondent administratrix, etc. and the order of February 16, 1966 denying reconsideration thereof. 5.The order of November 23, 1965 (pp. 334-335, id.) allowing appellee Western Institute of Technology to make payments to either one or both of the administrators of the two estates as well as the order of March 7, 1966 (p. 462, id.) denying reconsideration. 6.The various orders hereinabove earlier enumerated approving deeds of sale executed by respondent Magno in favor of appellees Carles, Catedral, Pablito, Guzman, Coronado, Barrido, Causing, Javier, Lucero and Batisanan, (see pp. 35 to 37 of this opinion), together with the two separate orders both dated December 2, 1966 (pp. 306-308, and pp. 308-309, Yellow Record on Appeal) denying reconsideration of said approval. 7.The order of January 3, 1967, on pp. 335-336, Yellow Record on Appeal, approving similar deeds of sale executed by respondent Magno, as those in No. 6, in favor of appellees Pacaonsis and Premaylon, as to which no motion for reconsideration was filed. 8.Lastly, the order of December 2, 1966, on pp. 305-306, Yellow Record on Appeal, directing petitioner to surrender to appellees Lucero, Batisanan, Javier, Pablito, Barrido, Catedral,

Causing, Guzman, and Coronado, the certificates of title covering the lands involved in the approved sales, as to which no motion for reconsideration was filed either.

Strictly speaking, and considering that the above orders deal with different matters, just as they affect distinctly different individuals or persons, as outlined by petitioner in its brief as appellant on pp. 12-20 thereof, there are, therefore, thirty-three (33) appeals before Us, for which reason, petitioner has to pay also thirty-one (31) more docket fees. It is as well perhaps to state here as elsewhere in this opinion that in connection with these appeals, petitioner has assigned a total of seventy-eight (LXXVIII) alleged errors, the respective discussions and arguments under all of them covering also the fundamental issues raised in respect to the petition for certiorari and prohibition, thus making it feasible and more practical for the Court to dispose of all these cases together. 4 The assignments of error read thus: "I to IV THE ORDER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEES, PEPITO G. IYULORES, ESPIRIDION PARTISALA, WINIFREDO C. ESPADA AND ROSARIO ALINGASA, EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME. V to VIII THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF THE APPELLEES, PEPITO G. IYULORES, ESPIRIDION PARTISALA, WINIFREDO C. ESPADA AND ROSARIO ALINGASA, COVERING PARCELS OF LAND FOR WHICH THEY HAVE NEVER PAID IN FULL IN ACCORDANCE WITH THE ORIGINAL CONTRACTS TO SELL. IX to XII THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF OWNERSHIP OVER REAL PROPERTY OF THE APPELLEES, PEPITO G. IYULORES, ESPIRIDION PARTISALA, WINIFREDO C. ESPADA AND ROSARIO ALINGASA, WHILE ACTING AS A PROBATE COURT. XIII to XV THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEES ADELFA PREMAYLON (LOT NO. 102), SANTIAGO PACAONSIS, AND ADELFA PREMAYLON (LOT NO. 104), EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES

NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME. XVI to XVIII THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF THE APPELLEES ADELFA PREMAYLON (LOT NO. 102), SANTIAGO PACAONSIS, AND ADELFA PREMAYLON (LOT NO. 104) COVERING PARCELS OF LAND FOR WHICH THEY HAVE NEVER PAID IN FULL IN ACCORDANCE WITH THE ORIGINAL CONTRACTS TO SELL. XIX to XXI THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF OWNERSHIP OVER REAL PROPERTY OF THE APPELLEES ADELFA PREMAYLON (LOT NO. 102), SANTIAGO PACAONSIS, AND ADELFA PREMAYLON (LOT NO. 104) WHILE ACTING AS A PROBATE COURT. XXII to XXV THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEES LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL AND SALVADOR S. GUZMAN, EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME. XXVI to XXIX THE LOWER COURT ERRED IN APPROVING THE FINAL DEED OF SALE EXECUTED IN FAVOR OF THE APPELLEES, LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL AND SALVADOR S. GUZMAN PURSUANT TO CONTRACTS TO SELL WHICH WERE CANCELLED AND RESCINDED. XXX to XXXIV THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF OWNERSHIP OVER REAL PROPERTY OF THE APPELLEES, LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL AND SALVADOR S. GUZMAN, WHILE ACTING AS A PROBATE COURT. XXXV to XXXVI THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEES, FLORENIA BARRIDO AND PURIFICACION CORONADO, EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON HODGES AND THE CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME. XXXVII to XXXVIII

THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF THE APPELLEES, FLORENIA BARRIDO AND PURIFICACION CORONADO, ALTHOUGH THEY WERE IN ARREARS IN THE PAYMENTS AGREED UPON IN THE ORIGINAL CONTRACT TO SELL WHICH THEY EXECUTED WITH THE DECEASED, CHARLES NEWTON HODGES, IN THE AMOUNT OF P10,680.00 and P4,428.90, RESPECTIVELY. XXXIX to XL THE LOWER COURT ERRED IN DEPRIVING THE DECEASED, CHARLES NEWTON HODGES, OF THE CONTRACTUAL RIGHT, EXERCISED THROUGH HIS ADMINISTRATOR, THE INSTANT APPELLANT, TO CANCEL THE CONTRACTS TO SELL OF THE APPELLEES, FLORENIA BARRIDO AND PURIFICACION CORONADO. XLI to XLIII THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEES, GRACIANO LUCERO, ARITEO THOMAS JAMIR AND MELQUIADES BATISANAN, EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME. XLIV to XLVI THE LOWER COURT ERRED IN APPROVING THE FINAL DEED OF SALE IN FAVOR OF THE APPELLEES, GRACIANO LUCERO, ARITEO THOMAS JAMIR AND MELQUIADES BATISANAN, PURSUANT TO CONTRACTS TO SELL EXECUTED BY THEM WITH THE DECEASED, CHARLES NEWTON HODGES, THE TERMS AND CONDITIONS OF WHICH THEY HAVE NEVER COMPLIED WITH. XLVII to XLIX THE LOWER COURT ERRED IN DEPRIVING THE DECEASED, CHARLES NEWTON HODGES, OF HIS RIGHT, EXERCISED THROUGH HIS ADMINISTRATION, THE INSTANT APPELLANT, TO CANCEL THE CONTRACTS TO SELL OF THE APPELLEES, GRACIANO LUCERO, ARITEO THOMAS JAMIR AND MELQUIADES BATISANAN, AND IN DETERMINING THE RIGHTS OF THE SAID APPELLEES OVER REAL PROPERTY WHILE ACTING AS A PROBATE COURT. L THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEE, BELCESAR CAUSING EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME. LI

THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF THE APPELLEE, BELCESAR CAUSING, ALTHOUGH HE WAS IN ARREARS IN THE PAYMENTS AGREED UPON IN THE ORIGINAL CONTRACT TO SELL WHICH HE EXECUTED WITH THE DECEASED, CHARLES NEWTON HODGES, IN THE AMOUNT OF P2,337.50. LII THE LOWER COURT ERRED IN APPROVING THE DEED OF SALE IN FAVOR OF THE APPELLEE, BELCESAR CAUSING, ALTHOUGH THE SAME WAS NOT EXECUTED IN ACCORDANCE WITH THE RULES OF COURT. LIII to LXI THE LOWER COURT ERRED IN ORDERING THE APPELLANT, PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK TO SURRENDER THE OWNER'S DUPLICATE CERTIFICATES OF TITLE OVER THE RESPECTIVE LOTS COVERED BY THE DEEDS OF SALE EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, IN FAVOR OF THE OTHER APPELLEES, JOSE PABLICO, ALFREDO CATEDRAL, SALVADOR S. GUZMAN, FLORENIA BARRIDO, PURIFICACION CORONADO, BELCESAR CAUSING, ARITEO THOMAS JAMIR, MAXIMA BATISANAN AND GRACIANO L. LUCERO. LXII THE LOWER COURT ERRED IN RESOLVING THE MOTION OF THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, DATED NOVEMBER 3, 1965, WITHOUT ANY COPY THEREOF HAVING BEEN SERVED UPON THE APPELLANT, PHILIPPINE COMMERCIAL & INDUSTRIAL BANK. LXIII THE LOWER COURT ERRED IN HEARING AND CONSIDERING THE MOTION OF THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, DATED NOVEMBER 3rd, 1965, ON NOVEMBER 23, 1965, WHEN THE NOTICE FOR THE HEARING THEREOF WAS FOR NOVEMBER 20, 1965. LXIV THE LOWER COURT ERRED IN GRANTING THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY A RELIEF OTHER THAN THAT PRAYED FOR IN ITS MOTION, DATED NOVEMBER 3, 1965, IN THE ABSENCE OF A PRAYER FOR GENERAL RELIEF CONTAINED THEREIN. LXV THE LOWER COURT ERRED IN ALLOWING THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, TO CONTINUE PAYMENTS UPON A CONTRACT TO SELL THE TERMS AND CONDITIONS OF WHICH IT HAS FAILED TO FULFILL.

LXVI THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY OVER THE REAL PROPERTY SUBJECT MATTER OF THE CONTRACT TO SELL IT EXECUTED WITH THE DECEASED, CHARLES NEWTON HODGES, WHILE ACTING AS A PROBATE COURT. LXVII LOWER COURT ERRED IN ALLOWING THE CONTINUATION OF PAYMENTS BY THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, UPON A CONTRACT TO SELL EXECUTED BY IT AND THE DECEASED, CHARLES NEWTON HODGES, TO A PERSON OTHER THAN HIS LAWFULLY APPOINTED ADMINISTRATOR. LXVIII THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF RETAINER'S FEES FROM THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES, WHEN THERE IS NEITHER SUCH ESTATE NOR ASSETS THEREOF. LXIX THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF RETAINER'S FEES OF LAWYERS OF ALLEGED HEIRS TO THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES. LXX THE LOWER COURT ERRED IN IMPLEMENTING THE ALLEGED AGREEMENT BETWEEN THE HEIRS OF THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES, AND THEIR LAWYERS. LXXI THE LOWER COURT ERRED IN ORDERING THE PREMATURE DISTRIBUTION OF ESTATE ASSETS TO ALLEGED HEIRS OR BENEFICIARIES THEREOF, BY WAY OF RETAINER'S FEES. LXXII THE LOWER COURT ERRED IN ORDERING THAT ALL FINAL DEEDS OF SALE EXECUTED PURSUANT TO CONTRACTS TO SELL ENTERED INTO BY THE DECEASED, CHARLES NEWTON HODGES, DURING HIS LIFETIME, BE SIGNED JOINTLY BY THE APPELLEE, AVELINA A. MAGNO, AND THE APPELLANT, PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, AND NOT BY THE LATTER ONLY AS THE LAWFULLY APPOINTED ADMINISTRATOR OF HIS ESTATE. LXXIII

THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF LEGAL EXPENSES FROM THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES, WHEN THERE IS NEITHER SUCH ESTATE NOR ASSETS THEREOF. LXXIV THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF LEGAL EXPENSES OF LAWYERS OF ALLEGED HEIRS TO THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES. LXXV THE LOWER COURT ERRED IN ORDERING THE PREMATURE DISTRIBUTION OF ESTATE ASSETS TO ALLEGED HEIRS OR BENEFICIARIES THEREOF, BY WAY OF LEGAL EXPENSES. LXXVI THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF COMPENSATION TO THE PURPORTED ADMINISTRATRIX OF THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES, THE INSTANT APPELLEE, AVELINA A. MAGNO, WHEN THERE IS NEITHER SUCH ESTATE NOR ASSETS THEREOF. LXXVII THE LOWER COURT ERRED IN ORDERING THAT THE FUNDS OF THE TESTATE ESTATE OF THE DECEASED, CHARLES NEWTON HODGES, BE PLACED IN A JOINT ACCOUNT OF THE APPELLANT, PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, AND THE APPELLEE, AVELINA A. MAGNO WHO IS A COMPLETE STRANGER TO THE AFORESAID ESTATE.

LXXVIII THE LOWER COURT ERRED IN ORDERING THAT THE APPELLEE, AVELINA A. MAGNO, BE GIVEN EQUAL ACCESS TO THE RECORDS OF THE TESTATE ESTATE OF THE DECEASED, CHARLES NEWTON HODGES, WHEN SHE IS A COMPLETE STRANGER TO THE AFORESAID ESTATE."(Pp. 73-83, Appellant's Brief.) To complete this rather elaborate, and unavoidably extended narration of the factual setting of these cases, it may also be mentioned that an attempt was made by the heirs of Mrs. Hodges to have respondent Magno removed as administratrix, with the proposed appointment of Benito J. Lopez in her place, and that respondent court did actually order such proposed replacement, but the Court declared the said order of respondent court violative of its injunction of August 8, 1967, hence without force and effect (see Resolution of September 8, 1972 and February 1, 1973). Subsequently, Atty. Efrain B. Trenas, one of the lawyers of said heirs, appeared no longer for the proposed administrator Lopez but for the heirs themselves, and in a motion dated

October 26, 1972 informed the Court that a motion had been filed with respondent court for the removal of petitioner PCIB as administrator of the estate of C. N. Hodges in Special Proceedings 1672, which removal motion alleged that 22.968149% of the share of C. N. Hodges had already been acquired by the heirs of Mrs. Hodges from certain heirs of her husband. Further, in this connection, in the answer of PCIB to the motion of respondent Magno to have it declared in contempt for disregarding the Court's resolution of September 8, 1972 modifying the injunction of August 8, 1967, said petitioner annexed thereto a joint manifestation and motion, appearing to have been filed with respondent court, informing said court that in addition to the fact that 22% of the share of C. N. Hodges had already been bought by the heirs of Mrs. Hodges, as already stated, certain other heirs of Hodges representing 17.343750% of his estate were joining cause with the heirs of Mrs. Hodges as against PCIB, thereby making somewhat precarious, if not possibly untenable, petitioners' continuation as administrator of the Hodges estate. RESOLUTION OF ISSUES IN THE CERTIORARI AND PROHIBITION CASES I As to the Alleged Tardiness of the Present Appeals The priority question raised by respondent Magno relates to the alleged tardiness of all the aforementioned thirty-three appeals of PCIB. Considering, however, that these appeals revolve around practically the same main issues and that it is admitted that some of them have been timely taken, and, moreover, their final results herein below to be stated and explained make it of no consequence whether or not the orders concerned have become final by the lapsing of the respective periods to appeal them, We do not deem it necessary to pass upon the timeliness of any of said appeals. II The Propriety Here of Certiorari and Prohibition instead of Appeal The other preliminary point of the same respondent is alleged impropriety of the special civil action of certiorari and prohibition in view of the existence of the remedy of appeal which it claims is proven by the very appeals now before Us. Such contention fails to take into account that there is a common thread among the basic issues involved in all these thirty-three appeals which, unless resolved in one single proceeding, will inevitably cause the proliferation of more or less similar or closely related incidents and consequent eventual appeals. If for this consideration alone, and without taking account anymore of the unnecessary additional effort, expense and time which would be involved in as many individual appeals as the number of such incidents, it is logical and proper to hold, as We do hold, that the remedy of appeal is not

adequate in the present cases. In determining whether or not a special civil action of certiorari or prohibition may be resorted to in lieu of appeal, in instances wherein lack or excess of jurisdiction or grave abuse of discretion is alleged, it is not enough that the remedy of appeal exists or is possible. It is indispensable that taking all the relevant circumstances of the given case, appeal would better serve the interests of justice. Obviously, the longer delay, augmented expense and trouble and unnecessary repetition of the same work attendant to the present multiple appeals, which, after all, deal with practically the same basic issues that can be more expeditiously resolved or determined in a single special civil action, make the remedies of certiorari and prohibition, pursued by petitioner, preferable, for purposes of resolving the common basic issues raised in all of them, despite the conceded availability of appeal. Besides, the settling of such common fundamental issues would naturally minimize the areas of conflict between the parties and render more simple the determination of the secondary issues in each of them. Accordingly, respondent Magno's objection to the present remedy of certiorari and prohibition must be overruled. We come now to the errors assigned by petitioner-appellant, Philippine Commercial & Industrial Bank, (PCIB, for short) in the petition as well as in its main brief as appellant. III On Whether or Not There is Still Any Part of the Testate Estate of Mrs. Hodges that may be Adjudicated to her brothers and sisters as her estate, of which respondent Magno is the unquestioned Administratrix in special Proceedings 1307. In the petition, it is the position of PCIB that the respondent court exceeded its jurisdiction or gravely abused its discretion in further recognizing after December 14, 1957 the existence of the Testate Estate of Linnie Jane Hodges and in sanctioning purported acts of administration therein of respondent Magno. Main ground for such posture is that by the aforequoted order of respondent court of said date, Hodges was already allowed to assert and exercise all his rights as universal heir of his wife pursuant to the provisions of her will, quoted earlier, hence, nothing else remains to be done in Special Proceedings 1307 except to formally close it. In other words, the contention of PCIB is that in view of said order, nothing more than a formal declaration of Hodges as sole and exclusive heir of his wife and the consequent formal unqualified adjudication to him of all her estate remain to be done to completely close Special Proceedings 1307, hence respondent Magno should be considered as having ceased to be Administratrix of the Testate Estate of Mrs. Hodges since then. After carefully going over the record, We feel constrained to hold that such pose is patently untenable from whatever angle it is examined. To start with, We cannot find anywhere in respondent court's order of December 14, 1957 the sense being read into it by PCIB. The tenor of said order bears no suggestion at all to such effect. The declaration of heirs and distribution by the probate court of the estate of a decedent

is its most important function, and this Court is not disposed to encourage judges of probate proceedings to be less than definite, plain and specific in making orders in such regard, if for no other reason than that all parties concerned, like the heirs, the creditors, and most of all the government, the devisees and legatees, should know with certainty what are and when their respective rights and obligations ensuing from the inheritance or in relation thereto would begin or cease, as the case may be, thereby avoiding precisely the legal complications and consequent litigations similar to those that have developed unnecessarily in the present cases. While it is true that in instances wherein all the parties interested in the estate of a deceased person have already actually distributed among themselves their respective shares therein to the satisfaction of everyone concerned and no rights of creditors or third parties are adversely affected, it would naturally be almost ministerial for the court to issue the final order of declaration and distribution, still it is inconceivable that the special proceeding instituted for the purpose may be considered terminated, the respective rights of all the parties concerned be deemed definitely settled, and the executor or administrator thereof be regarded as automatically discharged and relieved already of all functions and responsibilities without the corresponding definite orders of the probate court to such effect. Indeed, the law on the matter is specific, categorical and unequivocal. Section 1 of Rule 90 provides: "SECTION 1.When order for distribution of residue made. When the debts, funeral charges, and expenses of administration, the allowance to the widow, and inheritance tax, if any, chargeable to the estate in accordance with law, have been paid, the court, on the application of the executor or administrator, or of a person interested in the estate, and after hearing upon notice, shall assign the residue of the estate to the persons entitled to the same, naming them and the proportions, or parts, to which each is entitled, and such persons may demand and recover their respective shares from the executor or administrator, or any other person having the same in his possession. If there is a controversy before the court as to who are the lawful heirs of the deceased person or as to the distributive shares to which each person is entitled under the law, the controversy shall be heard and decided as in ordinary cases. "No distribution shall be allowed until the payment of the obligations above mentioned has been made or provided for, unless the distributees, or any of them, give a bond, in a sum to be fixed by the court, conditioned for the payment of said obligations within such time as the court directs." These provisions cannot mean anything less than that in order that a proceeding for the settlement of the estate of a deceased may be deemed ready for final closure, (1) there should have been issued already an order of distribution or assignment of the estate of the decedent among or to those entitled thereto by will or by law, but (2) such order shall not be issued until after it is shown that the "debts, funeral expenses, expenses of administration, allowances, taxes, etc. chargeable to the estate" have been paid, which is but logical and proper. (3) Besides, such an order is usually issued upon proper and specific application for the purpose of the interested party or parties, and not of the court.

". . . it is only after, and not before, the payment of all debts, funeral charges, expenses of administration, allowance to the widow, and inheritance tax shall have been effected that the court should make a declaration of heirs or of such persons as are entitled by law to the residue. (Moran, Comments on the Rules of Court, 2nd ed., Vol. II, p. 397, citing Capistrano vs. Nadurata, 49 Phil., 726; Lopez vs. Lopez, 37 Off. Gaz., 3091.)" (JIMOGA-ON v. BELMONTE, 84 Phil. 545, 548) (p. 86, Appellee's Brief) xxx xxx xxx "Under Section 753 of the Code of Civil Procedure, (corresponding to Section 1, Rule 90) what brings an intestate (or testate) proceeding to a close is the order of distribution directing delivery of the residue to the persons entitled thereto after paying the indebtedness, if any, left by the deceased." (Santiesteban vs. Santiesteban, 68 Phil. 367, 370.) In the cases at bar, We cannot discern from the voluminous and varied facts, pleadings and orders before Us that the above indispensable prerequisites for the declaration of heirs and the adjudication of the estate of Mrs. Hodges had already been complied with when the order of December 14, 1957 was issued. As already stated, We are not persuaded that the proceedings leading to the issuance of said order, constituting barely of the motion of May 27, 1957, Annex D of the petition, the order of even date, Annex E, and the motion of December 11, 1957, Annex H, all aforequoted, are what the law contemplates. We cannot see in the order of December 14, 1957, so much relied upon by the petitioner, anything more than an explicit approval of "all the sales, conveyances, leases and mortgages of all the properties left by the deceased Linnie Jane Hodges executed by the Executor Charles N. Hodges" (after the death of his wife and prior to the date of the motion), plus a general advance authorization to enable said "Executor to execute subsequent sales, conveyances, leases and mortgages of the properties left the said deceased Linnie Jane Hodges in consonance with wishes conveyed in the last will and testament of the latter", which, certainly, cannot amount to the order of adjudication of the estate of the decedent to Hodges contemplated in the law. In fact, the motion of December 11, 1957 on which the court predicated the order in question did not pray for any such adjudication at all. What is more, although said motion did allege that "herein Executor (Hodges) is not only part owner of the properties left as conjugal, but also, the successor to all the properties left by the deceased Linnie Jane Hodges", it significantly added that "herein Executor, as Legatee (sic), has the right to sell, convey, lease or dispose of the properties in the Philippines during his lifetime", thereby indicating that what said motion contemplated was nothing more than either the enjoyment by Hodges of his rights under the particular portion of the dispositions of his wife's will which were to be operative only during his lifetime or the use of his own share of the conjugal estate, pending the termination of the proceedings. In other words, the authority referred to in said motions and orders is in the nature of that contemplated either in Section 2 of Rule 109 which permits, in appropriate cases, advance or partial implementation of the terms of a duly probated will before final adjudication or distribution when the rights of third parties would not be adversely affected thereby or in the established practice of allowing the surviving spouse to dispose of his own share of the conjugal estate, pending its final liquidation, when it appears that no creditors of the conjugal partnership would be prejudiced thereby, (see the Revised Rules of Court by Francisco, Vol. V-B, 1970 ed. p. 887) albeit, from the tenor of said motions,

We are more inclined to believe that Hodges meant to refer to the former. In any event, We are fully persuaded that the quoted allegations of said motions read together cannot be construed as a repudiation of the rights unequivocally established in the will in favor of Mrs. Hodges' brothers and sisters to whatever have not been disposed of by him up to his death. Indeed, nowhere in the record does it appear that the trial court subsequently acted upon the premise suggested by petitioner. On the contrary, on November 23, 1965, when the court resolved the motion of appellee Western Institute of Technology by its order We have quoted earlier, it categorically held that as of said date, November 23, 1965, "in both cases (Special Proceedings 1307 and 1672) there is as yet no judicial declaration of heirs nor distribution of properties to whomsoever are entitled thereto." In this connection, it may be stated further against petitioner, by way of some kind of estoppel, that in its own motion of January 8, 1965, already quoted in full on pages 54-67 of this decision, it prayed inter alia that the court declare that "C. N. Hodges was the sole and exclusive heir of the estate of Linnie Jane Hodges", which it would not have done if it were really convinced that the order of December 14, 1957 was already the order of adjudication and distribution of her estate. That said motion was later withdrawn when Magno filed her own motion for determination and adjudication of what should correspond to the brothers and sisters of Mrs. Hodges does not alter the indubitable implication of the prayer of the withdrawn motion. It must be borne in mind that while it is true that Mrs. Hodges bequeathed her whole estate to her husband and gave him what amounts to full powers of dominion over the same during his lifetime, she imposed at the same time the condition that whatever should remain thereof upon his death should go to her brothers and sisters. In effect, therefore, what was absolutely given to Hodges was only so much of his wife's estate as he might possibly dispose of during his lifetime; hence, even assuming that by the allegations in his motion, he did intend to adjudicate the whole estate to himself, as suggested by petitioner, such unilateral act could not have affected or diminished in any degree or manner the right of his brothers and sisters-in-law over what would remain thereof upon his death, for surely, no one can rightly contend that the testamentary provision in question allowed him to so adjudicate any part of the estate to himself as to prejudice them. In other words, irrespective of whatever might have been Hodges' intention in his motions, as Executor, of May 27, 1957 and December 11, 1957, the trial court's orders granting said motions, even in the terms in which they have been worded, could not have had the effect of an absolute and unconditional adjudication unto Hodges of the whole estate of his wife None of them could have deprived his brothers and sisters-in-law of their rights under said will. And it may be added here that the fact that no one appeared to oppose the motions in question may only be attributed, firstly, to the failure of Hodges to send notices to any of them, as admitted in the motion itself, and, secondly, to the fact that even if they had been notified, they could not have taken said motions to be for the final distribution and adjudication of the estate, but merely for him to be able, pending such final distribution and adjudication, to either exercise during his lifetime rights of dominion over his wife's estate in accordance with the bequest in his favor, which, as already observed, may be allowed under the broad terms of Section 2 of Rule 109, or make use of his own share of the conjugal estate. In any event, We do not believe that the trial court could have acted in the sense pretended by petitioner, not only because of the clear language of the will but also because none of the interested parties had

been duly notified of the motion and hearing thereof. Stated differently, if the orders of May 21, 1957 and December 4, 1957 were really intended to be read in the sense contended by petitioner, We would have no hesitancy in declaring them null and void. Petitioner cites the case of Austria vs. Ventenilla, G. R. No. L-10018, September 19, 1956, (unreported but a partial digest thereof appears in 99 Phil. 1069) in support of its insistence that with the orders of May 27 and December 14, 1957, the closure of Mrs. Hodges' estate has become a mere formality, inasmuch as said orders amounted to the order of adjudication and distribution ordained by Section 1 of Rule 90. But the parallel attempted to be drawn between that case and the present one does not hold. There the trial court had in fact issued a clear, distinct and express order of adjudication and distribution more than twenty years before the other heirs of the deceased filed their motion asking that the administratrix be removed, etc. As quoted in that decision, the order of the lower court in that respect read as follows: "En orden a la mocion de la administradora, el juzgado la encuentra procedente bajo la condicion de que no se hara entrega ni adjudicacion de los bienes a los herederos antes de que estos presten la fianza correspondiente y de acuerdo con lo prescrito en el Art. 754 del Codigo de Procedimientos: pues, en autos no aparece que hayan sido nombrados comisionados de avaluo y reclamaciones. Dicha fianza podra ser por un valor igual al de los bienes que correspondan a cada heredero segun el testamento. Creo que no es obice para la terminacion del expediente el hecho de que la administradora no ha presentado hasta ahora el inventario de los bienes; pues, segun la ley, estan exentos de esta formalidad los administradores que son legatarios del residuo o remanente de los bienes y hayan prestado fianza para responder de las gestiones de su cargo, y aparece en el testamento que la administradora Alejandra Austria reune dicha condicion. "POR TODO LO EXPUESTO, el juzgado declara, 1.o: no haber lugar a la mocion de Ramon Ventenilla y otros; 2.o, declara asimismo que los unicos herederos del finado Antonio Ventenilla son su esposa Alejandra Austria, Maria Ventenilla, hermana del testador, y Ramon Ventenilla, Maria Ventenilla, Ramon Soriano, Eulalio Soriano, Jose Soriano, Gabriela Ventenilla, Lorenzo Ventenilla, Felicitas Ventenilla, Eugenio Ventenilla y Alejandra Ventenilla, en representacion de los difuntos Juan, Tomas, Catalino y Froilan, hermanos del testador, declarando, ademas, que la heredera Alejandra Austria tiene derecho al remanente de todos los bienes dejados por el finado, despues de deducir de ellos la porcion que corresponde a cada uno de sus coherederos, conforme esta mandado en las clausulas 8.a, 9.a, 10.a, 11.a, 12.a y 13.a del testamento; 3.o, se aprueba el pago hecho por la administradora de los gastos de la ultima enfermedad y funerales del testador, de la donacion hecha por el testador a favor de la Escuela a Publica del Municipio de Mangatarem, y de las misas en sufragio del alma del finado; 4.o, que una vez prestada la fianza mencionada al principio de este auto, se haga la entrega y adjudicacion de los bienes, conforme se dispone en el testamento y se acaba de declarar en este auto; 5.o, y, finalmente, que verificada la adjudicacion, se dara por terminada la administracion, revelandole toda responsabilidad a la administradora, y cancelando su fianza.

ASI SE ORDENA."

Undoubtedly, after the issuance of an order of such tenor, the closure of any proceedings for the settlement of the estate of a deceased person cannot be but perfunctory. In the case at bar, as already pointed out above, the two orders relied upon by petitioner do not appear ex-facie to be of the same tenor and nature as the order just quoted, and, what is more, the circumstances attendant to its issuance do not suggest that such was the intention of the court, for nothing could have been more violative of the will of Mrs. Hodges. Indeed, to infer from Hodges' said motions and from his statements of accounts for the years 1958, 1959 and 1960, Annexes I, K and M, respectively, wherein he repeatedly claimed that "herein executor (being) the only devisee or legatee of the deceased, in accordance with the last will and testament already probated," there is "no (other) person interested in the Philippines of the time and place of examining herein account to be given notice", an intent to adjudicate unto himself the whole of his wife's estate in an absolute manner and without regard to the contingent interests of her brothers and sisters, is to impute bad faith to him, an imputation which is not legally permissible, much less warranted by the facts of record herein. Hodges knew or ought to have known that, legally speaking, the terms of his wife's will did not give him such a right. Factually, there are enough circumstances extant in the records of these cases indicating that he had no such intention to ignore the rights of his co-heirs. In his very motions in question, Hodges alleged, thru counsel, that the "deceased Linnie Jane Hodges died leaving no descendants and ascendants, except brothers and sisters and herein petitioner, as surviving spouse, to inherit the properties of the decedent", and even promised that "proper accounting will be had in all these transactions" which he had submitted for approval and authorization by the court, thereby implying that he was aware of his responsibilities vis-a-vis his co-heirs. As alleged by respondent Magno in her brief as appellee: cdtai "Under date of April 14, 1959, C. N. Hodges filed his first 'Account by the Executor' of the estate of Linnie Jane Hodges. In the 'Statement of Networth of Mr. C. N. Hodges and the Estate of Linnie Jane Hodges' as of December 31, 1958 annexed thereto, C. N. Hodges reported that the combined e tax return' for calendar year 1958 on the estate of Linnie Jane Hodges reporting, under oath, the said estate as having earned income of P164,201.31, exactly one-half of the net income of his combined personal assets and that of the estate of Linnie Jane Hodges." (p. 91, Appellee's Brief.) "Under date of July 21, 1960, C. N. Hodges filed his second 'Annual Statement of Account by the Executor' of the estate of Linnie Jane Hodges. In the 'Statement of Net worth of Mr. C. N Hodges and the Estate of Linnie Jane Hodges' as of December 31, 1959 annexed thereto. C. N. Hodges reported that the combined conjugal estate earned a net income of P270,623.32, divided evenly between him and the estate of Linnie Jane Hodges. Pursuant to this, he filed an 'individual income tax return' for calendar year 1959 on the estate of Linnie Jane Hodges reporting, under oath, the said estate as having earned income of P135,311.66, exactly one-half of the net income of his combined personal assets and that of the estate of Linnie Jane Hodges. (pp. 91-92, Id.) "Under date of April 20, 1961, C. N. Hodges filed his third 'Annual Statement of Account by the Executor for the year 1960' of the estate of Linnie Jane Hodges. In the 'Statement of Net Worth

of Mr. C. N. Hodges and the Estate of Linnie Jane Hodges' as of December 31, 1960 annexed thereto, C. N. Hodges reported that the combined conjugal estate earned a net income of P314,857.94, divided of Linnie Jane Hodges. Pursuant to this, he filed an 'individual evenly between him and the estate income tax return' for calendar year 1960 on the estate of Linnie Jane Hodges reporting, under oath, the said estate as having earned income of P157,428.97, exactly one-half of the net income of his combined personal assets and that of the estate of Linnie Jane Hodges." (pp. 92-93, Id.) "In the petition for probate that he (Hodges) filed, he listed the seven brothers and sisters of Linnie Jane as her 'heirs' (see p. 2, Green ROA). The order of the court admitting the will to probate unfortunately omitted one of the heirs, Roy Higdon (see p. 14, Green ROA). Immediately, C. N. Hodges filed a verified motion to have Roy Higdon's name included as an heir, stating that he wanted to straighten the records 'in order (that) the heirs of deceased Roy Higdon may not think or believe they were omitted, and that they were really and are interested in the estate of deceased Linnie Jane Hodges'." Thus, he recognized, if in his own way, the separate identity of his wife's estate from his own share of the conjugal partnership up to the time of his death, more than five years after that of his wife. He never considered the whole estate as a single one belonging exclusively to himself. The only conclusion one can gather from this is that he could have been preparing the basis for the eventual transmission of his wife's estate, or, at least, so much thereof as he would not have been able to dispose of during his lifetime, to her brothers and sisters in accordance with her expressed desire, as intimated in his tax return in the United States to be more extensively referred to anon. And assuming that he did pay the corresponding estate and inheritance taxes in the Philippines on the basis of his being sole heir, such payment is not necessarily inconsistent with his recognition of the rights of his co-heirs. Without purporting to rule definitely on the matter in these proceedings, We might say here that We are inclined to the view that under the peculiar provisions of his wife's will, and for purposes of the applicable inheritance tax laws, Hodges had to be considered as her sole heir, pending the actual transmission of the remaining portion of her estate to her other heirs, upon the eventuality of his death, and whatever adjustment might be warranted should there be any such remainder then is a matter that could well be taken care of by the internal revenue authorities in due time. It is to be noted that the lawyer, Atty. Leon P. Gellada, who signed the motions of May 27, 1957 and December 11, 1957 and the aforementioned statements of account was the very same one who also subsequently signed and filed the motion of December 26, 1962 for the appointment of respondent Magno as "Administratrix of the Estate of Mrs. Linnie Jane Hodges" wherein it was alleged that "in accordance with the provisions of the last will and testament of Linnie Jane Hodges, whatever real properties that may remain at the death of her husband, Charles Newton Hodges, the said properties shall be equally divided among their heirs." And it appearing that said attorney was Hodges' lawyer as Executor of the estate of his wife, it stands to reason that his understanding of the situation, implicit in his allegations just quoted, could somehow be reflective of Hodges' own understanding thereof.

As a matter of fact, the allegations in the motion of the same Atty. Gellada dated July 1, 1957, a "Request for Inclusion of the Name of Roy Higdon in the Order of the Court dated July 19, 1957, etc.", reference to which is made in the above quotation from respondent Magno's brief, are over the oath of Hodges himself, who verified the motion. Said allegations read: "1.That the Hon. Court issued orders dated June 29, 1957, ordering the probate of the will. 2.That in said order of the Hon. Court, the relatives of the deceased Linnie Jane Hodges were enumerated. However, in the petition as well as in the testimony of Executor during the hearing, the name Roy Higdon was mentioned, but deceased. It was unintentionally omitted the heirs of said Roy Higdon, who are his wife Aline Higdon and son David Higdon, all of age, and residents of Quinlan, Texas, U.S.A. 3.That to straighten the records, and in order the heirs of deceased Roy Higdon may not think or believe they were omitted, and that they were really and are interested in the estate of deceased Linnie Jane Hodges, it is requested of the Hon Court to insert the names of Aline Higdon and David Higdon, wife and son of deceased Roy Higdon, in the said order of the Hon. Court dated June 29, 1957." (pars. 1 to 3 Annex 2 of Magno's Answer Record, p. 260) As can be seen, these italicized allegations indicate, more or less, the real attitude of Hodges in regard to the testamentary dispositions of his wife. In connection with this point of Hodges' intent, We note that there are documents, copies of which are annexed to respondent Magno's answer, which purportedly contain Hodges' own solemn declarations recognizing the right of his co-heirs, such as the alleged tax return he filed with the United States Taxation authorities, identified as Schedule M, (Annex 4 of her answer) and his supposed affidavit of renunciation, Annex 5. In said Schedule M, Hodges appears to have answered the pertinent question thus: "2a.Had the surviving spouse the right to declare an election between (1) the provisions made in his or her favor by the will and (11) dower, courtesy, or a statutory interest? (X) Yes () No "2d.Does the surviving spouse contemplate renouncing the will and electing to take dower, courtesy, or a statutory interest? (X) Yes ( ) No. "3.According to the information and belief of the person or persons filing the return, is any action described under question 1 designed or contemplated? ( ) Yes (X) No" (Annex 4, Answer Record, p. 263) and to have further stated under the item, "Description of property interests passing to surviving spouse" the following: "None, except for purposes of administering the Estate, paying debts, taxes and other legal charges. It is the intention of the surviving husband of deceased to distribute the remaining property and interest of the deceased in their Community Estate to the devisees and legatees named in the will when the debts, liabilities, taxes and expenses of administration are finally determined and paid." (Annex 4, Answer Record, p. 263)

In addition, in the supposed affidavit of Hodges, Annex 5, it is stated: "I, C. N. Hodges, being duly sworn, on oath affirm that at the time the United States Estate Tax Return was filed in the Estate of Linnie Jane Hodges on August 8, 1958, I renounced and disclaimed any and all right to receive the rents, emoluments and income from said estate, as shown by the statement contained in Schedule M at page 29 of said return, a copy of which schedule is attached to this affidavit and made a part hereof. "The purpose of this affidavit is to ratify and confirm and I do hereby ratify and confirm the declaration made in Schedule M of said return and hereby formally disclaim and renounce any right on my part to receive any of the said rents, emoluments and income from the estate of my deceased wife, Linnie Jane Hodges. This affidavit is made to absolve me or my estate from any liability for the payment of income taxes on income which has accrued to the estate of Linnie Jane Hodges since the death of the said Linnie Jane Hodges on May 23, 1957." (Annex 5, Answer Record, p. 264) Although it appears that said documents were not duly presented as evidence in the court below, and We cannot, therefore, rely on them for the purpose of the present proceedings, still, We cannot close our eyes to their existence in the record nor fail to note that their tenor jibes with Our conclusion discussed above from the circumstances related to the orders of May 27 and December 14, 1957. 5 Somehow, these documents, considering they are supposed to be copies of their originals found in the official files of the governments of the United States and of the Philippines, serve to lessen any possible apprehension that Our conclusion from the other evidence of Hodges' manifest intent vis-a-vis the rights of his co-heirs is without basis in fact. Verily, with such eloquent manifestations of his good intentions towards the other heirs of his wife, We find it very hard to believe that Hodges did ask the court and that the latter agreed that he be declared her sole heir and that her whole estate be adjudicated to him without so much as just annotating the contingent interest of her brothers and sisters in what would remain thereof upon his demise. On the contrary, it seems to us more factual and fairer to assume that Hodges was well aware of his position as executor of the will of his wife and, as such, had in mind the following admonition made by the Court in Pamittan vs. Lasam, et al., 60 Phil. 908, at pp. 913914: "Upon the death of Bernarda in September, 1908, said land continued to be conjugal property in the hands of the defendant Lasam. It is provided in article 1418 of the Civil Code that upon the dissolution of the conjugal partnership, an inventory shall immediately be made and this court in construing this provision in connection with section, 685 of the Code of Civil Procedure (prior to its amendment by Act No. 3176 of November 24, 1924) has repeatedly held that in the event of the death of the wife, the law imposes upon the husband the duty of liquidating the affairs of the partnership without delay (desde luego). (Alfonso vs. Natividad, 6 Phil. 240; Prado vs. Lagera, 7 Phil., 395; De la Rama vs. De la Rama, 7 Phil., 745; Enriquez vs. Victoria, 10 Phil., 10; Amancio vs. Pardo, 13 Phil., 297; Rojas vs. Singson Tongson, 17 Phil., 476; Sochayseng vs. Trujillo, 31 Phil., 153; Molera vs. Molera, 40 Phil., 586; Nable Jose vs. Nable Jose, 41 Phil., 713.)

"In the last mentioned case this court quoted with approval the case of Leatherwood vs. Arnold (66 Texas, 414, 416, 417), in which that court discussed the powers of the surviving spouse in the administration of the community property. Attention was called to the fact that the surviving husband, in the management of the conjugal property after the death of the wife, was a trustee of unique character who is liable for any fraud committed by him with relation to the property while he is charged with its administration. In the liquidation of the conjugal partnership, he had wide powers (as the law stood prior to Act No. 3176) and the high degree of trust reposed in him stands out more clearly in view of the fact that he was the owner of a half interest in his own right of the conjugal estate which he was charged to administer. He could therefore no more acquire a title by prescription against those for whom he was administering the conjugal estate than could a guardian against his ward or a judicial administrator against the heirs of estate. Section 38 of Chapter III of the Code of Civil Procedure, with relation to prescription, provides that 'this chapter shall not apply . . . in the case of a continuing and subsisting trust.' The surviving husband in the administration and liquidation of the conjugal estate occupies the position of a trustee of the highest order and is not permitted by the law to hold that estate or any portion thereof adversely to those for whose benefit the law imposes upon him the duty of administration and liquidation. No liquidation was ever made by Lasam hence, the conjugal property which came into his possession on the death of his wife in September, 1908, still remains conjugal property, a continuing and subsisting trust. He should have made a liquidation immediately (desde luego). He cannot now be permitted to take advantage of his own wrong. One of the conditions of title by prescription (section 41, Code of Civil Procedure) is possession 'under a claim of title exclusive of any other right'. For a trustee to make such a claim would be a manifest fraud." And knowing thus his responsibilities in the premises, We are not convinced that Hodges arrogated everything unto himself leaving nothing at all to be inherited by his wife's brothers and sisters. PCIB insists, however, that to read the orders of May 27 and December 14, 1957, not as adjudicatory, but merely as approving past and authorizing future dispositions made by Hodges in a wholesale and general manner, would necessarily render the said orders void for being violative of the provisions of Rule 89 governing the manner in which such dispositions may be made and how the authority therefor and approval thereof by the probate court may be secured. If We sustained such a view, the result would only be that the said orders should be declared ineffective either way they are understood, considering We have already seen it is legally impossible to consider them as adjudicatory. As a matter of fact, however, what surges immediately to the surface, relative to PCIB's observations based on Rule 89, is that from such point of view, the supposed irregularity would involve no more than some non-jurisdictional technicalities of procedure, which have for their evident fundamental purpose the protection of parties interested in the estate, such as the heirs, its creditors, particularly the government on account of the taxes due it; and since it is apparent here that none of such parties are objecting to said orders or would be prejudiced by the unobservance by the trial court of the procedure pointed out by PCIB, We find no legal inconvenience in nor impediment to Our giving sanction to the blanket approval and authority contained in said orders. This solution is definitely preferable in law and in equity, for to view said orders in the sense suggested by PCIB would

result in the deprivation of substantive rights to the brothers and sisters of Mrs. Hodges, whereas reading them the other way will not cause any prejudice to anyone, and, withal, will give peace of mind and stability of rights to the innocent parties who relied on them in good faith, in the light of the peculiar pertinent provisions of the will of said decedent. Now, the inventory submitted by Hodges on May 12, 1958 referred to the estate of his wife as consisting of "One-half of all the items designated in the balance sheet, copy of which is hereto attached and marked as 'Annex A'." Although, regrettably, no copy of said Annex A appears in the records before Us, We take judicial notice, on the basis of the undisputed facts in these cases, that the same consists of considerable real and other personal kinds of properties. And since, according to her will, her husband was to be the sole owner thereof during his lifetime, with full power and authority to dispose of any of them, provided that should there be any remainder upon his death, such remainder would go to her brothers and sisters, and furthermore, there is no pretension, much less any proof that Hodges had in fact disposed of all of them, and, on the contrary, the indications are rather to the effect that he had kept them more or less intact, it cannot truthfully be said that, upon the death of Hodges, there was no more estate of Mrs. Hodges to speak of it is Our conclusion, therefore, that properties do exist which constitute such estate, hence Special Proceedings 1307 should not yet be closed. Neither is there basis for holding that respondent Magno has ceased to be the Administratrix in said proceeding. There is no showing that she has ever been legally removed as such, the attempt to replace her with Mr. Benito Lopez without authority from the Court having been expressly held ineffective by Our resolution of September 8, 1972. Parenthetically, on this last point, PCIB itself is very emphatic in stressing that it is not questioning said respondent's status as such administratrix. Indeed, it is not clear that PCIB has any standing to raise any objection thereto, considering it is a complete stranger insofar as the estate of Mrs. Hodges is concerned. It is the contention of PCIB, however, that as things actually stood at the time of Hodges' death, their conjugal partnership had not yet been liquidated and, inasmuch as the properties composing the same were thus commingled pro indiviso and, consequently, the properties pertaining to the estate of each of the spouses are not yet identifiable, it is PCIB alone, as administrator of the estate of Hodges, who should administer everything, and all that respondent Magno can do for the time being is to wait until the properties constituting the remaining estate of Mrs. Hodges have been duly segregated and delivered to her for her own administration. Seemingly, PCIB would liken the Testate Estate of Linnie Jane Hodges to a party having a claim of ownership to some properties included in the inventory of an administrator of the estate of a decedent, (here that of Hodges) and who normally has no right to take part in the proceedings pending the establishment of his right or title; for which as a rule it is required that an ordinary action should be filed, since the probate court is without jurisdiction to pass with finality on questions of title between the estate of the deceased, on the one hand, and a third party or even an heir claiming adversely against the estate, on the other.

We do not find such contention sufficiently persuasive. As We see it, the situation obtaining herein cannot be compared with the claim of a third party the basis of which is alien to the

pending probate proceedings. In the present cases, what gave rise to the claim of PCIB of exclusive ownership by the estate of Hodges over all the properties of the Hodges spouses, including the share of Mrs. Hodges in the community properties, were the orders of the trial court issued in the course of the very settlement proceedings themselves, more specifically, the orders of May 27 and December 14, 1957 so often mentioned above. In other words, the root of the issue of title between the parties is something that the court itself has done in the exercise of its probate jurisdiction. And since in the ultimate analysis, the question of whether or not all the properties herein involved pertain exclusively to the estate of Hodges depends on the legal meaning and effect of said orders, the claim that respondent court has no jurisdiction to take cognizance of and decide the said issue is incorrect. If it was within the competence of the court to issue the root orders, why should it not be within its authority to declare their true significance and intent, to the end that the parties may know whether or not the estate of Mrs. Hodges had already been adjudicated by the court, upon the initiative of Hodges, in his favor, to the exclusion of the other heirs of his wife instituted in her will? At this point, it bears emphasis again that the main cause of all the present problems confronting the courts and the parties in these cases was the failure of Hodges to secure, as executor of his wife's estate, from May, 1957 up to the time of his death in December, 1962, a period of more than five years, the final adjudication of her estate and the closure of the proceedings. The record is bare of any showing that he ever exerted any effort towards the early settlement of said estate. While, on the one hand, there are enough indications, as already discussed, that he had intentions of leaving intact her share of the conjugal properties so that it may pass wholly to his co-heirs upon his death, pursuant to her will, on the other hand, by not terminating the proceedings, his interests in his own half of the conjugal properties remained commingled pro-indiviso with those of his co-heirs in the other half. Obviously, such a situation could not be conducive to ready ascertainment of the portion of the inheritance that should appertain to his co-heirs upon his death. Having these considerations in mind, it would be giving a premium for such procrastination, and rather unfair to his co-heirs, if the administrator of his estate were to be given exclusive administration of all the properties in question, which would necessarily include the function of promptly liquidating the conjugal partnership, thereby identifying and segregating without unnecessary loss of time which properties should be considered as constituting the estate of Mrs. Hodges, the remainder of which her brothers and sisters are supposed to inherit equally among themselves. To be sure, an administrator is not supposed to represent the interests of any particular party and his acts are deemed to be objectively for the protection of the rights of everybody concerned with the estate of the decedent, and from this point of view, it maybe said that even if PCIB were to act alone, there should be no fear of undue disadvantage to anyone. On the other hand, however, it is evidently implicit in section 6 of Rule 78 fixing the priority among those to whom letters of administration should be granted that the criterion in the selection of the administrator is not his impartiality alone but, more importantly, the extent of his interest in the estate, so much so that the one assumed to have greater interest is preferred to another who has less. Taking both of these considerations into account, inasmuch as, according to Hodges' own inventory submitted by him as Executor of the estate of his wife, practically all their properties were conjugal which means that the spouses have equal shares therein, it is but

logical that both estates should be administered jointly by the representatives of both, pending their segregation from each other. Particularly is such an arrangement warranted because the actuations so far of PCIB evince a determined, albeit groundless, intent to exclude the other heirs of Mrs. Hodges from their inheritance. Besides, to allow PCIB, the administrator of his estate, to perform now what Hodges was duty bound to do as executor is to violate the spirit, if not the letter, of Section 2 of Rule 78 which expressly provides that "The executor of an executor shall not, as such, administer the estate of the first testator." It goes without saying that this provision refers also to the administrator of an executor like PCIB here. We are not unmindful of the fact that under Section 2 of Rule 73, "When the marriage is dissolved by the death of the husband or wife, the community property shall be inventoried, administered, and liquidated, and the debts thereof paid, in the testate or intestate proceedings of the deceased spouse. If both spouses have died, the conjugal partnership shall be liquidated in the testate or intestate proceedings of either." Indeed, it is true that the last sentence of this provision allows or permits the conjugal partnership of spouses who are both deceased to be settled or liquidated in the testate or intestate proceedings of either, but precisely because said sentence allows or permits that the liquidation be made in either proceeding, it is a matter of sound judicial discretion in which one it should be made. After all, the former rule referring to the administrator of the husband's estate in respect to such liquidation was done away with by Act 3176, the pertinent provisions of which are now embodied in the rule just cited. Thus, it can be seen that at the time of the death of Hodges, there was already the pending judicial settlement proceeding of the estate of Mrs. Hodges, and, more importantly, that the former was the executor of the latter's will who had, as such, failed for more than five years to see to it that the same was terminated earliest, which was not difficult to do, since from ought that appears in the record, there were no serious obstacles on the way, the estate not being indebted and there being no immediate heirs other than Hodges himself. Such dilatory or indifferent attitude could only spell possible prejudice of his co-heirs, whose rights to inheritance depend entirely on the existence of any remainder of Mrs. Hodges' share in the community properties, and who are now faced with the pose of PCIB that there is no such remainder. Had Hodges secured as early as possible the settlement of his wife's estate, this problem would not arisen. All things considered, We are fully convinced that the interests of justice will be better served by not permitting or allowing PCIB or any administrator of the estate of Hodges exclusive administration of all the properties in question. We are of the considered opinion and so hold that what would be just and proper is for both administrators of the two estates to act conjointly until after said estates have been segregated from each other. At this juncture, it may be stated that we are not overlooking the fact that it is PCIB's contention that, viewed as a substitution, the testamentary disposition in favor of Mrs. Hodges' brothers and sisters may not be given effect. To a certain extent, this contention is correct. Indeed, legally speaking, Mrs. Hodges' will provides neither for a simple or vulgar substitution under Article 859 of the Civil Code nor for a fideicommissary substitution under Article 863 thereof. There is no vulgar substitution therein because there is no provision for either (1) predecease of the testator by the designated heir or (2) refusal or (3) incapacity of the latter to accept the inheritance, as required by Article 859; and neither is there a fideicommissary substitution

therein because no obligation is imposed thereby upon Hodges to preserve the estate or any part thereof for anyone else. But from these premises, it is not correct to jump to the conclusion, as PCIB does, that the testamentary dispositions in question are therefore inoperative and invalid. The error in PCIB's position lies simply in the fact that it views the said disposition exclusively in the light of substitutions covered by the Civil Code section on that subject, (Section 3, Chapter 2, Title IV, Book III) when it is obvious that substitution occurs only when another heir is appointed in a will "so that he may enter into inheritance in default of the heir originally instituted," (Article 857, Id.) and, in the present case, no such possible default is contemplated. The brothers and sisters of Mrs. Hodges are not substitutes for Hodges because, under her will, they are not to inherit what Hodges cannot, would not or may not inherit, but what he would not dispose of from his inheritance; rather, therefore, they are also heirs instituted simultaneously with Hodges, subject, however, to certain conditions, partially resolutory insofar as Hodges was concerned and correspondingly suspensive with reference to his brothers and sisters-in-law. It is partially resolutory, since it bequeaths unto Hodges the whole of her estate to be owned and enjoyed by him as universal and sole heir with absolute dominion over them 6 only during his lifetime, which means that while he could completely and absolutely dispose of any portion thereof inter vivos to anyone other than himself, he was not free to do so mortis causa, and all his rights to what might remain upon his death would cease entirely upon the occurrence of that contingency, inasmuch as the right of his brothers and sisters-in-law to the inheritance, although vested already upon the death of Mrs. Hodges, would automatically become operative upon the occurrence of the death of Hodges in the event of actual existence of any remainder of her estate then.

Contrary to the view of respondent Magno, however, it was not the usufruct alone of her estate, as contemplated in Article 869 of the Civil Code, that she bequeathed to Hodges during his lifetime, but the full ownership thereof, although the same was to last also during his lifetime only, even as there was no restriction whatsoever against his disposing or conveying the whole or any portion thereof to anybody other than himself. The Court sees no legal impediment to this kind of institution, in this jurisdiction or under Philippine law, except that it cannot apply to the lifetime of Hodges as the surviving spouse, consisting of one-half of the estate, considering that Mrs. Hodges had no surviving ascendants nor descendants. (Arts. 872, 900, and 904, New Civil Code.) But relative precisely to the question of how much of Mrs. Hodges' share of the conjugal partnership properties may be considered as her estate, the parties are in disagreement as to how Article 16 of the Civil Code 7 should be applied. On the one hand, petitioner claims that inasmuch as Mrs. Hodges was a resident of the Philippines at the time of her death, under said Article 16, construed in relation to the pertinent laws of Texas and the principle of renvoi, what should be applied here should be the rules of succession under the Civil Code of the Philippines, and, therefore, her estate could consist of no more than one-fourth of the said conjugal properties, the other fourth being, as already explained, the legitime of her husband

(Art. 900, Civil Code) which she could not have disposed of nor burdened with any condition (Art. 872, Civil Code). On the other hand, respondent Magno denies that Mrs. Hodges died a resident of the Philippines, since allegedly she never changed nor intended to change her original residence of birth in Texas, United States of America, and contends that, anyway, regardless of the question of her residence, she being indisputably a citizen of Texas, under said Article 16 of the Civil Code, the distribution of her estate is subject to the laws of said State which, according to her, do not provide for any legitime, hence, the brothers and sisters of Mrs. Hodges are entitled to the remainder of the whole of her share of the conjugal partnership properties consisting of one-half thereof. Respondent Magno further maintains that, in any event, Hodges had renounced his rights under the will in favor of his co-heirs, as allegedly proven by the documents touching on the point already mentioned earlier, the genuineness and legal significance of which petitioner seemingly questions. Besides, the parties are disagreed as to what the pertinent laws of Texas provide. In the interest of settling the estates herein involved soonest, it would be best, indeed, if these conflicting claims of the parties were determined in these proceedings. The Court regrets, however, that it cannot do so, for the simple reason that neither the evidence submitted by the parties in the court below nor their discussion, in their respective briefs and memoranda before Us, of their respective contentions on the pertinent legal issues, of grave importance as they are, appear to Us to be adequate enough to enable Us to render an intelligent, comprehensive and just resolution. For one thing, there is no clear and reliable proof of what in fact the possibly applicable laws of Texas are. 7* Then also, the genuineness of documents relied upon by respondent Magno is disputed. And there are a number of still other conceivable related issues which the parties may wish to raise but which it is not proper to mention here. In Justice, therefore, to all the parties concerned, these and all other relevant matters should first be threshed out fully in the trial court in the proceedings hereafter to be held therein for the purpose of ascertaining and adjudicating and/or distributing the estate of Mrs. Hodges to her heirs in accordance with her duly probated will. To be more explicit, all that We can and do decide in connection with the petition for certiorari and prohibition are: (1) that regardless of which corresponding laws are applied, whether of the Philippines or of Texas, and taking for granted either of the respective contentions of the parties as to provisions of the latter, 8 and regardless also of whether or not it can be proven by competent evidence that Hodges renounced his inheritance in any degree, it is easily and definitely discernible from the inventory submitted by Hodges himself, as Executor of his wife's estate, that there are properties which should constitute the estate of Mrs. Hodges and ought to be disposed of or distributed among her heirs pursuant to her will in said Special Proceedings 1307; (2) that, more specifically, inasmuch as the question of what are the pertinent laws of Texas applicable to the situation herein is basically one of fact, and, considering that the sole difference in the positions of the parties as to the effect of said laws has reference to the supposed legitime of Hodges it being the stand of PCIB that Hodges had such a legitime whereas Magno claims the negative it is now beyond controversy for all future purposes of these proceedings that whatever be the provisions actually of the laws of Texas applicable hereto, the estate of Mrs. Hodges is at least, one-fourth of the conjugal estate of the spouses; the existence and effects of foreign laws being questions of fact, and it being the position now of PCIB that the estate of Mrs. Hodges, pursuant to the laws of Texas, should only be one-fourth

of the conjugal estate, such contention constitutes an admission of fact, and consequently, it would be in estoppel in any further proceedings in these cases to claim that said estate could be less, irrespective of what might be proven later to be actually the provisions of the applicable laws of Texas; (3) that Special Proceedings 1307 for the settlement of the testate estate of Mrs. Hodges cannot be closed at this stage and should proceed to its logical conclusion, there having been no proper and legal adjudication or distribution yet of the estate therein involved; and (4) that respondent Magno remains and continues to be the Administratrix therein. Hence, nothing in the foregoing opinion is intended to resolve the issues which, as already stated, are not properly before the Court now, namely, (1) whether or not Hodges had in fact and in law waived or renounced his inheritance from Mrs. Hodges, in whole or in part, and (2) assuming there had been no such waiver, whether or not, by the application of Article 16 of the Civil Code, and in the light of what might be the applicable laws of Texas on the matter, the estate of Mrs. Hodges is more than the one-fourth declared above. As a matter of fact, even our finding above about the existence of properties constituting the estate of Mrs. Hodges rests largely on a general appraisal of the size and extent of the conjugal partnership gathered from reference made thereto by both parties in their briefs as well as in their pleadings included in the records on appeal, and it should accordingly yield, as to which exactly those properties are, to the more concrete and specific evidence which the parties are supposed to present in support of their respective positions in regard to the foregoing main legal and factual issues. In the interest of justice, the parties should be allowed to present such further evidence in relation to all these issues in a joint hearing of the two probate proceedings herein involved. After all, the court a quo has not yet passed squarely on these issues, and it is best for all concerned that it should do so in the first instance. Relative to Our holding above that the estate of Mrs. Hodges cannot be less than the remainder of one-fourth of the conjugal partnership properties, it may be mentioned here that during the deliberations, the point was raised as to whether or not said holding might be inconsistent with Our other ruling here also that, since there is no reliable evidence as to what are the applicable laws of Texas, U.S.A. "with respect to the order of succession and to the amount of successional rights" that may be willed by a testator which, under Article 16 of the Civil Code, are controlling in the instant cases, in view of the undisputed Texan nationality of the deceased Mrs. Hodges, these cases should be returned to the court a quo, so that the parties may prove what said law provides, it is premature for Us to make any specific ruling now on either the validity of the testamentary dispositions herein involved or the amount of inheritance to which the brothers and sisters of Mrs. Hodges are entitled. After nature reflection, We are of the considered view that, at this stage and in the state of the records before Us, the feared inconsistency is more apparent than real. Withal, it no longer lies in the lips of petitioner PCIB to make any claim that under the laws of Texas, the estate of Mrs. Hodges could in any event be less than that We have fixed above. It should be borne in mind that as above-indicated, the question of what are the laws of Texas governing the matters herein issue is, in the first instance, one of fact, not of law. Elementary is the rule that foreign laws may not be taken judicial notice of and have to be proven like any other fact in dispute between the parties in any proceeding, with the rare exception in instances when the said laws are already within the actual knowledge of the court, such as when they are

well and generally known or they have been actually ruled upon in other cases before it and none of the parties concerned do not claim otherwise. (5 Moran, Comments on the Rules of Court, p. 41, 1970 ed.) In Fluemer vs. Hix, 54 Phil. 610, it was held: "It is the theory of the petitioner that the alleged will was executed in Elkins, West Virginia, on November 3, 1985, by Hix who had his residence in that jurisdiction, and that the laws of West Virginia govern. To this end, there was submitted a copy of section 3868 of Acts 1882, c. 84 as found in West Virginia Code, Annotated, by Hogg, Charles E., vol. 2, 1914, p. 1960, and as certified to by the Director of the National Library. But this was far from a compliance with the law. The laws of a foreign jurisdiction do not prove themselves in our courts. The courts of the Philippine Islands are not authorized to take judicial notice of the laws of the various States of the American Union. Such laws must be proved as facts. (In re Estate of Johnson [1918], 39 Phil., 156.) Here the requirements of the law were not met. There was no showing that the book from which an extract was taken was printed or published under the authority of the State of West Virginia, as provided in section 300 of the Code of Civil Procedure. Nor was the extract from the law attested by the certificate of the officer having charge of the original, under the seal of the State of West Virginia, as provided in section 301 of the Code of Civil Procedure. No evidence was introduced to show that the extract from the laws of West Virginia was in force at the time the alleged will was executed."

No evidence of the nature thus suggested by the Court may be found in the records of the cases at bar. Quite to the contrary, the parties herein have presented opposing versions in their respective pleadings and memoranda regarding the matter. And even if We took into account that in Aznar vs. Garcia, the Court did make reference to certain provisions regarding succession in the laws of Texas, the disparity in the material dates of that case and the present ones would not permit Us to indulge in the hazardous conjecture that said provisions have not been amended or changed in the meantime. On the other hand, in In re Estate of Johnson, 39 Phil. 156, We held: "Upon to other point as to whether the will was executed in conformity with the statutes of the State of Illinois we note that it does not affirmatively appear from the transcription of the testimony adduced in the trial court that any witness was examined with reference to the law of Illinois on the subject of the execution of will. The trial judge no doubt was satisfied that the will was properly executed by examining section 1874 of the Revised Statutes of Illinois, as exhibited in volume 3 of Starr & Curtis's Annotated Illinois Statutes, 2nd ed., p. 426; and he may have assumed that he could take judicial notice of the laws of Illinois under section 275 of the Code of Civil Procedure. If so, he was in our opinion mistaken. That section authorizes the courts here to take judicial notice, among other things, of the acts of the legislative department of the United States. These words clearly have reference to Acts of the Congress of the United States; and we would hesitate to hold that our courts can, under this provision, take judicial notice of the multifarious laws of the various American States. Nor do we think that any such authority can be derived from the broader language, used in the same section, where it is said that our courts may take judicial notice of matters of public knowledge "similar" to those therein

enumerated. The proper rule we think is to require proof of the statutes of the States of the American Union whenever their provisions are determinative of the issues in any action litigated in the Philippine courts. Nevertheless, even supposing that the trial court may have erred in taking judicial notice of the law of Illinois on the point in question, such error is not now available to the petitioner, first, because the petition does not state any fact from which it would appear that the law of Illinois is different from what the court found, and, secondly, because the assignment of error and argument for the appellant in this court raises no question based or such supposed error. Though the trial court may have acted upon pure conjecture as to the law prevailing in the State of Illinois, its judgment could not be set aside, even upon application made within six months under section 113 of the Code of Civil Procedure, unless it should be made to appear affirmatively that the conjecture was wrong. The petitioner, it is true, states in general terms that the will in question is invalid and inadequate to pass real and personal property in the State of Illinois, but this is merely a conclusion of law. The affidavits by which the petition is accompanied contain no reference to the subject, and we are cited to no authority in the appellant's brief which might tend to raise a doubt as to the correctness of the conclusion of the trial court. It is very clear, therefore, that this point cannot be urged as of serious moment." It is implicit in the above ruling that when, with respect to certain aspects of the foreign laws concerned, the parties in a given case do not have any controversy or are more or less in agreement, the Court may take it for granted for the purposes of the particular case before it that the said laws are as such virtual agreement indicates, without the need of requiring the presentation of what otherwise would be the competent evidence on the point. Thus, in the instant cases wherein it results from the respective contentions of both parties that even if the pertinent laws of Texas were known and to be applied, the amount of the inheritance pertaining to the heirs of Mrs. Hodges is as We have fixed above, the absence of evidence to the effect that, actually and in fact, under said laws, it could be otherwise is of no longer of any consequence, unless the purpose is to show that it could be more. In other words, since PCIB, the petitioner-appellant, concedes that upon application of Article 16 of the Civil Code and the pertinent laws of Texas, the amount of the estate in controversy is just as We have determined it to be, and respondent-appellee is only claiming, on her part, that it could be more, PCIB may not now or later pretend differently. To be more concrete, on pages 20-21 of its petition herein, dated July 31, 1967, PCIB states categorically: "Inasmuch as Article 16 of the Civil Code provides that 'intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found', while the law of Texas (the Hodges spouses being nationals of U.S.A., State of Texas), in its conflicts of law rules, provides that the domiciliary law (in this case Philippine law) governs the testamentary dispositions and successional rights over movables or personal properties, while the law of the situs (in this case

also Philippine law with respect to all Hodges properties located in the Philippines), governs with respect to immovable properties, and applying therefore the 'renvoi doctrine' as enunciated and applied by this Honorable Court in the case of In re Estate of Christensen (G.R. No. L-16749, Jan. 31, 1963), there can be no question that Philippine law governs the testamentary dispositions contained in the Last Will and Testament of the deceased Linnie Jane Hodges, as well as the successional rights to her estate, both with respect to movables, as well as to immovables situated in the Philippines." In its main brief dated February 26, 1968, PCIB asserts: "The law governing successional rights. As recited above, there is no question that the deceased, Linnie Jane Hodges, was an American citizen. There is also no question that she was a national of the State of Texas, U.S.A. Again, there is likewise no question that she had her domicile of choice in the City of Iloilo, Philippines, as this has already been pronounced by the above cited orders of the lower court, pronouncements which are by now res adjudicata (par. [a], Sec. 49, Rule 39, Rules of Court; In re Estate of Johnson, 39 Phil. 156). "Article 16 of the Civil Code provides: 'Real property as well as personal property is subject to the law of the country where it is situated. However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found.' Thus the aforecited provision of the Civil Code points towards the national law of the deceased, Linnie Jane Hodges, which is the law of Texas, as governing succession 'both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions . . .'. But the law of Texas, in its conflicts of law rules, provides that the domiciliary law governs the testamentary dispositions and successional rights over movables or personal property, while the law of the situs governs with respect to immovable property. Such that with respect to both movable property, as well as immovable property situated in the Philippines, the law of Texas points to the law of the Philippines. Applying, therefore, the so called "renvoi doctrine", as enunciated and applied by this Honorable Court in the case of "In re Christensen" (G.R. No. L-16749, Jan. 31, 1963), there can be no question that Philippine law governs the testamentary provisions in the Last Will and Testament of the deceased Linnie Jane Hodges, as well as the successional rights to her estate, both with respect to movables, as well as immovables situated in the Philippines. The subject of successional rights.

Under Philippine law, as it is under the law of Texas, the conjugal or community property of the spouses, Charles Newton Hodges and Linnie Jane Hodges, upon the death of the latter, is to be divided into two, one-half pertaining to each of the spouses, as his or her own property. Thus, upon the death of Linnie Jane Hodges, one-half of the conjugal partnership property immediately pertained to Charles Newton Hodges as his own share, and not by virtue of any successional rights. There can be no question about this. Again, Philippine law, or more specifically, Article 900 of the Civil Code provides: "If the only survivor is the widow or widower, she or he shall be entitled to one-half of the hereditary estate of the deceased spouse, and the testator may freely dispose of the other half. If the marriage between the surviving spouse and the testator was solemnized in articulo mortis, and the testator died within three months from the time of the marriage, the legitime of the surviving spouse as the sole heir shall be one-third of the hereditary estate, except when they have been living as husband and wife for more than five years. In the latter case, the legitime of the surviving spouse shall be that specified in the preceding paragraph." This legitime of the surviving spouse cannot be burdened by an fideicommissary substitution (Art. 864, Civil code), nor by any charge, condition, or substitution (Art. 872, Civil code). It is clear, therefore, that in addition to one-half of the conjugal partnership property as his own conjugal share, Charles Newton Hodges was also immediately entitled to one-half of the half conjugal share of the deceased, Linnie Jane Hodges, or one-fourth of the entire conjugal property, as his legitime.

One-fourth of the conjugal property therefore remains at issue." In the summary of its arguments in its memorandum dated April 30, 1968, the following appears: "Briefly, the position advanced by the petitioner is: a.That the Hodges spouses were domiciled legally in the Philippines (pp. 19-20, petition). This is now a matter of res adjudicata (p. 20, petition). b.That under Philippine law, Texas law, and the renvoi doctrine, Philippine law governs the successional rights over the properties left by the deceased, Linnie Jane Hodges (pp. 20-21, petition). c.That under Philippine as well as Texas law, one-half of the Hodges properties pertains to the deceased, Charles Newton Hodges (p. 21, petition). This is not questioned by the respondents. d.That under Philippine law, the deceased, Charles Newton Hodges, automatically inherited one-half of the remaining one-half of the Hodges properties as his legitime (p. 21, petition).

e.That the remaining 25% of the Hodges properties was inherited by the deceased, Charles Newton Hodges, under the will of his deceased spouse (pp. 22-23, petition). Upon the death of Charles Newton Hodges, the substitution provision of the will of the deceased, Linnie Jane Hodges, did not operate because the same is void (pp. 23-25, petition). f.That the deceased, Charles Newton Hodges, asserted his sole ownership of the Hodges properties and the probate court sanctioned such assertion (pp. 25-29, petition). He in fact assumed such ownership and such was the status of the properties as of the time of his death (pp. 29-34, petition)." Of similar tenor are the allegations of PCIB in some of its pleadings quoted in the earlier part of this option. On her part, it is respondent-appellee Magno's posture that under the laws of Texas, there is no system of legitime, hence the estate of Mrs. Hodges should be one-half of all the conjugal properties. It is thus unquestionable that as far as PCIB is concerned, the application to these cases of Article 16 of the Civil Code in relation to the corresponding laws of Texas would result in that the Philippine laws on succession should control. On that basis, as We have already explained above, the estate of Mrs. Hodges is the remainder of one-fourth of the conjugal partnership properties, considering that We have found that there is no legal impediment to the kind of disposition ordered by Mrs. Hodges in her will in favor of her brothers and sisters and, further, that the contention of PCIB that the same constitutes an inoperative testamentary substitution is untenable. As will be recalled, PCIB's position that there is no such estate of Mrs. Hodges is predicated exclusively on two propositions, namely (1) that the provision in question in Mrs. Hodges' testament violates the rules on substitution of heirs under the Civil Code and (2) that, in any event, by the orders of the trial court of May 27, and December 14, 1957, the trial court had already finally and irrevocably adjudicated to her husband the whole free portion of her estate to the exclusion of her brothers and sisters, both of which poses, We have overruled. Nowhere in its pleadings, briefs and memoranda does PCIB maintain that the application of the laws of Texas would result in the other heirs of Mrs. Hodges not inheriting anything under her will. And since PCIB's representations in regard to the laws of Texas virtually constitute admissions of fact which the other parties and the Court are being made to rely and act upon, PCIB is "not permitted to contradict them or subsequently take a position contradictory to or inconsistent with them." (5 Moran, id, p. 65, citing Cunanan vs. Amparo, 80 Phil. 227; Sta. Ana vs. Maliwat, L23023, Aug. 31, 1968, 24 SCRA 1018). Accordingly, the only question that remains to be settled in the further proceedings hereby ordered to be held in the court below is how much more than as fixed above is the estate of Mrs. Hodges, and this would depend on (1) whether or not the applicable laws of Texas do provide in effect for more, such as, when there is no legitime provided therein, and (2) whether or not Hodges has validly waived his whole inheritance from Mrs. Hodges. In the course of the deliberations, it was brought out by some members of the Court that to avoid or, at least, minimize further protracted legal controversies between the respective heirs of

the Hodges spouses, it is imperative to elucidate on the possible consequences of dispositions made by Hodges after the death of his wife from the mass of the unpartitioned estates without any express indication in the pertinent documents as to whether his intention is to dispose of part of his inheritance from his wife or part of his own share of the conjugal estate as well as of those made by PCIB after the death of Hodges. After a long discussion, the consensus arrived at was as follows: (1) any such dispositions made gratuitously in favor of third parties, whether these be individuals, corporations or foundations, shall be considered as intended to be of properties constituting part of Hodges' inheritance from his wife, it appearing from the tenor of his motions of May 27 and December 11, 1957 that in asking for general authority to make sales or other disposals of properties under the jurisdiction of the court, which include his own share of the conjugal estate, he was not invoking particularly his right over his own share, but rather his right to dispose of any part of his inheritance pursuant to the will of his wife; (2) as regards sales, exchanges or other remunerative transfers, the proceeds of such sales or the properties taken in by virtue of such exchanges, shall be considered as merely the products of "physical changes" of the properties of her estate which the will expressly authorizes Hodges to make, provided that whatever of said products should remain with the estate at the time of the death of Hodges should go to her brothers and sisters; (3) the dispositions made by PCIB after the death of Hodges must naturally be deemed as covering only the properties belonging to his estate considering that being only the administrator of the estate of Hodges, PCIB could not have disposed of properties belonging to the estate of his wife. Neither could such dispositions be considered as involving conjugal properties, for the simple reason that the conjugal partnership automatically ceased when Mrs. Hodges died, and by the peculiar provision of her will, under discussion, the remainder of her share descended also automatically upon the death of Hodges to her brothers and sisters, thus outside of the scope of PCIB's administration. Accordingly, these construction of the will of Mrs. Hodges should be adhered to by the trial court in its final order of adjudication and distribution and/or partition of the two estates in question. THE APPEALS A cursory examination of the seventy-eight assignments of error in appellant PCIB's brief would readily reveal that all of them are predicated mainly on the contention that inasmuch as Hodges had already adjudicated unto himself all the properties constituting his wife's share of the conjugal partnership, allegedly with the sanction of the trial court per its order of December 14, 1957, there has been, since said date, no longer any estate of Mrs. Hodges of which appellee Magno could be administratrix, hence the various assailed orders sanctioning her actuations as such are not in accordance with law. Such being the case, with the foregoing resolution holding such posture to be untenable in fact and in law and that it is in the best interest of justice that for the time being the two estates should be administered conjointly by the respective administrators of the two estates, it should follow that said assignments of error have lost their fundamental reasons for being. There are certain matters, however, relating peculiarly to the respective orders in question, if commonly among some of them, which need further clarification. For instance, some of them authorized respondent Magno to act alone or without concurrence of PCIB. And with respect to many of said orders, PCIB further claims that either the matters involved were not properly within the probate jurisdiction of the trial court or that the

procedure followed was not in accordance with the rules. Hence, the necessity of dealing separately with the merits of each of the appeals. Indeed, inasmuch as the said two estates have until now remained commingled pro-indiviso, due to the failure of Hodges and the lower court to liquidate the conjugal partnership, to recognize appellee Magno as Administratrix of the Testate Estate of Mrs. Hodges which is still unsegregated from that of Hodges is not to say, without any qualification, that she was therefore authorized to do and perform all her acts complained of in these appeals, sanctioned though they might have been by the trial court. As a matter of fact, it is such commingling pro-indiviso of the two estates that should deprive appellee of freedom to act independently from PCIB, as administrator of the estate of Hodges, just as, for the same reason, the latter should not have authority to act independently from her. And considering that the lower court failed to adhere consistently to this basic point of view, by allowing the two administrators to act independently of each other, in the various instances already noted in the narration of facts above, the Court has to look into the attendant circumstances of each of the appealed orders to be able to determine whether any of them has to be set aside or they may all be legally maintained notwithstanding the failure of the court a quo to observe the pertinent procedural technicalities, to the end only that graver injury to the substantive rights of the parties concerned and unnecessary and undesirable proliferation of incidents in the subject proceedings may be forestalled. In other words, We have to determine, whether or not, in the light of the unusual circumstances extant in the record, there is need to be more pragmatic and to adopt a rather unorthodox approach, so as to cause the least disturbance in rights already being exercised by numerous innocent third parties, even if to do so may not appear to be strictly in accordance with the letter of the applicable purely adjective rules.

Incidentally, it may be mentioned, at this point, that it was principally on account of the confusion that might result later from PCIB's continuing to administer all the community properties, notwithstanding the certainty of the existence of the separate estate of Mrs. Hodges, and to enable both estates to function in the meantime with a relative degree of regularity, that the Court ordered in the resolution of September 8, 1972 the modification of the injunction issued pursuant to the resolutions of August 8, October 4 and December 6, 1967, by virtue of which respondent Magno was completely barred from any participation in the administration of the properties herein involved. In the September 8 resolution, We ordered that, pending this decision, Special Proceedings 1307 and 1672 should proceed jointly and that the respective administrators therein "act conjointly - none of them to act singly and independently of each other for any purpose." Upon mature deliberation, We felt that to allow PCIB to continue managing or administering all the said properties to the exclusion of the administratrix of Mrs. Hodges' estate might place the heirs of Hodges at an unduly advantageous position which could result in considerable, if not irreparable, damage or injury to the other parties concerned. It is indeed to be regretted that apparently, up to this date, more than a year after said resolution, the same has not been given due regard, as may be gleaned from the fact that recently, respondent Magno has filed in these proceedings a motion to declare PCIB in contempt for

alleged failure to abide therewith, notwithstanding that its repeated motions for reconsideration thereof have all been denied soon after they were filed. 9 Going back to the appeals, it is perhaps best to begin first with what appears to Our mind to be the simplest, and then proceed to the more complicated ones in that order, without regard to the numerical sequence of the assignments of error in appellant's brief or to the order of the discussion thereof by counsel. Assignments of error Numbers LXXII, LXXVII and LXXVIII. These assignments of error relate to (1) the order of the trial court of August 6, 1965 providing that "the deeds of sale (therein referred to involving properties in the name of Hodges) should be signed jointly by the PCIB, as Administrator of Testate Estate of C.N. Hodges, and Avelina A. Magno, as Administratrix of the Testate Estate of Linnie Jane Hodges, and to this effect, the PCIB should take the necessary steps so that Administratrix Avelina A. Magno could sign the deeds of sale," (p. 248, Green Rec. on Appeal) (2) the order of October 27, 1965 denying the motion for reconsideration of the foregoing order, (pp. 276-277, id.) (3) the other order also dated October 27, 1965 enjoining inter alia, that "(a) all cash collections should be deposited in the joint account of the estate of Linnie Jane Hodges and estate of C. N. Hodges, (b) that whatever cash collections (that) had been deposited in the account of either of the estates should be withdrawn and since then (sic) deposited in the joint account of the estate of Linnie Jane Hodges and the estate of C. N. Hodges; . . . (d) (that) Administratrix Magno allow the PCIB to inspect whatever records, documents and papers she may have in her possession, in the same manner that Administrator PCIB is also directed to allow Administratrix Magno to inspect whatever records, documents and papers it may have in its possession" and "(e) that the accountant of the estate of Linnie Jane Hodges shall have access to all records of the transactions of both estates for the protection of the estate of Linnie Jane Hodges; and in like manner, the accountant or any authorized representative of the estate of C. N. Hodges shall have access to the records of transactions of the Linnie Jane Hodges estate for the protection of the estate of C. N. Hodges", (pp. 292-295, id.) and (4) the order of February 15, 1966, denying, among others, the notion for reconsideration of the order of October 27, 1965 last referred to. (pp. 455-456, id.) As may be readily seen, the thrust of all these four impugned orders is in line with the Court's above-mentioned resolution of September 8, 1972 modifying the injunction previously issued on August 8, 1967, and, more importantly, with what We have said the trial court should have always done pending the liquidation of the conjugal partnership of the Hodges spouses. In fact, as already stated, that is the arrangement We are ordering, by this decision, to be followed. Stated differently, since the questioned orders provide for joint action by the two administrators, and that is precisely what We are holding out to have been done and should be done until the two estates are separated from each other, the said orders must be affirmed. Accordingly, the foregoing assignments of error must be, as they are hereby overruled. Assignments of error Numbers LXVIII

to LXXI and LXXIII to LXXVI. The orders complained of under these assignments of error commonly deal with expenditures made by appellee Magno, as Administratrix of the Estate of Mrs. Hodges, in connection with her administration thereof, albeit additionally, assignments of error Numbers LXIX to LXXI put into question the payment of attorneys fees provided for in the contract for the purpose, as constituting, in effect, premature advances to the heirs of Mrs. Hodges. More specifically, assignment Number LXXIII refers to reimbursement of overtime pay paid to six employees of the court and three other persons for services in copying the court records to enable the lawyers of the administration to be fully informed of all the incidents in the proceedings. The reimbursement was approved as proper legal expenses of administration per the order of December 19, 1964, (pp. 221-222, id.) and repeated motions for reconsideration thereof were denied by the orders of January 9, 1965, (pp. 231-232, id.) October 27, 1965, (p. 277, id.) and February 15, 1966, (pp. 455-456, id.) On the other hand, Assignments Numbers LXVIII to LXXI, LXXIV and LXXV question the trial court's order of November 3, 1965 approving the agreement of June 6, 1964 between Administratrix Magno and James L. Sullivan, attorneyin-fact of the heirs of Mrs. Hodges, as Parties of the First Part, and Attorneys Raul Manglapus and Rizal R. Quimpo, as Parties of the Second Part, regarding attorneys fees for said counsel who had agreed "to prosecute and defend their interests (of the Parties of the First Part) in certain cases now pending litigation in the Court of First Instance of Iloilo , more specifically in Special Proceedings 1307 and 1672 ", (pp. 126-129, id.) and directing Administratrix Magno "to issue and sign whatever check or checks maybe needed to implement the approval of the agreement annexed to the motion" as well as the "administrator of the estate of C. N. Hodges to countersign the said check or checks as the case maybe." (pp. 313-320, id.), reconsideration of which order of approval was denied in the order of February 16, 1966, (p. 456, id.) Assignment Number LXXVI imputes error to the lower court's order of October 27,1965, already referred to above, insofar as it orders that "PCIB should countersign the check in the amount of P250 in favor of Administratrix Avelina A. Magno as her compensation as administratrix of Linnie Jane Hodges estate chargeable to the Testate Estate of Linnie Jane Hodges only." (p. 294, id.) Main contention again of appellant PCIB in regard to these eight assigned errors is that there is no such estate as the estate of Mrs. Hodges for which the questioned expenditures were made, hence what were authorized were in effect expenditures from the estate of Hodges. As We have already demonstrated in Our resolution above of the petition for certiorari and prohibition, this posture is incorrect. Indeed, in whichever way the remaining issues between the parties in these cases are ultimately resolved, 10 the final result will surely be that there are properties constituting the estate of Mrs. Hodges of which Magno is the current administratrix. It follows, therefore, that said appellee had the right, as such administratrix, to hire the persons whom she paid overtime pay and to be paid for her own services as administratrix. That she has not yet collected and is not collecting amounts as substantial as that paid to or due appellant PCIB is to her credit.

Of course, she is also entitled to the services of counsel and to that end had the authority to enter into contracts for attorney's fees in the manner she had done in the agreement of June 6, 1964. And as regards to the reasonableness of the amount therein stipulated, We see no reason to disturb the discretion exercised by the probate court in determining the same. We have gone over the agreement, and considering the obvious size of the estate in question and the nature of the issues between the parties as well as the professional standing of counsel, We cannot say that the fees agreed upon require the exercise by the Court of its inherent power to reduce it. PCIB insists, however, that said agreement of June 6, 1964 is not for legal services to the estate but to the heirs of Mrs. Hodges, or, at most, to both of them, and such being the case, any payment under it, insofar as counsels' services would redound to the benefit of the heirs, would be in the nature of advances to such heirs and a premature distribution of the estate. Again, We hold that such posture cannot prevail. Upon the premise We have found plausible that there is an existing estate of Mrs. Hodges, it results that juridically and factually the interests involved in her estate are distinct and different from those involved in her estate of Hodges and vice versa. Insofar as the matters related exclusively to the estate of Mrs. Hodges, PCIB, as administrator of the estate of Hodges, is a complete stranger and it is without personality to question the actuations of the administratrix thereof regarding matters not affecting the estate of Hodges. Actually, considering the obviously considerable size of the estate of Mrs. Hodges, We see no possible cause for apprehension that when the two estates are segregated from each other, the amount of attorney's fees stipulated in the agreement in question will prejudice any portion that would correspond to Hodges' estate. And as regards the other heirs of Mrs. Hodges who ought to be the ones who should have a say on the attorney's fees and other expenses of administration assailed by PCIB, suffice it to say that they appear to have been duly represented in the agreement itself by their attorney-in-fact, James L. Sullivan and have not otherwise interposed any objection to any of the expenses incurred by Magno questioned by PCIB in these appeals. As a matter of fact, as ordered by the trial court, all the expenses in question, including the attorney's fees, amy be paid without awaiting the determination and segregation of the estate of Mrs. Hodges.

Withal, the weightiest consideration in connection with the point under discussion is that at this stage of the controversy among the parties herein the vital issue refers to the existence or nonexistence of the estate of Mrs. Hodges. In this respect, the interest of respondent Magno, as the appointed administratrix of the said estate, is to maintain that it exists, which is naturally common and identical with and inseparable from the interest of the brothers and sisters of Mrs. Hodges, Thus it should not be wondered why both Magno and these heirs have seemingly agreed to retain but one counsel. In fact, such an arrangement should be more convenient and economical to both. The possibility of conflict of interest between Magno and the heirs of Mrs. Hodges would be, at this stage, quite remote and, in any event, rather insubstantial. Besides should any substantial conflict of interest between them arise in the future, the same would be a matter that the probate court can very well take care of in the course of the independent

proceedings in Case No. 1307 after the corresponding segregation of the two subject estates. We cannot perceive any cogent reason why, at this stage the estate and the heirs of Mrs. Hodges cannot be represented by a common counsel. Now, as to whether or not the portion of the fees in question that should correspond to the heirs constitutes premature partial distribution of the estate of Mrs. Hodges is also a matter in which neither PCIB nor the heirs of Hodges have any interest. In any event, since, as far as the records show, the estate has no creditors and the corresponding estate and inheritance taxes, except those of the brothers and sisters of Mrs. Hodges, have already been paid. 11 no prejudice can caused to anyone by the comparatively small amount of attorney's fees although strictly speaking, the attorney's fees of the counsel of an administrator is in the first instance his personal responsibility, reimbursable later on by the estate, in the final analysis, when, as in the situation on hand, the attorney-in-fact of the heirs has given his conformity thereto, it would be idle effort to inquire whether or not the sanction given to said fees by the probate court is proper. For the foregoing reasons, Assignments of Error LXVIII to LXXI and LXXVI should be as they are hereby overruled. Assignments of error I to IV, XIII to XV, XXII to XXV, XXXV to XXXVI, XLI to XLIII and L. These assignments of error deal with the approval by the trial court of various deeds of sale of real properties registered in the name of Hodges but executed by appellee Magno, as Administratrix of the Estate of Mrs. Hodges, purportedly in implementation of corresponding supposed written "Contracts to Sell" previously executed by Hodges during the interim between May 23, 1957, when his wife died, and December 25, 1962, the day he died. As stated on pp. 118-120 of appellant's main brief, "These are: the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Pepito G. Iyulores, executed on February 5, 1961; the contract to sell between the deceased, Charles Newton Hodges, and the appellant Esperidion Partisala, executed on April 20, 1960; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Winifredo C. Espada, executed on April 18, 1960; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Rosario Alingasa, executed on August 25, 1958; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Lorenzo Carles, executed on June 17, 1958; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Salvador S. Guzman, executed on September 13, 1960; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Florenia Barriod, executed on February 21, 1958; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Pruficacion Coronado, executed on August 14, 1961; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Graciano Lucero, executed on November 27, 1961; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Ariteo Thomas Jamir, executed on May 26, 1961; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Belcezar Causing, executed on February 10, 1959; and the contract to sell

between the deceased, Charles Newton Hodges, and the appellee, Adelfa Premaylon, executed on October 31, 1959, re Title No. 13815." Relative to these sales, it is the position of appellant PCIB that, inasmuch as pursuant to the will of Mrs. Hodges, her husband was to have dominion over all her estate during his lifetime, it was as absolute owner of the properties respectively covered by said sales that he executed the aforementioned contracts to sell, and consequently, upon his death, the implementation of said contracts may be undertaken only by the administrator of his estate and not by the administratrix of the estate of Mrs. Hodges. Basically, the same theory is involked with particular reference to five other sales, in which the respective "contracts to sell" in favor of these appellees were executed by Hodges before the death of his wife, namely those in favor of appellee Santiago Pacaonsis, Alfredo Catedral, Jose Pablico, Western Institute of Technology and Adelfa Premaylon. Anent those deeds of sale based on promises or contracts to sell executed by Hodges after the death of his wife, those enumerated in the quotation in the immediately preceding paragraph, it is quite obvious that PCIB's contention cannot be sustained. As already explained earlier, 11* all proceeds of remunerative transfers or dispositions made by Hodges after the death of his wife should be deemed as continuing to be parts of her estate and, therefore, subject to the terms of her will in favor of her brothers and sisters, in the sense that should there be no showing that such proceeds, whether in cash or property, have been subsequently conveyed or assigned subsequently by Hodges to any third party by acts inter vivos, with the result that they could not thereby belong to him anymore at the time of his death, they automatically became part of the inheritance of said brothers and sisters. The deeds here in question involve transactions which are exactly which are exactly of this nature. Consequently, the payments to the estate of Mrs. Hodges which is to be distributed and partitioned among her heirs specified in the will. The five deeds of sale predicated on contracts to sell executed by Hodges during the lifetime of his wife, present a different situation. At first blush, it would appear that as to them, PCIB's position has some degree of plausibility. Considering, however, that the adoption of PCIB's theory would necessarily have tremendous repurcussions and would bring about considerable disturbance of property rights that have somehow accrued already in favor of innocent third parties, the five purchasers aforenamed, the Court is inclined to take a pragmatic and practical view of the legal situation involving them by overlooking the possible technicalities in the way, the non-observance of which would not, after all, detract materially from what should substantially correspond to each and all of the parties concerned. To start with, these contracts can hardly be ignored. Bona fide third parties are involved; as much as possible, they should not be made to suffer any prejudice on account of judicial controversies not of their own making. What is more, the transactions they rely on were submitted by them to the probate court for approval, and from already known and recorded actuations of said court then, they had reason to believe that it had authority to act on their motions, since appellee Magno had, from time to time prior to their transactions with her, been allowed to act in her capacity as administratrix of one of the subject estates either alone or conjointly with PCIB. All the sales in question were executed by Magno in 1966 already, but

before that, the court had previously authorized or otherwise sanctioned expressly many of her acts as administratrix involving expenditures from the estate made by her either conjoinly with or independently from PCIB, as Administrator of the Estate of Hodges. Thus, it may be said that said buyers-appellees merely followed precedents in previous orders of the court. Accordingly, unless the impugned orders approving those sales indubitably suffer from some clearly fatal infirmity the Court would rather affirm them. It is quite apparent from the record that the properties covered by said sales are equivalent only to a fraction of what should constitute the estate of Mrs. Hodges, even if it is assumed that the same would finally be held to be only one-fourth of the conjugal properties of the spouses as of the time of her death or, to be more exact, one-half of her estate as per the inventory submitted by Hodges as executor, on May 12, 1958. In none of its numerous, varied and voluminous pleadings, motions and manifestations has PCIB claimed any possibility otherwise. Such being the case, to avoid any conflict with the heirs of Hodges, the said properties covered by the questioned deeds of sale executed by appellee Magno may be treated as among those corresponding to the estate of Mrs. Hodges, which would have been actually under her control and administration had Hodges complied with his duty to liquidate the conjugal partnership. Viewing the situation in that manner, the only ones who could stand to be prejudiced by the appealed orders referred to in the assignment of errors under discussion and who could, therefore, have the requisite interest to question them would be only the heirs of Mrs. Hodges, definitely not PCIB. It is of no moment in what capacity Hodges made the "contracts to sell' after the death of his wife. Even if he had acted as executor of the will of his wife, he did not have to submit those contracts to the court nor follow the provisions of the rules, (Sections 2, 4, 5, 6, 8 and 9 of Rule 89 quoted by appellant on pp. 125 to 127 of its brief) for the simple reason that by the very orders, much relied upon by appellant for other purposes, of May 27, 1957 and December 14, 1957, Hodges was "allowed or authorized" by the trial court "to continue the business in which he was engaged and to perform acts which he had been doing while the deceased was living", (Order of May 27) which according to the motion on which the court acted was "of buying and selling personal and real properties", and "to execute subsequent sales, conveyances, leases and mortgages of the properties left by the said deceased Linnie Jane Hodges in consonance with the wishes conveyed in the last will and testament of the latter." (Order of December 14) In other words, if Hodges acted then as executor, it can be said that he had authority to do so by virtue of these blanket orders, and PCIB does not question the legality of such grant of authority; on the contrary, it is relying on the terms of the order itself for its main contention in these cases. On the other hand, if, as PCIB contends, he acted as heir-adjudicatee, the authority given to him by the aforementioned orders would still suffice.

As can be seen, therefore, it is of no moment whether the "contracts to sell" upon which the deeds in question were based were executed by Hodges before or after the death of his wife. In a word, We hold, for the reasons already stated, that the properties covered by the deeds being assailed pertain or should be deemed as pertaining to the estate of Mrs. Hodges; hence, any

supposed irregularity attending the actuations of the trial court may be invoked only by her heirs, not by PCIB, and since the said heirs are not objecting, and the defects pointed out not being strictly jurisdictional in nature, all things considered, particularly the unnecessary disturbance of rights already created in favor of innocent third parties, it is best that the impugned orders are not disturbed. In view of these considerations, We do not find sufficient merit in the assignments of error under discussion. Assignments of error V to VIII, XVI to XVIII, XXVI to XXIX, XXXVII to XXXVIII, XLIV to XLVI and LI. All these assignments of error commonly deal with alleged non-fulfillment by the respective vendees, appellees herein, of the terms and conditions embodied in the deeds of sale referred to in the assignments of error just discussed. It is claimed that some of them never made full payments in accordance with the respective contracts to sell, while in the cases of the others, like Lorenzo Carles, Jose Pablico, Alfredo Catedral and Salvador S. Guzman, the contracts with them had already been unilaterally cancelled by PCIB pursuant to automatic rescission clauses contained in them, in view of the failure of said buyers to pay arrearages long overdue. But PCIB's posture is again premised on its assumption that the properties covered by the deeds in question could not pertain to the estate of Mrs. Hodges. We have already held above that, it being evident that a considerable portion of the conjugal properties, much more than the properties covered by said deeds, would inevitably constitute the estate of Mrs. Hodges, to avoid unnecessary legal complications, it can be assumed that said properties form part of such estate. From this point of view, it is apparent again that the questions, whether or not it was proper for appellee Magno to have disregarded the cancellations made by PCIB, thereby reviving the rights of the respective buyers-appellees, and, whether or not the rules governing new dispositions of properties of the estate were strictly followed, may not be raised by PCIB but only by the heirs of Mrs. Hodges as the persons designated to inherit the same, or perhaps the government because of the still unpaid inheritance taxes. But, again, since there is no pretense that any objections were raised by said parties or that they would necessarily be prejudiced, the contentions of PCIB under the instant assignments of error hardly merit any consideration. Assignments of error IX to XII, XIX to XXI, XXX to XXIV, XXXLX to XL, XLVII to XLLX, LII and LIII to LXI. PCIB raises under those assignments of error two issues which according to it are fundamental, namely: (1) that in approving the deeds executed by Magno pursuant to contracts to sell already cancelled by it in the performance of its functions as administrator of the estate of Hodges, the trial court deprived the said estate of the right to invoke such cancellations it (PCIB) had made

and (2) that in so acting, the court "arrogated unto itself, while acting as a probate court, the power to determine the contending claims of third parties against the estate of Hodges over real property," since it has in effect determined whether or not all the terms and conditions of the respective contracts to sell executed by Hodges in favor of the buyers-appellees concerned were complied with by the latter. What is worse, in the view of PCIB, is that the court has taken the word of the appellee Magno, "a total stranger to his estate as determinative of the issue". Actually, contrary to the stand of PCIB, it is this last point regarding appellee Magno's having agreed to ignore the cancellations made by PCIB and allowed the buyers-appellees to consummate the sales in their favor that is decisive. Since We have already held that the properties covered by the contracts in question should be deemed to be portions of the estate of Mrs. Hodges and not that of Hodges, it is PCIB that is a complete stranger in these incidents. Considering, therefore, that the estate of Mrs. Hodges and her heirs who are the real parties in interest having the right to oppose the consummation of the impugned sales are not objecting, and that they are the ones who are precisely urging that said sales be sanctioned, the assignments of error under discussion have no basis and must accordingly be as they are hereby overruled. With particular reference to assignments LIII to LXI, assailing the orders of the trial court requiring PCIB to surrender the respective owner's duplicate certificates of title over the properties covered by the sales in question and otherwise directing the Register of Deeds of Iloilo to cancel said certificates and to issue new transfer certificates of title in favor of the buyers-appellees, suffice it to say that in the light of the above discussion, the trial court was within its rights to so require and direct, PCIB having refused to give way, by withholding said owners' duplicate certificates, of the corresponding registration of the transfers duly and legally approved by the court. Assignments of error LXII to LXVII. All these assignments of error commonly deal with the appeal against orders favoring appellee Western Institute of Technology. As will be recalled, said institute is one of the buyers of real property covered by a contract to sell executed by Hodges prior to the death of his wife. As of October, 1965, it was in arrears in the total amount of P92,691.00 in the payment of its installments on account of its purchase, hence it received under date of October 4, 1965 and October 20, 1965, letters of collection, separately and respectively, from PCIB and appellee Magno, in their respective capacities as administrators of the distinct estates of the Hodges spouses, albeit, while in the case of PCIB it made known that "no other arrangement can be accepted except by paying all your past due account", on the other hand, Magno merely said she would "appreciate very much if you can make some remittance to bring this account up-todate and to reduce the amount of the obligation." (See pp. 295-311, Green R. on A.) On November 3, 1965, the Institute filed a motion which, after alleging that it was ready and willing to pay P20,000 on account of its overdue installments but uncertain whether it should pay PCIB or Magno, it prayed that it be "allowed to deposit the aforesaid amount with the court pending resolution of the conflicting claims of the administrators." Acting on this motion, on November 23, 1965, the trial court issued an order, already quoted in the narration of facts in this opinion,

holding that payment to both or either of the two administrators is "proper and legal", and so "movant can pay to both estates or either of them", considering that "in both cases (Special Proceedings 1307 and 1672) there is as yet no judicial declaration of heirs nor distribution of properties to whomsoever are entitled thereto." The arguments under the instant assignments of error revolve around said order. From the procedural standpoint, it is claimed that PCIB was not served with a copy of the Institute's motion, that said motion was heard, considered and resolved on November 23, 1965, whereas the date set for its hearing was November 20, 1965, and that what the order grants is different from what is prayed for in the motion. As to the substantive aspect, it is contended that the matter treated in the motion is beyond the jurisdiction of the probate court and that the order authorized payment to a person other than the administrator of the estate of Hodges with whom the Institute had contracted. The procedural points urged by appellant deserve scant consideration. We must assume, absent any clear proof to the contrary, that the lower court had acted regularly by seeing to it that appellant was duly notified. On the other hand, there is nothing irregular in the court's having resolved the motion three days after the date set for hearing the same. Moreover, the record reveals that appellants' motion for reconsideration wherein it raised the same points was denied by the trial court on March 7, 1966 (p. 462, Green R. on A.). Withal, We are not convinced that the relief granted is not within the general intent of the Institute's motion. Insofar as the substantive issues are concerned, all that need be said at this point is that they are mere reiterations of contentions WE have already resolved above adversely to appellants' position. Incidentally, We may add, perhaps, to erase all doubts as to the priority of not disturbing the lower court's orders sanctioning the sales questioned in all these appeals by PCIB, that it is only when one of the parties to a contract to convey property executed by a deceased person raises substantial objections to its being implemented by the executor or administrator of the decedent's estate that Section 8 of Rule 89 may not apply and, consequently, the matter has, to be taken up in a separate action outside of the probate court; but where, as in the cases of the sales herein involved, the interested parties are in agreement that the conveyance be made, it is properly within the jurisdiction of the probate court to give its sanction thereto pursuant to the provision of the rule just mentioned. And with respect to the supposed automatic rescission clauses contained in the contracts to sell executed by Hodges in favor of herein appellees, the effect of said clauses depend on the true nature of the said contracts, despite the nomenclature appearing therein, which is not controlling, for if they amount to actual contracts of sale instead of being mere unilateral accepted "promises to sell", (Art. 1479, Civil Code of the Philippines, 2nd paragraph) the pactum commissorium or the automatic rescission provision would not operate, as a matter of public policy, unless there has been a previous notarial or judicial demand by the seller (10 Manres 263, 2nd ed.), neither of which have been shown to have been made in connection with the transactions herein involved.

Consequently, We find no merit in the assignments of error Number LXII to LXVII.

SUMMARY Considering the fact that this decision is unusually extensive and that the issues herein taken up and resolved are rather numerous and varied, what with appellant making seventy-eight assignments of error affecting no less than thirty separate orders of the court a quo, if only to facilitate proper understanding of the import and extent of our rulings herein contained, it is perhaps desirable that a brief restatement of the whole situation be made together with our conclusions in regard to its various factual and legal aspects. That instant cases refer to the estate left by the late Charles Newton Hodges as well as that of his wife, Linnie Jane Hodges, who predeceased him by about five years and a half. In their respective wills which were executed on different occasions, each one of them provided mutually as follows: "I give, devise and bequeath all of the rest, residue and remainder (after funeral and administration wherever situated or located, to my beloved (spouse) to have and to hold unto (him/her) during (his/her) natural lifetime", subject to the condition that upon the death of whoever of them survived the other, the remainder of what he or she would inherit from the other is "give(n), devise(d) and bequeath(ed)" to the brothers and sisters of the latter. Mrs. Hodges died first, on May 23, 1957. Four days later, on May 27, Hodges was appointed special administrator of her estate, and in a separate order of the same date, he was "allowed or authorized to continue the business in which he was engaged, (buying and selling personal and real properties) and to perform acts which he had been doing while the deceased was living." Subsequently, on December 14, 1957, after Mrs. Hodges' will had been probated and Hodges had been appointed and had qualified as Executor thereof, upon his motion in which he asserted that he was "not only part owner of the properties left as conjugal, but also, the successor to all the properties left by the deceased Linnie Jane Hodges", the trial court ordered that "for the reasons stated in his motion dated December 11, 1957, which the Court considers well taken, . . . all the sales, conveyances, leases and mortgages of all properties left by the deceased Linnie Jane Hodges executed by the Executor, Charles Newton Hodges are hereby APPROVED. The said Executor is further authorized to execute subsequent sales, conveyances, leases and mortgages of the properties left by the said deceased Linnie Jane Hodges in consonance with the wishes contained in the last will and testament of the latter." Annually thereafter, Hodges submitted to the court the corresponding statements of account of his administration, with the particularity that in all his motions, he always made it a point to urge that "no person interested in the Philippines of the time and place of examining the herein accounts be given notice, as herein executor is the only devisee or legatee of the deceased, in accordance with the last will and testament already probated by the Honorable Court." All said accounts were invariably approved as prayed for. Nothing else appears to have been done either by the court a quo or by Hodges until December 25, 1962. Importantly to be noted, despite the provision in the will of Mrs. Hodges that her share of the conjugal partnership was to be inherited by her husband "to have and to hold unto him, my said husband, during his natural lifetime" and that "at the death of my said husband, I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, wherever situated or located, to be equally divided among my brothers and sisters, share and

share alike", which provision naturally made it imperative that the conjugal partnership be promptly liquidated, in order that the "rest, residue and remainder" of his wife's share thereof, as of the time of Hodges' own death, may be readily known and identified, no such liquidation was ever undertaken. The record gives no indication of the reason for such omission, although relatedly, it appears therein: 1.That in his annual statement submitted to the court of the net worth of C. N. Hodges and the Estate of Linnie Jane Hodges, Hodges repeatedly and consistently reported the combined income of the conjugal partnership and then merely divided the same equally between himself and the estate of the deceased wife, and, more importantly, he also, as consistently, filed corresponding separate income tax returns for each calendar year for each resulting half of such combined income, thus reporting that the estate of Mrs. Hodges had its own income distinct from his own. 2.That when the court a quo happened to inadvertently omit in its order probating the will of Mrs. Hodges, the name of one of her brothers, Roy Higdon, then already deceased, Hodges lost no time in asking for the proper correction "in order that the heirs of deceased Roy Higdon may not think or believe they were omitted, and that they were really interested in the estate of the deceased Linnie Jane Hodges". 3.That in his aforementioned motion of December 11, 1957, he expressly stated that "deceased Linnie Jane Hodges died leaving no descendants or ascendants except brothers and sisters and herein petitioner as the surviving spouse, to inherit the properties of the decedent", thereby indicating that he was not excluding his wife's brothers and sisters from the inheritance. 4.That Hodges allegedly made statements and manifestations to the United States inheritance tax authorities indicating that he had renounced his inheritance from his wife in favor of her other heirs, which attitude he is supposed to have reiterated or ratified in an alleged affidavit subscribed and sworn to here in the Philippines and in which he even purportedly stated that his reason for so disclaiming and renouncing his rights under his wife's will was to "absolve (him) or (his) estate from any liability for the payment of income taxes on income which has accrued to the estate of Linnie Jane Hodges", his wife, since her death. On said date, December 25, 1962, Hodges died. The very next day, upon motion of herein respondent and appellee, Avelina A. Magno, she was appointed by the trial court as Administratrix of the Testate Estate of Linnie Jane Hodges, in Special Proceedings No. 1307 and as Special Administratrix of the estate of Charles Newton Hodges, "in the latter case, because the last will of said Charles Newton Hodges is still kept in his vault or iron safe and that the real and personal properties of both spouses may be lost, damaged or go to waste, unless Special Administratrix is appointed," (Order of December 26, 1962, p. 27, Yellow R. on A.) although, soon enough, on December 29, 1962, a certain Harold K. Davies was appointed as her Co-Special Administrator and when Special Proceedings No. 1672, Testate Estate of Charles Newton Hodges, was opened, Joe Hodges, as next of kin of the deceased, was in due time appointed as Co-Administrator of said estate together with Atty. Fernando P. Mirasol, to replace Magno and Davies, only to be in turn replaced eventually by petitioner PCIB alone.

At the outset, the two probate proceedings appear to have been proceeding jointly, with each administrator acting together with the other, under a sort of modus operandi. PCIB used to secure at the beginning the conformity to and signature of Magno in transactions it wanted to enter into and submitted the same to the court for approval as their joint acts. So did Magno do likewise. Somehow, however, differences seem to have arisen, for which reason, each of them began acting later on separately and independently of each other, with apparent sanction of the trial court. Thus, PCIB had its own lawyers whom it contracted and paid handsomely, conducted the business of the estate independently of Magno and otherwise acted as if all the properties appearing in the name of Charles Newton Hodges belonged solely and only to his estate, to the exclusion of the brothers and sisters of Mrs. Hodges, without considering whether or not in fact any of said properties corresponded to the portion of the conjugal partnership pertaining to the estate of Mrs. Hodges. On the other hand, Magno made her own expenditures, hired her own lawyers, on the premise that there is such an estate of Mrs. Hodges, and dealt with some of the properties, appearing in the name of Hodges, on the assumption that they actually correspond to the estate of Mrs. Hodges. All of these independent and separate actuations of the two administrators were invariably approved by the trial court upon submission. Eventually, the differences reached a point wherein Magno, who was more cognizant than anyone else about the ins and outs of the businesses and properties of the deceased spouses because of her long and intimate association with them, made it difficult for PCIB to perform normally its functions as administrator separately from her. Thus, legal complications arose and the present judicial controversies came about. Predicating its position on the tenor of the orders of May 27 and December 14, 1957 as well as the approval by the court a quo of the annual statements of account of Hodges, PCIB holds to the view that the estate of Mrs. Hodges has already been in effect closed with the virtual adjudication in the mentioned orders of her whole estate to Hodges, and that, therefore, Magno had already ceased since then to have any estate to administer and the brothers and sisters of Mrs. Hodges have no interests whatsoever in the estate left by Hodges. Mainly upon such theory, PCIB has come to this Court with a petition for certiorari and prohibition praying that the lower court's orders allowing respondent Magno to continue acting as administratrix of the estate of Mrs. Hodges in Special Proceedings 1307 in the manner she has been doing, as detailed earlier above, to set aside. Additionally, PCIB maintains that the provision in Mrs. Hodges' will instituting her brothers and sisters in the manner therein specified is in the nature of a testamentary substitution, but inasmuch as the purported substitution is not, in its view, in accordance with the pertinent provisions of the Civil Code, it is ineffective and may not be enforced. It is further contended that, in any event, inasmuch as the Hodges spouses were both residents of the Philippines, following the decision of this Court in Aznar vs. Garcia, or the case of Christensen, 7 SCRA 95, the estate left by Mrs. Hodges could not be more than one-half of her share of the conjugal partnership, notwithstanding the fact that she was a citizen of Texas, U.S.A., in accordance with Article 16 in relation to Articles 900 and 872 of the Civil Code. Initially, We issued a preliminary injunction against Magno and allowed PCIB to act alone.

At the same time, PCIB has appealed several separate orders of the trial court approving individual acts of appellee Magno in her capacity as administratrix of the estate of Mrs. Hodges, such as, hiring of lawyers for specified fees and incurring expenses of administration for different purposes and executing deeds of sale in favor of her co-appellees covering properties which are still registered in the name of Hodges, purportedly, pursuant to corresponding "contracts to sell" executed by Hodges. The said orders are being questioned on jurisdictional and procedural grounds directly or indirectly predicated on the principal theory of appellant that all the properties of the two estates belong already to the estate of Hodges exclusively. On the other hand, respondent-appellee Magno denies that the trial court's orders of May 27 and December 14, 1957 were meant to be finally adjudicatory of the hereditary rights of Hodges and contends that they were no more than the court's general sanction of past and future acts of Hodges as executor of the will of his wife in due course of administration. As to the point regarding substitution, her position is that what was given by Mrs. Hodges to her husband under the provision in question was a lifetime usufruct of her share of the conjugal partnership, with the naked ownership passing directly to her brothers and sisters. Anent the application of Article 16 of the Civil Code, she claims that the applicable law to the will of Mrs. Hodges is that of Texas under which, she alleges, there is no system of legitime, hence, the estate of Mrs. Hodges cannot be less than her share or one-half of the conjugal partnership properties. She further maintains that, in any event, Hodges had as a matter of fact and of law renounced his inheritance from his wife and, therefore, her whole estate passed directly to her brothers and sisters effective at the latest upon the death of Hodges. In this decision, for the reasons discussed above, and upon the issues just summarized, We overrule PCIB's contention that the orders of May 27, 1957 and December 14, 1957 amount to an adjudication to Hodges of the estate of his wife, and We recognize the present existence of the estate of Mrs. Hodges, as consisting of properties, which, while registered in the name of Hodges, do actually correspond to the remainder of the share of Mrs. Hodges in the conjugal partnership, it appearing that pursuant to the pertinent provisions of her will, any portion of said share still existing and undisposed of by her husband at the time of his death should go to her brothers and sisters share and share alike. Factually, We find that the proven circumstances relevant to the said orders do not warrant the conclusion that the court intended to make thereby such alleged final adjudication. Legally, We hold that the tenor of said orders furnish no basis for such a conclusion, and what is more, at the time said orders were issued, the proceedings had not yet reached the point when a final distribution and adjudication could be made. Moreover, the interested parties were not duly notified that such disposition of the estate would be done. At best, therefore, said orders merely allowed Hodges to dispose portions of his inheritance in advance of final adjudication, which is implicitly permitted under Section 2 of Rule 109, there being no possible prejudice to third parties, inasmuch as Mrs. Hodges had no creditors and all pertinent taxes have been paid. More specifically, We hold that, on the basis of circumstances presently extant in the record, and on the assumption that Hodges' purported renunciation should not be upheld, the estate of Mrs. Hodges inherited by her brothers and sisters consists of one-fourth of the community estate of the spouses at the time of her death, minus whatever Hodges had gratuitously

disposed of therefrom during the period from, May 23, 1957, when she died, to December 25, 1962, when he died provided, that with regard to remunerative dispositions made by him during the same period, the proceeds thereof, whether in cash or property, should be deemed as continuing to be part of his wife's estate, unless it can be shown that he had subsequently disposed of them gratuitously. At this juncture, it may be reiterated that the question of what are the pertinent laws of Texas and what would be the estate of Mrs. Hodges under them is basically one of fact, and considering the respective positions of the parties in regard to said factual issue, it can already be deemed as settled for the purposes of these cases that, indeed, the free portion of said estate that could possibly descend to her brothers and sisters by virtue of her will may not be less than one-fourth of the conjugal estate, it appearing that the difference in the stands of the parties has reference solely to the legitime of Hodges, PCIB being of the view that under the laws of Texas, there is such a legitime of one-fourth of said conjugal estate and Magno contending, on the other hand, that there is none. In other words, hereafter, whatever might ultimately appear, at the subsequent proceedings, to be actually the laws of Texas on the matter would no longer be of any consequence, since PCIB would anyway be in estoppel already to claim that the estate of Mrs. Hodges should be less than as contended by it now, for admissions by a party related to the effects of foreign laws, which have to be proven in our courts like any other controverted fact, create estoppel. In the process, We overrule PCIB's contention that the provision in Mrs. Hodges' will in favor of her brothers and sisters constitutes ineffective hereditary substitutions. But neither are We sustaining, on the other hand, Magno's pose that it gave Hodges only a lifetime usufruct. We hold that by said provision, Mrs. Hodges simultaneously instituted her brothers and sisters as co-heirs with her husband, with the condition, however, that the latter would have complete rights of dominion over the whole estate during his lifetime and what would go to the former would be only the remainder thereof at the time of Hodges' death. In other words, whereas they are not to inherit only in case of default of Hodges, on the other hand, Hodges was not obliged to preserve anything for them. Clearly then, the essential elements of testamentary substitution are absent; the provision in question is a simple case of conditional simultaneous institution of heirs, whereby the institution of Hodges is subject to a partial resolutory condition the operative contingency of which is coincidental with that of the suspensive condition of the institution of his brothers and sisters-in-law, which manner of institution is not prohibited by law. We also hold, however, that the estate of Mrs. Hodges inherited by her brothers and sisters could be more than just stated, but this would depend on (1) whether upon the proper application of the principle of renvoi in relation to Article 16 of the Civil Code and the pertinent laws of Texas, it will appear that Hodges had no legitime as contended by Magno, and (2) whether or not it can be held that Hodges had legally and effectively renounced his inheritance from his wife. Under the circumstances presently obtaining and in the state of the record of these cases, as of now, the Court is not in a position to make a final ruling, whether of fact or of law, on any of these two issues, and We, therefore, reserve said issues for further proceedings and resolution in the first instance by the court o quo, as hereinabove indicated. We reiterate, however, that pending such further proceedings, as matters stand at this stage, Our considered

opinion is that it is beyond cavil that since, under the terms of the will of Mrs. Hodges, her husband could not have anyway legally adjudicated or caused to be adjudicated to himself her whole share of their conjugal partnership, albeit he could have disposed any part thereof during his lifetime, the resulting estate of Mrs. Hodges, of which Magno is the uncontested administratrix, cannot be less than one-fourth of the conjugal partnership properties, as of the time of her death, minus what, as explained earlier, have been gratuitously disposed of therefrom, by Hodges in favor of third persons since then, for even if it were assumed that, as contended by PCIB, under Article 16 of the Civil Code and applying renvoi the laws of the Philippines are the ones ultimately applicable, such one-fourth share would be her free disposable portion, taking into account already the legitime of her husband under Article 900 of the Civil Code. The foregoing considerations leave the Court with no alternative than to conclude that in predicating its orders on the assumption, albeit unexpressed therein, that there is an estate of Mrs. Hodges to be distributed among her brothers and sisters and that respondent Magno is the legal administratrix thereof, the trial court acted correctly and within its jurisdiction. Accordingly, the petition for certiorari and prohibition has to be denied. The Court feels, however, that pending the liquidation of the conjugal partnership and the determination of the specific properties constituting her estate, the two administrators should act conjointly as ordered in the Court's resolution of September 8, 1972 and as further clarified in the dispositive portion of this decision. Anent the appeals from the orders of the lower court sanctioning payment by appellee Magno, as administratrix, of expenses of administration and attorney's fees, it is obvious that, with our holding that there is such an estate of Mrs. Hodges, and for the reasons stated in the body of this opinion, the said orders should be affirmed. This We do on the assumption We find justified by the evidence of record, and seemingly agreed to by appellant PCIB, that the size and value of the properties that should correspond to the estate of Mrs. Hodges far exceed the total of the attorney's fees and administration expenses in question.

With respect to the appeals from the orders approving transactions made by appellee Magno, as administratrix, covering properties registered in the name of Hodges, the details of which are related earlier above, a distinction must be made between those predicated on contracts to sell executed by Hodges before the death of his wife, on the one hand, and those premised on contracts to sell entered into by him after her death. As regards the latter, We hold that inasmuch as the payments made by appellees constitute proceeds of sales of properties belonging to the estate of Mrs. Hodges, as may be implied from the tenor of the motions of May 27 and December 14, 1957, said payments continue to pertain to said estate, pursuant to her intent obviously reflected in the relevant provisions of her will, on the assumption that the size and value of the properties to correspond to the estate of Mrs. Hodges would exceed the total value of all the properties covered by the impugned deeds of sale, for which reason, said properties may be deemed as pertaining to the estate of Mrs. Hodges. And there being no showing that thus viewing the situation, there would be prejudice to anyone, including the

government, the Court also holds that, disregarding procedural technicalities in favor of a pragmatic and practical approach as discussed above, the assailed orders should be affirmed. Being a stranger to the estate of Mrs. Hodges, PCIB has no personality to raise the procedural and jurisdictional issues raised by it. And inasmuch as it does not appear that any of the other heirs of Mrs. Hodges or the government has objected to any of the orders under appeal, even as to these parties, there exists no reason for said orders to be set aside. DISPOSITIVE PART IN VIEW OF ALL THE FOREGOING PREMISES, judgment is hereby rendered DISMISSING the petition in G. R. Nos. L-27860 and L-27896, and AFFIRMING, in G. R. Nos. L-27936-37 and the other thirty-one numbers hereunder ordered to be added after payment of the corresponding docket fees, all the orders of the trial court under appeal enumerated in detail on pages 35 to 37 and 80 to 82 of this decision; the existence of the Testate Estate of Linnie Jane Hodges, with respondent-appellee Avelina A. Magno, as administratrix thereof is recognized, and it is declared that, until final judgment is ultimately rendered regarding (1) the manner of applying Article 16 of the Civil Code of the Philippines to the situation obtaining in these cases and (2) the factual and legal issue of whether or not Charles Newton Hodges had effectively and legally renounced his inheritance under the will of Linnie Jane Hodges, the said estate consists of onefourth of the community properties of the said spouses, as of the time of the death of the wife on May 23, 1957, minus whatever the husband had already gratuitously disposed of in favor of third persons from said date until his death, provided, first, that with respect to remunerative dispositions, the proceeds thereof shall continue to be part of the wife's estate, unless subsequently disposed of gratuitously to third parties by the husband, and second, that should the purported renunciation be declared legally effective, no deductions whatsoever are to be made from said estate; in consequence, the preliminary injunction of August 8, 1967, as amended on October 4 and December 6, 1967, is lifted, and the resolution of September 8, 1972, directing that petitioner-appellant PCIB, as Administrator of the Testate Estate of Charles Newton Hodges, in Special Proceedings 1672, and respondent-appellee Avelina A. Magno, as Administratrix of the Testate Estate of Linnie Jane Hodges, in Special Proceedings 1307, should act thenceforth always conjointly, never independently from each other, as such administrators, is reiterated, and the same is made part of this judgment and shall continue in force, pending the liquidation of the conjugal partnership of the deceased spouses and the determination and segregation from each other of their respective estates, provided, that upon the finality of this judgment, the trial court should immediately proceed to the partition of the presently combined estates of the spouses, to the end that the one-half share thereof of Mrs. Hodges may be properly and clearly identified; thereafter, the trial court should forthwith segregate the remainder of the one-fourth herein adjudged to be her estate and cause the same to be turned over or delivered to respondent for her exclusive administration in Special Proceedings 1307, while the other one-fourth shall remain under the joint administration of said respondent and petitioner under a joint proceedings in Special Proceedings 1307 and 1672, whereas the half unquestionably pertaining to Hodges shall be administered by petitioner exclusively in Special Proceedings 1672, without prejudice to the resolution by the trial court of the pending motions for its removal as administrator 12 ; and this arrangement shall be maintained until the final resolution of the two issues of renvoi and renunciation hereby reserved for further hearing and

determination, and the corresponding complete segregation and partition of the two estates in the proportions that may result from the said resolution. Generally and in all other respects, the parties and the court a quo are directed to adhere henceforth, in all their actuations in Special Proceedings 1307 and 1672, to the views passed and ruled upon by the Court in the foregoing opinion. Appellant PCIB is ordered to pay, within five (5) days from notice hereof, thirty-one additional appeal docket fees, but this decision shall nevertheless become final as to each of the parties herein after fifteen (15) days from the respective notices to them hereof in accordance with the rules. Costs against petitioner-appellant PCIB. Zaldivar, Castro, Esguerra and Fernandez, JJ ., concur. Fernando, J ., concurs on the basis of the procedural pronouncements in the opinion. Makasiar, Antonio, Muoz Palma and Aquino, JJ ., concur in the result. Separate Opinions TEEHANKEE, J ., concurring: I concur in the result of dismissal of the petition for certiorari and prohibition in Cases L-27860 and L-27896 and with the affirmance of the appealed orders of the probate court in Cases L27936-37. I also concur with the portion of the dispositive part of the judgment penned by Mr. Justice Barredo decreeing the lifting of the Court's writ of preliminary injunction of August 8, 1967 as amended on October 4, and December 6, 1967 1 and ordering in lieu thereof that the Court's resolution of September 8, 1972 2 which directed that petitioner-appellant PCIB as administrator of C. N. (Charles Newton) Hodges' estate (Sp. Proc. No. 1672 and respondent-appellee Avelina A. Magno as administratrix of Linnie Jane Hodges' estate (Sp. Proc. No. 1307) should act always conjointly, never independently from each other, as such administrators, is reiterated and shall continue in force and made part of the judgment. It is manifest from the record that petitioner-appellant PCIB's primal contention in the cases at bar belatedly filed by it with this Court on August 1, 1967 (over ten (10) years after Linnie Jane Hodges' death on May 23, 1957 and over five (5 years after her husband C.N. Hodges' death on December 25, 1962 during which time both estates have been pending settlement and distribution to the decedents' respective rightful heirs all this time up to now) that the probate court per its order of December 14, 1957 (supplementing an earlier order of May 25, 1957) 3 in granting C. N. Hodges' motion as Executor of his wife Linnie's estate to continue their "business of buying and selling personal and real properties" and approving "all sales, conveyances, leases and mortgages" made and to be made by him as such executor under his obligation to submit his yearly accounts in effect declared him as sole heir of his wife's estate and nothing remains to be done except to formally close her estate (Sp. Proc. No. 1307) as her estate was

thereby merged with his own so that nothing remains of it that may be adjudicated to her brothers and sisters as her designated heirs after him, 4 is wholly untenable and deserves scant consideration. Aside from having been put forth as an obvious afterthought much too late in the day, this contention of PCIB that there no longer exists any separate estate of Linnie Jane Hodges after the probate court's order of December 14, 1957 goes against the very acts and judicial admissions of C.N. Hodges as her executor whereby he consistently recognized the separate existence and identity of his wife's estate apart from his own separate estate and from his own share of their conjugal partnership and estate and "never considered the whole estate as a single one belonging exclusively to himself" during the entire period that he survived her for over five (5) years up to the time of his own death on December 25, 1962 5 and against the identical acts and judicial admissions of PCIB as administrator of C.N. Hodges' estate until PCIB sought in 1966 to take over both estates as pertaining to its sole administration. PCIB is now barred and estopped from contradicting or taking a belated position contradictory to or inconsistent with its previous admissions 6 (as well as those of C.N. Hodges himself in his lifetime and of whose estate PCIB is merely an administrator) recognizing the existence and identity of Linnie Jane Hodges' separate estate and the legal rights and interests therein of her brothers and sisters as her designated heirs in her will. PCIB's petition for certiorari and prohibition to declare all acts of the probate court in Linnie Jane Hodges' estate subsequent to its order of December 14, 1957 as "null and void for having been issued without jurisdiction" must therefore be dismissed with the rejection of its belated and untenable contention that there is no longer any estate of Mrs. Hodges of which respondent Avelina A. Magno is the duly appointed and acting administratrix.

PCIB's appeal 7 from the probate court's various orders recognizing respondent Magno as administratrix of Linnie's estate (Sp. Proc. No. 1307) and sanctioning her acts of administration of said estate and approving the sales contracts executed by her with the various individual appellees, which involve basically the same primal issue raised in the petition as to whether there still exists a separate estate of Linnie of which respondent-appellee Magno may continue to be the administratrix, must necessarily fail as a result of the Court's main opinion at bar that there does exist such an estate and that the two estates (husband's and wife's) must be administered conjointly by their respective administrators (PCIB and Magno). The dispositive portion of the main opinion The main opinion disposes that: "IN VIEW OF ALL THE FOREGOING PREMISES, judgment is hereby rendered DISMISSING the petition in G. R. Nos. L-27860 and L-27896, and AFFIRMING, in G. R. Nos. L-27936-37 and the other thirty-one numbers hereunder ordered to be added after payment of the corresponding docket fees, all the orders of the trial court under appeal enumerated in detail on pages 35 to 37 and 80 to 82 of this decision:

"The existence of the Testate Estate of Linnie Jane Hodges, with respondent-appellee Avelina A. Magno, as administratrix thereof is recognized, and "It is declared that, until final judgment is ultimately rendered regarding (1) the manner of applying Article 16 of the Civil Code of the Philippines to the situation obtaining in these cases and (2) the factual and legal issues of whether or not Charles Newton Hodges has effectively and legally renounced his inheritance under the will of Linnie Jane Hodges, the said estate consists of one-fourth of the community properties of the said spouses, as of the time of the death of the wife on May 23, 1957, minus whatever the husband had already gratuitously disposed of in favor of third persons from said date until his death, provided, first, that with respect to remunerative dispositions, the proceeds thereof shall continue to be part of the wife's estate, unless subsequently disposed of gratuitously to third parties by the husband, and second, that should the purported renunciation be declared legally effective, no deductions whatsoever are to be made from said estate; "In consequence, the preliminary injunction of August 8, 1967, as amended on October 4 and December 6, 1967, is lifted, and the resolution of September 8, 1972, directing that petitionerappellant PCIB, as Administrator of the Testate Estate of Charles Newton Hodges, in Special Proceedings 1672, and respondent-appellee Avelina A. Magno, as Administratrix of the Testate Estate of Linnie Jane Hodges, in Special Proceedings 1307, should act thenceforth always conjointly never independently from each other, as such administrators, is reiterated and the same is made part of this judgment and shall continue in force, pending the liquidation of the conjugal partnership of the deceased spouses and the determination and segregation from each other of their respective estates; provided, that upon the finality of this judgment, the trial court should immediately proceed to the partition of the presently combined estates of the spouses, to the end that the one-half share thereof of Mrs. Hodges may be properly and clearly identified; "Thereafter, the trial court should forthwith segregate the remainder of the one-fourth herein adjudged to be her estate and cause the same to be turned over or delivered to respondent for her exclusive administration in Special Proceedings 1307, while the other one-fourth shall remain under the joint administration of said respondent and petitioner under a joint proceedings in Special Proceedings 1307 and 1672, whereas the half unquestionably pertaining to Hodges shall be administered by petitioner exclusively in Special Proceedings 1672, without prejudice to the resolution by the trial court of the pending motions for its removal as administrator. "And this arrangement shall be maintained until the final resolution of the two issues of renvoi and renunciation hereby reserved for further hearing and determination, and the corresponding complete segregation and partition of the two estates in the proportions that may result from the said resolution. "Generally and in all other respects, the parties and the court a quo are directed to adhere henceforth, in all their actuations in Special Proceedings 1307 and 1672, to the views passed and ruled upon by the Court in the foregoing opinion." 8 Minimum Estimate of Mrs. Hodges' estate:

One-fourth of conjugal properties The main opinion in declaring the existence of a separate estate of Linnie Jane Hodges which shall pass to her brothers and sisters with right of representation (by their heirs) as her duly designated heirs declares that her estate consists as a minimum (i.e. assuming (1) that under Article 16 of the Philippine Civil Code C. N. Hodges as surviving husband was entitled to onehalf of her estate as legitime and (2) that he had not effectively and legally renounced his inheritance under her will) of "one-fourth of the community properties of the said spouses, as of the time of the death of the wife on May 23, 1957, minus whatever the husband had already gratuitously disposed of in favor of third persons from said date until his death," with the proviso that proceeds of remunerative dispositions or sales for valuable consideration made by C. N. Hodges after his wife Linnie's death shall continue to be part of her estate unless subsequently disposed of by him gratuitously to third parties subject to the condition, however, that if he is held to have validly and effectively renounced his inheritance under his wife's will, no deductions of any dispositions made by Hodges even if gratuitously are to be made from his wife Linnie's estate which shall pass intact to her brothers and sisters as her designated heirs called in her will to succeed to her estate upon the death of her husband C. N. Hodges. Differences with the main opinion I do not share the main opinion's view that Linnie Jane Hodges instituted her husband as her heir under her will "to have dominion over all her estate during his lifetime . . . as absolute owner of the properties . . . " 9 and that she bequeathed "the whole of her estate to be owned and enjoyed by him as universal and sole heir with absolute dominion over them only during his lifetime, which means that while he could completely and absolutely dispose of any portion thereof inter vivos to anyone other than himself, he was not free to do so mortis causa, and all his rights to what might remain upon his death would cease entirely upon the occurrence of that contingency, inasmuch as the right of his brothers-and sisters-in-law to the inheritance, although vested already upon the death of Mrs. Hodges, would automatically become operative upon the occurrence of the death of Hodges in the event of actual existence of any remainder of her estate then." 10 As will be amplified hereinafter, I do not subscribe to such a view that Linnie Jane Hodges willed "full and absolute ownership" and "absolute dominion" over her estate to her husband, but rather that she named her husband C. N. Hodges and her brothers and sisters as instituted heirs with a term under Article 885 of our Civil Code, to wit, Hodges as instituted heir with a resolutory term where-under his right to the succession ceased in diem upon arrival of the resolutory term of his death on December 25, 1962 and her brothers and sisters as instituted heirs with a suspensive term whereunder their right to the succession commenced ex die upon arrival of the suspensive term of the death of C. N. Hodges on December 25, 1962. Hence, while agreeing with the main opinion that the proceeds of all remunerative dispositions made by C. N. Hodges after his wife's death remain an integral part of his wife's estate which she willed to her brothers and sisters, I submit that C. N. Hodges could not validly make gratuitous dispositions of any part or all of his wife's estate "completely and absolutely dispose of any portion thereof inter vivos to anyone other than himself" in the language of the

main opinion, supra and thereby render ineffectual and nugatory her institution of her brothers and sisters as her designated heirs to succeed to her whole estate "at the death of (her) husband." If according to the main opinion, Hodges could not make such gratuitous "complete and absolute dispositions" of his wife Linnie's estate "mortis causa," it would seem that by the same token and rationale he was likewise proscribed by the will from making such dispositions of Linnie's estate inter vivos. I believe that the two questions of renvoi and renunciation should be resolved preferentially and expeditiously by the probate court ahead of the partition and segregation of the minimum onefourth of the conjugal or community properties constituting Linnie Jane Hodges' separate estate, which task considering that it is now seventeen (17) years since Linnie Jane Hodges' death and her conjugal estate with C. N. Hodges has remained unliquidated up to now might take a similar number of years to unravel with the numerous items, transactions and details of the sizable estates involved. Such partition of the minimum one-fourth would not be final, since if the two prejudicial questions of renvoi and renunciation were resolved favorably to Linnie's estate meaning to say that if it should be held that C. N. Hodges is not entitled to any legitime of her estate and at any rate he had totally renounced his inheritance under the will), then Linnie's estate would consist not only of the minimum one-fourth but one-half of the conjugal or community properties of the Hodges spouses, which would require again the partition and segregation of still another onefourth of said properties to complete Linnie's separate estate.

My differences with the main opinion involve further the legal concepts, effects and consequences of the testamentary dispositions of Linnie Jane Hodges in her will and the question of how best to reach a solution of the pressing question of expediting the closing of the estates which after all do not appear to involve any outstanding debts nor any dispute between the heirs and should therefore be promptly settled now after all these years without any further undue complications and delays and distributed to the heirs for their full enjoyment and benefit. As no consensus appears to have been reached thereon by a majority of the Court, I propose to state these views as concisely as possible with the sole end in view that they may be of some assistance to the probate court and the parties in reaching an expeditious closing and settlement of the estates of the Hodges spouses. Two Assumptions As indicated above, the declaration of the minimum of Mrs. Hodges' estate as one-fourth of the conjugal properties is based on two assumptions most favorable to C. N. Hodges' estate and his heirs, namely (1) that the probate court must accept the renvoi or "reference back" 11 allegedly provided by the laws of the State of Texas (of which state the Hodges spouses were citizens) whereby the civil laws of the Philippines as the domicile of the Hodges spouses would govern their succession notwithstanding the provisions of Article 16 of our Civil Code (which provides that the national law of the decedents, in this case, of Texas, shall govern their succession) with the result that her estate would consist of no more than one-fourth of the conjugal properties

since the legitime of her husband (the other one-fourth of said conjugal properties or one-half of her estate, under Article 900 of our Civil Code) could not then be disposed of nor burdened with any condition by her and (2) that C.N. Hodges had not effectively and legally renounced his inheritance under his wife's will. These two assumptions are of course flatly disputed by respondent-appellee Magno as Mrs. Hodges' administratrix, who avers that the law of the State of Texas governs her succession and does not provide for any legitime, hence, her brothers and sisters are entitled to succeed to the whole of her share of the conjugal properties which is one-half thereof and that in any event, Hodges had totally renounced all his rights under the will. The main opinion concedes that "(I)n the interest of settling the estates herein involved soonest, it would be best, indeed, if these conflicting claims of the parties were determined in these proceedings." It observes however that this cannot be done due to the inadequacy of the evidence submitted by the parties in the probate court and of the parties' discussion, viz, "there is no clear and reliable proof of what the possibly applicable laws of Texas are. Then also, the genuineness of the documents relied upon by respondent Magno [re Hodges' renunciation] is disputed." 12 Hence, the main opinion expressly reserves resolution and determination on these two conflicting claims sad issues which it deems "are not properly before the Court new," 13 and specifically holds that "(A)ccordingly, the only question that remains to be settled in the further proceedings hereby ordered to be held in the court below is how much more than as fixed above is the estate of Mrs. Hodges, and this would depend on (1) whether or not the applicable laws of Texas do provide in effect for more, such as, when there is no legitime provided therein, and (2) whether or not Hodges has validly waived his whole inheritance from Mrs. Hodges." 14 Suggested guidelines Considering that the only unresolved issue has thus been narrowed down and in consonance with the ruling spirit of our probate law calling for the prompt settlement of the estates of deceased persons for the benefit of creditors and those entitled to the residue by way of inheritance considering that the estates have been long pending settlement since 1957 and 1962, respectively it was felt that the Court should lay down specific guidelines for the guidance of the probate court towards the end that it may expedite the closing of the protracted estates proceedings below to the mutual satisfaction of the heirs and without need of a dissatisfied party elevating its resolution of this only remaining issue once more to this Court and dragging out indefinitely the proceedings. After all, the only question that remains depends for its determination on the resolution of the two questions of renvoi and renunciation, i.e. as to whether C. N. Hodges can claim a legitime and whether he had renounced the inheritance. But as already indicated above, the Court without reaching a consensus which would, finally resolve the conflicting claims here and now in this case opted that "these and other relevant matters should first be threshed out fully in the trial court in the proceedings hereinafter to be held for the purpose of ascertaining and/or distributing the estate of Mrs. Hodges to her heirs in accordance with her duly probated will. 15

The writer thus feels that laying down the premises and principles governing the nature, effects and consequences of Linnie Jane Hodges' testamentary dispositions in relation to her conjugal partnership and co-ownership of properties with her husband C. N. Hodges and "thinking out" the end results, depending on whether the evidence directed to be formally received by the probate court would bear out that under renvoi C. N. Hodges was or was not entitled to claim a legitime of one-half of his wife Linnie's estate and/or that he had or had not effectively and validly renounced his inheritance should help clear the decks, as it were, and assist the probate court in resolving the only remaining question of how much more than the minimum one-fourth of the community properties of the Hodges spouses herein finally determined should be awarded as the separate estate of Linnie, particularly since the views expressed in the main opinion have not gained a consensus of the Court. Hence, the following suggested guidelines, which needless to state, represent the personal opinion and views of the writer: 1.To begin with, as pointed out in the main opinion, "according to Hodges' own inventory submitted by him as executor of the estate of his wife, practically all their properties were conjugal which means that the spouses have equal shares therein." 16 2.Upon the death of Mrs. Hodges on May 23, 1957, and the dissolution thereby of the marriage, the law imposed upon Hodges as surviving husband the duty of inventorying, administering and liquidating the conjugal or community property. 17 Hodges failed to discharge this duty of liquidating the conjugal partnership and estate. On the contrary, he sought and obtained authorization from the probate court to continue the conjugal partnership's business of buying and selling real and personal properties. In his annual accounts submitted to the probate court as executor of Mrs. Hodges estate, Hodges thus consistently reported the considerable combined income (in six figures) of the conjugal partnership or co-ownership and then divided the same equally between himself and Mrs. Hodges' estate and as consistently filed separate Income tax returns and paid the income taxes for each resulting half of such combined income corresponding to his own and to Mrs. Hodges' estate. 18 (Parenthetically he could not in law do this, had he adjudicated Linnie's entire estate to himself, thus supporting the view advanced even in the main opinion that "Hodges waived not only his rights to the fruits but to the properties themselves." 19 By operation of the law of trust 20 as well as by his own acknowledgment and acts, therefore, all transactions made by Hodges after his wife's death were deemed for and on behalf of their unliquidated conjugal partnership and community estate and were so reported and treated by him. 3.With this premise established that all transactions of Hodges after his wife's death were for and on behalf of their unliquidated conjugal partnership and community estate, share and share alike, it should be clear that no gratuitous dispositions, if any, made by C. N. Hodges from his wife Linnie's estate should be deducted from her separate estate as held in the main opinion. 21 On the contrary, any such gratuitous dispositions should be charged to his own share of the conjugal estate since he had no authority or right to make any gratuitous dispositions of Linnie's properties to the prejudice of her brothers and sisters whom she called to her succession upon his death, not to mention that the very authority obtained by him from the probate court per its

orders of May 25, and December 14, 1957 was to continue the conjugal partnership's business of buying and selling real properties for the account of their unliquidated conjugal estate and coownership, share and share alike and not to make any free dispositions of Linnie's estate. 4.All transactions as well after the death on December 25, 1962 of Hodges himself appear perforce and necessarily to have been conducted, on the same premise, for and on behalf of their unliquidated conjugal partnership and/or co-ownership, share and share alike since the conjugal partnership remained unliquidated which is another way of saying that such transactions, purchases and sales, mostly the latter, must be deemed in effect to have been made for the respective estates of C. N. Hodges and of his wife Linnie Jane Hodges, as both estates continued to have an equal stake and share in the conjugal partnership which was not only left unliquidated but continued as a co-ownership or joint business with the probate court's approval by Hodges during the five-year period that he survived his wife. This explains the probate court's action of requiring that deeds of sale executed by PCIB as Hodges' estate's administrator be "signed jointly" by respondent Magno as Mrs. Hodges' estate's administratrix, as well as its order authorizing payment by lot purchasers from the Hodges to either estate, since "there is as yet no judicial declaration of heirs nor distribution of properties to whomsoever are entitled thereto." 22

And this equally furnishes the rationale of the main opinion for continued conjoint administration by the administrators of the two estates of the deceased spouses, "pending the liquidation of the conjugal partnership," 23 since "it is but logical that both estates should be administered jointly by the representatives of both, pending their segregation from each other. Particularly . . . because the actuations so far of PCIB evince a determined, albeit groundless, intent to exclude the other heirs of Mrs. Hodges from their inheritance." 24 5.As stressed in the main opinion, the determination of the only unresolved issue of how much more than the minimum of one-fourth. of the community or conjugal properties of the Hodges spouses pertains to Mrs. Hodges' estate depends on the twin questions of renunciation and renvoi. It directed consequently that "a joint hearing of the two probate proceedings herein involved" be held by the probate court for the reception of "further evidence" in order to finally resolved these twin questions. 25 (a)On the question of renunciation, it is believed that all that the probate court has to do is to receive formally in evidence the various documents annexed to respondent Magno's answer at bar, 26 namely: Copy of the U.S. Estate Tax Return filed on August 8, 1958 by C. N. Hodges for his wife Linnie's estate wherein he purportedly declared that he was renouncing his inheritance under his wife's will in favor of her brothers and sisters as co-heirs designated with him and that it was his "intention (as) surviving husband of the deceased to distribute the remaining property and interests of the deceased in their community estate to the devisees and legatees named in the will when the debts, liabilities, taxes and expenses of administration are finally determined and paid;" 27 and

The affidavit of ratification of such renunciation (which places him in estoppel) allegedly executed on August 9, 1962 by C. N. Hodges in Iloilo City wherein he reaffirmed that ". . . on August 8, 1958, I renounced and disclaimed any and all right to receive the rents, emoluments and income from said estate" and further declared that "(T)he purpose of this affidavit is to ratify and confirm, and I do hereby ratify and confirm, the declaration made in schedule M of said return and hereby formally disclaim and renounce any right on my part to receive any of the said rents, emoluments and income from the estate of my deceased wife, Linnie Jane Hodges This affidavit is made to absolve me or my estate from any liability for the payment of income taxes on income which has accrued to the estate of Linnie Jane Hodges since the death of the said Linnie Jane Hodges on May 23, 1957." 28 (b)On the question of renvoi, all that remains for the probate court to do is to formally receive in evidence duly authenticated copies of the laws of the State of Texas governing the succession of Linnie Jane Hodges and her husband C. N. Hodges as citizens of said State at the time of their respective deaths on May 23, 1957 and December 25, 1962. 29 6.The text and tenor of the declarations by C. N. Hodges of renunciation of his inheritance from his wife in favor of her other named heirs in her will (her brothers and sisters and their respective heirs) as ratified and reiterated expressly in his affidavit of renunciation executed four years later for the avowed purpose of not being held liable for payment of income taxes on income which has accrued to his wife's estate since her death indicate a valid and effective renunciation. Once the evidence has been formally admitted and its genuineness and legal effectivity established by the probate court, the renunciation by C. N. Hodges must be given due effect with the result that C. N. Hodges therefore acquired no part of his wife's one-half share of the community properties since he removed himself as an heir by virtue of his renunciation. By simple substitution then under Articles 857 and 559 of our Civil Code 30 and by virtue of the will's institution of heirs, since "the heir originally instituted (C. N. Hodges) does not become an heir" 31 by force of his renunciation, Mrs. Hodges' brothers and sisters whom she designated as her heirs upon her husband's death are called immediately to her succession. Consequently, the said community and conjugal properties would then pertain pro indiviso share and share alike to their respective estates, with each estate, however, shouldering its own expenses of administration, estate and inheritance taxes, if any remain unpaid, attorneys' fees and other like expenses and the net remainder to be adjudicated directly to the decedents' respective brothers and sisters (and their heirs) as the heirs duly designated in their respective wills. The question of renvoi becomes immaterial since most laws and our laws permit such renunciation of inheritance. 7.If there were no renunciation (or the same may somehow be declared to have not been valid and effective) by C. N. Hodges of his inheritance from his wife, however, what would be the consequence? (a)If the laws on succession of the State of Texas do provide for renvoi or "reference back" to Philippine law as the domiciliary law of the Hodges' spouses governing their succession, then

petitioners' view that Mrs. Hodges' estate would consist only of the minimum of " one-fourth of the community properties of the said spouses, as of the time of (her) death on May 23,1957" would have to be sustained and C. N. Hodges' estate would consist of three-fourths of the community properties, comprising his own one-half (or two-fourths) share and the other fourth of Mrs. Hodges' estate as the legitime granted him as surviving spouse by Philippine law (Article 900 of the Civil Code) which could not be disposed of nor burdened with any condition by Mrs. Hodges as testatrix. (b)If the laws on succession of the State of Texas do not provide for such renvoi and respondent Magno's assertion is correct that the Texas law which would then prevail, provides for no legitime for C. N. Hodges as the surviving spouse, then respondent Magno's assertion that Mrs. Hodges' estate would consist of one-half of the community properties (with the other half pertaining to C. N. Hodges) would have to be sustained. The community and conjugal properties would then pertain share and share alike to their respective estates, with each estate shouldering its own expenses of administration in the same manner stated in the last paragraph of paragraph 6 hereof. 8.As to the nature of the institution of heirs made by Mrs. Hodges in her will, the main opinion holds that "(T)he brothers and sisters of Mrs. Hodges are not substitutes for Hodges; rather, they are also heirs instituted simultaneously with Hodges," but goes further and holds that "it was not the usufruct alone of her estate . . . that she bequeathed to Hodges during his lifetime, but the full ownership thereof, although the same was to last also during his lifetime only, even as there was no restriction against his disposing or conveying the whole or any portion thereof anybody other than himself " and describes Hodges "as universal and sole heir with absolute dominion" over Mrs. Hodges' estate (except over their Lubbock, Texas property), 32 adding that "Hodges was not obliged to preserve anything for them" (referring to Mrs. Hodges' brothers and sisters as instituted co-heirs). 33 Contrary to this view of the main opinion, the writer submits that the provisions of Mrs. Hodges' will did not grant to C. N. Hodges "full ownership" nor "absolute dominion" over her estate, such that he could as "universal and sole heir" by the mere expedient of gratuitously disposing to third persons her whole estate during his lifetime nullify her institution of her brothers and sisters as his co-heirs to succeed to her whole estate "at the death of (her) husband," deprive them of any inheritance and make his own brothers and sisters in effect sole heirs not only of his own estate but of his wife's estate as well. Thus, while Linnie Jane Hodges did not expressly name her brothers and sisters as substitutes for Hodges because she willed that they would enter into the succession upon his death, still it cannot be gainsaid, as the main opinion concedes, "that they are also heirs instituted simultaneously with Hodges, subject however to certain conditions, partially resolutory insofar as Hodges was concerned and correspondingly suspensive with reference to his brothers-and sisters-in-law." 34 Hence, if Hodges is found to have validly renounced his inheritance, there would he a substitution of heirs in fact and in law since Linnie's brothers and sisters as the heirs "simultaneously instituted" with a suspensive term would be called immediately to her

succession instead of waiting for the arrival of the suspensive term of Hodges' death, since as the heir originally instituted he does not become an heir by force of his renunciation and therefore they would "enter into the inheritance in default of the heir originally instituted" (Hodges) under the provisions of Articles 857 and 859 of our Civil Code, supra, 35 thus accelerating their succession to her estate as a consequence of Hodges' renunciation. Consequently, Linnie Jane Hodges willed that her husband C N. Hodges would "during his natural lifetime . . . manage, control, use and enjoy said estate" and that only "all rents, emoluments and income" alone shall belong to him. She further willed that while he could sell and purchase properties of her estate, and "use any part of the principal of said estate," such principal notwithstanding "any changes in the physical properties of said estate" (i.e. new properties acquired or exchanged) would still pertain to her estate, which at the time of his death would pass in full dominion to her brothers and sisters as the ultimate sole and universal heirs of her estate. 36

The testatrix Linnie Jane Hodges in her will thus principally provided that "I give, devise and bequeath all of the rest, residue and remainder of my estate, both personal and real .. to my beloved husband, Charles Newton Hodges, to have and to hold with him .. during his natural lifetime;" 37 that "(he) shall have the right to manage, control, use and enjoy said estate during his lifetime, . . . to make any changes in the physical properties of said estate, by sale . . . and the purchase of any other or additional property as he may think best . . . . All rents, emoluments and income from said estate shall belong to him and he is further authorized to use any part of the principal of said estate as he may need or desire, . . . he shall not sell or otherwise dispose of any of the improved property now owned by us, located at .. the City of Lubbock, Texas . . . . He shall have the right to subdivide any farm land and sell lots therein, and may sell unimproved town lots;" 38 that"(A)t the death of my said husband, Charles Newton, I give, devise and bequeath all of the rest, residue and remainder of my estate, both personal and real, . . . to be equally divided among my brothers and sisters, share and share alike, namely: Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie Rascoe, Era Roman and Nimroy Higdon;" 39 and that "(I)n case of the death of any of my brothers and/or sisters . . . prior to the death of my husband .. the heirs of such deceased brother or sister shall take jointly the share which would have gone to such brother or sister had she or he survived." 40 Such provisions are wholly consistent with the view already fully expounded above that all transactions and sales made by Hodges after his wife Linnie's death were by operation of the law of trust as well as by his own acknowledgment and acts deemed for and on behalf of their unliquidated conjugal partnership and community estate, share and share alike, with the express authorization of the probate court per its orders of May 25, and December 14. 1957 granting Hodges' motion to continue the conjugal partnership business of buying and selling real estate even after her death. By the same token, Hodges could not conceivably be deemed to have had any authority or right to dispose gratuitously of any portion of her estate to whose succession she had called her brothers and sisters upon his death.

9.Such institutions of heirs with a term are expressly recognized and permitted under Book III, Chapter 2, section 4 of our Civil Code dealing with "conditional testamentary dispositions and testamentary dispositions with a term." 41 Thus, Article 885 of our Civil Code expressly provides that: "ART. 885.The designation of the day or time when the effects of the institution of an heir shall commence or cease shall be valid. "In both cases, the legal heir shall be considered as called to the succession until the arrival of the period or its expiration. But in the first case he shall not enter into possession of the property until after having given sufficient security, with the intervention of the instituted heir." Accordingly, under the terms of Mrs. Hodges' will, her husband's right to the succession as the instituted heir ceased in diem, i.e. upon the arrival of the resolutory term of his death on December 25, 1962, while her brothers' and sisters' right to the succession also as instituted heirs commenced ex die, i.e. upon the expiration of the suspensive term (as far as they were concerned) of the death of C. N. Hodges on December 25,1962. 42 As stated in Padilla's treatise on the Civil Code, "A term is a period whose arrival is certain although the exact date thereof may be uncertain. A term may have either a suspensive or a resolutory effect. The designation of the day when the legacy 'shall commence' is ex die, or a term with a suspensive effect, from a certain day. The designation of the day when the legacy 'shall cease' is in diem or a term with a resolutory effect, until a certain day." lie adds that "A legacy based upon a certain age or upon the death of a person is not a condition but a term. If the arrival of the term would commence the right of the heir, it is suspensive. If the arrival of the term would terminate his right, it is resolutory" and that "upon the arrival of the period, in case of a suspensive term, the instituted heir is entitled to the succession, and in case of a resolutory term, his right terminates." 43 10.The sizable estates herein involved have now been pending settlement for a considerably protracted period (of seventeen years counted from Linnie's death in 1957), and all that is left to be done is to resolve the only remaining issue (involving the two questions of renunciation and renvoi) hereinabove discussed in order to close up the estates and finally effect distribution to the deceased spouses' respective brothers and sisters and their heirs as the heirs duly instituted in their wills long admitted to probate. Hence, it is advisable for said instituted heirs and their heirs in turn 44 to come to terms for the adjudication and distribution to them proindiviso of the up to now unliquidated community properties of the estates of the Hodges spouses (derived from their unliquidated conjugal partnership) rather than to get bogged down with the formidable task of physically segregating and partitioning the two estates with the numerous transactions, items and details and physical changes of properties involved. The estates proceedings would thus be closed and they could then name their respective attorneysin-fact to work out the details of segregating, dividing or partitioning the unliquidated community properties or liquidating them which can be done then on their own without further need of intervention on the part of the probate court as well as allow them meanwhile to enjoy and make

use of the income and cash and liquid assets of the estates in such manner as may be agreed upon between them. Such a settlement or modus vivendi between the heirs of the unliquidated two estates for the mutual benefit of all of them should not prove difficult, considering that it appears as stated in the main opinion that 22.968149% of the share or undivided estate of C. N. Hodges have already been acquired by the heirs of Linnie Jane Hodges from certain heirs of her husband, while certain other heirs representing 17.34375% of Hodges' estate were joining cause with Linnie's heirs in their pending and unresolved motion for the removal of petitioner PCIB as administrator of Hodges' estate, 45 apparently impatient with the situation which has apparently degenerated into a running battle between the administrators of the two estates to the common prejudice of all the heirs. 11.As earlier stated, the writer has taken the pain of suggesting these guidelines which may serve to guide the probate court as well as the parties towards expediting the winding up and closing of the estates and the distribution of the net estates to the instituted heirs and their successors duly entitled thereto. The probate court should exert all effort towards this desired objective pursuant to the mandate of our probate law, bearing in mind the Court's admonition in previous cases that "courts of first instance should exert themselves to close up estate within twelve months from the time they are presented, and they may refuse to allow any compensation to executors and administrators who do not actively labor to that end, and they may even adopt harsher measures." 46 Timeliness of appeals and imposition of thirty-one (31) additional docket fees Two appeals were docketed with this Court, as per the two records on appeal submitted (one with a green cover and the other with a yellow cover). As stated at the outset, these appeals involve basically the same primal issue raised in the petition for certiorari as to whether there still exists a separate estate of Linnie Jane Hodges which has to continue to be administered by respondent Magno. Considering the main opinion's ruling in the affirmative and that her estate and that of her husband (since they jointly comprise unliquidated community properties) must be administered conjointly by their respective administrators (PCIB and Magno), the said appeals (involving thirty-three different orders of the probate court approving sales contracts and other acts of administration executed and performed by respondent Magno on behalf of Linnie's estate) have been necessarily overruled by the Court's decision at bar. (a)The "priority question" raised by respondent Magno as to the patent failure of the two records on appeal to show on their face and state the material data that the appeals were timely taken within the 30-day reglementary period as required by Rule 41, section 6 of the Rules of Court, has been brushed aside by the main opinion with the statement that it is "not necessary to pass upon the timeliness of any of said appeals" since they "revolve around practically the same main issues and . . . it is admitted that some of them have been timely taken." 47 The main opinion thus proceeded with the determination of the thirty-three appealed orders despite the

grave defect of the appellant PCIB's records on appeal and their failure to state the required material data showing the timeliness of the appeals. Such disposition of the question of timeliness deemed as "mandatory and jurisdictional" in a number of cases merits the writer's concurrence in that the question raised has been subordinated to the paramount considerations of substantial justice and a "liberal interpretation of the rules" applied so as not to derogate and detract from the primary intent and purpose of the rules, viz "the proper and just determination of a litigation" 48 which calls for "adherence to a liberal construction of the procedural rules in order to attain their objective of substantial justice and of avoiding denials of substantial justice due to procedural technicalities." 49

Thus, the main opinion in consonance with the same paramount considerations of substantial justice has likewise overruled respondents' objection to petitioner's taking the recourse of "the present remedy of certiorari and prohibition" "despite the conceded availability of appeal" on the ground that "there is a common thread among the basic issues involved in all these thirty-three appeals (which) deal with practically the same basic issues that can be more expeditiously resolved or determined in a single special civil action. . ." 50 (b)Since the basic issues have been in effect resolved in the special civil action at bar (as above stated) with the dismissal of the petition by virtue of the Court's judgment as to the continued existence of a separate estate of Linnie Jane Hodges and the affirmance as a necessary consequence of the appealed orders approving and sanctioning respondent Magno's sales contracts and acts of administration, some doubt would arise as to the propriety of the main opinion requiring the payment by PCIB of thirty-one (31) additional appeal docket fees. This doubt is further enhanced by the question of whether it would make the cost of appeal unduly expensive or prohibitive by requiring the payment of a separate appeal docket fee for each incidental order questioned when the resolution of all such incidental questioned orders involve basically one and the same main issue (in this case, the existence of a separate estate of Linnie Jane Hodges) and can be more expeditiously resolved or determined in a single special civil action" (for which a single docket fee is required) as stated in the main opinion. 51 Considering the importance of the basic issues and the magnitude of the estates involved, however, the writer has pro hac vice given his concurrence to the assessment of the said thirty-one (31) additional appeal docket fees. MAKALINTAL, C .J ., concurring: I concur in the separate opinion of Justice Teehankee, which in turn agrees with the dispositive portion of the main opinion of Justice Barredo insofar as it dismisses the petition for certiorari and prohibition in Cases L-27860 and L-27896 and affirms the appealed orders of the probate court in cases L-27936-37. However, I wish to make one brief observation for the sake of accuracy. Regardless of whether or not C. N. Hodges was entitled to a legitime in his deceased wife's estate which question, still to be decided by the said probate court, may depend upon what is the law of Texas and

upon its applicability in the present case the said estate consists of one-half, not one-fourth, of the conjugal properties. There is neither a minimum of one-fourth nor a maximum beyond that. It is important to bear this in mind because the estate of Linnie Hodges consists of her share in the conjugal properties, is still under administration and until now has not been distributed by order of the court. The reference in both the main and separate opinions to a one-fourth portion of the conjugal properties as Linnie Hodges' minimum share is a misnomer, and is evidently meant only to indicate that if her husband should eventually be declared entitled to a legitime, then the disposition made by Linnie Hodges in favor of her collateral relatives would be valid only as to one-half of her share, or one-fourth of the conjugal properties, since the remainder, which constitutes such legitime, would necessarily go to her husband in absolute ownership, unburdened by any substitution, term or condition, resolutory or otherwise. And until the estate is finally settled and adjudicated to the heirs who may be found entitled to it, the administration must continue to cover Linnie's entire conjugal share. [G.R. Nos. L-27860 & L-27896. September 30, 1975.] PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, Administrator of the Testate Estate of Charles Newton Hodges (Sp. Proc. No. 1672 of the Court of First Instance of Iloilo) , petitioner, vs. THE HONORABLE VENICIO ESCOLIN, presiding Judge of the Court of First Instance of Iloilo, Branch II, and AVELINA A. MAGNO, respondents. [G.R. Nos. L-27936 & L-27937. September 30, 1975.] TESTATE ESTATE OF THE LATE LINNIE JANE HODGES (Sp. Proc. No. 1307). TESTATE ESTATE OF THE LATE CHARLES NEWTON HODGES (Sp. Proc. No. 1672) PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, administrator-appellant, vs. LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL, SALVADOR GUZMAN, BELCESAR CAUSING, FLORENIA BARRIDO, PURIFICACION CORONADO, GRACIANO LUCERO, ARITEO THOMAS JAMIR, MELQUIADES BATISANAN, PEPITO IYULORES, ESPERIDION PARTISALA, WINIFREDO ESPADA, ROSARIO ALINGASA, ADELFA PREMAYLON, SANTIAGO PACAONSIS, and AVELINA MAGNO, the last as Administratrix in Sp. Proc. No. 1307, appellees, WESTERN INSTITUTE OF TECHNOLOGY, INC., movant-appellee. SYNOPSIS In regard to a decision decided by the Supreme Court on March 29, 1974 the following pleadings were filed before the Court: a motion for reconsideration of the decision of the petitioner-appellant, a motion for modification of the judgment by the heirs of the testator, and a motion for the assessment of damages suffered by reason of the lifting of the preliminary injunction filed by respondent-appellee Magno. The Supreme Court, not finding any new matter in the said motions sufficient to induce a modification of its judgment, reaffirmed its previous opinion, denied the first two motion, and authorized the trial court to make the assessment to the damages prayed for. Because of the length of time that the subject estates have been pending judicial settlement, the parties were

enjoined to exert all efforts to have the inventories of said estates finalized and to extrajudicially settle their remaining differences. The respondent court was likewise directed to expedite proceedings and to close the same upon the payment of the corresponding taxes due within three months from notice. SYLLABUS 1.JUDGMENT MOTION FOR RECONSIDERATION OR MODIFICATION THEREOF; DENIAL OF THE SAME WHERE NO NEW MATTERS ARE PRESENTED SUFFICIENT TO CHANGE THE PREVIOUS DECISION OF THE COURT. Where the Court, upon consideration of the motions filed in regard to a previously decided case, had not found any new matter therein sufficiently persuasive to induce a modification of its judgment, the previous decision is reaffirmed and the motions for reconsideration and for modification of its judgment are denied. TEEHANKEE, J., concurring: 1.JUDGMENTS; MOTION FOR RECONSIDERATION OR MODIFICATION THEREOF; DENIAL OF THE SAME WHERE NO NEW MATTERS ARE PRESENTED SUFFICIENT TO CHANGE THE PREVIOUS DECISION OF THE COURT; DIRECTIVE TO RESPONDENT COURT TO EXPEDITE AND TERMINATE PROCEEDINGS WITHIN THREE MONTHS SUPERSEDES PRO TANTO THE DISPOSITION IN THE ORIGINAL DECISION. The resolution's directive to respondent court to expedite and terminate the protracted proceedings within three months supersedes pro tanto the disposition in the original decision of March 29, 1974 for the segregation of the minimum one-fourth of the community properties adjudged to be the estate of Linnie Jane Hodges for delivery and to exclusive administration by respondent as her estate's administrator, with the other one-fourth to remain under the joint administration of said respondent and petitioner and Charles Newton Hodges' one-half share to be administered by petitioner exclusively as his estate's administrator, since such physical segregation and separate administration could not possibly be accomplished before the more pressing and indispensable matters of submittal of the two estates' inventories and determination by respondent court within the limited three-month period given in the Court's resolution. RESOLUTION BARREDO, J p: Motion for reconsideration followed by a supplemental motion for reconsideration filed by petitioner-appellant Philippine Commercial and Industrial Bank and motion for modification filed by Joe Hodges and "the other heirs of Charles Newton Hodges" in regard to the decision of this Court of March 29, 1974. Upon consideration of said motions, the Court has not found any new matter therein sufficiently persuasive to induce a modification of its judgment, for which reason, the Court, with its members reaffirming their previous opinions and vote resolved unanimously to DENY as it hereby DENIES the motions for reconsideration and modification above referred to.

Anent the motion of respondent-appellee Avelina Magno 1 the assessment of the damages she claims she and the Estate Linnie Jane Hodges have suffered by reason of the preliminary injunction in this case which was lifted per resolution of 1 Court of September 8, 1972, the Court resolved to authorize trial court to make the assessment prayed for, subject to appeal, to this Court, if necessary. Considering the substantial value of the subject estates the length of time they have already been pending judicial settlement and for the reason that the payment of the corresponding taxes thereon are being unduly delayed, and because the properties of said estates have to be disposed favor of Filipinos before May 27, 1976, the Court enjoins the parties to exert all efforts to have the inventories of said states finalized without further delay, and if possible to extrajudicially settle their remaining differences to further complications, expenses and unnecessary loss time. The respondent court is directed to expedite processing by giving due priority thereto, requiring the parties to submit the inventories within thirty days from notice hereof, and to resolve the remaining issues as delineated in the Court's decision and to close the proceedings upon payment of the corresponding taxes within three months from notice hereof. Respondent judge is further directed to report to this Court from time to time the action taken by him hereon. Castro, Acting C.J., Ferrando, Muoz Palma, Aquino and Martin, JJ., concur. Makalintal, C.J, Esguerra and Concepcion, Jr., JJ., are on leave. Separate Opinions TEEHANKEE, J., concurring: I join in the resolution denying the motions f reconsideration for the reasons and considerations already indicated in my separate concurring and dissenting opinion of March 29, 1974. I specially welcome the resolution's directive to respondent court to expedite and terminate these long-drawn proceedings (for over 18 years now since Linnie Jane Hodges' death on May 23, 1957) and to "resolve the remaining issues as delineated in the Court's decision" and to cause the payment in the estate and inheritance taxes long overdue to the Government "within three months from notice hereof." (See pp. 19-20, writer's separate opinion). I take it that the resolution's directive to respondent court to expedite and terminate the protracted proceedings three months supersedes pro tanto the disposition original decision of March 29, 1974 for the segregation minimum one-fourth of the community properties adjudged to be the estate of Linnie Jane Hodges for delivery to and exclusive administration by respondent as her estate's administrator, with the other one-fourth to remain under the joint administration of said respondent and petitioner and Charles Newton Hodges' one-half share to be administered by petitioner exclusively as his estate's administrator, since such physical segregation and separate administration could not possibly be accomplished before the more pressing and indispensable matters of submittal of the two estates' inventories and determination by respondent court of the remaining issues are attended to by respondent court

within the limited three-month period given in the Court's resolution. (See pages 7-8, writer's separate opinion). The remaining issues to be resolved by respondent court revolve on the two questions of renvoi and renunciation. In his separate opinion (at page 7 et seq.), as concurred in by the Chief Justice and Justice Makasiar and Antonio, the writer urged that these two questions should be resolved "preferentially and expeditiously" by respondent court, since aside from the time problem, these proceedings have "apparently degenerated into running battle between the administrators of the two estates to the common prejudice of all the heirs." (at page 20). Since respondent court is now again presided by still another judge in a long line of judges who have come and gone with even terminating the proceedings, and since as is clear from the decision itself, no consensus on the best means of expediting the closing of the estates was reached by a majority of the Court (see pages 8 and 10, separate opinion), I trust that those who did not concur with the "suggested guidelines" in the writer's separate opinion (at pages 820) either because they were not ready to express their definite opinion thereon or because they felt that respondent court should be given a free hand, will understand that the writer now commends anew to the new judge presiding respondent court the careful reading the said suggested guidelines in the hope that they may lighten his work and help find the appropriate measures and solutions to "expedite the closing of the protracted estate proceedings below to the mutual satisfaction of the heirs and without need of a dissatisfied party elevating his resolution of this only remaining issue once more to this Court and dragging out indefinitely the proceedings." (page 10, separate opinion), and thus enable him to comply timely with the Court's directive to close out the estates within three months from notice. Makasiar and Antonio, JJ., concur.

[G.R. No. 22595. November 1, 1924.] "Testate Estate of Joseph G. Brimo. JUAN MICIANO, administrator, petitioner-appellee, vs. ANDRE BRIMO, opponent-appellant. Ross, Lawrence & Selph for appellant. Camus & Delgado for appellee. SYLLABUS 1.FOREIGN LAWS; PRESUMPTION. In the absence of evidence to the contrary foreign laws on a particular subject are presumed to be the same as those of the Philippines. (Lim and Lim vs. Collector of Customs, 36 Phil., 472.) 2.POSTPONEMENT OF PROCEEDING; DISCRETION. It is discretionary on the part of the court to postpone or not to postpone a particular proceeding in a case, and when the person applying for it has already been given ample opportunity to present the evidence that he wishes to introduce, the court commits no abuse of discretion in denying it.

3.SUCCESSIONS; CONDITIONAL LEGACY; CONDITION CONTRARY TO LAW; NULLITY OF. If the condition imposed upon the legatee is that he respect the testator's order that his property be distributed in accordance with the laws of the Philippines and not in accordance with the laws of his nation, said condition is illegal, because, according to article 10 of the Civil Code, said laws govern his testamentary disposition, and, being illegal, shall be considered unwritten, thus making the institution unconditional. DECISION ROMUALDEZ, J p: 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) the 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 Pietro Lanza 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 of 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 testamentary 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. 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 the 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 likewise 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 laws. 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. FACTS:

Juan Miciano, judicial administrator of the estate in question, filed a scheme of partition. Andre Brimo, one of the brothers of the deceased (Joseph Brimo) opposed Micianos participation in the inheritance. Joseph Brimo is a Turkish 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 any manner whatsoever, even should the testator otherwise provide. Impossible conditions 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 judicial administrator, in such manner as to include Andre Brimo, as one of the legatees.

[G.R. No. 113725. June 29, 2000.] JOHNNY S. RABADILLA, 1 petitioner, vs. COURT OF APPEALS AND MARIA MARLENA 2 COSCOLLUELA Y BELLEZA VILLACARLOS, respondents. Romeo S. Perez for petitioner.

Benjamin Santos & Ofelia Calcetas-Santos Law Offices collaborating counsel for respondent Marlene C. Villacarlos. Garcia Ines Villacarlos Garcia and Recina Law Offices for private respondents. SYNOPSIS Dr. Jorge Rabadilla, in a codicil of Aleja Belleza, was instituted devisee of Lot No. 1392 with an area of 511,855 square meters with the obligation to deliver 100 piculs of sugar to herein private respondent every year during the latter's lifetime. The codicil provides that the obligation is imposed not only on the instituted heir but also to his successors-in-interest and that in case of failure to deliver, private respondent shall seize the property and turn it over to the testatrix's "near descendants." Dr. Rabadilla died and was survived by his wife and children, one of whom is herein petitioner. Private respondent, alleging failure of the heirs to comply with their obligation, filed a complaint with the RTC praying for the reconveyance of the subject property to the surviving heirs of the testatrix. During the pre-trial, a compromise agreement was concluded between the parties wherein the lessee of the property assumed the delivery of 100 piculs of sugar to private respondent. However, only partial delivery was made. Thereafter, the trial court dismissed the complaint for lack of cause of action. The Court of Appeals, on appeal, reversed the decision and held that the institution of Dr. Rabadilla is in the nature of a modal institution and a cause of action in favor of private respondent arose when petitioner failed to comply with their obligation under the codicil, and in ordering the reversion of Lot 1392 to the estate of testatrix. Aggrieved, petitioner availed of this recourse. Successional rights are transmitted from the moment of death and compulsory heirs succeed the decedent not only to all the property but also to his rights and obligations. Hence, the heirs of Dr. Rabadilla is also obliged under the codicil to deliver 100 piculs of sugar to private respondent every year. There is no substitution of heir where no substitute was provided by the testatrix in case the instituted heir predecease her or in case of the latter's incapacity or renunciation nor was the instituted heir mandated to preserve the property and to transmit it to the second heir. SYLLABUS 1.CIVIL LAW; WILLS AND SUCCESSION; SUCCESSIONAL RIGHTS TRANSMITTED FROM MOMENT OF DEATH OF DECEDENT. It is a general rule under the law on succession that successional rights are transmitted from the moment of death of the decedent and compulsory heirs are called to succeed by operation of law. The legitimate children and descendants, in relation to their legitimate parents, and the widow or widower, are compulsory heirs. Thus, the petitioner, his mother and sisters, as compulsory heirs of the instituted heir, Dr. Jorge Rabadilla, succeeded the latter by operation of law, without need of further proceedings, and the successional rights were transmitted to them from the moment of death of the decedent, Dr. Jorge Rabadilla. 2.ID.; ID.; INHERITANCE INCLUDES ALL PROPERTY, RIGHTS AND OBLIGATIONS NOT EXTINGUISHED BY DEATH. Under Article 776 of the New Civil Code, inheritance includes

all the property, rights and obligations of a person, not extinguished by his death. Conformably, whatever rights Dr. Jorge Rabadilla had by virtue of subject Codicil were transmitted to his forced heirs, at the time of his death. And since obligations not extinguished by death also form part of the estate of the decedent; corollarily, the obligations imposed by the Codicil on the deceased Dr. Jorge Rabadilla, were likewise transmitted to his compulsory heirs upon his death. 3.ID.; ID.; SUBSTITUTION, DEFINED. Substitution is the designation by the testator of a person or persons to take the place of the heir or heirs first instituted. Under substitutions in general, the testator may either (1) provide for the designation of another heir to whom the property shall pass in case the original heir should die before him/her, renounce the inheritance or be incapacitated to inherit, as in a simple substitution, or (2) leave his/her property to one person with the express charge that it be transmitted subsequently to another or others, as in a fideicommissary substitution. dctai 4.ID.; ID.; SIMPLE SUBSTITUTIONS DIFFERENT FROM CODICIL; CASE AT BAR. In simple substitutions, the second heir takes the inheritance in default of the first heir by reason of incapacity, predecease or renunciation. In the case under consideration, the provisions of subject Codicil do not provide that should Dr. Jorge Rabadilla default due to predecease, incapacity or renunciation, the testatrix's near descendants would substitute him. What the Codicil provides is that, should Dr. Jorge Rabadilla or his heirs not fulfill the conditions imposed in the Codicil, the property referred to shall be seized and turned over the testatrix's near descendants. 5.ID.; ID.; FIDEICOMMISSARY SUBSTITUTION DIFFERENT FROM CODICIL; CASE AT BAR. Neither is there a fideicommissary substitution here and on this point, petitioner is correct. In a fideicommissary substitution, the first heir is strictly mandated to preserve the property and to transmit the same later to the second heir. In the case under consideration, the instituted heir is in fact allowed under the Codicil to alienate the property provided the negotiation is with the near descendants or the sister of the testatrix. Thus, a very important element of a fideicommissary substitution is lacking; the obligation clearly imposing upon the first heir the preservation of the property and its transmission to the second heir. "Without this obligation to preserve clearly imposed by the testator in his will, there is no fideicommissary substitution." Also, the near descendants' right to inherit from the testatrix is not definite. The property will only pass to them should Dr. Jorge Rabadilla or his heirs not fulfill the obligation to deliver part of the usufruct to private respondent. Another important element of a fideicommissary substitution is also missing here. Under Article 863, the second heir or the fideicommissary to whom the property is transmitted must not be beyond one degree from the first heir or the fiduciary. A fideicommissary substitution is therefore, void if the first heir is not related by first degree to the second heir. In the case under scrutiny, the near descendants are not at all related to the instituted heir, Dr. Jorge Rabadilla. 6.ID.; ID.; MODAL INSTITUTION DISTINGUISHED FROM CONDITIONAL TESTAMENTARY DISPOSITION. The institution of an heir in the manner prescribed in Article 882 is what is known in the law of succession as an institucion sub modo or a modal institution. In a modal institution, the testator states (1) the object of the institution, (2) the purpose or application of the

property left by the testator, or (3) the charge imposed by the testator upon the heir. A "mode" imposes an obligation upon the heir or legatee but it does not affect the efficacy of his rights to the succession. On the other hand, in a conditional testamentary disposition, the condition must happen or be fulfilled in order for the heir to be entitled to succeed the testator. The condition suspends but does not obligate; and the mode obligates but does not suspend. To some extend, it is similar to a resolutory condition. 7.ID.; ID.; OBLIGATION IMPOSED ON HEIRS SHOULD NOT BE CONSIDERED A CONDITION UNLESS IT CLEARLY APPEARS FROM THE WILL ITSELF THAT SUCH WAS THE INTENTION OF THE TESTATOR. Since testamentary dispositions are generally acts of liberality, an obligation imposed upon the heir should not be considered a condition unless it clearly appears from the Will itself that such was the intention of the testator. In case of doubt, the institution should be considered as modal and not conditional. 8.ID.; ID.; UNCERTAINTY ON APPLICATION OF ANY PROVISION, INTERPRETED ACCORDING TO TESTATOR'S INTENTION. In the interpretation of Wills, when an uncertainty arises on the face of the Will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the Will, taking into consideration the circumstances under which it was made. Such construction as will sustain and uphold the Will in all its parts must be adopted. 9.ID.; ID.; CANNOT BE THE SUBJECT OF COMPROMISE. A Will is a personal, solemn, revocable and free act by which a person disposes of his property, to take effect after his death. Since the Will expresses the manner in which a person intends how his properties be disposed, the wishes and desires of the testator must be strictly followed. Thus, a Will cannot be the subject of a compromise agreement which would thereby defeat the very purpose of making a Will. VITUG, J., separate opinion: 1.CIVIL LAW; WILLS AND SUCCESSION; SUBSTITUTION; KINDS. Substitution is the appointment of another heir so that he may enter into the inheritance in default of the heir originally instituted. Substitution is simple when the testator designates one or more persons to substitute the heir or heirs instituted in case the latter should die before him, or should not wish, or should be incapacitated to accept the inheritance, and a substitution without a statement of the cases to which it refers shall comprise all said three cases. There is no simple substitution that takes place where the heir originally instituted is able to succeed. Fideicommissary substitution, on the other hand, occurs when the fiduciary or first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of the inheritance. Every fideicommissary substitution should be expressly made in order that it may be valid. The term "fideicommissary substitution" need not, however, be used in the will; it is enough that there is a clear and unequivocal statement that one shall enjoy usufructuary or other rights, short of naked ownership or title, over certain property of the testator with the obligation to preserve the property and to transmit it to a second heir. It is essential for the validity of a fideicommissary substitution that both heirs are living and qualified to succeed at the time of

death by the testator and that the substitute does not go beyond one degree from the heir originally instituted.

2.ID.; ID.; MODE DISTINGUISHED FROM CONDITION. A mode is distinguished from a condition contemplated in the rules on succession in that the latter dictates the efficacy, either in a suspensive or resolutory manner, of a testamentary disposition while the former obligates the instituted heir to comply with the mandate made by the testator but does not prevent the heir from at once claiming the inheritance provided he gives a security to ensure compliance with the will of the testator and the return of the thing received together with its fruits and interests, "should (the heir) disregard the obligation." The obligation imposed upon the heir or legatee is deemed not to be a condition for his entry forthwith into the inheritance unless a contrary intention of the testator is evident. In case of doubt, the institution is considered modal, rather than conditional. Much of the variance in the legal effects of the two classes, however, is now practically theoretical and merely conceptual. Under the old Civil Code an institucion sub modo could be said to be more akin to an institution sub demonstratione, or an expression of a wish or suggestion of the testator that did not have any real obligatory force, that matter being left instead to the discretion of the heir, i.e., whether to abide by it or not. The amendatory provisions of the new Civil Code now hardly differentiates between the principal effect of the non-compliance with the mode and that of the occurrence of a resolutory condition expressed in the will. In both instances, the property must be returned to the estate of the decedent to then pass on under the rules on intestacy. DECISION PURISIMA, J p: This is a petition for review of the decision of the Court of Appeals, 3 dated December 23, 1993, in CA-G.R. No. CV-35555, which set aside the decision of Branch 52 of the Regional Trial Court in Bacolod City, and ordered the defendants-appellees (including herein petitioner), as heirs of Dr. Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its fruits and interests, to the estate of Aleja Belleza. The antecedent facts are as follows: In a Codicil appended to the Last Will and Testament of testatrix Aleja Belleza, Dr. Jorge Rabadilla, predecessor-in-interest of the herein petitioner, Johnny S. Rabadilla, was instituted as a devisee of 511,855 square meters of that parcel of land surveyed as Lot No. 1392 of the Bacolod Cadastre. The said Codicil, which was duly probated and admitted in Special Proceedings No. 4046 before the then Court of First Instance of Negros Occidental, contained the following provisions: "FIRST I give, leave and bequeath the following property owned by me to Dr. Jorge Rabadilla resident of 141 P. Villanueva, Pasay City:

(a) Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10942), which is registered in my name according to the records of the Register of Deeds of Negros Occidental. (b) That should Jorge Rabadilla die ahead of me, the aforementioned property and the rights which I shall set forth hereinbelow, shall be inherited and acknowledged by the children and spouse of Jorge Rabadilla. xxx xxx xxx FOURTH (a) It is also my command, in this my addition (Codicil), that should I die and Jorge Rabadilla shall have already received the ownership of the said Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10942), and also at the time that the lease of Balbinito G. Guanzon of the said lot shall expire, Jorge Rabadilla shall have the obligation until he dies, every year to give Maria Marlina Coscolluela y Belleza, Seventy (75) (sic) piculs of Export sugar and Twenty Five (25) piculs of Domestic sugar, until the said Maria Marlina Coscolluela y Belleza dies. Cdpr FIFTH (a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10492), shall have the obligation to still give yearly, the sugar as specified in the Fourth paragraph of his testament, to Maria Marlina Coscolluela y Belleza on the month of December of each year. SIXTH I command, in this my addition (Codicil) that the Lot No. 1392, in the event that the one to whom I have left and bequeathed, and his heir shall later sell, lease, mortgage this said Lot, the buyer, lessee, mortgagee, shall have also the obligation to respect and deliver yearly ONE HUNDRED (100) piculs of sugar to Maria Marlina Coscolluela y Belleza, on each month of December, SEVENTY FIVE (75) piculs of Export and TWENTY FIVE (25) piculs of Domestic, until Maria Marlina shall die, lastly should the buyer, lessee or the mortgagee of this lot, not have respected my command in this my addition (Codicil), Maria Marlina Coscolluela y Belleza, shall immediately seize this Lot No. 1392 from my heir and the latter's heirs, and shall turn it over to my near desendants, (sic) and the latter shall then have the obligation to give the ONE HUNDRED (100) piculs of sugar until Maria Marlina shall die. I further command in this my addition (Codicil) that my heir and his heirs of this Lot No. 1392, that they will obey and follow that should they decide to sell, lease, mortgage, they cannot negotiate with others than my near descendants and my sister." 4 Pursuant to the same Codicil, Lot No. 1392 was transferred to the deceased, Dr. Jorge Rabadilla, and Transfer Certificate of Title No. 44498 thereto issued in his name.

Dr. Jorge Rabadilla died in 1983 and was survived by his wife Rufina and children Johnny (petitioner), Aurora, Ofelia and Zenaida, all surnamed Rabadilla. On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos brought a complaint, docketed as Civil Case No. 5588, before Branch 52 of the Regional Trial Court in Bacolod City, against the above-mentioned heirs of Dr. Jorge Rabadilla, to enforce the provisions of subject Codicil. The Complaint alleged that the defendant-heirs violated the conditions of the Codicil, in that: 1.Lot No. 1392 was mortgaged to the Philippine National Bank and the Republic Planters Bank in disregard of the testatrix's specific instruction to sell, lease, or mortgage only to the near descendants and sister of the testatrix. 2.Defendant-heirs failed to comply with their obligation to deliver one hundred (100) piculs of sugar (75 piculs export sugar and 25 piculs domestic sugar) to plaintiff Maria Marlena Coscolluela y Belleza from sugar crop years 1985 up to the filing of the complaint as mandated by the Codicil, despite repeated demands for compliance. 3.The banks failed to comply with the 6th paragraph of the Codicil which provided that in case of the sale, lease, or mortgage of the property, the buyer, lessee, or mortgagee shall likewise have the obligation to deliver 100 piculs of sugar per crop year to herein private respondent. The plaintiff then prayed that judgment be rendered ordering defendant-heirs to reconvey/return Lot No. 1392 to the surviving heirs of the late Aleja Belleza, the cancellation of TCT No. 44498 in the name of the deceased, Dr. Jorge Rabadilla, and the issuance of a new certificate of title in the names of the surviving heirs of the late Aleja Belleza. On February 26, 1990, the defendant-heirs were declared in default but on March 28, 1990 the Order of Default was lifted, with respect to defendant Johnny S. Rabadilla, who filed his Answer, accordingly. During the pre-trial, the parties admitted that: On November 15, 1998, the plaintiff (private respondent) and a certain Alan Azurin, son-in-law of the herein petitioner who was lessee of the property and acting as attorney-in-fact of defendant heirs, arrived at an amicable settlement and entered into a Memorandum of Agreement on the obligation to deliver one hundred piculs of sugar, to the following effect: "That for crop year 1988-89, the annuity mentioned in Entry No. 49074 of TCT No. 44489 will be delivered not later than January of 1989, more specifically, to wit: 75 piculs of 'A' sugar, and 25 piculs of 'B' sugar, or then existing in any of our names, Mary Rose Rabadilla y Azurin or Alan Azurin, during December of each sugar crop year; in Azucar Sugar Central; and, this is considered compliance of the annuity as mentioned, and in the same manner will compliance of the annuity be in the next succeeding crop years. That the annuity above stated for crop year 1985-86, 1986-87, and 1987-88, will be complied in cash equivalent of the number of piculs as mentioned therein and which is as herein agreed

upon, taking into consideration the composite price of sugar during each sugar crop year, which is in the total amount of ONE HUNDRED FIVE THOUSAND PESOS (P105,000.00). That the above-mentioned amount will be paid or delivered on a staggered cash installment, payable on or before the end of December of every sugar crop year, to wit: For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop year 1988-89; For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop year 1989-90; For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop year 1990-91; and For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop year 1991-92." 5 However, there was no compliance with the aforesaid Memorandum of Agreement except for a partial delivery of 50.80 piculs of sugar corresponding to sugar crop year 1988-1989. On July 22, 1991, the Regional Trial Court came out with a decision, dismissing the complaint and disposing as follows: "WHEREFORE, in the light of the aforegoing findings, the Court finds that the action is prematurely filed as no cause of action against the defendants has as yet arose in favor of plaintiff. While there may be the non-performance of the command as mandated exaction from them simply because they are the children of Jorge Rabadilla, the title holder/owner of the lot in question, does not warrant the filing of the present complaint. The remedy at bar must fall. Incidentally, being in the category as creditor of the left estate, it is opined that plaintiff may initiate the intestate proceedings, if only to establish the heirs of Jorge Rabadilla and in order to give full meaning and semblance to her claim under the Codicil.

In the light of the aforegoing findings, the Complaint being prematurely filed is DISMISSED without prejudice. LexLib SO ORDERED." 6 On appeal by plaintiff, the First Division of the Court of Appeals reversed the decision of the trial court; ratiocinating and ordering thus: "Therefore, the evidence on record having established plaintiff-appellant's right to receive 100 piculs of sugar annually out of the produce of Lot No. 1392; defendants-appellee's obligation under Aleja Belleza's codicil, as heirs of the modal heir, Jorge Rabadilla, to deliver such amount of sugar to plaintiff-appellant; defendants-appellee's admitted non-compliance with said obligation since 1985; and, the punitive consequences enjoined by both the codicil and the Civil

Code, of seizure of Lot No. 1392 and its reversion to the estate of Aleja Belleza in case of such non-compliance, this Court deems it proper to order the reconveyance of title over Lot No. 1392 from the estates of Jorge Rabadilla to the estate of Aleja Belleza. However, plaintiff-appellant must institute separate proceedings to re-open Aleja Belleza's estate, secure the appointment of an administrator, and distribute Lot No. 1392 to Aleja Belleza's legal heirs in order to enforce her right, reserved to her by the codicil, to receive her legacy of 100 piculs of sugar per year out of the produce of Lot No. 1392 until she dies. Accordingly, the decision appealed from is SET ASIDE and another one entered ordering defendants-appellees, as heirs of Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its fruits and interests, to the estate of Aleja Belleza. SO ORDERED." 7 Dissatisfied with the aforesaid disposition by the Court of Appeals, petitioner found his way to this Court via the present petition, contending that the Court of Appeals erred in ordering the reversion of Lot 1392 to the estate of the testatrix Aleja Belleza on the basis of paragraph 6 of the Codicil, and in ruling that the testamentary institution of Dr. Jorge Rabadilla is a modal institution within the purview of Article 882 of the New Civil Code. The petition is not impressed with merit. Petitioner contends that the Court of Appeals erred in resolving the appeal in accordance with Article 882 of the New Civil Code on modal institutions and in deviating from the sole issue raised which is the absence or prematurity of the cause of action. Petitioner maintains that Article 882 does not find application as there was no modal institution and the testatrix intended a mere simple substitution i.e., the instituted heir, Dr. Jorge Rabadilla, was to be substituted by the testatrix's "near descendants" should the obligation to deliver the fruits to herein private respondent be not complied with. And since the testatrix died single and without issue, there can be no valid substitution and such testamentary provision cannot be given any effect. The petitioner theorizes further that there can be no valid substitution for the reason that the substituted heirs are not definite, as the substituted heirs are merely referred to as "near descendants" without a definite identity or reference as to who are the "near descendants" and therefore, under Articles 843 8 and 845 9 of the New Civil Code, the substitution should be deemed as not written. The contentions of petitioner are untenable. Contrary to his supposition that the Court of Appeals deviated from the issue posed before it, which was the propriety of the dismissal of the complaint on the ground of prematurity of cause of action, there was no such deviation. The Court of Appeals found that the private respondent had a cause of action against the petitioner. The disquisition made on modal institution was, precisely, to stress that the private respondent had a legally demandable right against the petitioner pursuant to subject Codicil; on which issue the Court of Appeals ruled in accordance with law. It is a general rule under the law on succession that successional rights are transmitted from the moment of death of the decedent 10 and compulsory heirs are called to succeed by operation of

law. The legitimate children and descendants, in relation to their legitimate parents, and the widow or widower, are compulsory heirs. 11 Thus, the petitioner, his mother and sisters, as compulsory heirs of the instituted heir, Dr. Jorge Rabadilla, succeeded the latter by operation of law, without need of further proceedings, and the successional rights were transmitted to them from the moment of death of the decedent, Dr. Jorge Rabadilla. dctai Under Article 776 of the New Civil Code, inheritance includes all the property, rights and obligations of a person, not extinguished by his death. Conformably, whatever rights Dr. Jorge Rabadilla had by virtue of subject Codicil were transmitted to his forced heirs, at the time of his death. And since obligations not extinguished by death also form part of the estate of the decedent; corollarily, the obligations imposed by the Codicil on the deceased Dr. Jorge Rabadilla, were likewise transmitted to his compulsory heirs upon his death. In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge Rabadilla, subject to the condition that the usufruct thereof would be delivered to the herein private respondent every year. Upon the death of Dr. Jorge Rabadilla, his compulsory heirs succeeded to his rights and title over said property, and they also assumed his (decedent's) obligation to deliver the fruits of the lot involved to herein private respondent. Such obligation of the instituted heir reciprocally corresponds to the right of private respondent over the usufruct, the fulfillment or performance of which is now being demanded by the latter through the institution of the case at bar. Therefore, private respondent has a cause of action against petitioner and the trial court erred in dismissing the complaint below. Petitioner also theorizes that Article 882 of the New Civil Code on modal institutions is not applicable because what the testatrix intended was a substitution Dr. Jorge Rabadilla was to be substituted by the testatrix's near descendants should there be non-compliance with the obligation to deliver the piculs of sugar to private respondent. Again, the contention is without merit. Substitution is the designation by the testator of a person or persons to take the place of the heir or heirs first instituted. Under substitutions in general, the testator may either (1) provide for the designation of another heir to whom the property shall pass in case the original heir should die before him/her, renounce the inheritance or be incapacitated to inherit, as in a simple substitution, 12 or (2) leave his/her property to one person with the express charge that it be transmitted subsequently to another or others, as in a fideicommissary substitution. 13 The Codicil sued upon contemplates neither of the two. In simple substitutions, the second heir takes the inheritance in default of the first heir by reason of incapacity, predecease or renunciation. 14 In the case under consideration, the provisions of subject Codicil do not provide that should Dr. Jorge Rabadilla default due to predecease, incapacity or renunciation, the testatrix's near descendants would substitute him. What the Codicil provides is that, should Dr. Jorge Rabadilla or his heirs not fulfill the conditions imposed in the Codicil, the property referred to shall be seized and turned over to the testatrix's near descendants.

Neither is there a fideicommissary substitution here and on this point, petitioner is correct. In a fideicommissary substitution, the first heir is strictly mandated to preserve the property and to transmit the same later to the second heir. 15 In the case under consideration, the instituted heir is in fact allowed under the Codicil to alienate the property provided the negotiation is with the near descendants or the sister of the testatrix. Thus, a very important element of a fideicommissary substitution is lacking; the obligation clearly imposing upon the first heir the preservation of the property and its transmission to the second heir. "Without this obligation to preserve clearly imposed by the testator in his will, there is no fideicommissary substitution." 16 Also, the near descendants' right to inherit from the testatrix is not definite. The property will only pass to them should Dr. Jorge Rabadilla or his heirs not fulfill the obligation to deliver part of the usufruct to private respondent. Another important element of a fideicommissary substitution is also missing here. Under Article 863, the second heir or the fideicommissary to whom the property is transmitted must not be beyond one degree from the first heir or the fiduciary. A fideicommissary substitution is therefore, void if the first heir is not related by first degree to the-second heir. 17 In the case under scrutiny, the near descendants are not at all related to the instituted heir, Dr. Jorge Rabadilla. The Court of Appeals erred not in ruling that the institution of Dr. Jorge Rabadilla under subject Codicil is in the nature of a modal institution and therefore, Article 882 of the New Civil Code is the provision of law in point. Articles 882 and 883 of the New Civil Code provide: ARTICLE 882.The statement of the object of the institution or the application of the property left by the testator, or the charge imposed on him, shall not be considered as a condition unless it appears that such was his intention. That which has been left in this manner may be claimed at once provided that the instituted heir or his heirs give security for compliance with the wishes of the testator and for the return of anything he or they may receive, together with its fruits and interests, if he or they should disregard this obligation. ARTICLE 883.When without the fault of the heir, an institution referred to in the preceding article cannot take effect in the exact manner stated by the testator, it shall be complied with in a manner most analogous to and in conformity with his wishes.

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

suspends but does not obligate; and the mode obligates but does not suspend. 20 To some extent, it is similar to a resolutory condition. 21 From the provisions of the Codicil litigated upon, it can be gleaned unerringly that the testatrix intended that the subject property be inherited by Dr. Jorge Rabadilla. It is likewise clearly worded that the testatrix imposed an obligation on the said instituted heir and his successors-ininterest to deliver one hundred piculs of sugar to the herein private respondent, Marlena Coscolluela Belleza, during the lifetime of the latter. However, the testatrix did not make Dr. Jorge Rabadilla's inheritance and the effectivity of his institution as a devisee, dependent on the performance of the said obligation. It is clear, though, that should the obligation be not complied with, the property shall be turned over to the testatrix's near descendants. The manner of institution of Dr. Jorge Rabadilla under subject Codicil is evidently modal in nature because it imposes a charge upon the instituted heir without, however, affecting the efficacy of such institution. Then too, since testamentary dispositions are generally acts of liberality, an obligation imposed upon the heir should not be considered a condition unless it clearly appears from the Will itself that such was the intention of the testator. In case of doubt, the institution should be considered as modal and not conditional. 22 Neither is there tenability in the other contention of petitioner that the private respondent has only a right of usufruct but not the right to seize the property itself from the instituted heir because the right to seize was expressly limited to violations by the buyer, lessee or mortgagee. In the interpretation of Wills, when an uncertainty arises on the face of the Will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the Will, taking into consideration the circumstances under which it was made. 23 Such construction as will sustain and uphold the Will in all its parts must be adopted. 24 Subject Codicil provides that the instituted heir is under obligation to deliver One Hundred (100) piculs of sugar yearly to Marlena Belleza Coscuella. Such obligation is imposed on the instituted heir, Dr. Jorge Rabadilla, his heirs, and their buyer, lessee, or mortgagee should they sell, lease, mortgage or otherwise negotiate the property involved. The Codicil further provides that in the event that the obligation to deliver the sugar is not respected, Marlena Belleza Coscuella shall seize the property and turn it over to the testatrix's near descendants. The nonperformance of the said obligation is thus with the sanction of seizure of the property and reversion thereof to the testatrix's near descendants. Since the said obligation is clearly imposed by the testatrix, not only on the instituted heir but also on his successors-in-interest, the sanction imposed by the testatrix in case of non-fulfillment of said obligation should equally apply to the instituted heir and his successors-in-interest. Similarly unsustainable is petitioner's submission that by virtue of the amicable settlement, the said obligation imposed by the Codicil has been assumed by the lessee, and whatever obligation petitioner had become the obligation of the lessee; that petitioner is deemed to have made a substantial and constructive compliance of his obligation through the consummated settlement between the lessee and the private respondent, and having consummated a

settlement with the petitioner, the recourse of the private respondent is the fulfillment of the obligation under the amicable settlement and not the seizure of subject property. Suffice it to state that a Will is a personal, solemn, revocable and free act by which a person disposes of his property, to take effect after his death. 25 Since the Will expresses the manner in which a person intends how his properties be disposed, the wishes and desires of the testator must be strictly followed. Thus, a Will cannot be the subject of a compromise agreement which would thereby defeat the very purpose of making a Will. WHEREFORE, the petition is hereby DISMISSED and the decision of the Court of Appeals, dated December 23, 1993, in CA-G.R. No. CV-35555 AFFIRMED. No Pronouncement as to costs. prcd SO ORDERED. Melo, J., I concur as well in the separate opinion of Justice Vitug. Vitug, J., see separate opininon (concurring in result). Panganiban, J., I join the separate opinion of Justice Vitug. Gonzaga-Reyes, J., took no part. Separate Opinions VITUG, J., concurring: By virtue of a codicil appended to her will, Aleja Belleza devised a 511,856-square meter parcel of land in Bacolod City, denominated Lot No. 1392 of the Bacolod Cadastral Survey, to Jorge Ravadilla (predecessor-in-interest of petitioner), 1 carrying with it an obligation to deliver to private respondent, Maria Marlena Coscolluela y Belleza, one hundred piculs of sugar per crop year during her lifetime. The portions of the codicil, pertinent to the instant controversy, read: "FIRST "I give, leave and bequeath the following property owned by me to Dr. Jorge Rabadilla, resident of 141 P. Villanueva, Pasay City: "(a)Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT4002(10942), which is registered in my name according to the records of the Register of Deeds of Negros Occidental. "b)That should Jorge Rabadilla die ahead of me, the aforementioned property and the rights which I shall set forth hereinbelow, shall be inherited and acknowledged by the children and spouse of Jorge Rabadilla. xxx xxx xxx FOURTH

"(a)It is also my command, in this my addition (codicil), that should I die and Jorge Rabadilla shall have already received the ownership of the said Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002(10942), and also at the time that the lease of Balbinito Guanzon of the said lot shall expire, Jorge Rabadilla shall have the obligation until he dies, every year to give to Maria Marlina Coscolluela y Belleza, Seventy (75) (sic) piculs of Export sugar and Twenty Five (25) piculs of Domestic sugar, until the said Maria Marlina Coscolluela y Belleza dies. "FIFTH "(a)Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10942), shall have the obligation to still give yearly, the sugar as specified in the Fourth paragraph of this testament, to Maria Marlina Coscolluela y Belleza on the month of December of each year. "SIXTH "I command, in this my addition (Codicil) that the Lot No. 1392, in the event that the one to whom I have left and bequeathed, and his heir shall later sell, lease, mortgage this said Lot, the buyer, lessee, mortgagee, shall have also the obligation to respect and deliver yearly ONE HUNDRED (100) piculs of sugar to Maria Marlina Coscolluela y Belleza, on each month of December, SEVENTY FIVE (75) piculs of Export and TWENTY FIVE (25) piculs of Domestic, until Maria Marlina shall die, lastly should the buyer, lessee, or the mortgagee of this lot, not have respected my command in this my addition (Codicil), Maria Marlina Coscolluela y Belleza, shall immediately seize this Lot No. 1392 from my heir and the latter's heirs, and shall turn it over to my near descendants, 2 and the latter shall then have the obligation to give the ONE HUNDRED (100) piculs of sugar until Maria Marlina shall die. I further command in this my addition (Codicil) that my heir and his heirs of this Lot No. 1392, that they will obey and follow that should they decide to sell, lease, mortgage, they cannot negotiate with others than my near descendants and my sister." 3 Pursuant to the above provisions of the codicil, ownership of Lot No. 1392 was transferred to Jorge Rabadilla and Transfer Certificate of Title No. T-44498 was issued in his name. LexLib Sometime in 1983, Jorge Rabadilla died, survived by his wife, Rufina, and their children Johnny, Aurora, Ofelia and Zenaida. On 21 August 1989, on account of the failure of the heirs of Jorge Rabadilla to comply with the obligation under the codicil, private respondent filed an action, docketed Civil Case No. 5588, against the Rabadilla heirs before the Regional Trial Court, Branch 52, of Bacolod City for the reconveyance of Lot 1392 to the heirs of Aleja Belleza and the cancellation of Transfer Certificate of Title No. 44498 covering the property in the name of Jorge Rabadilla. The trial court dismissed the complaint "without prejudice." 4 On appeal taken by private respondent to the Court of Appeals, the appellate court set aside the appealed decision and held:

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

"Accordingly, the decision appealed from is SET ASIDE and another one entered ordering defendants-appellees, as heirs of Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its fruits and interests, to the estate of Aleja Belleza. SO ORDERED." 5 Petitioner, in the instant petition for review, submits that the appellate court has erred in: (1) ordering the reversion of Lot 1392 to the estate of Aleja Belleza on the basis of paragraph six of the codicil, and (2) in ruling that the testamentary institution of Dr. Jorge Rabadilla is a modal institution within the purview of Article 882 of the Civil Code. Additionally, he avers that respondent court has improvidently deviated from the sole issue raised which is the prematurity of the action before the court a quo. Upon the other hand, respondent would have this Court sustain the assailed decision of the Court of Appeals contending that the appellate court is completely justified in delving into the nature of the institution in the codicil, the same having a direct significance on the issue of whether or not the complaint before the trial court has been prematurely filed. Private respondent adds that the institution in question is modal within the context of Article 882 of the Civil Code which gives her the right to seize the subject property. I agree with my colleagues that "substitution" is not here apropos. Substitution is the appointment of another heir so that he may enter into the inheritance in default of the heir originally instituted. 6 Substitution is simple when the testator designates one or more persons to substitute the heir or heirs instituted in case the latter should die before him, or should not wish, or should be incapacitated to accept the inheritance, and a substitution without a statement of the cases to which it refers shall comprise all said three cases. 7 There is no simple substitution that takes place where the heir originally instituted is able to succeed. 8 Fideicommissary substitution, on the other hand, occurs when the fiduciary or first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of the inheritance. 9 Every fideicommissary substitution should be expressly made in order that it may be valid. 10 The term "fideicommissary substitution" need not, however, be used in the will; It is enough that there is a clear and unequivocal statement that one shall enjoy usufructuary or other rights, short of naked ownership or title, over certain property of the testator with the

obligation to preserve the property and to transmit it to a second heir. 11 It is essential for the validity of a fideicommissary substitution that both heirs are living and qualified to succeed at the time of death by the testator and that the substitute does not go beyond one degree from the heir originally instituted. The term "one degree" has been the subject of varied interpretation. One view is to the effect that the term means one transfer, citing the Supreme Tribunal of Spain and as advocated by eminent civilists as Justices J.B.L. Reyes, R. Puno, E. Caguioa, and D. Jurado. In Ramirez vs. Ramirez, 12 decided on 15 February 1982, the Court, however, adopted the literal view that "one decree" means relationship or generation as so advanced by equally eminent writers Dr. A. Padilla, Justice E. Paras and Dr. A. Tolentino. In the subsequent case of the Testate Estate case of Fr. Aranas, 13 however, the Court upheld the usufructuary right of the Roman Catholic Church under a legacy that now renders doubtful the continued validity of the Ramirez doctrine. dctai The institution of Jorge Rabadilla in the Belleza codicil partook the nature of an institution sub modo, rather than one of substitution, governed by the provisions of Article 882 of the Civil Code. This law provides: "ARTICLE 882.The statement of the object of the institution, or the application of the property left by the testator, or the charge imposed by him, shall not be considered as a condition unless it appears that such was his intention. "That which has been left in this manner may be claimed at once provided that the instituted heir or his heirs give security for compliance with the wishes of the testator and for the return of anything he or they may receive, together with its fruits and interests, if he or they should disregard this obligation." (Italics supplied) A mode is distinguished from a condition contemplated in the rules on succession in that the latter dictates the efficacy, either in a suspensive or resolutory manner, of a testamentary disposition while the former obligates the instituted heir to comply with the mandate made by the testator but does not prevent the heir from at once claiming the inheritance provided he gives security to ensure compliance with the will of the testator and the return of the thing received together with its fruits and interests, "should (the heir) disregard this obligation." The obligation imposed upon the heir or legatee is deemed not to be a condition for his entry forthwith into the inheritance unless a contrary intention of the testator is evident. In case of doubt, the institution is considered modal, rather than conditional. Much of the variance in the legal effects of the two classes, 14 however, is now practically theoretical and merely conceptual. Under the Old Civil Code 15 an institucion sub modo could be said to be more akin to an institution sub demonstratione, or an expression of a wish or suggestion of the testator that did not have any real obligatory force, that matter being left instead to the discretion of the heir, i.e., whether to abide by it or not. The amendatory provisions of the New Civil Code now hardly differentiates between the principal effect of the non-compliance with the mode and that of the occurrence of a resolutory condition expressed in the will. In both instances, the property must be returned to the estate of the decedent to then pass on under the rules of intestacy. ACCORDINGLY, I also vote for the dismissal of the instant petition.

Facts: Testator Aleja Belleza appended a codicil to his last will and testament wherein he instituted Dr. Jorge Rabadilla as a devisee of 511, 855 sq meters of a parcel of land in Bacolod. Devisee herein is the predecessor-in-interest of the petitioner. The codicil was duly probated and admitted before the CFI of Negros Occidental. The codicil stated that should the devisee die ahead of the testator, the property and rights shall be inherited by his children and spouse. The codicil also required Rabadilla to deliver 75 piculs of export sugar and 25 piculs of domestic sugar to Maria Marlina Cosculuella y Belleza, and should he die, his heir shall have the same obligation. Lastly, in the event that the devisee or his heir shall later sell, lease, mortgage the said lot, the buyer, lessee, mortgagee shall also have the obligation to deliver the piculs. Dr. Rabadilla died in 1983 and was survived by his wife and children (pet).In 1989, Maria Marlena brought a complaint against the heirs to enforce the provisions of the codicil and to revert the ownership to the heirs of the testator. The RTC dismissed the complaint. The appellate court reversed the decision of the trial court.. Ruling: Yes. Petitioner maintains that Article 882 does not find application as there was no modal institution and the testatrix intended a mere simple substitution. Under Article 776 of the New Civil Code, inheritance includes all the property, rights and obligations of a person, not extinguished by his death. Conformably, whatever rights Dr .Jorge Rabadilla had by virtue of subject Codicil were transmitted to his forced heirs, at the time of his death. And since obligations not extinguished by death also form part of the estate of the decedent; corollarily, the obligations imposed by the Codicil on the deceased Dr. Jorge Rabadilla, were likewise transmitted to his compulsory heirs upon his death. In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge Rabadilla, subject to the condition that the usufruct thereof would be delivered to the herein private respondent every year. Upon the death of Dr. Jorge Rabadilla, his compulsory heirs succeeded to his rights and title over the said property, and they also assumed his(decedent's) obligation to deliver the fruits of the lot involved to herein private respondent. Such obligation of the instituted heir reciprocally corresponds to the right of private respondent over the usufruct, the fulfilment or performance of which is now being demanded by the latter through the institution of the case at bar. Therefore, private respondent has a cause of action against petitioner and the trial court erred in dismissing the complaint below. Modal Institutions ::*Petitioner also theorizes that Article 882 of the New Civil Code on modal institutions is not applicable because what the testatrix intended was a substitution- the contention is without merit. In simple substitutions, the second heir takes the inheritance in default of the first heir by reason of incapacity, predecease or renunciation.[14] In the case under consideration, the provisions of subject Codicil do not provide that should Dr. Jorge Rabadilla default due to predecease, incapacity or renunciation, the testatrix's near descendants would substitute him. What the Codicil provides is that, should Dr. Jorge Rabadilla or his heirs not fulfil the conditions imposed in the Codicil, the property referred to shall be seized and turned over to the testatrix's near descendants

[G.R. No. 149017. November 28, 2008.] VALENTE RAYMUNDO, petitioner, vs. TEOFISTA ISAGON VDA. DE SUAREZ, DANILO I. SUAREZ, EUFROCINA SUAREZ, MARCELO I. SUAREZ, JR, EVELYN SUAREZ, ET AL. , respondents. DECISION NACHURA, J p: 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: DHTCaI 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; (b)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; (c)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; (d)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; aSTAIH (e)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. 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 one-seventh (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 of Pasig, Province of Rizal, with an assessed value of P4,150.00. (b)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. (c)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. (d)Two (2) parcels of land, being Lots Nos. 42 and 44 of the amendment-subdivision plan TY4653-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 amendment-subdivision plan TY-4653Amd., 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. (f)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. EICSTa

(g)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. (h)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). 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 Marcelo's and Isagon's property regime, remained in the couple's 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 former's 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. SacTAC 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 owner's 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 Teofista's 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 Teofista's 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. cDIHES 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 . . . . 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 Valente's, Violeta's, Virginia's and Maria Concepcion's 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: aIAEcD 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 party-in-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-in-interest 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 onehalf 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: DaHISE "The legitime of the legitimate children and descendants consists of one-half 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. 2005jurcd 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. Reyes-Claravall, 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; TcAECH 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.That all the efforts were in vain, as said record could not be located anywhere; 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 STADIH 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 Teofista's 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 only P70,000.00. 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). acAIES 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 Valente's)

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: xxx xxx xxx 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: ". . . 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: DTcHaA 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.Order dated April 8, 1999, issued by Pairing Judge Santiago Estrella which declared, 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, today's scheduled pre-trial is re-set for the last time to May 19, 1999 at 8:30 a.m. AaECSH 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 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. xxx xxx xxx It is a matter of record that there was no trial on the merits completed in the Regional Trial Court. . . . 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 AIDTSE 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 court's 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 67's 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]. EIAScH 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 xxx xxx 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 xxx xxx [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 Valente's 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 Court's 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. DEcITS 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 for certiorari. 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 petitioner's 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. IDTcHa Contrary to petitioner Valente's stance, there is no trickery or chicanery in the CA's distinction between an interlocutory and a final order. Indeed, as ruled by the CA, the RTC Order denying petitioner Valente's Notice of Appeal attained finality when he failed to file a petition for certiorari 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. xxx xxx xxx 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: SEC. 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 xxx xxx (c)An interlocutory order; xxx xxx 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. Clearly, the denial of therein defendants' (including petitioner Valente's) appeal from the Orders dated May 29, 1996 and September 6, 1996 was in order. Thus, the CA decision affirming the RTC's denial was correct. ECaScD

Further, on this crucial distinction as applied to this case, petitioner Valente filed a petition for certiorari 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 for certiorari; 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 certiorari under 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 certiorari under 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. AHEDaI 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 Valente's, Violeta's, Virginia's, and Maria Concepcion's 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 Teofista's paternity of herein respondents, and the latter's 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 151's Orders dated October 10, 1984 and October 14, 1986. Although the CA ruled against Teofista and herein respondents, it explicitly recognized the latter's status as legitimate children of Teofista and Marcelo Sr.; and 38 acHITE 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 CA's 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 Marcelo's 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 the Philippines; 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. AEIDTc 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 TCT's 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 Teofista's 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 Teofista's judgment obligation. This judgment obligation is solely Teofista's, 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 testator's 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 decedent's estate. 47 EaCSTc 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 father's death. 48 Herein respondents' ownership of the subject properties is no longer inchoate; it became absolute upon Marcelo's death, although their respective shares therein remained pro indiviso. Ineluctably, at the time the subject properties were sold on execution sale to answer for Teofista's judgment obligation, the inclusion of herein respondents' share therein was null and void.

In fine, Teofista's 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 in Solivio. 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. aCIHAD In the case at bar, respondent, believing rightly or wrongly that she was the sole heir to Portugal's 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 xxx 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 Portugal's estate to administration proceedings since a determination of petitioners' status as heirs could be achieved in the civil case filed by petitioners . . . . 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. [G.R. No. L-30977. January 31, 1972.] CARMEN LAPUZ SY, represented by her substitute MACARIO LAPUZ,petitioner-appellant, vs. EUFEMIO S. EUFEMIO alias EUFEMIO SY UY, respondent-appellee. Jose W. Diokno for petitioner and appellant. Deogracias C. Eufemio for respondent and appellee. SYLLABUS 1.CIVIL LAW; ACTION FOR LEGAL SEPARATION; NATURE OF ACTION; EFFECT OF DEATH OF PLAINTIFF BEFORE FINAL DECREE. The death of the plaintiff before final decree in an action for legal separation abates the action. An action for legal separation which involves nothing more than the bed-and-board separation of the spouses (there being no absolute divorce in this jurisdiction) is purely personal. The Civil Code of the Philippines recognizes this in its Article 100, by allowing only the innocent spouse (and no one else) to claim legal separation and in its article 108, by providing that the spouses can, by reconciliation, stop or abate the proceedings and even rescind a decree of legal separation already rendered. Being personal in character, it follows that the death of one party to the action causes the death of the action itself actio personalis moritur cum persona. 2.ID.; ID.; ID.; EFFECT OF DEATH OF PLAINTIFF BEFORE FINAL DECREE ON PROPERTY RELATIONS. A review of the resulting changes in property relations between spouses shows that they are solely the effect of the decree of legal separation; hence, they can not survive the death of the plaintiff if it occurs prior to the decree. 3.ID.; ID.; ID.; ID.; CLAIM TO RIGHTS UNDER ART. 106, CIVIL CODE OF THE PHILIPPINES, EXTINGUISHED UPON THE DEATH OF THE SPOUSE INVOLVED. From Art. 106 of the Civil Code of the Philippines it is apparent that the right to the dissolution of the conjugal partnership or gains (or of the absolute community of property), the loss of right by the offending spouse to any share of the profits earned by the partnership or community, or his disqualification to inherit by intestacy from the innocent spouse as well as revocation testamentary provisions in favor of the offending spouse made by the innocent one, are all rights and disabilities that, by the very terms of Civil Code article, are vested exclusively in the persons of the spouses; and by their nature and intent, such claims and disabilities are difficult to conceive as assignable or transmissible. Hence, a claim to said rights is not a claim that "is

not thereby extinguished" after a party dies, under section 17 Rule 3 of the Rules of Court, to warrant continuation of the action through a substitute of the deceased party. The same result flows from a consideration of the enumeration of the actions that survive for or against administrators in Section 1, Rule 67, of the Revised Rules of Court which shows that neither action for legal separation or for annulment of marriage can be deemed fairly included therein. 4.ID.; ID.; ID.; ID.; ID.; REASON. The reason why an action is abated by the death of the plaintiff, even if property rights are involved, is that these rights are mere effects of a decree of separation, their source being the decree itself; without the decree such rights do not come into existence, so that before the finality of a decree, these claims are merely rights in expectation. If death supervenes during the pendency of the action, no decree can be forthcoming, death producing a more radical and definitive separation; and the expected consequential rights and claims would necessarily remain unborn. 5.ID.; ID.; ID.; ACTION FOR DECLARATION OF NULLITY AB INITIO OF MARRIAGE; EFFECT OF DEATH OF PLAINTIFF UPON DEFENDANT'S PROPERTY RIGHTS. A petition for a declaration of nullity ab initio of marriage becomes moot and academic upon the death of the wife, and there could be no further interest in continuing the same after her demise, that automatically dissolved the questioned union. Any property rights acquired by either party as a result of Art. 144 of the Civil Code of the Philippines could be resolved and determined in a proper action for partition by either the appellee or by the heirs of the appellant. 6.ID.; ID.; ID.; ACTION FOR ANNULMENT OF BIGAMOUS VOIDABLE MARRIAGE; EFFECT OF DEATH OF ONE PARTY; PROPER PROCEEDINGS FOR LIQUIDATION CONJUGAL PARTNERSHIP. Even if the bigamous marriage had not been void ab initio but only voidable under Article 83, par. 2 of the Civil Code, because the second marriage had been contracted with the first wife having been an absentee for seven consecutive years, or when she had been generally believed dead, still the action for annulment became extinguished as soon as one of the three persons involved had died, as provided in Article 87, par. 2 of the Code, requiring that the action for annulment should be brought during the lifetime of any one of the parties involved. And furthermore, the liquidation of any conjugal partnership might have resulted from such voidable marriage must be carried out "in the testate or intestate proceedings of the deceased spouse", as expressly provided in section 3 of the Revised Rule 73, and not in the annulment proceedings. DECISION REYES, J.B.L., J p: Petition, filed after the effectivity of Republic Act 5440, for review by certiorari of an order, dated 29 July 1969, of the Juvenile and Domestic Relations Court of Manila, in its Civil Case No. 20387, dismissing said case for legal separation on the ground that the death of the therein plaintiff, Carmen O. Lapuz Sy, which occurred during the pendency of the case, abated the cause of action as well as the action itself. The dismissal order was issued over the objection of Macario Lapuz, the heir of the deceased plaintiff (and petitioner herein) who sought to substitute the deceased and to have the case prosecuted to final judgment.

On 18 August 1953, Carmen O. Lapuz Sy filed a petition for legal separation against Eufemio S. Eufemio, alleging, in the main, that they were married civilly on 21 September 1934 and canonically on 30 September 1934; that they had lived together as husband and wife continuously until 1943 when her husband abandoned her; that they had no child; that they acquired properties during their marriage; and that she discovered her husband cohabiting with a Chinese woman named Go Hiok at 1319 Sisa Street, Manila, on or about March 1949. She prayed for the issuance of a decree of legal separation, which, among others, would order that the defendant Eufemio S. Eufemio should be deprived of his share of the conjugal partnership profits. In his second amended answer to the petition, herein respondent Eufemio S. Eufemio alleged affirmative and special defenses, and, along with several other claims involving money and other properties, counterclaimed for the declaration of nullity ab initio of his marriage with Carmen O. Lapuz Sy, on the ground of his prior and subsisting marriage, celebrated according to Chinese law and customs, with one Go Hiok, alias Ngo Hiok. Issues having been joined, trial proceeded and the parties adduced their respective evidence. But before the trial could be completed (the respondent was already scheduled to present surrebuttal evidence on 9 and 18 June 1969), petitioner Carmen O. Lapuz Sy died in a vehicular accident on 31 May 1969. Counsel for petitioner duly notified the court of her death. On 9 June 1969, respondent Eufemio moved to dismiss the "petition for legal separation" 1 on two (2) grounds, namely: that the petition for legal separation was filed beyond the one-year period provided for in Article 102 of the Civil Code; and that the death of Carmen abated the action for legal separation. On 26 June 1969, counsel for deceased petitioner moved to substitute the deceased Carmen by her father, Macario Lapuz. Counsel for Eufemio opposed the motion. On 29 July 1969, the court issued the order under review, dismissing the case. 2 In the body of the order, the court stated that the motion to dismiss and the motion for substitution had to be resolved on the question of whether or not the plaintiff's cause of action has survived, which the court resolved in the negative. Petitioner's moved to reconsider but the motion was denied on 15 September 1969. After first securing an extension of time to file a petition for review of the order of dismissal issued by the juvenile and domestic relations court, the petitioner filed the present petition on 14 October 1969. The same was given due course and answer thereto was filed by respondent, who prayed for the affirmance of the said order. 3 Although the defendant below, the herein respondent Eufemio S. Eufemio, filed counterclaims, he did not pursue them after the court below dismissed the case. He acquiesced in the dismissal of said counterclaims by praying for the affirmance of the order that dismissed not only the petition for legal separation but also his counterclaim to declare the Eufemio-Lapuz marriage to be null and void ab initio.

But petitioner Carmen O. Lapuz Sy (through her self-assumed substitute for the lower court did not act on the motion for substitution) stated the principal issue to be as follows: "When an action for legal separation is converted by the counterclaim into one for a declaration of nullity of a marriage, does the death of a party abate the proceedings?" The issue as framed by petitioner injects into it a supposed conversion of a legal separation suit to one for declaration of nullity of a marriage, which is without basis, for even petitioner asserted that "the respondent has acquiesced to the dismissal of his counterclaim" (Petitioner's Brief, page 22). Not only this. The petition for legal separation and the counterclaim to declare the nullity of the self same marriage can stand independent and separate adjudication. They are not inseparable nor was the action for legal separation converted into one for a declaration of nullity by the counterclaim, for legal separation presupposes a valid marriage, while the petition for nullity has a voidable marriage as a precondition.

The first real issue in this case is: Does the death of the plaintiff before final decree, in an action for legal separation, abate the action? If it does, will abatement also apply if the action involves property rights? An action for legal separation which involves nothing more than the bed-and-board separation of the spouses (there being no absolute divorce in this jurisdiction) is purely personal. The Civil Code of the Philippines recognizes this in its Article 100, by allowing only the innocent spouse (and no one else) to claim legal separation; and in its Article 108, by providing that the spouses can, by their reconciliation, stop or abate the proceedings and even rescind a decree of legal separation already rendered. Being personal in character, it follows that the death of one party to the action causes the death of the action itself actio personalis moritur cum persona. ". . . When one of the spouses is dead, there is no need for divorce, because the marriage is dissolved. The heirs cannot even continue the suit, if the death of the spouse takes place during the course of the suit (Article 244, Section 3). The action is absolutely dead (Cass., July 27, 1871, D. 71. 1. 81; Cass. req., May 8, 1933, D. D. 1933, 332." 4 "Marriage is a personal relation or status, created under the sanction of law, and an action for divorce is a proceeding brought for the purpose of effecting a dissolution of that relation. The action is one of a personal nature. In the absence of a statute to the contrary, the death of one of the parties to such action abates the action, for the reason that death has settled the question of separation beyond all controversy and deprived the court of jurisdiction, both over the persons of the parties to the action and of the subject-matter of the action itself. For this reason the courts are almost unanimous in holding that the death of either party to a divorce proceeding, before final decree, abates the action. 1 Corpus Juris, 208; Wren v. Moss, 2 Gilman, 72; Danforth v. Danforth, 111 III. 236; Matter of Grandall, 196 N.Y. 127, 89 N.E. 578; 134 Am St. Rep. 830; 17 Ann. Cas. 874; Wilcon v. Wilson, 73 Mich, 620, 41 N.W. 817; Strickland v. Strickland, 80 Ark. 452, 97 S. W. 659; McCurley v. McCurley, 60 Md. 185. 45 Am. Rep. 717; Begbie v. Begbie, 128 Cal. 155, 60 Pac. 667, 49 L.R.A. 141." 5

The same rule is true of causes of action and suits for separation and maintenance (Johnson vs. Bates, Ark. 101 SW 412; 1 Corpus Juris 208). A review of the resulting changes in property relations between spouses shows that they are solely the effect of the decree of legal separation; hence, they can not survive the death of the plaintiff if it occurs prior to the decree. On the point, Article 106 of the Civil Code provides: "Art. 106.The decree of legal separation shall have the following effects: "(1)The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed; "(2)The conjugal partnership of gains or the absolute conjugal community of property shall be dissolved and liquidated, but the offending spouse shall have no right to any share of the profits earned by the partnership or community, without prejudice to the provisions of article 176; "(3)The custody of the minor children shall be awarded to the innocent spouse, unless otherwise directed by the court in the interest of said minors, for whom said court may appoint a guardian; "(4)The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. Moreover, provisions in favor of the offending spouse made in the will of the innocent one shall be revoked by operation of law." . . . From this article it is apparent that the right to the dissolution of the conjugal partnership of gains (or of the absolute community of property), the loss of right by the offending spouse to any share of the profits earned by the partnership or community, or his disqualification to inherit by intestacy from the innocent spouse as well as the revocation of testamentary provisions in favor of the offending spouse made by the innocent one, are all rights and disabilities that, by the very terms of the Civil Code article, are vested exclusively in the persons of the spouses; and by their nature and intent, such claims and disabilities are difficult to conceive as assignable or transmissible. Hence, a claim to said rights is not a claim that "is not thereby extinguished" after a party dies, under Section 17, Rule 3, of the Rules of Court, to warrant continuation of the action through a substitute of the deceased party. "Sec. 17.Death of party.After a party dies and the claim is not thereby extinguished, the court shall order, upon proper notice, the legal representative of the deceased to appear and to be substituted for the deceased, within a period of thirty (30) days, or within such time as may be granted. . . ." The same result flows from a consideration of the enumeration of the actions that survive for or against administrators in Section 1, Rule 87, of the Revised Rules of Court: "SECTION 1.Actions which may and which may not be brought against executor or administrator.No action upon a claim for the recovery of money or debt or interest thereon shall be commenced against the executor or administrator; but actions to recover real or personal property, or an interest therein, from the estate, or to enforce a lien thereon, and actions to

recover damages for an injury to person or property, real or personal, may be commenced against him." Neither actions for legal separation or for annulment of marriage can be deemed fairly included in the enumeration. A further reason why an action for legal separation is abated by the death of the plaintiff, even if property rights are involved, is that these rights are mere effects of a decree of separation, their source being the decree itself; without the decree such rights do not come into existence, so that before the finality of a decree, these claims are merely rights in expectation. If death supervenes during the pendency of the action, no decree can be forthcoming, death producing a more radical and definitive separation; and the expected consequential rights and claims would necessarily remain unborn. As to the petition of respondent-appellee Eufemio for a declaration of nullity ab initio of his marriage to Carmen Lapuz, it is apparent that such action became moot and academic upon the death of the latter, and there could be no further interest in continuing the same after her demise, that automatically dissolved the questioned union. Any property rights acquired by either party as a result of Article 144 of the Civil Code of the Philippines 6 could be resolved and determined in a proper action for partition by either the appellee or by the heirs of the appellant. In fact, even if the bigamous marriage had not been void ab initio but only voidable under Article 83, paragraph 2, of the Civil Code, because the second marriage had been contracted with the first wife having been an absentee for seven consecutive years, or when she had been generally believed dead, still the action for annulment became extinguished as soon as one of the three persons involved had died, as provided in Article 87, paragraph 2, of the Code, requiring that the action for annulment should be brought during the lifetime of any one of the parties involved. And furthermore, the liquidation of any conjugal partnership that might have resulted from such voidable marriage must be carried out "in the testate or intestate proceedings of the deceased spouse", as expressly provided in Section 2 of the Revised Rule 73, and not in the annulment proceeding. ACCORDINGLY, the appealed judgment of the Manila Court of Juvenile and Domestic Relations is hereby affirmed. No special pronouncement as to costs. [G.R. No. 82233. March 22, 1990.] JOSE BARITUA and EDGAR BITANCOR, petitioners, vs. HONORABLE COURT OF APPEALS, NICOLAS NACARIO and VICTORIA RONDA NACARIO, respondents. Ernesto A. Atienza for private respondents. SYLLABUS 1.CIVIL LAW; OBLIGATION; MODES OF EXTINGUISHMENT. Obligations are extinguished by various modes among them being by payment. Article 1231 of the Civil Code of the Philippines provides: Art. 1231. Obligations are extinguished: (1) By payment or performance;

(2) By the loss of the thing due; (3) By the condonation or remission of the debt; (4) By the confusion or merger of the rights of creditor and debtor; (5) By compensation; (6) By novation. 2.ID.; ID.; ID.; SUCCESSORS IN INTEREST AUTHORIZED TO RECEIVE PAYMENT IN FAVOR OF DECEASED PERSON. Article 1240 of the Civil Code of the Philippines enumerates the persons to whom payment to extinguish an obligation should be made. Art. 1240. Payment shall be made to the person in whose favor the obligation has been constituted, or his successor in interest, or any person authorized to receive it. Certainly there can be no question that Alicia and her son with the deceased are the successors in interest referred to in law as the persons authorized to receive payment. 3.ID.; WILLS AND SUCCESSION; COMPULSORY HEIRS; PARENTS OF THE DECEASED SUCCEED ONLY WHEN THE LATTER DIES WITHOUT A LEGITIMATE DESCENDANT. The Civil Code states: Article 887. The following are compulsory heirs: 1. Legitimate children and descendants, with respect to their legitimate parents and ascendants; 2. In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants; 3. The widow or widower; 4. Acknowledged natural children, and natural children by legal fiction; 5. Other illegitimate children referred to in Article 287. Compulsory heirs mentioned in Nos. 3, 4 and 5 are not excluded by those in Nos. 1 and 2. Neither do they exclude one another. Article 985. In default of legitimate children and descendants of the deceased, his parents and ascendants shall inherit from him, to the exclusion of collateral relatives. It is patently clear that the parents of the deceased succeed only when the latter dies without a legitimate descendant. On the other hand, the surviving spouse concurs with all classes of heirs. As it has been established that Bienvenido was married to Alicia and that they begot a child, the private respondents are not successors-in-interest of Bienvenido; they are not compulsory heirs. 4.ID.; ID.; ID.; ESTRANGEMENT OF SURVIVING SPOUSE WITH THE DECEASED SPOUSE, NOT A GROUND FOR DISQUALIFICATION. The petitioners acted correctly in settling their obligation with Alicia as the widow of Bienvenido and as the natural guardian of their lone child. This is so even if Alicia had been estranged from Bienvenido. Mere estrangement is not a legal ground for the disqualification of a surviving spouse as an heir of the deceased spouse. 5.REMEDIAL LAW; SPECIAL PROCEEDINGS; CLAIMS AGAINST THE ESTATE; LOAN FOR THE PURCHASE OF PERSONAL PROPERTY AND FUNERAL EXPENSES CONSIDERED MONEY CLAIMS AGAINST THE ESTATE OF THE DECEASED. Private respondents, as alleged creditors of Bienvenido, seek relief and compensation from the petitioners. While it may be true that the private respondents loaned to Bienvenido the purchase price of the damaged tricycle and shouldered the expenses for his funeral, the said purchase price and expenses are but money claims against the estate of their deceased son. DECISION SARMIENTO, J p:

This petition for review on certiorari assails as erroneous and contrary to existing relevant laws and applicable jurisprudence the decision 1 of the Court of Appeals dated December 11, 1987 which reversed and set aside that of the Regional Trial Court, Branch XXXII, at Pili, Camarines Sur. 2 The challenged decision adjudged the petitioners liable to the private respondents in the total amount of P20,505.00 and for costs. LexLib The facts are as follows: In the evening of November 7, 1979, the tricycle then being driven by Bienvenido Nacario along the national highway at Barangay San Cayetano, in Baao, Camarines Sur, figured in an accident with JB Bus No. 80 driven by petitioner Edgar Bitancor and owned and operated by petitioner Jose Baritua. 3 As a result of that accident Bienvenido and his passenger died, 4 and the tricycle was damaged. 5 No criminal case arising from the incident was ever instituted. 6 Subsequently, on March 27, 1980, as a consequence of the extra-judicial settlement of the matter negotiated by the petitioners and the bus' insurer Philippine First Insurance Company, Incorporated (PFICI for brevity) Bienvenido Nacario's widow, Alicia Baracena Vda. de Nacario, received P18,500.00. In consideration of the amount she received, Alicia executed on March 27, 1980 a "Release of Claim" in favor of the petitioners and PFICI, releasing and forever discharging them from all actions, claims, and demands arising from the accident which resulted in her husband's death and the damage to the tricycle which the deceased was then driving. Alicia likewise executed an affidavit of desistance in which she formally manifested her lack of interest in instituting any case, either civil or criminal, against the petitioners. 7 On September 2, 1981, or about one year and ten months from the date of the accident on November 7, 1979, the private respondents, who are the parents of Bienvenido Nacario, filed a complaint for damages against the petitioners with the then Court of First Instance of Camarines Sur. 8 In their complaint, the private respondents alleged that during the vigil for their deceased son, the petitioners through their representatives promised them (the private respondents) that as extra-judicial settlement, they shall be indemnified for the death of their son, for the funeral expenses incurred by reason thereof, and for the damage to the tricycle the purchase price of which they (the private respondents) only loaned to the victim. The petitioners, however, reneged on their promise and instead negotiated and settled their obligations with the longestranged wife of their late son. The Nacario spouses prayed that the defendants, petitioners herein, be ordered to indemnify them in the amount of P25,000.00 for the death of their son Bienvenido, P10,000.00 for the damaged tricycle, P25,000.00 for compensatory and exemplary damages, P5,000.00 for attorney's fees, and for moral damages. 9 After trial, the court a quo dismissed the complaint, holding that the payment by the defendants (herein petitioners) to the widow and her child, who are the preferred heirs and successors-ininterest of the deceased Bienvenido to the exclusion of his parents, the plaintiffs (herein private respondents), extinguished any claim against the defendants (petitioners). 10 The parents appealed to the Court of Appeals which reversed the judgment of the trial court. The appellate court ruled that the release executed by Alicia Baracena Vda. de Nacario did not discharge the liability of the petitioners because the case was instituted by the private

respondents in their own capacity and not as "heirs, representatives, successors, and assigns" of Alicia; and Alicia could not have validly waived the damages being prayed for (by the private respondents) since she was not the one who suffered these damages arising from the death of their son. Furthermore, the appellate court said that the petitioners "failed to rebut the testimony of the appellants (private respondents) that they were the ones who bought the tricycle that was damaged in the incident. Appellants had the burden of proof of such fact, and they did establish such fact in their testimony . . . ." 11 Anent the funeral expenses," (T)he expenses for the funeral were likewise shouldered by the appellants (the private respondents). This was never contradicted by the appellees (petitioners). . . . Payment (for these) were made by the appellants, therefore, the reimbursement must accrue in their favor." 12 Consequently, the respondent appellate court ordered the petitioners to pay the private respondents P10,000.00 for the damage of the tricycle, P5,000.00 for "complete" funeral services, P450.00 for cemetery lot, P55.00 for oracion adulto, and P5,000.00 for attorney's fees. 13 The petitioners moved for a reconsideration of the appellate court's decision 14 but their motion was denied. 15 Hence, this petition. cdll The issue here is whether or not the respondent appellate court erred in holding that the petitioners are still liable to pay the private respondents the aggregate amount of P20,505.00 despite the agreement of extrajudicial settlement between the petitioners and the victim's compulsory heirs. The petition is meritorious. Obligations are extinguished by various modes among them being by payment. Article 1231 of the Civil Code of the Philippines provides: Art. 1231.Obligations are extinguished: (1)By payment or performance; (2)By the loss of the thing due; (3)By the condonation or remission of the debt; (4)By the confusion or merger of the rights of creditor and debtor; (5)By compensation; (6)By novation. (Emphasis ours.) There is no denying that the petitioners had paid their obligation arising from the accident that occurred on November 7, 1979. The only question now is whether or not Alicia, the surviving spouse and the one who received the petitioners' payment, is entitled to it. LLpr Article 1240 of the Civil Code of the Philippines enumerates the persons to whom payment to extinguish an obligation should be made.

Art. 1240.Payment shall be made to the person in whose favor the obligation has been constituted, or his successor in interest, or any person authorized to receive it. Certainly there can be no question that Alicia and her son with the deceased are the successors in interest referred to in law as the persons authorized to receive payment. The Civil Code states:

Article 887.The following are compulsory heirs: 1.Legitimate children and descendants, with respect to their legitimate parents and ascendants; 2.In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants; 3.The widow or widower; 4.Acknowledged natural children, and natural children by legal fiction; 5.Other illegitimate children referred to in Article 287. Compulsory heirs mentioned in Nos. 3, 4 and 5 are not excluded by those in Nos. 1 and 2. Neither do they exclude one another. (Emphasis ours.) Article 985.In default of legitimate children and descendants of the deceased, his parents and ascendants shall inherit from him, to the exclusion of collateral relatives.(Emphasis ours.) Cdpr It is patently clear that the parents of the deceased succeed only when the latter dies without a legitimate descendant. On the other hand, the surviving spouse concurs with all classes of heirs. As it has been established that Bienvenido was married to Alicia and that they begot a child, the private respondents are not successors-in-interest of Bienvenido; they are not compulsory heirs. The petitioners therefore acted correctly in settling their obligation with Alicia as the widow of Bienvenido and as the natural guardian of their lone child. This is so even if Alicia had been estranged from Bienvenido. Mere estrangement is not a legal ground for the disqualification of a surviving spouse as an heir of the deceased spouse. Neither could the private respondents, as alleged creditors of Bienvenido, seek relief and compensation from the petitioners. While it may be true that the private respondents loaned to Bienvenido the purchase price of the damaged tricycle and shouldered the expenses for his funeral, the said purchase price and expenses are but money claims against the estate of their deceased son. 16 These money claims are not the liabilities of the petitioners who, as we have said, had been released by the agreement of the extra-judicial settlement they concluded with Alicia Baracena Vda. de Nacario, the victim's widow and heir, as well as the natural guardian of their child, her co-heir. As a matter of fact, she executed a "Release Of Claim" in favor of the petitioners.

WHEREFORE, the petition is GRANTED; the decision of the Court of Appeals is REVERSED and SET ASIDE and the decision of the Regional Trial Court is hereby REINSTATED. Costs against the private respondents. prLL SO ORDERED.

[G.R. No. 39537. March 19, 1985.] IRENE REYES (alias IRENE RAMERO, alias IRENE DELGADO), MOISES VILLANUEVA and GENOVEVA RAMERO, petitioners, vs. COURT OF APPEALS, PLACIDA DELGADO, DOMINGO DELGADO, PAULA. DELGADO and MAXIMINA DELGADO, respondents. Ruben M. Orteza for petitioner. Leovigildo L. Cerilla for private respondents. SYLLABUS 1.CIVIL LAW; SUCCESSION; ILLEGITIMATE CHILDREN; TO INHERIT, AN ILLEGITIMATE CHILD MUST BE RECOGNIZED. The doctrine that for an illegitimate child other than natural to inherit must be first recognized voluntarily or by court action is well settled in Our Jurisprudence (Bercilles vs. GSIS, 128 SCRA 53 [1984]). 2.ID.; PERSONS; CLASSIFICATION OF ILLEGITIMATE CHILDREN; TO CLASSIFY UNRECOGNIZED NATURAL CHILDREN UNDER THE CLASS OF SPURIOUS CHILDREN IS NOT LEGALLY POSSIBLE. There are two (2) general classifications of illegitimate children or those who are conceived and born out of wedlock. They may be either natural (actually or by fiction) or spurious (the incestuous, adulterous or illicit). Natural children are defined as those born outside of wedlock of parents, who at the time of conception of the former, were not disqualified by any impediment to many each other (Article 269, New Civil Code). On the other hand, spurious children are those born of parents, who at the time of their conception, are disqualified to marry each other on account of certain impediment. Because of this basic distinction between these children, it is not legally class possible to classify unrecognized natural children under the class of spurious children. 3.ID.; ID.; ILLEGITIMATE CHILDREN OTHER THAN NATURAL, UNDER ARTICLE 287 OF THE CIVIL CODE; REFERS TO NATURAL CHILD PROPER BY BIRTH AND WHO HAVE NOT SECURED RECOGNITION. Besides, commentators construe the phrase "illegitimate children other than natural" as excluding from the grants of rights under Article 287 of the New Civil Code those children who are natural child proper by birth and who have not secured voluntary or compulsory recognition (p. 276. An Outline of Civil Law, J.B.L. Reyes and R.C. Puno, Vol. 1). They fall within the scope of the definition of natural children enumerated in Article 269, New Civil Code (p. 142, Civil Law. Reviewer, D. Jurado, 1982 ed.). 4.ID.; ID.; ID.; UNRECOGNIZED NATURAL CHILD HAS NO RIGHTS AGAINST PARENT OR HIS ESTATE; RIGHT SPRINGS FROM ACKNOWLEDGMENT BY THE NATURAL PARENTS.

It is an elementary and basic principle under the old and new Civil Code, that an unrecognized natural child has no rights whatsoever against his parent or his estate. His rights spring not from the filiation itself, but from the child's acknowledgment by the natural parent (Alabat vs. Alabat, 21 SCRA 1479 [19671]). 5.ID.; ID.; ID.; RECOGNITION; CERTIFIED COPY OF BIRTH CERTIFICATE, NOT SUFFICIENT RECOGNITION. It can be seen from the record of birth (Exhibit "L-2") that the name of the petitioner was Irene Ramero, and signed by Genoveva Ramero and of an unknown father. This was certified to by the treasurer of the municipality of Alitagtag, Batangas (Exhibits "L" and "L-1"). Another certified copy of another birth certificate issued by the municipal treasurer and local civil registrar of the municipality of Alitagtag (Exhibit "20") stated therein that the name of the child is Irene Ramero, and the name of the father is "Francisco" and the mother "Genoveva Ramero." Any of these records of birth cannot be sufficient recognition under the law. 6.ID.; ID.; ID.; ID.; BIRTH CERTIFICATE MUST BE SIGNED EITHER JOINTLY BY THE FATHER AND MOTHER OR BY THE MOTHER ALONE. The birth certificate to be sufficient recognition must be signed by the father and mother jointly, or by the mother alone if the father refuses, otherwise she may be penalized (Sec. 5, Act 3753; Madredejo vs. De Leon, 55 Phil. 1 [1930]); and if the alleged father did not sign in the birth certificate. the placing of his name by the mother, or doctor or registrar is incompetent evidence of paternity of said child (Bercilles vs. GSIS, 128 SCRA 53 [1984], Roces vs. Local Civil Registrar of Manila, 102 Phil 1050 [1958]). Since any of the certificates of birth presented were not signed by Francisco Delgado, it cannot be taken as record of birth to prove recognition of Irene Delgado; nor can this birth certificate be taken as a recognition in a public instrument (Pareja vs. Pareja, 95 Phil. 167 [1954]). 7.ID.; ID.; ID.; ID.; CERTIFICATE OF BAPTISM IS NOT PROOF OF RECOGNITION. Irene's certificate of baptism (Exhibit "1") cannot be taken as proof of recognition (Bercilles vs. GSIS, supra; People vs. Villeza, 127 SCRA 349 [1984]; Cid vs. Burnaman, 24 SCRA 434 [1968]; Vudaurrazaga vs. CA, 91 Phil. 492 [1952]; Capistrano vs. Gabino, 8 Phil. 135 [1907]. In the case of Macadangdang vs. CA, 100 SCRA 73 [1980]), this Court said that while baptismal certificates may be considered public documents, they are evidence only to prove the administration of the sacraments on the dates therein specified, but not the veracity of the statements or declarations made therein with respect to his kinsfolk. 8.ID.; ID.; ID.; ID.; NEITHER STUDENT PERMANENT RECORD NOR WRITTEN CONSENT TO FATHER'S OPERATION CAN BE TAKEN AS AN AUTHENTIC WRITING. Irene's secondary student permanent record (Exhibits "12", "13", "15" and "16") nor the written consent given by Irene to the operation of her alleged father (Exhibit "4") cannot be taken as an authentic writing. An authentic writing does not have to be a public instrument; it is sufficient that it is genuine and not a forgery. It must generally be signed by the alleged parent (Madredejo vs. De Leon, supra) unless the whole instrument is in the handwriting of the alleged parent and the facts mentioned therein correspond to actual and real facts (Varela vs. Villanueva, 95 Phil. 248 [1954]). Thus, Irene's secondary student permanent record and her written consent to the

operation of her father not being signed nor written in the handwriting of Francisco Delgado cannot be taken as an authentic writing to prove her recognition by her alleged father. 9.ID.; ID.; ID.; ID.; MARRIAGE CONTRACT WHERE ALLEGED FATHER GAVE CONSENT CANNOT BE TAKEN AS AUTHENTIC WRITING. The marriage contract (Exhibit "17") of Irene Delgado and Moises Villanueva wherein it was stated that Francisco Delgado gave his consent or advice for Irene Delgado to marry and that he was her father cannot be also taken as recognition in an authentic document because it was not signed nor in the handwriting of Francisco Delgado. It cannot also be taken as recognition in a public instrument as held in the case of Lim vs. C.A. (65 SCRA 161, 165 [1975]). 10.ID.; ID.; ID.; ID.; FAMILY PICTURES ARE NOT SUFFICIENT FOR RECOGNITION. The family pictures (Exhibits "11" to "11-E") presented by Irene showing Irene posing with Francisco Delgado cannot be a sufficient proof of recognition. In the case of Bercilles vs. GSIS, supra, it was held that pictures do not constitute proof of filiation. 11.ID.; ID.; ID.; ID.; CHILD HAS RIGHT TO COMPEL JUDICIAL RECOGNITION; MUST BE BROUGHT WITHIN THE PROPER PRESCRIPTIVE PERIOD. She nevertheless possesses the right to compel judicial recognition and the action for this must be brought within the proper prescriptive period (Clemea vs. Clemea, supra). Article 285 of the New Civil Code provides "that the action for the recognition of natural children may be brought only during the lifetime of the presumed parents, except when the father or mother dies during the minority of the child, the action shall be brought within four years from the age of majority, or if after the death of the father or of the mother a document should appear of which nothing had been heard and in which either or both parents recognize the child, the action shall be brought within four years from the finding of the document." Since Irene was already of age (35 years old) when her alleged father died, and she had not presented any discovered document wherein her presumed father recognized her, the action to compel recognition is already barred (Canales vs. Arrogante, 91 Phil. 6 [1952]). AQUINO, J., dissenting opinion: 1.CIVIL LAW; ILLEGITIMATE CHILDREN; RECOGNITION; VOLUNTARY OR COMPULSORY RECOGNITION OF SPURIOUS CHILDREN OR BASTARDS IS NOT MANDATORY. In my opinion the rule requiring voluntary or compulsory recognition for the so-called spurious children or bastards is not mandatory. Article 289 of the Civil Code does not make such recognition mandatory. 2.ID.; SUCCESSION; SPURIOUS CHILDREN; MAY INHERIT BY PROVING FILIATION ACCORDING TO RULES ON ACKNOWLEDGMENT FOR NATURAL CHILDREN. Irene's status as an heir is governed by the Civil Code pursuant to its Article 2264. To enjoy successional rights, she has to prove her filiation as required in Article 887 of the Civil Code. To prove filiation, the rules on acknowledgment for natural children may be applied to spurious children. But there may be cases, where the filiation of an illegitimate child, other than natural, has been duly proven and such proof does not satisfy the requirements of recognition under Articles 278 and 283.

3.ID.; ID.; ID.; ARTICLES 278 AND 283 ADMIT EXCEPTIONS; SUFFICIENT PROOF OF FILIATION ENTITLES THE CHILD TO SUCCESSIONAL RIGHTS; CASE AT BAR. In such exceptional cases, Articles 278 and 283 should not be applied. If sufficient proof to satisfy the judicial mind has been adduced to prove the spurious child's filiation, he or she should be entitled to successional rights. This is justified by the liberal policy of the Civil Code towards illegitimate children. The natural child needs acknowledgment because he may become a legitimated child. The spurious child will never attain the status of a legitimate child. I agree with Judge Lorenzo Relova that Irene's filiation as Francisco Delgado's child was duly proven within the meaning of Article 887. She is the nearest compulsory and legal heir of Francisco. She excludes the brother, two sisters and niece of Francisco (Art. 988, Civil Code).

DECISION MAKASIAR, J p: This is a petition for certiorari to review the decision of the Court of Appeals Special Division of Five dated October 7, 1974 in CA-G.R. No. L-44964-R, reversing the decision of the Court of First Instance of Batangas, Branch I, dated December 26, 1969, in Civil Case No. 1144 dismissing the action for reconveyance. cdrep On January 29, 1967, private respondents as plaintiffs filed a complaint in the Court of first Instance of Batangas praying that the defendant Irene Reyes, alias Irene Romero or Irene Delgado, be ordered to execute a deed of reconveyance in favor of plaintiffs Placida Delgado, Domingo Delgado, and Paula Delgado over four parcels of land located in Tayabas, Quezon, and one parcel of land located in Pagbilao, Quezon, and another deed of reconveyance in favor of plaintiff Maximina Delgado over three parcels of land located in Alitagtag, Batangas. It was alleged in the complaint that the defendants thru abuse of confidence, fraud, deceit, misrepresentation and other falsifications succeeded in registering in the offices of the Register of Deeds of Quezon and Batangas a document of self-adjudication (Exhibit "24"), wherein defendant Irene Delgado alleged that she was the sole child of the deceased Francisco Delgado and entitled to inherit the parcels of lands described in the complaint; that as a result thereof Transfer Certificate of Title Nos. 9913, 10348, 14937, T-11747 and 13489 were cancelled and new Transfer Certificates of Title were issued in the name of Irene Delgado; that defendant Irene Delgado is not the illegitimate daughter of Francisco Delgado, who died without issue, but is the legitimate daughter of Genoveva Romero and Justino Reyes; that plaintiffs Placida Delgado, Domingo Delgado and Paula Delgado, sisters and brother of the deceased Francisco Delgado are the heirs entitled to inherit from Francisco Delgado; and that Paula, Placido and Domingo Delgado defrayed the expenses of the last illness and the funeral expenses of Francisco Delgado and for the purpose they borrowed the sum of P7,000.00 from their niece, plaintiff Maximina Delgado, and to pay Maximina Delgado they conveyed to her the three parcels of land described in subparagraphs (f) to (g) of paragraph 9 of the complaint. They also alleged that the defendant spouses Irene and Moises Villanueva borrowed from plaintiffs

common fund the sum of P23,000.00 which they used in the purchase of a parcel of land (pp. 114, Record on Appeal; p. 63, rec.). cdll On or about March 2, 1967, defendant Irene Delgado, one of the petitioners herein, filed an answer to the complaint and set up the affirmative defense that she is the illegitimate daughter of the defendant Genoveva Romero and the deceased Francisco Delgado; that for several years preceding the birth of Irene Delgado, her mother Genoveva Ramero had separated from her lawful husband Justino Reyes and never reconciled since then; and that Irene was born during the cohabitation of Francisco Delgado and Genoveva Ramero as common-law husband and wife, and since her birth, lived with Francisco Delgado and Genoveva Ramero, who reared and treated her as their child, maintaining her and sending her through college. Defendants also denied having contracted a debt of P23,000.00 from plaintiffs, or that plaintiffs spent for the last illness and funeral of Francisco Delgado. Irene Delgado likewise set up a counterclaim, alleging that, as the illegitimate daughter of Francisco Delgado, she has the right to represent her father to the inheritance left by her grandmother (pp. 15-43, Record on Appeal; p. 63, rec.). On March 16, 1967, the plaintiffs thru counsel filed an answer to the counterclaim denying that the defendant Irene Delgado was the illegitimate child of Francisco Delgado, and hence has no right to claim from the estate of Francisco's mother, Benigna Castillo, and that the properties claimed by the defendant Irene Delgado no longer formed part of the estate of Benigna Castillo as she had previously disposed of them during her lifetime (pp. 43-46, Record on Appeal; p. 63, rec.). On August 15, 1967, a pre-trial in Civil Case No. 1144 was conducted. On March 25, 1969, the plaintiffs filed a motion to admit an amended answer to the counterclaim posed by defendant, wherein the plaintiffs alleged that the counterclaim of the defendant, in so far as it would have the effect of being an indirect action for acknowledgment, has already prescribed (pp. 50-55, Record on Appeal; p. 63, rec.). On April 14, 1969, the lower court admitted the amended answer to the counterclaim over the objections of the defendant (pp. 56-61, Record on Appeal; p. 63, rec.). LibLex After trial on the merits, the Court rendered its decision on December 26, 1969 dismissing the action for reconveyance and declaring defendant Irene Delgado the lawful owner of the eight parcels of land. The counterclaim of Irene Delgado was dismissed for insufficiency of evidence. Both parties appealed to the Court of Appeals (now IAC), the plaintiffs with respect to their complaint and the defendants with respect to their counterclaim. The then Court of Appeals sitting as a Special Division of Five rendered its decision on October 7, 1974, the dispositive portion of which reads as follows: "Wherefore, the decision of the court a quo is hereby reversed The deed of self-adjudication executed by Irene Delgado is hereby declared null and void and set aside. The transfer certificates of title issued in the name of Irene Delgado in lieu of Transfer Certificate of Title Nos. 9913, 10348, 14937, T-11747 and 13489 are hereby canceled, and T.C.T. 9913, 10348, 14937,

T-11747 and 13489 are reinstated in the name of Francisco Delgado. Likewise, the extrajudicial declaration executed by Irene Delgado adjudicating to herself the 3 parcels of land located in Alitagtag, Batangas, with Tax Declaration Nos. 8625, 8626 and 8627 are declared null and void. No costs" (pp. 52-53, rec.). The then Court of Appeals in arriving at this decision found that, although Irene Delgado was the spurious daughter of Francisco Delgado, she nevertheless cannot merit from the estate of the deceased Francisco Delgado because she was not recognized either voluntarily or by court action (pp. 52-53, rec.). The titles to the questioned lot however cannot be executed in favor of the plaintiffs; because in so doing it will be in effect a recognition by the court that the plaintiffs are the only heirs of Francisco Delgado to the prejudice of other possible heirs or creditors of the deceased. As to alleged loan contracted by Irene from the plaintiffs, the then Court of Appeals affirmed the lower court's decision that it was without merit, because if it were true, the plaintiffs could have demanded a receipt for such a big amount. The counterclaim of Irene that she has the share to the inheritance of Benigna Castillo, Francisco Delgado's mother, and her alleged share in the expenses for the sickness and funeral of Francisco Delgado which was advanced by the plaintiffs, need not be ruled upon because of the findings that Irene is not an heir of Francisco Delgado (pp. 57-58, rec.). prLL On December 2, 1974, defendants, petitioners herein, filed a petition to review the decision of the Court of Appeals (pp. 22-37, rec.). On January 2, 1975, the plaintiffs, respondents herein, submitted their comment on the petition for review filed by the petitioner (pp. 67-71, rec.). On January 15, 1975, the petition for review filed by petitioners was denied in a resolution by the First Division of the Supreme Court for lack of merit (p. 75, rec.). On February 18, 1975, petitioners filed a motion for reconsideration (pp. 86-113, rec.). On April 5, 1975, respondents filed their comments on the motion for reconsideration filed by petitioners (pp. 130-134, rec.). On April 23, 1975, petitioners filed their reply to respondents' comment (pp. 118-125, rec.). On May 23, 1975, the Supreme Court reconsidered its resolution denying petitioners' motion for reconsideration (p. 142, rec.). In their petition, petitioners sought to reverse the decision of the Court of Appeals raising the following arguments: 1."There are strong and cogent reasons why this Honorable Court must return to and even enhance the doctrine in Zuzuarregui vs. Zuzuarregui, considering serious flaws in the reasoning of the currently prevailing doctrine, so that assuming arguendo and pro hac vice that Irene was

not duly recognized or acknowledged as illegitimate child, she is nevertheless entitled to successional rights as sole heir of the late Francisco Delgado, considering that her filiation as illegitimate daughter of Francisco Delgado is undisputed and beyond question" (p. 12, Petitioner's Brief; p. 164, rec.). 2."Upon the other hand, this time assuming arguendo and pro hac vice that under the Civil Code recognition of an 'other illegitimate' is a pre-requisite to enjoyment of rights, Irene Delgado was legally acknowledged by her father Francisco Delgado, specially by his consent or advice to her marriage with Moises Villanueva contrary to the erroneous conclusions of the Court of Appeals" (p. 39, Petitioner's Brief, p. 164, rec.). The petition is without merit. The doctrine that for an illegitimate child other than natural to inherit must be first recognized voluntarily or by court action is well settled in Our jurisprudence. (Bercilles vs. GSIS, 128 SCRA 53 [1984]; Divinagracia vs. Rovira, 72 SCRA 307 [1976]; Clemea vs. Clemea, 24 SCRA 720 [1968]; Noble vs. Noble, 18 SCRA 1104 [1966]; Republic vs. Workmen's Compensation Commission, 13 SCRA 272 [1969]; Paulino vs. Paulino, 3 SCRA 730 [1961]; Barles vs. Ponce Enrile, 109 Phil. 522 [1960]). Cdpr There is no reason to overturn this doctrine and revert to what was enunciated in the case of Zuzuarregui vs. Zuzuarregui (103 Phil. 346 [1958]); as suggested by herein petitioners in their first assignment of errors. It is the contention of the petitioners that the silence of the Civil Code as to the recognition of illegitimate children other than natural, in contrast to natural children who are expressly required to be recognized in order to inherit, only meant that illegitimate children need not be recognized in order to inherit from his or her alleged parent (p. 13, Petitioner's Brief; p. 164, rec.). Petitioners also raised the argument that under Article 287 of the New Civil Code which reads: "Illegitimate children other than natural in accordance with Article 269 and other than natural children by legal fiction are entitled to support and such successional rights as are granted in this code." The term "other illegitimate children" refers not only to those who are not natural or merely adulterous or incestuous but also includes natural children who were not acknowledged or recognized (p. 18, Petitioner's Brief; p. 164, rec.). In other words, unrecognized natural children can inherit not the share of a natural child but the share of a spurious child so long as his filiation shall be duly proved. So, in effect, illegitimate children need only to prove his filiation to inherit and such does not place him in a more advantageous position than natural children, as they are placed in the same situation.

WE do not find these arguments persuasive. Though the Civil Code is silent with respect to spurious children as to their recognition, this Court, in applying the rules of recognition, applicable to natural children, to said spurious children, declared in Clemea vs. Clemea, supra that:

"The considerations of fairness and justice that underlie the time limit fixed in Article 285 of the Civil Code for actions seeking compulsory acknowledgment of natural children are fully applicable, if not more, to actions to investigate and declare the paternity of illegitimate children that are not natural. The motive that led the codifiers to restrict the period for bringing action for compulsory recognition of natural children were stated by this Court in Serrano vs. Aragon, 22 Phil. 18, to be as follows: '. . . the writers of the code no doubt had in mind that there would arise instances where certain illegitimate children, on account of the strong temptation due to the large estates left by deceased persons, would attempt to establish that they were natural children of such persons in order to get part of the property, and furthermore, they considered that it is nothing but just and right that alleged parents should have a personal opportunity to be heard. It was for these reasons and others equally as well founded that Article 137 was enacted'" (p. 724). There are two (2) general classifications of illegitimate children or those who are conceived and born out of wedlock. They may be either natural (actually or by fiction) or spurious (the incestuous, adulterous or illicit). Natural children are defined as those born outside of wedlock of parents, who at the time of conception of the former, were not disqualified by any impediment to marry each other (Article 269, New Civil Code). On the other hand, spurious children are those born of parents, who at the time of their conception, are disqualified to marry each other on account of certain impediment. Because of this basic distinction between these children, it is not legally possible to classify unrecognized natural children under the class of spurious children. Besides, commentators construe the phrase "illegitimate children other than natural" as excluding from the grants of rights under Article 287 of the New Civil Code those children who are natural child proper by birth and who have not secured voluntary or compulsory recognition (p. 276, An Outline of Civil Law, J.B.L. Reyes and R.C. Puno, Vol. 1). They fall within the scope of the definition of natural children enumerated in Article 269, New Civil Code (p. 142, Civil Law Reviewer, D. Jurado, 1982 ed.). Lastly, to follow petitioners' contention will not be in accordance with the consistent pronouncements of this Court. It is an elementary and basic principle under the old and new Civil Code, that an unrecognized natural child has no rights whatsoever against his parent or his estate. His rights spring not from the filiation itself, but from the child's acknowledgment by the natural parent (Alabat vs. Alabat, 21 SCRA 1479 [1967]; Mise vs. Rodriguez, 95 Phil. 396 [1954]; Magallanes vs. CA, 95 Phil. 797 [1954]; Canales vs. Ugarte, 91 Phil. 6 [1952]; Malonda vs. Malonda, 81 Phil. 149 [1948]; Buenaventura vs. Urbano, 5 Phil. 1 [1905]). As to the second assignment of error raised by petitioners, We find that there was no sufficient legal recognition of petitioner Irene Delgado by Francisco Delgado. It can be seen from the record of birth (Exhibit "L-2") that the name of the petitioner was Irene Ramero, and signed by Genoveva Ramero and of an unknown father. This was certified to by the treasurer of the municipality of Alitagtag, Batangas (Exhibits "L" and "L-1"). Another certified copy of another birth certificate issued by the municipal treasurer and local civil registrar of the municipality of Alitagtag (Exhibit "20") stated therein that the name of the child is Irene Ramero, and the name of the father is "Francisco" and the mother "Genoveva Ramero." Any of these

records of birth cannot be sufficient recognition under the law. The birth certificate, to be sufficient recognition, must be signed by the father and mother jointly, or by the mother alone if the father refuses, otherwise she may be penalized (Sec. 5, Act 3753; Madredejo vs. De Leon, 55 Phil. 1 [1930]); and if the alleged father did not sign in the birth certificate, the placing of his name by the mother, or doctor or registrar, is incompetent evidence of paternity of said child (Bercilles vs. GSIS, 128 SCRA 53 [1984]; Roces vs. Local Civil Registrar of Manila, 102 Phil. 1050 [1958]). Since any of the certificates of birth presented were not signed by Francisco Delgado, it cannot be taken as record of birth to prove recognition of Irene Delgado; nor can this birth certificate be taken as a recognition in a public instrument (Pareja vs. Pareja, 95 Phil. 167 [1954]). Irene's certificate of baptism (Exhibit "1") cannot be taken as proof of recognition (Bercilles vs. GSIS, supra, People vs. Villeza, 127 SCRA 349 [1984]; Cid vs. Burnaman, 24 SCRA 434 [19681; Vudaurrazaga vs. CA, 91 Phil. 492 [1952]; Capistrano vs. Gabino, 8 Phil. 135 [1907]). In the case of Macadangdang vs. CA [100 SCRA 73 [1980]), this Court said that while baptismal certificates may be considered public documents, they are evidence only to prove the administration of the sacraments on the dates therein specified, but not the veracity of the statements or declarations made therein with respect to his kinsfolk. LLpr Irene's secondary student permanent record (Exhibits "12", "13", "15" and "16") nor the written consent given by Irene to the operation of her alleged father (Exhibit "4") cannot be taken as an authentic writing. An authentic writing does not have to be a public instrument; it is sufficient that it is genuine and not a forgery. It must generally be signed by the alleged parent (Madredejo vs. De Leon, supra) unless the whole instrument is in the handwriting of the alleged parent and the facts mentioned therein correspond to actual and real facts (Varela vs. Villanueva, 95 Phil. 248 [1954]). Thus, Irene's secondary student permanent record and her written consent to the operation of her father, not being signed nor written in the handwriting of Francisco Delgado, cannot be taken as an authentic writing to prove her recognition by her alleged father. The marriage contract (Exhibit "17") of Irene Delgado and Moises Villanueva, wherein it was stated that Francisco Delgado gave his consent or advice for Irene Delgado to marry, and that he was her father cannot be also taken as recognition in an authentic document because it was not signed nor in the handwriting of Francisco Delgado. It cannot also be taken as recognition in a public instrument as held in the case of Lim vs. CA, (65 SCRA 161, 164 [1975]) wherein the Court said: "According to Article 1216 of the Civil Code of 1889, public documents are those authenticated by a notary or by a competent public official, with the formalities required by law.' Thus, 'there are two classes of public documents, those executed by private individuals which must be authenticated by notaries, and those issued by competent public officials by reason of their office.' "The public document pointed out in Article 131 as one of the means by which recognition may be made belongs to the first class.' "The marriage contract presented by Felisa Lim does not satisfy the requirements of solemnity prescribed by article 131 of the Civil Code of 1889. Such contract is not a written act with the intervention of a notary; it is not an instrument executed in due form before a notary and

certified by him. The marriage contract is a mere declaration by the contracting parties, in the presence of the person solemnizing the marriage and of two witnesses of legal age, that they take each other as husband and wife, signed by signature or mark by said contracting parties and the said witnesses, and attested by the person solemnizing the marriage. The marriage contract does not possess the requisites of a public document of recognition . . ." The family pictures (Exhibits "11" to "11-E") presented by Irene, showing Irene posing with Francisco Delgado, cannot be a sufficient proof of recognition. In the case of Bercilles vs. (GSIS, supra, it was held that pictures do not constitute proof of filiation. What Irene may have proved is that she had been in continuous possession of a status of an illegitimate child who is not natural. But such fact alone without a valid recognition in a record of birth, will, statement before a court of record, or authentic writing does not make Irene a recognized illegitimate child who is not natural. She nevertheless possesses the right to compel judicial recognition and the action for this must be brought within the proper prescriptive period (Clemea vs. Clemea, supra). Article 285 of the New Civil Code provides "that the action for the recognition of natural children may be brought only during the lifetime of the presumed parents, except when the father or mother dies during the minority of the child, the action shall be brought within four years from the age of majority, or if after the death of the father or of the mother a document should appear of which nothing had been heard and in which either or both parents recognize the child, the action shall be brought within four years from the finding of the document." Since Irene was already of age (35 years old) when her alleged father died, and she had not presented any discovered document wherein her presumed father recognized her, the action to compel recognition is already barred (Canales vs. Arrogante, 91 Phil. 6 [1952]). WE affirm the findings of the then Court of Appeals that Irene Reyes has Irene Delgado is not an heir of the late Francisco Delgado. LLphil WHEREFORE, THE DECISION OF THE THEN COURT OF APPEALS IS HEREBY AFFIRMED IN TOTO, WITH COSTS AGAINST PETITIONERS. Concepcion, Jr., Abad Santos, Escolin and Cuevas, JJ., concur.

Separate Opinions AQUINO, J., dissenting: I dissent. The spouses Justino Reyes and Genoveva Ramero, natives of Tayabas town, were married there in 1903. They had seven children. An eighth child, named Irene, was born to Genoveva, either on May 5, 1930 in Tayabas town, or on September 1, 1931 in Barrio Dalipit, Alitagtag, Batangas. Of course, the presumption under article 255 of the Civil Code is that Irene was Justino's child. Was that presumption rebutted? Joaquin Reyes, Irene's elder brother, testified that his parents, the Reyes spouses, separated in 1928 when his father surprised Francisco Delgado in his house. On that occasion, there was a

commotion in the house which was investigated by the police. Justino eventually decided to allow Genoveva to go with Francisco. That testimony is sufficient to rebut the presumption of legitimacy. It shows that Irene was not Justino's child. Was Delgado her father? Her birth certificate shows that she was horn on September 1, 1931 as the child of Genoveva at Barrio Dalipit, Alitagtag, Batangas with an unknown (desconocido) father (Exh. L-2 or 22). prcd Since 1928, Genoveva lived with Francisco Delgado and was never reconciled to Justino who died in 1935. Irene was educated at their expense. Justino was not mentioned as the father of Irene in her record of birth. Among the eight children of Genoveva, Irene's birth was the only one registered in Alitagtag, Francisco's native town. Irene had always lived with Genoveva and Francisco up to 1951, when she was 19 and she got married. She was baptized in 1949, when she was 18. Francisco and Genoveva were listed as her parents in the baptismal certificate, Exhibit 1. In the certificate of marriage of Irene and Moises Villanueva, Francisco Delgado was mentioned as her father and as the one who gave consent to the marriage (Exh. 17). Irene consented to the operation of Francisco when he was submitted to an operation at the Family Clinic in 1966 (Exh. 2). The paid his hospital bills (Exh. 4). She used the surname "Delgado" in her school records and Francisco Delgado was indicated therein as her guardian (Exh. 12 to 16). Francisco died intestate on October 28, 1966. On November 25, 1966 Irene adjudicated to herself the lands left by Francisco (Exh. H or 9). On January 30, 1967, the brother, two sisters and a niece of Francisco Delgado sued her for the annulment of said adjudication. They sought a declaration that they are the nearest legal heirs of Francisco. Judge Lorenzo Relova ruled that Irene's filiation was duly proven. The Appellate Court disagreed because she was not duly acknowledged within the meaning of articles 278 and 283 of the Civil Code. It held that the evidence submitted by her does not amount to voluntary and compulsory recognition required of natural children. In my opinion the rule requiring voluntary or compulsory recognition for the so-called spurious children or bastards is not mandatory. Article 289 of the Civil Code does not make such recognition mandatory. Irene's status as an heir is governed by the Civil Code pursuant to its article 2264. To enjoy successional rights, she has to prove her filiation as required in article 887 of the Civil Code. To prove filiation, the rules on acknowledgment for natural children may be applied to spurious children. But there may be cases, where the filiation of an illegitimate child, other than natural, has been duly proven and such proof does not satisfy the requirements of recognition under articles 278 and 283.

In such exceptional cages, article 278 and 283 should not be applied. If sufficient proof to satisfy the judicial mind has been adduced to prove the spurious child's filiation, he or she should be entitled to successional rights. This is justified by the liberal policy of the Civil Code towards illegitimate children. LibLex The natural child needs acknowledgment because he may become a legitimated child. The spurious child will never attain the status of a legitimated child. I agree with Judge Lorenzo Relova that Irene's filiation as Francisco Delgado's child was duly proven within the meaning of article 887. She is the nearest compulsory and legal heir of Francisco. She excludes the brother, two sisters and niece of Francisco (Art. 988, Civil Code). I vote to reverse the decision of the Appellate Court and affirm the decision of Judge Relova. prcd [G.R. No. L-34395. May 19, 1981.] BEATRIZ L. GONZALEZ, petitioner, vs. COURT OF FIRST INSTANCE OF MANILA (BRANCH V), BENITO F. LEGARDA, ROSARIO L. VALDES, ALEJANDRO LEGARDA, TERESA LEGARDA, JOSE LEGARDA, BENITO LEGARDA Y FERNANDEZ, CARMEN LEGARDA Y FERNANDEZ, FILOMENA LEGARDA Y HERNANDEZ, CARMEN LEGARDA Y HERNANDEZ, ALEJANDRO LEGARDA Y HERNANDEZ, RAMON LEGARDA Y HERNANDEZ, FILOMENA LEGARDA Y LOBREGAT, JAIME LEGARDA Y LOBREGAT, CELSO LEGARDA Y LOBREGAT, ALEJANDRO LEGARDA Y LOBREGAT, MA. TERESA LEGARDA Y LOBREGAT, MA. ANTONIA LEGARDA Y LOBREGAT, JOSE LEGARDA Y LOBREGAT, ROSARIO LEGARDA Y LOBREGAT, BENITO LEGARDA Y LOBREGAT, EDUARDO LEGARDA Y LOBREGAT, TRINIDAD F. LEGARDA, and the ESTATE OF DOA FILOMENA ROCES DE LEGARDA, respondents. Eligio G. Lagman and Roberto A. Gianzon for petitioner. Teves, Campos, Mendoza and Hernandez Baizas, Alberto and Association, Macias and Achos for private-respondents. SYNOPSIS The real properties left by Benito Legarda y Tuason were partitioned in three equal portions by his two daughters and the heirs of his deceased son Benito Legarda y De La Paz who was survived by his widow, Filomena Roces y Legarda and their seven children: four daughters named, Beatriz, Rosario, Teresa and Filomena and their three sons, named Benito, Alejandro and Jose. Meanwhile. one of the daughters, Filomena, died intestate and without an issue and her mother Filomena Roces y Legarda who became her sole heir, partitioned their one-third share in the estate of Benito Legarda y Tuason with her six surviving children and then conveyed the properties she inherited from her deceased daughter by holographic will to her 16 grandchildren. In opposition thereto, one of the daughters Beatriz Legarda Gonzales filed a motion in the testate proceeding and an ordinary civil action in the lower court contending that the disputed properties are resersable properties. The lower court dismissed the complaint.

On appeal by certiorari, the Supreme Court held that the properties in question are subject to raserva troncal under Art. 891 of the Civil Code which the testatrix as reservor could not dispose by holographic will to the reservees within the third degree (her sixteen grandchildren) and deprive the reservees in the second degree (her six children) of their share therein. Decision Reversed. SYLLABUS 1.CIVIL LAW; SUCCESSION; LEGITIME; RESERVA TRONCAL; NATURE. Resersa troncal is also called lineal, familiar, extreordinaria o semi-troncal. It is provided for in Article 811 of the Spanish Civil Code now article 891 of the Civil Code. In reserva ironcal, (1) a descendant inherited or acquired by gratuitous title property from an ascendant or from a brother or sister; (2) the same property is inherited by another ascendant or is acquired by him by operation of law from the said descendant, and (3) the said ascendant should reserve the said property for the benefit of relatives who are within the third degree from the deceased descendant (prepositus) who belong to the tine from which the property came. 2.ID.; ID.; ID.; ID.; TRANSMISSION INVOLVED. The three transmissions involved are: (1) a first transmission by lucrative title (inheritance or donation) from an ascendant or brother or sister to the deceased descendant; (2) a posterior transmission, by operation of law (intestate succession or legitime) from the deceased descendant (causante de la reserva) in favor of another ascendant, the reservor or reservista, which two transmissions precede the reservation, and (3) a third transmission of the same property (in consequence of the reservation) from the reservor to the reservees (reservatarios) or the relatives within the third degree from the deceased descendant belonging to the line of the first ascendant, brother or sister of the deceased descendant (6 Castan Toneas, Derecho Civil, Part I, 1960, 6th Ed., pp. 198-9). If there are only two transmissions there is no reserva. 3.ID.; ID.; ID.; ID.; PERSONS INVOLVED. The persons involved in reserva troncal are (1) the ascendant or brother or sister from whom the property was received by the descendant by lucrative or gratuitous title, (2) the descendant or prepositus ( propositus) who received the property, (3) the reservor (reservista), the other ascendant who obtained the property from the prepositus by operation of law and (4) the reservee (reservatarin) who is within the third degree from the prepositus and who belongs to the line (ltnea o tronco) from which the property came and for whom the property should be reserved by the reservor. 4.ID.; ID.; ID.; ID.; RELATIVES CONSIDERED RESERVEES. The reservees may be halfbrothers and sisters (Rodrigues vs. Rodriguez, 101 Phil. 1098; Chua vs. Court of First Instance of Negros Occidental, L-29901, August 31, 1977, 78 SCRA 412). Fourth degree relatives are not included (Jardin vs. Villamayor, 72 Phil. 392). First cousins of the prepositus are in the fourth degree and are not reservees. They cannot even represent their parents because representation is confined to relatives within the third degree (Florentino vs. Florentino, 40 Phil. 480).

5.ID.; ID.; ID.; ID.; RATIONALE. The rationale of reserva troncal is to avoid "el peligro de que bienes poseidos sedularmente por una familia pasen bruscamente a titulo gratuito a manos extraas por el azar de los enlaces y muertes prematuras", or "impedir que, por un azar de la vida, personas extraas a una familia puedan adquirir bienes que sin aquel hubieran quedado en ella" (6 Castan Tobeas, Derecho Civil, Part 1, 6th Ed., 1960, p. 203; Padura vs. Baldovino, 104 Phil. 1065). 6.ID.; ID.; ID.; ID.; PREPOSITUS DEFINED. Prepositus or the person from whom the degree should be reckoned is the descendant, or the one at the end of the line from which the property came and upon whom the property last revolved by descent (Cabardo vs. Villanueva, 44 Phil. 186, 190). 7.ID.; ID.; ID.; ID.; NEAREST RELATIVE EXCLUDE THE MORE REMOTE. Within the third degree, the nearest relatives exclude the more remote subject to the rule of representation. But the representative should be within the third degree from the prepositus (Padura vs. Baldovino, 104 Phil. 1065). 8.ID.; ID.; ID.; ID.; NATURE OF RELATIONSHIP CONTEMPLATED. Reserva troncal contemplates legitimate relationship. Illegitimate relationship and relationship by affinity are excluded. 9.ID.; ID.; ID.; ID.; GRATUITOUS TITLE DEFINED. Gratuitous title or titulo lucrativo refers to a transmission wherein the recipient gives nothing in return such as donation and succession (Cabardo vs. Villanueva, 44 Phil. 186, 189-190, citing 6 Manresa, Codigo Civil, 7th. Ed., 1951, p. 360). 10.ID.; ID.; ID.; ID.; RESOLUTORY CONDITIONS CREATED BY RESERVA. The reserva creates two resolutory conditions, namely: (I) the death of the ascendant obliged to reserve; and (2) the survival, at the time of his death, of relatives within the third degree belonging to the fine from which the property came (Sienes vs. Esparcia, 111 Phil. 349, 353). 11.ID.; ID.; ID.; ID.; NATURE OF RESERVOR'S TITLE. The reservor has the legal title and dominion to the reservable property but subject to the resolutory condition that such title is extinguished if the reservor predeceased the reservee. The reservor is a usufructuary of the reservable property. He may alienate it subject to the reservation. The transferee gets the revocable and conditional ownership of the reservor. The transferee's rights are revoked upon the survival of the reservees at the time of the time o the death of the reservor but become indefeasible when the reservees predecease the reservor (Sienes vs. Esparcia, 111 Phil. 349, 353; Edroso vs. Sablan, 25 Phil. 295; Lunsod vs. Ortega, 46 Phil. 664; Florentino vs. Florentino, 40 Phil. 480; Director of Lands vs. Aguas, 63 Phil. 279). "The authorities are all agreed that there being reservatorios that survive the reservista, the latter must be deemed to have enjoyed no more than a life interest in the reservable property." (J.B.L. Rayes in Cano vs. Director of Lands, 105 Phil. 1, 5). 12.ID.; ID.; ID.; ID.; RESERVOR'S TITLE COMPARED WITH THAT OF THE VENDEE A RETRO OR TO A FIDEICOMISO CONDICIONAL. The reservor's title has been compared

with that of the vendee a retro in a pacto de retro sale or to a fideicomiso condicional. The reservor's alienation of the reservable property is subject to a resolutory condition, meaning that if at the time of the reservor's death, there are reservees, the transferee of the property should deliver it to the reservees. If there are no reservees at the time of the reservor's death, the transferee's title would become absolute (Lunsod vs. Ortega, 46 Phil. 664: Gueco vs. Lacson, 118 Phil. 944; Nono vs. Nequia, 93 Phil. 120). 13.ID.; ID.; ID.; ID.; NATURE OF RESERVEE'S TITLE. The reservee has only an inchoate, expectant or contingent right. His expectant right would disappear if he predeceased the reservor. It would become absolute should the reservor predecese the reservee. There is a holding that renunciation of the reservee's right to the reservable property is illegal for being a contract regarding future inheritance (Velayo Bernardo vs. Siojo, 58 Phil. 89, 96). And there is a dictum that the reservee's right is a real right which he may alienate and dispose of conditionally. The condition is that the alienation shall transfer ownership to the vendee only if and when the reservee survives the tetervor (Sienes vs. Esparcia, ill Phil. 349, 353). "The reservatorio receives the property as a conditional heir of the descendant (prepositus), said property merely reverting to the line of origin from which it had temporarily and accidentally strayed during the reservista's lifetime" (J.B.L. Reyes in Cano vs. Director of Lands, Supra). 14.ID.; ID.; ID.; ID.; RESERVEE'S (RESERVATORIO'S) RIGHT OVER THE PROPERTY DURING RESERVOR'S (RESERVISTA'S) LIFETIME. The reservee cannot impugn any conveyance made by the reservor but he can require that the reservable character of the property be recognized by the purchaser (Riosa vs. Rocha, 48 Phil. 737; Edroso vs. Sablan 25 Phil. 295, 312-3; Gueco vs. Lacson, 118 Phil. 944). "Even during the reservista's lifetime, the reservatarios, who are the ultimate acquirers of the property, can already assert the right to prevent the reservista from doing anything that might frustrate their revisionary right. and, for this purpose, they can compel the annotation of their right in the registry of property even while the reservista is alive." (Ley Hipotecaria de Ultramar, Arts. 168, 199; Edroso vs. Sablan, 25 Phil. 295)

15. ID.; ID.; ID.; ID.; RESERVABLE PROPERTY, NOT A PART OF THE ESTATE OF RESERVOR (RESERVISTA); CASE AT BAR. The right to reserva troncal is incompatible with the mere expectancy that corresponds to the natural heirs of the reservista (reservor). It is likewise clear that the reservable property is no part of the estate of the reservista (raservor) who may not dispose of them (it) by will, so long as there are reservatarios (reservees) existing (Arroyo vs. Gerona, 58 Phil. 226, 237). "The latter, therefore, do not inherit from the reservista but from the descendant prepositus, of whom the reservatarios are the heirs mortis causa. subject to the condition that they must survive the reservista." (Sanchez Roman, Vol. VI, Tomo 2, p. 286; Manresa, Commentaries, Vol. 6, 6th Ed., pp. 274, 310, cited by J. J.B.L. Reyes in Padura vs. Baldovino, L-l1960, December 27, 1958, 104 Phil. 1065). Hence, upon the reservista's death, the reservatario nearest to the prepositus becomes, "automatically and by operation of law, the owner of the reservable property." (Cano vs. Director of Lands, Supra) Mrs. Filomena Legarda, as reservor in the case at bar could not convey in her holographic will to her

sixteen grandchildren (the reservees within the third degree) the reservable properties which she had inherited from her daughter Filomena because the reservable properties did not form part of her estate (Cobardo vs. Villanueva, 44 Phil. 186, 191). The reservor cannot make a disposition mortis causa of the reservable properties as long as the reservees survived the reservor. 16.ID.; ID.; ID.; ID.; RESERVABLE PROPERTIES INHERITED FROM THE PREPOSITUS; CASE AT BAR. As repeatedly held in the Cano and Padura cases, the reservees inherit the reservable properties from the prepositus, not from the reservor. Art. 891 clearly indicates that the reservable properties should be inherited by all the nearest relatives within the third degree from the prepositus who in this case are the six children of Mrs. Legarda. She could not select the reservees to whom the reservable property should be given and deprive the other reservees of their share therein. 17.ID.; ID.; ID.; ID.; WHEN RESERVATION IS EXTINGUISHED; CASE AT BAR. Under the rule of stare decisis at non quieta movere. the Court is bound to follow in this case the doctrine of the Florentino case which means that as long as during the reservor's lifetime and upon his death there are relatives within the third degree of the prepositus, regardless of whether those reservees are common descendants of the reservor and the ascendant from whom the property came, the property retains its reservable character. The property should go to the nearest reservees. Hence, in the case at bar, the reservation could have been extinguished only by the absence of reservees at the time of Mrs. Legarda's death. Since at the time of her death, there were (and still are) reservees belonging to the second and third degrees, the disputed properties did not lose their reservable character. The disposition of the said properties should be made in accordance with article 891 or the rule on reserva troncal and not in accordance with the reservor's holographic will. The said properties did not form part of Mrs. Legarda's estate (Cano vs. Director of Lands, 105 Phil. 4). DECISION AQUINO, J p: Beatriz Legarda Gonzalez appealed from the decision of the Court of First Instance of Manila, dismissing her complaint for partition, accounting, reconveyance and damages and holding, as not subject to reserva troncal, the properties which her mother Filomena Roces inherited in 1943 from Filomena Legarda (Civil Case No. 73335). The facts are as follows: Benito Legarda y De la Paz, the son of Benito Legarda y Tuason, died in Manila on June 17, 1933. He was survived by his widow, Filomena Roces, and their seven children: four daughters named Beatriz, Rosario, Teresa and Filomena and three sons named Benito, Alejandro and Jose. On July 12, 1939, the real properties left by Benito Legarda y Tuason were partitioned in three equal portions by his daughters, Consuelo and Rita, and the heirs of his deceased son Benito Legarda y De la Paz who were represented by Benito F. Legarda.

Filomena Legarda y Roces died intestate and without issue on March 19, 1943. Her sole heiress was her mother, Filomena Roces Vda. de Legarda. Mrs. Legarda executed on May 12, 1947 an affidavit adjudicating extrajudicially to herself the properties which she inherited from her deceased daughter, Filomena Legarda. The said properties consist of the following: (a)Savings deposit in the National City Bank of New York with a credit balance of P3,699.63. (b)1,429 shares of the Benguet Consolidated Mining Company and a 1/7 interest in certain shares of the San Miguel Brewery, Tuason & Legarda, Ltd., Philippine Guaranty Company, Insular Life Assurance Company and the Manila Times. (c)1/7 of the properties described in TCT Nos. 80226, 80237 to 80243 (7 titles), 80260, 80261 and 57512 of the Manila registry of deeds. 1/21st of the properties covered by TCT Nos. 48164, 84714, 48201, 48202, 48205, 48203, 48206, 48160 and 48192 of the Manila registry of deeds; 1/21st of the property described in TCT No. 4475 of the registry of deeds of Rizal, now Quezon City; 1/14th of the property described in TCT No. 966 of the registry of deeds of Baguio; 1/7th of the lot and improvements at 127 Aviles described in TCT No. 41862 of the Manila registry of deeds; 1/7th of the lots and improvements at 181 San Rafael described in TCT Nos. 50495 and 48161 of the Manila registry of deeds; 1/7th of the property described in TCT No. 48163 of the Manila registry of deeds (Streets); 1/21st of the properties described in TCT Nos. 48199 and 57551 of the Manila registry of deeds (Streets and Estero); 2/21st of the property described in TCT No. 13458 of the registry of deeds of Tayabas. These are the properties in litigation in this case. As a result of the affidavit of adjudication, Filomena Roces succeeded her deceased daughter Filomena Legarda as co-owner of the properties held proindiviso by her other six children. Mrs. Legarda on March 6, 1953 executed two hand-written identical documents wherein she disposed of the properties, which she inherited from her daughter, in favor of the children of her sons, Benito, Alejandro and Jose (sixteen grandchildren in all). The document reads: "A mis hijos: "Dispongo que se reparta a todos mis nietos, hijos de Ben, Mandu y Pepito, los bienes que he heredado de mi difunta hija Filomena y tambien los acciones de la Distileria 'La Rosario' recientemente comprada a los hermanos Valdes Legarda.

"De los bienes de mi hija Filomena se deducira un lote de terreno que yo he donada a las Hijas de Jesus, en Guipit. "La casa No. 181 San Rafael, la cedo a mi hijo Mandu, solo la casa; porque ella esta construida sobre terreno de los hermanos Legarda Roces. "(Sgd.) FILOMENA ROCES LEGARDA "6 Marzo 1953" During the period from July, 1958 to February, 1959 Mrs. Legarda and her six surviving children partitioned the properties consisting of the one-third share in the estate of Benito Legarda y Tuason which the children inherited in representation of their father, Benito Legarda y De la Paz. Mrs. Legarda died on September 22, 1967. Her will was admitted to probate as a holographic will in the order dated July 16, 1968 of the Court of First Instance of Manila in Special Proceeding No. 70878, Testate Estate of Filomena Roces Vda. de Legarda. The decree of probate was affirmed by the Court of Appeals in Legarda vs. Gonzalez, CA-G.R. No. 43480-R, July 30, 1976. In the testate proceeding, Beatriz Legarda Gonzalez, a daughter of the testatrix, filed on May 20, 1968 a motion to exclude from the inventory of her mother's estate the properties which she inherited from her deceased daughter, Filomena, on the ground that said properties are reservable properties which should be inherited by Filomena Legarda's three sisters and three brothers and not by the children of Benito, Alejandro and Jose, all surnamed Legarda. That motion was opposed by the administrator, Benito F. Legarda. Without awaiting the resolution on that motion, Mrs. Gonzalez filed on June 20, 1968 an ordinary civil action against her brothers, sisters, nephews and nieces and her mother's estate for the purpose of securing a declaration that the said properties are reservable properties which Mrs. Legarda could not bequeath in her holographic will to her grandchildren to the exclusion of her three daughters and her three sons (See Paz vs. Madrigal, 100 Phil. 1085). As already stated, the lower court dismissed the action of Mrs. Gonzalez. In this appeal under Republic Act No. 5440 she contends in her six assignments of error that the lower court erred in not regarding the properties in question as reservable properties under article 891 of the Civil Code. On the other hand, defendants-appellees in their six counter-assignments of error contend that the lower court erred in not holding that Mrs. Legarda acquired the estate of her daughter Filomena Legarda in exchange for her conjugal and hereditary shares in the estate of her husband Benito Legarda y De la Paz and in not holding that Mrs. Gonzalez waived her right to the reservable properties and that her claim is barred by estoppel, laches and prescription.

The preliminary issue raised by the private respondents as to the timeliness of Mrs. Gonzalez' petition for review is a closed matter. This Court in its resolution of December 16, 1971 denied respondents' motion to dismiss and gave due course to the petition for review. In an appeal under Republic Act No. 5440 only legal issues can be raised under undisputed facts. Since on the basis of the stipulated facts the lower court resolved only the issue of whether the properties in question are subject to reserva troncal, that is the only legal issue to be resolved in this appeal. The other issues raised by the defendants-appellees, particularly those involving factual matters, cannot be resolved in this appeal. As the trial court did not pass upon those issues, there is no ruling which can be reviewed by this Court.

The question is whether the disputed properties are reservable properties under article 891 of the Civil Code, formerly article 811, and whether Filomena Roces Vda. de Legarda could dispose of them in her will in favor of her grandchildren to the exclusion of her six children. Did Mrs. Legarda have the right to convey mortis causa what she inherited from her daughter Filomena to the reservees within the third degree and to bypass the reservees in the second degree or should that inheritance automatically go to the reservees in the second degree, the six children of Mrs. Legarda? As will hereinafter be shown that is not a novel issue or a question of first impression. It was resolved in Florentino vs. Florentino, 40 Phil. 480. Before discussing the applicability to this case of the doctrine in the Florentino case and other pertinent rulings, it may be useful to make a brief discourse on the nature of reserva troncal, also called lineal, familiar, extraordinaria o semi-troncal. Much time, effort and energy were spent by the parties in their five briefs in descanting on the nature of reserva troncal, which together with the reserva viudal and reversion legal, was abolished by the Code Commission to prevent the decedent's estate from being entailed, to eliminate the uncertainty in ownership caused by the reservation (which uncertainty impedes the improvement of the reservable property) and to discourage the confinement of property within a certain family for generations which situation allegedly leads to economic oligarchy and is incompatible with the socialization of ownership. The Code Commission regarded the reservas as remnants of feudalism which fomented agrarian unrest. Moreover, the reservas, insofar as they penalize legitimate relationship, is considered unjust and inequitable. However, the lawmaking body, not agreeing entirely with the Code Commission, restored the reserva troncal, a legal institution which, according to Manresa and Castan Tobeas, has provoked questions and doubts that are difficult to resolve.

Reserva troncal is provided for in article 811 of the Spanish Civil Code, now article 891, which reads: "ART. 811.El ascendiente que heredare de su descendiente bienes que ste hubiese adquirido por titulo lucrativo de otro ascendiente, o de un hermano, se halla obligado reservar los que hubiere adquirido por ministerio de la ley en favor de los parientes que esten dentro del tercer grado y pertenezcan a la linea de donde los bienes proceden." "ART. 891.The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came. " In reserva troncal, (1) a descendant inherited or acquired by gratuitous title property from an ascendant or from a brother or sister; (2) the same property is inherited by another ascendant or is acquired by him by operation of law from the said descendant, and (3) the said ascendant should reserve the said property for the benefit of relatives who are within the third degree from the deceased descendant ( prepositus) and who belong to the line from which the said property came. So, three transmissions are involved: (1) a first transmission by lucrative title (inheritance or donation) from an ascendant or brother or sister to the deceased descendant; (2) a posterior transmission, by operation of law (intestate succession or legitime) from the deceased descendant (causante de la reserva) in favor of another ascendant, the reservor or reservista, which two transmissions precede the reservation, and (3) a third transmission of the same property (in consequence of the reservation) from the reservor to the reservees ( reservatarios) or the relatives within the third degree from the deceased descendant belonging to the line of the first ascendant, brother or sister of the deceased descendant (6 Castan Tobeas, Derecho Civil, Part I, 1960, 6th Ed., pp. 198-9). If there are only two transmissions there is no reserva. Thus, where one Bonifacia Lacerna died and her properties were inherited by her son, Juan Marbebe, upon the death of Juan, those lands should be inherited by his half-sister, to the exclusion of his maternal first cousins. The said lands are not reservable property within the meaning of article 811 (Lacerna vs. Vda. de Corcino, 111 Phil. 872). The persons involved in reserva troncal are (1) the ascendant or brother or sister from whom the property was received by the descendant by lucrative or gratuitous title, (2) the descendant or prepositus ( propositus) who received the property, (3) the reservor (reservista), the other ascendant who obtained the property from the prepositus by operation of law and (4) the reservee (reservatario) who is within the third degree from the prepositus and who belongs to the line (linea o tronco) from which the property came and for whom the property should be reserved by the reservor.

The reservees may be half-brothers and sisters (Rodriguez vs. Rodriguez, 101 Phil. 1098; Chua vs. Court of First Instance of Negros Occidental, L-29901, August 31, 1977, 78 SCRA 412). Fourth degree relatives are not included (Jardin vs. Villamayor, 72 Phil. 392). The rationale of reserva troncal is to avoid "el peligro de que bienes poseidos secularmente por una familia pasen bruscamente a titulo gratuito a manos extraas por el azar de los enlaces y muertes prematuras", or "impedir que, por un azar de la vida, personas extraas a una familia puedan adquirir bienes que sin aquel hubieran quedado en ella" (6 Castan Tobeas, Derecho Civil, Part 1, 6th Ed., 1960, p. 203; Padura vs. Baldovino, 104 Phil. 1065). An illustration of reserva troncal is found in Edroso vs. Sablan, 25 Phil. 295. In that case, Pedro Sablan inherited two parcels of land from his father Victoriano. Pedro died in 1902, single and without issue. His mother, Marcelina Edroso, inherited from him the two parcels of land. It was held that the land was reservable property in the hands of Marcelina. The reservees were Pablo Sablan and Basilio Sablan, the paternal uncles of Pedro Sablan, the prepositus. Marcelina could register the land under the Torrens system in her name but the fact that the land was reservable property in favor of her two brothers-in-law, should they survive her, should be noted in the title. In another case, it appears that Maria Aglibot died intestate in 1906. Her one-half share of a parcel of conjugal land was inherited by her daughter, Juliana Maalac. When Juliana died intestate in 1920, said one-half share was inherited by her father, Anacleto Maalac who owned the other one-half portion. Anacleto died intestate in 1942, survived by his second wife and their six children. It was held that the said one-half portion was reservable property in the hands of Anacleto Maalac and, upon his death, should be inherited by Leona Aglibot and Evarista Aglibot, sisters of Maria and maternal aunts of Juliana Maalac, who belonged to the line from which said one-half portion came (Aglibot vs. Maalac, 114 Phil. 964). Other illustrations of reserva troncal are found in Florentino vs. Florentino, 40 Phil. 480; Nieva and Alcala vs. Alcala and Deocampo, 41 Phil. 915; Maghirang and Gutierrez vs. Balcita, 46 Phil. 551; Lunsod vs. Ortega, 46 Phil. 664; Dizon vs. Galang, 48 Phil. 601; Riosa vs. Rocha, 48 Phil. 737; Centeno vs. Centeno, 52 Phil. 322; Velayo Bernardo vs. Siojo, 58 Phil. 89; Director of Lands vs. Aguas, 63 Phil. 279; Fallorfina vs. Abille, CA 39 O.G. 1784. The person from whom the degree should be reckoned is the descendant, or the one at the end of the line from which the property came and upon whom the property last revolved by descent. He is called the prepositus (Cabardo vs. Villanueva, 44 Phil. 186, 190). In the Cabardo case, one Cornelia Abordo inherited property from her mother, Basilia Cabardo. When Cornelia died, her estate passed to her father, Lorenzo Abordo. In his hands, the property was reservable property. Upon the death of Lorenzo, the person entitled to the property was Rosa Cabardo, a maternal aunt of Cornelia, who was her nearest relative within the third degree.

First cousins of the prepositus are in the fourth degree and are not reservees. They cannot even represent their parents because representation is confined to relatives within the third degree (Florentino vs. Florentino, 40 Phil. 480). Within the third degree, the nearest relatives exclude the more remote subject to the rule of representation. But the representative should be within the third degree from the prepositus (Padura vs. Baldovino, 104 Phil. 1065). Reserva troncal contemplates legitimate relationship. Illegitimate relationship and relationship by affinity are excluded. Gratuitous title or titulo lucrativo refers to a transmission wherein the recipient gives nothing in return such as donation and succession (Cabardo vs. Villanueva, 44 Phil. 186-189-190, citing 6 Manresa, Codigo Civil, 7th Ed., 1951, p. 360). The reserva creates two resolutory conditions, namely, (1) the death of the ascendant obliged to reserve and (2) the survival, at the time of his death, of relatives within the third degree belonging to the line from which the property came (Sienes vs. Esparcia, 111 Phil. 349, 353). The reservor has the legal title and dominion to the reservable property but subject to the resolutory condition that such title is extinguished if the reservor predeceased the reservee. The reservor is a usufructuary of the reservable property. He may alienate it subject to the reservation. The transferee gets the revocable and conditional ownership of the reservor. The transferee's rights are revoked upon the survival of the reservees at the time of the death of the reservor but become indefeasible when the reservees predecease the reservor. (Sienes vs. Esparcia, 111 Phil. 349, 353; Edroso vs. Sablan, 25 Phil. 295; Lunsod vs. Ortega, 46 Phil. 664; Florentino vs. Florentino, 40 Phil. 480; Director of Lands vs. Aguas, 63 Phil. 279.)

The reservor's title has been compared with that of the vendee a retro in a pacto de retro sale or to a fideicomiso condicional. The reservor's alienation of the reservable property is subject to a resolutory condition, meaning that if at the time of the reservor's death, there are reservees, the transferee of the property should deliver it to the reservees. If there are no reservees at the time of the reservor's death, the transferee's title would become absolute (Lunsod vs. Ortega, 46 Phil. 664; Gueco vs. Lacson, 118 Phil. 944; Nono vs. Nequia, 93 Phil. 120). On the other hand, the reservee has only an inchoate, expectant or contingent right. His expectant right would disappear if he predeceased the reservor. It would become absolute should the reservor predecease the reservee. The reservee cannot impugn any conveyance made by the reservor but he can require that the reservable character of the property be recognized by the purchaser (Riosa vs. Rocha, 48 Phil. 737; Edroso vs. Sablan, 25 Phil. 295, 312-3; Gueco vs. Lacson, 118 Phil. 944).

There is a holding that the renunciation of the reservee's right to the reservable property is illegal for being a contract regarding future inheritance (Velayo Bernardo vs. Siojo, 58 Phil. 89, 96). And there is a dictum that the reservee's right is a real right which he may alienate and dispose of conditionally. The condition is that the alienation shall transfer ownership to the vendee only if and when the reservee survives the reservor (Sienes vs. Esparcia, 111 Phil. 349, 353). "The reservatario receives the property as a conditional heir of the descendant ( prepositus), said property merely reverting to the line of origin from which it had temporarily and accidentally strayed during the reservista's lifetime. The authorities are all agreed that there being reservatarios that survive the reservista, the latter must be deemed to have enjoyed no more than a life interest in the reservable property." (J. J.B.L. Reyes in Cano vs. Director of Lands, 105 Phil. 1, 5.) "Even during the reservista's lifetime, the reservatarios, who are the ultimate acquirers of the property, can already assert the right to prevent the reservista from doing anything that might frustrate their reversionary right, and, for this purpose, they can compel the annotation of their right in the registry of property even while the reservista is alive" (Ley Hipotecaria de Ultramar, Arts. 168, 199; Edroso vs. Sablan, 25 Phil. 295). This right is incompatible with the mere expectancy that corresponds to the natural heirs of the reservista. It is likewise clear that the reservable property is no part of the estate of the reservista who may not dispose of them (it) by will, so long as there are reservatarios existing (Arroyo vs. Gerona, 58 Phil. 226, 237). "The latter, therefore, do not inherit from the reservista but from the descendant prepositus, of whom the reservatarios are the heirs mortis causa, subject to the condition that they must survive the reservista." (Sanchez Roman, Vol. VI, Tomo 2, p. 286; Manresa, Commentaries, Vol. 6, 6th Ed., pp. 274, 310, cited by J. J.B.L. Reyes in Padura vs. Baldovino, L-11960, December 27, 1958, 104 Phil. 1065). Hence, upon the reservista's death, the reservatario nearest to the prepositus becomes, "automatically and by operation of law, the owner of the reservable property." (Cano vs. Director of Lands, 105 Phil. 1, 5.) In the instant case, the properties in question were indubitably reservable properties in the hands of Mrs. Legarda. Undoubtedly, she was a reservor. The reservation became a certainty when at the time of her death the reservees or relatives within the third degree of the prepositus Filomena Legarda were living or they survived Mrs. Legarda. So, the ultimate issue in this case is whether Mrs. Legarda, as reservor, could convey the reservable properties by will or mortis causa to the reservees within the third degree (her sixteen grandchildren) to the exclusion of the reservees in the second degree, her three daughters and three sons. As indicated at the outset, that issue is already res judicata or cosa juzgada.

We hold that Mrs. Legarda could not convey in her holographic will to her sixteen grandchildren the reservable properties which she had inherited from her daughter Filomena because the reservable properties did not form part of her estate (Cabardo vs. Villanueva, 44 Phil. 186, 191). The reservor cannot make a disposition mortis causa of the reservable properties as long as the reservees survived the reservor. As repeatedly held in the Cano and Padura cases, the reservees inherit the reservable properties from the prepositus, not from the reservor. Article 891 clearly indicates that the reservable properties should be inherited by all the nearest relatives within the third degree from the prepositus who in this case are the six children of Mrs. Legarda. She could not select the reservees to whom the reservable property should be given and deprive the other reservees of their share therein. To allow the reservor in this case to make a testamentary disposition of the reservable properties in favor of the reservees in the third degree and, consequently, to ignore the reservees in the second degree would be a glaring violation of article 891. That testamentary disposition cannot be allowed. We have stated earlier that this case is governed by the doctrine of Florentino vs. Florentino, 40 Phil. 480, a similar case, where it was ruled: "Reservable property left, through a will or otherwise, by the death of ascendant (reservista) together with his own property in favor of another of his descendants as forced heir, forms no part of the latter's lawful inheritance nor of the legitime, for the reason that, as said property continued to be reservable, the heir receiving the same as an inheritance from his ascendant has the strict obligation of its delivery to the relatives, within the third degree, of the predecessor in interest ( prepositus), without prejudicing the right of the heir to an aliquot part of the property, if he has at the same time the right of a reservatario" (reservee). In the Florentino case, it appears that Apolonio Florentino II and his second wife Severina Faz de Leon begot two children, Mercedes and Apolonio III. These two inherited properties from their father. Upon Apolonio III's death in 1891, his properties were inherited by his mother, Severina, who died in 1908. In her will she instituted her daughter Mercedes as heiress to all her properties, including those coming from her deceased husband through their son, Apolonio III. The surviving children, begotten by Apolonio II with his first wife Antonia Faz de Leon and the descendants of the deceased children of his first marriage, sued Mercedes Florentino for the recovery of their share in the reservable properties, which Severina de Leon had inherited from Apolonio III, which the latter had inherited from his father Apolonio II and which Severina willed to her daughter Mercedes. Plaintiff's theory was that the said properties, as reservable properties, could not be disposed of in Severina's will in favor of Mercedes only. That theory was sustained by this Court.

It was held that the said properties, being reservable properties, did not form part of Severina's estate and could not be inherited from her by her daughter Mercedes alone. As there were seven reservees, Mercedes was entitled, as a reservee, to one-seventh of the properties. The other six-sevenths portions were adjudicated to the other six reservees. Under the rule of stare decisis et non quieta movere, we are bound to follow in this case the doctrine of the Florentino case. That doctrine means that as long as during the reservor's lifetime and upon his death there are relatives within the third degree of the prepositus, regardless of whether those reservees are common descendants of the reservor and the ascendant from whom the property came, the property retains its reservable character. The property should go to the nearest reservees. The reservor cannot, by means of his will, choose the reservee to whom the reservable property should be awarded. The alleged opinion of Sanchez Roman that there is no reserva troncal when the only relatives within the third degree are the common descendants of the predeceased ascendant and the ascendant who would be obliged to reserve is irrelevant and sans binding force in the light of the ruling in the Florentino case. It is contended by the appellees herein that the properties in question are not reservable properties because only relatives within the third degree from the paternal line have survived and that when Mrs. Legarda willed the said properties to her sixteen grandchildren, who are third-degree relatives of Filomena Legarda who belong to the paternal line, the reason for the reserva troncal has been satisfied: "to prevent persons outside a family from securing, by some special accident of life, property that would otherwise have remained therein." That same contention was advanced in the Florentino case where the reservor willed the reservable properties to her daughter, a full-blood sister of the prepositus and ignored the other six reservors, the relatives of the half-blood of the prepositus. In rejecting that contention, this Court held that the reservable property bequeathed by the reservor to her daughter does not form part of the reservor's estate nor of the daughter's estate but should be given to all the seven reservees or nearest relatives of the prepositus within the third degree. This Court noted that, while it is true that by giving the reservable property to only one reservee it did not pass into the hands of strangers, nevertheless, it is likewise true that the heiress of the reservor was only one of the reservees and there is no reason founded upon law and justice why the other reservees should be deprived of their shares in the reservable property (pp. 8945). Applying that doctrine to this case, it results that Mrs. Legarda could not dispose of in her will the properties in question even if the disposition is in favor of the relatives within the third degree from Filomena Legarda. The said properties, by operation of article 891, should go to Mrs. Legarda's six children as reservees within the second degree from Filomena Legarda.

It should be repeated that the reservees do not inherit from the reservor but from the prepositus, of whom the reservees are the heirs mortis causa subject to the condition that they must survive the reservor (Padura vs. Baldovino, L-11960, December 27, 1958, 104 Phil. 1065). The trial court said that the disputed properties lost their reservable character due to the nonexistence of third degree relatives of Filomena Legarda at the time of the death of the reservor, Mrs. Legarda, belonging to the Legarda family, "except third-degree relatives who pertain to both" the Legarda and Roces lines. That holding is erroneous. The reservation could have been extinguished only by the absence of reservees at the time of Mrs. Legarda's death. Since at the time of her death, there were (and still are) reservees belonging to the second and third degrees, the disputed properties did not lose their reservable character. The disposition of the said properties should be made in accordance with article 891 or the rule on reserva troncal and not in accordance with the reservor's holographic will. The said properties did not form part of Mrs. Legarda's estate (Cano vs. Director of Lands, 105 Phil. 1, 4). WHEREFORE, the lower court's decision is reversed and set aside. It is hereby adjudged that the properties inherited by Filomena Roces Vda. de Legarda from her daughter Filomena Legarda, with all the fruits and accessions thereof, are reservable properties which belong to Beatriz, Rosario, Teresa, Benito, Alejandro and Jose, all surnamed Legarda y Roces, as reservees. The shares of Rosario L. Valdes and Benito F. Legarda, who died in 1969 and 1973, respectively, should pertain to their respective heirs. Costs against the private respondents. SO ORDERED. [G.R. No. 6878. September 13, 1913.] MARCELINA EDROSO, petitioner-appellant, vs. PABLO and BASILIO SABLAN, opponentsappellees. Francisco Dominguez for appellant. Crispin Oben for appellees. SYLLABUS 1.ESTATES; DUTY OF ASCENDANT, WHO INHERITS THROUGH A DESCENDANT, TO RESERVE THE PROPERTY IN ACCORDANCE WITH LAW; ARTICLE 811, CIVIL CODE. Property which an ascendant inherits by operation of law from his descendant and which was inherited by the latter from another ascendant of his, must be reserved by the ascendant heir in favor of uncles of the descendant from whom the inheritance proceeded, who are his father's brothers, because they are relatives within the third degree, if they belong to the line whence the property proceeded, according to the provisions of article 811 of the Civil Code. 2.ID.; ID.; RIGHTS OF PERSONS FOR WHOM SUCH PROPERTY IS RESERVED. Since the reservation does not imply coownership of any kind between the reservor and the reservees, that is, between the ascendant who is the immediate heir of the person from whom

the inheritance proceeded and who is the actual owner of the property to be reserved and the relatives within the third degree of such person, who are merely in their turn and eventually his possible heirs in second place, if they outlive the heir who must make the reservation, such reservees, with only the expectation of inheriting, are not in law entitled to act and be regarded as though they actually participated in the ownership of the property to be registered by taking part or pretending to take part in the application for registration which the reservor presents; the fact being that with such expectation of inheriting, which is neither a real nor a personal a personal right, but at most a legitimate expectation of a right, they cannot be better off than a mortgage who has a real right to the property that his debtor attempts to register, and yet the Land Registration Act (No 496, sec. 19 b) only grants him the right that the application of the mortgagor cannot be presented without his consent in writing. 3.ID.; ID.; RIGHT OF ASCENDANT TO DISPOSE OF OR REGISTER THE PROPERTY IN HIS OWN NAME. The heir of real property who has beyond any doubt the rights of using and enjoying it, and even of alienating it, is not prevented from himself alone registering the title to the property he has inherited, merely because to his right of disposal there is annexed a condition subsequent arising from the expectation of a right, when the reservees who have that expectation of a right agreed thereto, provided that, in accordance with the law, the reservable character of such property in their favor be entered in the record. DECISION ARELLANO, C.J p: The subject matter of this appeal is the registration of certain property classified as required by law to be reserved. Marcelina Edroso applied for registration and issuance of title to two parcels of land situated in the municipality of Pagsanjan, Province of Laguna, one of 1 hectare 77 ares and 63 centares, and the other of 1 hectare 6 ares and 26 centares. Two applications were filed, one for each parcel, but both were heard and decided in a single judgment. Marcelina Edroso was married to Victoriano Sablan until his death on September 22, 1882. In this marriage they had a son named Pedro, who was born on August 1, 1881, and who at his father's death inherited the two said parcels. Pedro also died on July 15, 1902, unmarried and without issue, and by his decease the two parcels of land passed through inheritance to his mother, Marcelina Edroso. Hence the hereditary title whereupon is based the application for registration of her ownership. Two legitimate brothers of Victoriano Sablan that is, two uncles german of Pedro Sablan appeared in the case to oppose the registration, claiming one of two things: Either that the registration be denied, "or that if granted to her the right reserved by law to the opponents be recorded in the registration of each parcel." (B. of E., 11, 12.) The Court of Land Registration denied the registration and the applicant appealed through a bill of exceptions. Registration was denied because the trial court held that the parcels of land in question partake of the nature of property required by law to be reserved and that in such a case application

could only be presented jointly in the names of the mother and the said two uncles of Pedro Sablan. The appellant impugns as erroneous the first idea advanced (second assignment of error), and denies that the lands which are the subject matter of the application are required by law to be reserved a contention we regard as indefensible. Facts: (1) The applicant acquired said lands from her descendant Pedro Sablan by inheritance; (2) Pedro Sablan had acquired them from his ascendant Victoriano Sablan, likewise by inheritance; (3) Victoriano Sablan had likewise acquired them by inheritance from his ascendants, Mariano Sablan and Maria Rita Fernandez, they having been adjudicated to him in the partition of hereditary property had between him and his brothers. There are admitted facts. A very definite conclusion of law is that the hereditary title is one without a valuable consideration [gratuitous title], and it is so characterized in article 968 of the Civil Code, for he who acquires by inheritance gives nothing in return for what he receives; and a very definite conclusion of law also is that the uncles german are within the third degree of blood relationship. "The ascendant who inherits from his descendant property which the latter acquired without a valuable consideration from another ascendant, or from a brother or sister, is under obligation to reserve what he has acquired by operation of law for the relatives who are within the third degree and belong to the line whence the property proceeded." (Civil Code, art. 811.) Marcelina Edroso, ascendant of Pedro Sablan, inherited from him these two parcels of land which had acquired without a valuable consideration that is, by inheritance from another ascendant, his father Victoriano. Having acquired them by operation of law, she is obligated to reserve them intact for the claimants, who are uncles or relatives within the third degree and belong to the line of Mariano Sablan and Maria Rita Fernandez, whence the lands proceeded. The trial court's ruling that they partake of the nature of property required by law to be reserved is therefore in accordance with the law. But the appellant contends that it is not proven that the two parcels of land in question have been acquired by operation of law, and that only property acquired without a valuable consideration, which is by operation of law, is required by law to be reserved. The appellees justly argue that this defense was not alleged or discussed in first instance, but only herein. Certainly, the allegation in first instance was merely that "Pedro Sablan acquired the property in question in 1882, before the enforcement of the Civil Code, which establishes the alleged right required by law to be reserved, of which the opponents speak; hence, prescription of the right of action; and, finally, opponents' renunciation of their right, admitting that it existed and that they had it" (p. 49). However that be, it is not superfluous to say, although it may be unnecessary, that the applicant inherited the two parcels of land from her son Pedro, who died "unmarried and without issue." The trial court so held as a conclusion of fact, without any objection on the appellant's part. (B. of E., 17, 20.) When Pedro Sablan died without issue, his mother became his heir by virtue of her right to her son's legal portion under article 935 of the Civil Code:

"In the absence of legitimate children and descendants of the deceased, his ascendants shall inherit from him, to the exclusion of collaterals." The contrary could only have occurred if the heiress had demonstrated that any of these lands had passed into her possession by free disposal in her son's will; but the case presents no testamentary provision that demonstrates any transfer of property from the son to the mother, not by operation of law, but by her son's wish. The legal presumption is that the transfer of the two parcels of land was abintestate or by operation of law, and not by will or the wish of the predecessor in interest. (Act. No. 190, sec. 334, No. 26.) All the provisions of article 811 of the Civil Code have therefore been fully complied with. If Pedro Sablan had instituted his mother in a will as the universal heiress of his property, all he left at death would not be required by law to be reserved, but only what he would have perforce left her as the legal portion of a legitimate ascendant. "The legal portion of the parents or ascendants is constituted by one-half of the hereditary estate of the children and descendants. The latter may unrestrictedly dispose of the other half, with the exception of what is established in article 836." (Civil Code, art. 809.) In such case only the half constituting the legal portion would be required by law to be reserved, because it is what by operation of law would fall to the mother from her son's inheritance; the other half at free disposal would not have to be reserved. This is all that article 811 of the Civil Code says. No error has been incurred in holding that the two parcels of land which are the subject matter of the application are required by law to be reserved, because the interested party has not proved that either of them became her inheritance through the free disposal of her son. Proof of testate succession devolves upon the heir or heiress who alleges it. It must be admitted that a half of Pedro Sablan's inheritance was acquired by his mother by operation of law. The law provides that the other half is also presumed to be acquired by operation of law that is, by intestate succession. Otherwise, proof to offset this presumption must be presented by the interested party, that is, that the other half was acquired by the man's wish and not by operation of law.

Nor is the third assignment of error admissible that the trial court failed to sustain the renunciation of the right required by law to be reserved, which the applicant attributes to the opponents. Such renunciation does not appear in the case. The appellant deduces it from the fact that the appellees did not contradict the following statement of hers at the trial: "The day after my brother-in-law Pablo Sablan died and was buried, his brother came to my house and said that those rice lands were mine, because we had already talked about making delivery of them" (p. 91).

The other brother alluded to is Basilio Sablan, as stated on page 92. From the fact that Basilio Sablan said that the lands belong to the appellant and must be delivered to her it cannot be deduced that he renounced the right required by law to be reserved in such lands by virtue of the provisions of article 811 of the Civil Code, for they really belong to her and must be delivered to her. The fourth assignment of error sets up the defense of prescription of the right of action. The appellant alleges prescription of the opponents' right of action for requiring fulfillment of the obligation they attribute to her recording in the property registry the right required by law to be reserved, in accordance with the provisions of the Mortgage Law; and as such obligation is created by law, it prescribes in the time fixed in No. 2 of section 43 of Act No. 190. She adds: "Prescription of the right alleged to be reserved by force by law has not been invoked." (Eighth allegation.) The appellant does not state in her brief what those provisions of the Mortgage Law are. Nor did she do so in first instance, where she says only the following, which is quoted from the record: "I do not refer to the prescription of the right required by law to be reserved in the property; I refer to the prescription of the right of action of those who are entitled to the guaranty of that right for seeking that guaranty, for to those who are entitled to that right the Mortgage Law grants a period of time for recording it in the property registry, if I remember correctly, ninety days, for seeking entry in the registry; but as they have not exercised that right of action, such right of action for seeking here that it be recorded has prescribed. The right of action for requiring that the property be reserved has not prescribed, but the right of action for guaranteeing in the property registry that this property is required by law to be reserved" (p. 69 of the record.) The appellees reply: It is true that their right of action has prescribed for requiring the applicant to constitute the mortgage imposed by the Mortgage Law for guaranteeing the effectiveness of the right required by law to be reserved; but because that right of action has prescribed, that property has not been divested of its character of property required by law to be reserved; that it has such character by virtue of article 811 of the Civil Code, which went into effect in the Philippines in December, 1889, and not by virtue of the Mortgage Law, which only went into effect in the country by law of July 14, 1893; that from December, 1889, to July, 1893, property which under article 811 of the Civil Code acquired the character of property reserved by operation of law was such independently of the Mortgage Law, which did not yet form part of the positive legislation of the country; that although the Mortgage Law has been in effect in the country since July, 1893, still it has in no way altered the force of article 811 of the Civil Code, but has operated to reinforce the same merely by granting the right of action to the persons in whose favor the right is reserved by operation of law to require of the person holding the property a guaranty in the form of a mortgage to answer for the enforcement, in due time, of the right; that to lose the right of action to the guaranty is not to lose the right itself; that the right reserved is the principal obligation and the mortgage the accessory obligation, and loss of the accessory does not mean loss of the principal. (Fifth and sixth allegations.) The existence of the right required by law to be reserved in the two parcels of land in question being indisputable, even though it be admitted that the right of action which the Mortgage Law

grants as a guaranty of final enforcement of such right has prescribed, the only thing to be determined in this appeal is the question raised in the first assignment of error, that is, how said two parcels of land can and ought to be registered, not in the property registry established by the Mortgage Law, but in the registry newly organized by Act No. 496. But as there have slipped into the allegations quoted some rather inexact ideas that further obscure such an intricate subject as this of the rights required to be reserved in Spanish-Philippine law, a brief digression on the most essential points may not be out of place here. The Mortgage Law of July 14, 1893, to which the appellees allude, is the amended one of the colonies, not the first enforced in the colonies and consequently in the Philippines. The preamble of said amended Mortgage Law States: "The Mortgage Law in force in Spain for thirty years went into effect, with the modifications necessary for its adaptation, in the Antilles on May 1, 1880, and in the Philippines on December 1, 1889, thus commencing in those regions the renovation of the law on real property, and consequently of agrarian credit." The Civil Code went into effect in the Philippines in the same year, 1889, but on the eight day. Two kinds of property required by law to be reserved are distinguished in the Civil Code, as set forth in article 968 thereof, where it says: "Besides the reservation imposed by article 811 , the widow or widower contracting a second marriage shall be obliged to set apart for the children and descendants of the first marriage the ownership of all the property he or she may have acquired from the deceased spouse by will, by intestate succession, by gift, or other transfer without a valuable consideration." The Mortgage Law of Spain and the first law that went into effect in the Philippines on December 1, 1889, do not contain any provision that can be applied to the right reserved by article 811 of the Civil Code, for such right is a creation of the Civil Code. In those laws appear merely the provisions intended to guarantee the effectiveness of the right in favor of the children of the first marriage when their father or mother contracts a second marriage. Nevertheless, the holding of the supreme court of Spain, for the first time set forth in the decision on appeal of November 8, 1894, has been reiterated: "That while the provisions of articles 977 and 978 of the Civil Code that tend to secure the right required to be reserved in the property refer especially to the spouses who contract second or later marriages, they do not thereby cease to be applicable to the right established in article 811, because, aside from the legal reason, which is the same in both cases, such must be the construction from the important and conclusive circumstance that said provisions are set forth in the chapter that deals with inheritances in common, either testate or intestate, and because article 968, which heads the section that deals in general with property required by law to be reserved, makes reference to the provisions in article 811; and it would consequently be contradictory to the principle of the law and of the common nature of said provisions not to hold them applicable to that right."

Thus it was again stated in a decision on appeal, December 30, 1897, that: "As the supreme court has already declared, the guaranties that the Code fixes in articles 977 and 978 for the rights required by law to be reserved to which said articles refer, are applicable to the special right dealt with in article 811, because the same principle exists and because of the general nature of the provisions of the chapter in which they are found." From this principle of jurisprudence it is inferred that if from December, 1889, to July, 1893, a case had occurred of a right required to be reserved by article 811, the persons entitled to such right would have been able to institute, against the ascendants who must make the reservation, proceedings for the assurance and guaranty that articles 977 and 978 grant to the children of a first marriage against their father or mother who has married again. The proceedings for assurance, under article 977, are: Inventory of the property subject to the right reserved, annotation in the property registry of such right reserved in the real property and appraisal of the personal property; and the guaranty, under article 978, is the assurance by mortgage, in the case of realty, of the value of what is validly alienated. But since the amended Mortgage Law went into effect by law of July 14, 1893, in the Philippines this is not only a principle of jurisprudence which may be invoked for the applicability to the right reserved in article 811 of the remedies of assurance and guaranty provided for the right reserved in article 968, but there is a positive provision of said law, which is an advantage over the law of Spain, to wit, article 199, which read thus: "The special mortgage for guaranteeing the right reserved by article 811 of the Civil Code can only be required by the relatives in whose favor the property is to be reserved, if they are of age; if minors, it will be required by the persons who should legally represent them. In either case the right of the persons in whose favor the property must be reserved will be secured by the same requisites as set forth in the preceding articles (relative to the right reserved by article 968 of the Civil Code), applying to the person obligated to reserve the right the provisions with respect to the father." In article 168 of the same law the new subsection 2 is added in connection with article 199 quoted, so that said article 168 reads thus:

"Legal mortgage is established: "1.. . . "2.In favor of the relatives to whom article 811 of the Civil Code refers, for the property required to be reserved, upon the property of the person obligated to reserve it." This being admitted, and admitted also that both the litigating parties agree that the period of ninety days fixed for the right of action to the guaranty, that is, to require the mortgage that guarantees the effectiveness of the right required by law to be reserved, has prescribed, it is necessary to lay down a principle in this matter. Now it should be noted that such action has not prescribed, because the period of ninety days fixed by the Mortgage Law is not for the exercise

of the right of action of the persons entitled to the right reserved, but for the fulfillment of the obligation of the person who must make the reservation. Article 191 of the law reads thus: "If ninety days pass without the father's instituting in court the proceeding to which the foregoing article refers, the relatives themselves may demand fulfillment, etc., . . . applying, according to said article 199, to the person obligated to reserve the right the provisions with respect to the father." Article 203 of the regulation for the application of the Mortgage Law says: "In the case of article 199 of the law the proceedings to which article 190 thereof refers will be instituted within the ninety days succeeding the date of the date of the acceptation of the inheritance by the person obligated to reserve the property; after this period has elapsed, the interested parties may require the institution of such proceedings, if they are of age; and in any other case, their legal representatives." Thus it clearly appears that the lapse of the ninety days is not the expiration by prescription of the period for the exercise of this right of action by the persons in whose favor the right must be reserved, but really the commencement thereof, and enables them to exercise it at any time, since no limit is set in the law. So, if the annotation of the right required by law to be reserved in the two parcels of land in question must be made in the property registry of the Mortgage Law, the persons entitled to it may now institute proceedings to that end, and an allegation of prescription against the exercise of such right of action cannot be sustained. Since the applicant confesses that she does not allege prescription of the right of action for requiring that the property be reserved, for she explicitly so stated at the trial, and as the case presents no necessity for the proceedings that should be instituted in accordance with the provisions of the Mortgage Law, this prescription of the right of action cannot take place, because such right of action does not exist with reference to instituting proceedings for annotation in the registry of Act No. 496 of the right to the property required by law to be reserved. It is sufficient, as was done in the present case, to intervene in the registration proceedings with the claim set up by the two opponents for recording therein the right reserved in either parcel of land. Now comes the main point in the appeal. The trial court denied the registration because of this finding set forth in its decision: "Absolute title to the two parcels of land undoubtedly belongs to the applicant and the two uncles of the deceased Pedro Sablan, and the application cannot be made except in the name of all of them in common." (B. of E., p. 20.) It must be remembered that absolute title consists of the rights to use, enjoy, dispose of, and recover. The person who has in himself all these rights has the absolute or complete ownership of the thing; otherwise, the person who has the rights to use and enjoy will have the usufruct, and the person who has the rights of disposal and recovery the direct title. The person who by law, act, or contract is granted the right of usufruct has the first two rights of using and enjoying,

and then he is said not to have the fee simple that is, the rights of disposal and recovery, which pertain to another who, after the usufruct expires, will come into full ownership. The question set up in the first assignment of error of the appellant's brief is this: "What are the rights in the property of the person who holds it subject to the reservation of article 811 of the Civil Code?" There are not lacking writers who say, only those of a usufructuary, the ultimate title belonging to the persons in whose favor the reservation is made. If that were so, the person holding the property could not apply for registration of title, but the person in whose favor it must be reserved, with the former's consent. This opinion does not seem to be admissible, although it appears to be supported by decisions of the supreme court of Spain of May 21, 1861, and June 18, 1880, prior to the Civil Code, and of June 22, 1895, somewhat subsequent to the enforcement thereof. Another writer says: "This opinion only looks at two salient points the usufruct and the fee simple; the remaining features of the arrangement are not perceived, but become obscured in the presence of that deceptive emphasis which only brings out two things: that the person holding the property will enjoy it and that he must keep what he enjoys for other person." (Manresa, VII, 189.) In another place he says: "We do not believe that the third opinion can now be maintained that is, that the surviving spouse (the person obligated by article 968 to make the reservation) can be regarded as a mere usufructuary and the descendants immediately as the owner; such theory has no serious foundation in the Code." (Ibid., 238.) The ascendants who inherits from a descendant, whether by the latter's wish or by operation of law, acquires the inheritance by virtue of a title perfectly transferring absolute ownership. All the attributes of the right of ownership belong to him exclusively use, enjoyment, disposal and recovery. This absolute ownership, which is inherent in the hereditary title, is not altered in the least, if there be no relatives within the third degree in the line whence the property proceeds or they die before the ascendant heir who is the possessor and absolute owner of the property. If there should be relatives within the third decree who belong to the line whence the property proceeded, then a limitation to that absolute ownership would arise. The nature and scope of this limitation must be determined with exactness in order not to vitiate rights that the law wishes to be effective. The opinion which makes this limitation consist in reducing the ascendant heir to the condition of a mere usufructuary, depriving him of the right of disposal and recovery, does not seem to have any support in the law, as it does not have, according to the opinion that has been expressed in speaking of the rights of the father or mother who has married again. There is a marked difference between the case where a man's wish institutes two persons as his heirs, one as usufructuary and the other as owner of his property, and the case of the ascendant in article 811 or of the father or mother in article 968. In the first case, there is not the slightest doubt that the title to the hereditary property resides in the hereditary owner and only he can dispose of and recover it, while the usufructuary can in no way perform any act of disposal of the hereditary property (except that he may dispose of the right of usufruct in accordance with

the provisions of article 480 of the Civil Code), or any act of recovery thereof except the limited one in the form prescribed in article 486 of the Code itself, because he totally lacks the fee simple. But the ascendant who holds the property required by article 811 to be reserved, and the father or mother required by article 968 to reserve the right, can dispose of the property they inherit itself, the former from his descendant and the latter from his or her child in first marriage, and recover it from anyone who may unjustly detain it, while the persons in whose favor the rights is required to be reserved in either case cannot perform any act whatsoever of disposal of recovery. Article 975 states explicitly that the father or mother required by article 968 to reserve the right may dispose of the property itself: "Alienation of the property required by law to be reserved which may be made by the surviving spouse after contracting a second marriage shall be valid only if at his or her death no legitimate children or descendants of the first marriage survive, without prejudice to the provisions of the Mortgage Law." It thus appears that the alienation is valid, although not altogether effective, but under a condition subsequent, to wit: "If at his or her death no legitimate children or descendants of the first marriage survive." If the title did not reside in the person holding the property to be reserved, his alienation thereof would necessarily be null and void, as executed without a right to do so and without a right which he could transmit to the acquirer. The law says that the alienation subsists (to subsist is to continue to exist) "without prejudice to the provisions of the Mortgage Law." Article 109 of this Law says: "The possessor of property subject to conditions subsequent that are still pending may mortgage or alienate it, provided always that he preserve the right of the parties interested in said conditions by expressly reserving that right in the registration." In such case, the child or legitimate descendant of the first marriage in whose favor the right is reserved cannot impugn the validity of the alienation so long as the condition subsequent is pending, that is, so long as the remarried spouse who must reserve the right is alive, because it might easily happen that the person who must reserve the right should outlive all the persons in whose favor the right is reserved and then there would be no reason for the condition subsequent that they survive him, and, the object of the law having disappeared, the right required to be reserved would disappear, and the alienation would not only be valid but also in every way absolutely effective. Consequently, the alienation is valid when the right required by law to be reserved to the children is respected; while the effects of the alienation depend upon a condition, because it will or will not become definite, it will continue to exist or cease to exist, according to circumstances. This is what the law establishes with reference to the reservation of article 968, wherein the legislator expressly directs that the surviving spouse who contracts a second marriage shall reserve to the children or descendants of the first marriage ownership. Article 811 says nothing more than that the ascendant must make the reservation.

Manresa, with his recognized ability, summarizes the subject under the hearing, "Rights and obligations during the existence of the right required by law to be reserved," in these words: "During the whole period between the constitution in legal form of the right required by law to be reserved and the extinction thereof, the relatives within the third degree, after the right that in their turn may pertain to them has been assured, have only an expectation, and therefore they do not even have the capacity to transmit that expectation to their heirs. "The ascendant is in the first place a usufructuary who should use and enjoy the things according to their nature, in the manner and form already set forth in commenting upon the articles of the Code referring to use and usufruct. "But since in addition to being the usufructuary he is, even though conditionally, the owner in fee simple of the property, he can dispose of it in the manner provided in articles 974 and 976 of the same Code. Doubt arose also on this point, but the Direccion General of the registries, in an opinion of June 25, 1892, declared that articles 974 and 975, which are applicable by analogy, for they refer to property reserved by law, reveal in the clearest manner the attitude of the legislator on this subject, and the relatives within the third degree ought not to be more privileged in the right reserved in article 811 than the children in the right reserved by article 975, chiefly for the reason that the right required to be reserved carries with it a condition subsequent, and the property subject to those conditions can validly be alienated in accordance with article 109 of the Mortgage Law, such alienation to continue, pending fulfillment of the condition." (Civil Code, VI, 270.) Another commentator corroborates the foregoing in every way. He says: "The ascendant acquires that property with a condition subsequent, to wit, whether or not there exist at the time of his death relatives within the third degree of the descendant from whom they inherit in the line whence the property proceeds. If such relatives exist, they acquire ownership of the property at the death of the ascendant. If they do not exist, the ascendant can freely dispose thereof. If this is true, since the possessor of property subject to conditions subsequent can alienate and encumber it, the ascendant may alienate the property required by law to be reserved, but he will alienate what he has and nothing more because no one can give does not belong to him, and the acquirer will therefore receive a limited and revocable title. The relatives within the third degree will in their turn have an expectation to the property while the ascendant lives, an expectation that cannot be transmitted to their heirs, unless these are also within the third degree. After the person who is required by law to reserve the right has died, the relatives may rescind the alienation of the realty required by law to be reserved and they will acquire it and all the rest that has the same character in complete ownership, in fee simple, because the condition and the usufructuary." (Morell, Estudios sobre bienes reservables, 304, 305.) The conclusion is that the person required by article 811 to reserve the right has, beyond any doubt at all, the rights of use and usufruct. He has, moreover, for the reasons set forth, the legal title and dominion, although under a condition subsequent. Clearly he has, under an express

provision of the law, the right to dispose of the property reserved, and to dispose of is to alienate, although under a condition. He has the right to recover it, because he is the one who possesses or should possess it and have title to it, although a limited and revocable one. In a word, the legal title and dominion, even though under a condition, reside in him while he lives. After the right required by law to be reserved has been assured, he can do anything that a genuine owner can do. On the other hand, the relatives within the third degree in whose favor the right is reserved cannot dispose of the property, first because it is no way, either actually, constructively or formally, in their possession; and, moreover, because they have no title of ownership or of fee simple which they can transmit to another, on the hypothesis that only when the person who must reserve the right should die before them will they acquire it, thus creating a fee simple, and only then will they take their place in the succession of the descendant of whom they are relatives within the third degree, that is to say, a second contingent place in said legitimate succession in the fashion of aspirants to a possible future legacy. If any of the persons in whose favor the right is reserved should, after their right has been assured in the registry, dare to dispose of even nothing more than the fee simple of the property to be reserved his act would be null and void, for, as was definitely decided in the decision on appeal of December 30, 1897, it is impossible to determine the part "that might pertain therein to the relative at the time he exercised the right, because in view of the nature and scope of the right required by law to be reserved the extent of his right cannot be foreseen, for it may disappear by his dying before the person required to reserve it, just as it may even become absolute should that person die." Careful consideration of the matter forces the conclusion that no act of disposal inter vivos of the person required by law to reserve the right can be impugned by him in whose favor it is reserved, because such person has all, absolutely all, the rights inherent in ownership, except that the legal title is burdened with a condition that the third party acquirer may ascertain from the registry in order to know that he is acquiring a title subject to a condition subsequent. In conclusion, it seems to us that only an act of disposal mortis causa in favor of persons other than relatives within the third degree of the descendant from whom he got the property to be reserved must be prohibited to him, because this alone has been the object of the law: "To prevent persons outside a family from securing, by some special accident of life, property that would otherwise have remained therein." ( Decision of December 30, 1897.) Practically, even in the opinion of those who reduce the person reserving the right to the condition of a mere usufructuary, the person in whose favor it must be reserved cannot attack the alienation that may be absolutely made of the property the law requires to be reserved, in the present case, that which the applicant has made of the two parcels of land in question to a third party, because the conditional alienation of the usufruct, which is authorized by article 480 of the Civil Code, and, practically, use and enjoyment of the property required by law to be reserved are all that the person who must reserve it has during his lifetime, and in alienating the usufruct all the usefulness of the thing would be transmitted in an incontrovertible manner. The question as to whether or not she transmits the fee simple is purely academic, sine re, for it is not real, actual and positive, as is the case of the institution of two heirs, one a usufructuary and the other the owner, by the express wish of the predecessor in interest.

If the person whom article 811 requires to reserve the right has all the rights inherent in ownership, he can use, enjoy, dispose of and recover it; and if, in addition to usufructuary, he is in fact and in law the real owner and can alienate it, although under a condition, the whole question is reduced to the following terms: Cannot the heir of the property required by law to be reserved, merely because a condition subsequent is annexed to his right of disposal, himself alone register the ownership of the property he has inherited, when the persons in whose favor the reservation must be made agree thereto, provided that the right reserved to them in the two parcels of land be recorded, as the law provides? It is well known that the vendee under pacto de retracto acquires all the rights of the vendor: "The vendee substitutes the vendor in all his rights and actions." (Civil Code, art. 1511.) If the vendor can register his title, the vendee can also register this same title after he has once acquired it. This title, however, in its attribute of being disposable, has a condition subsequent annexed that the alienation the purchaser may make will be terminated, if the vendor should exercise the right granted him by article 1507, which says: "Conventional redemption shall take place when the vendor reserves to himself the right to recover the thing sold with the obligation to comply with article 1518, and whatever more may have been agreed upon," that is, if he recovers the thing sold by repaying the vendee the price of the sale and other expenses. Notwithstanding this condition subsequent, it is a point not at all doubtful now that the vendee may register his title in the same way as the owner of a thing mortgaged that is to say, the latter with the consent of his creditor and the former with the consent of the vendor. He may alienate the thing bought when the acquirer knows very well from the title entered in the registry that he acquires a title revocable after a fixed period, a thing much more certain and to be expected than the purely contingent expectation of the person in whose favor is reserved a right to inherit some day what another has inherited. The purposes of the law would be defeated in not applying to the person who must make the reservation the provision therein relative to the vendee under pacto de retracto, since the argument in his favor is the more powerful and conclusive; ubi eadem ratio, eadem legis dispositio. Therefore, we reverse the judgment appealed from, and in lieu thereof decide and declare that the applicant is entitled to register in her own name the two parcels of land which are the subject matter of the application, recording in the registration the right required by article 811 to be reserved to either or both of the opponents, Pablo Sablan and Basilio Sablan, should they survive her; without special finding as to costs. Gonzales v. CFI (1981) Benito Legarda y Tuason died on June 17, 1933. He was survived by his widow, Filomena Roces, and their 7 children: 4 daughters named Beatriz, Rosario, Teresa and Filomena and 3 sons named Benito, Alejandro and Jose.

On July 12, 1939, the real properties left by Benito Legarda y Tuason were partitioned in 3 equal portions by his daughters, Consuelo and Rita, and the heirs of his deceased son Benito Legarda y De la Paz, represented by Benito F. Legarda. Filomena Legarda y Roces died intestate and without issue on March 19, 1943. Her sole heiress was her mother, Filomena Roces Vda. de Legarda. Mrs. Legarda executed on May 12, 1947 an affidavit adjudicating extra-judicially to herself the properties which she inherited from her deceased daughter, Filomena Legarda. These properties are in litigation in this case. As a result of the affidavit of adjudication, Filomena Roces succeeded her deceased daughter Filomena Legarda as co-owner of the properties held pro-indiviso by her other 6 children. On March 6, 1953, Mrs. Legarda executed 2 hand-written identical documents wherein she disposed the properties she inherited from her daughter in favor of the children of her sons, Benito, Alejandro and Jose (16 grandchildren in all). During the period from July, 1958 to February, 1959, Mrs. Legarda and her 6 surviving children partitioned the properties consisting of the 1/3 share in the estate of Benito Legarda y Tuason which the children inherited in representation of their father, Benito Legarda y De la Paz. Mrs. Legarda died on September 22, 1967. Her will was admitted to probate as a holographic will. In the testate proceeding, Beatriz Legarda Gonzalez, a daughter of the testatrix, filed on May 20, 1968 a motion to exclude from the inventory of her mother's estate the properties which she inherited from her deceased daughter, Filomena, on the ground that said properties are reservable properties which should be inherited by Filomena Legarda's three sisters and three brothers and not by the children of Benito, Alejandro and Jose, all surnamed Legarda. That motion was opposed by the administrator, Benito F. Legarda. Without awaiting the resolution on that motion, Mrs. Gonzalez filed on June 20, 1968 an ordinary civil action against her brothers, sisters, nephews and nieces and her mother's estate for the purpose of securing a declaration that the said properties are reservable properties which Mrs. Legarda could not bequeath in her holographic will to her grandchildren to the exclusion of her three daughters and her three sons. Issues: 1) Whether or not the properties in litigation are reservable propeDid rties? 2) Did Mrs. Legarda have the right to convey mortis causa the properties she inherited from her daughter, to the reservees within the 3rd degree and to bypass the reservees in the 2nd degree? Or, should that inheritance automatically go to the reservees in the 2 nd degree? Held:

In reserva troncal, (1) a descendant inherited or acquired by gratuitous title property from an ascendant or from a brother or sister; (2) the same property is inherited by another ascendant or is acquired by him by operation of law from the said descendant, and (3) the said ascendant should reserve the said property for the benefit of relatives who are within the third degree from the deceased descendant (prepositus) and who belong to the line from which the said property came. So, 3 transmissions are involved: (1) a first transmission by lucrative title (inheritance or donation) from an ascendant or brother or sister to the deceased descendant; (2) a posterior transmission, by operation of law (intestate succession or legitime) from the deceased descendant (causante de la reserva) in favor of another ascendant, the reservor or reservista, which two transmissions precede the reservation, and (3) a third transmission of the same property (in consequence of the reservation) from the reservor to the reservees (reservatarios) or the relatives within the third degree from the deceased descendant belonging to the line of the first ascendant, brother or sister of the deceased descendant. If there are only two transmissions, there is no reserva. The persons involved in reserva troncal are: (1) the ascendant or brother or sister from whom the property was received by the descendant by lucrative or gratuitous title, (2) the descendant or prepositus (propositus) who received the property, (3) the reservor (reservista), the other ascendant who obtained the property from the prepositus by operation of law and (4) the reservee (reservatario) who is within the third degree from the prepositus and who belongs to the line (linea o tronco) from which the property came and for whom the property should be reserved by the reservor. The person from whom the degree should be reckoned is the descendant, or the one at the end of the line from which the property came and upon whom the property last revolved by descent. He is called the prepositus. The reservees may be half-brothers and sisters. Fourth degree relatives are not included. First cousins of the prepositus are in the fourth degree and are not reservees. They cannot even represent their parents because representation is confined to relatives within the third degree. Within the third degree, the nearest relatives exclude the more remote subject to the rule of representation. But the representative should be within the third degree from the prepositus. Reserva troncal contemplates legitimate relationship. Illegitimate relationship and relationship by affinity are excluded.

Gratuitous title or titulo lucrativo refers to a transmission wherein the recipient gives nothing in return such as donation and succession. The reserva creates two resolutory conditions, namely, (1) the death of the ascendant obliged to reserve and (2) the survival, at the time of his death, of relatives within the third degree belonging to the line from which the property came. The reservor has the legal title and dominion to the reservable property but subject to the resolutory condition that such title is extinguished if the reservor predeceased the reservee. The reservor is a usufructuary of the reservable property. He may alienate it subject to the reservation. The transferee gets the revocable and conditional ownership of the reservor. The transferee's rights are revoked upon the survival of the reservees at the time of the death of the reservor but become indefeasible when the reservees predecease the reservor. The reservor's title has been compared with that of the vendee a retro in a pacto de retro sale or to a fideicomiso condicional. The reservor's alienation of the reservable property is subject to a resolutory condition, meaning that if at the time of the reservor's death, there are reservees, the transferee of the property should deliver it to the reservees. If there are no reservees at the time of the reservor's death, the transferee's title would become absolute. On the other hand, the reservee has only an inchoate, expectant or contingent right. His expectant right would disappear if he predeceased the reservor. It would become absolute should the reservor predecease the reservee. The reservee cannot impugn any conveyance made by the reservor but he can require that the reservable character of the property be recognized by the purchaser. The renunciation of the reservee's right to the reservable property is illegal for being a contract regarding future inheritance. The reservee's right is a real right which he may alienate and dispose of conditionally. The condition is that the alienation shall transfer ownership to the vendee only if and when the reservee survives the reservor. "The reservatario receives the property as a conditional heir of the descendant (prepositus), said property merely reverting to the line of origin from which it had temporarily and accidentally strayed during the reservista's lifetime. The authorities are all agreed that there being reservatarios that survive the reservista, the latter must be deemed to have enjoyed no more than a life interest in the reservable property." "Even during the reservista's lifetime, the reservatarios, who are the ultimate acquirers of the property, can already assert the right to prevent the reservista from doing anything that might frustrate their reversionary right, and, for this purpose, they can compel the annotation of their right in the registry of property even while the reservista is alive"

This right is incompatible with the mere expectancy that corresponds to the natural heirs of the reservista. It is likewise clear that the reservable property is no part of the estate of the reservista who may not dispose of them (it) by will, so long as there are reservatarios existing. "The latter, therefore, do not inherit from the reservista but from the descendant prepositus, of whom the reservatarios are the heirs mortis causa, subject to the condition that they must survive the reservista." Hence, upon the reservista's death, the reservatario nearest to the prepositus becomes, "automatically and by operation of law, the owner of the reservable property." 1) In the instant case, the properties in question were indubitably reservable properties in the hands of Mrs. Legarda. Undoubtedly, she was a reservor. The reservation became a certainty when at the time of her death the reservees or relatives within the third degree of the prepositus were living. 2) Mrs. Legarda could not convey in her holographic will the reservable properties which she had inherited from her daughter Filomena because the reservable properties did not form part of her estate. The reservor cannot make a disposition mortis causa of the reservable properties as long as the reservees survived the reservor. Article 891 clearly indicates that the reservable properties should be inherited by all the nearest relatives within the third degree from the prepositus who, in this case, are the 6 children of Mrs. Legarda. She could not select the reservees to whom the reservable property should be given and deprive the other reservees of their share therein. To allow the reservor in this case to make a testamentary disposition of the reservable properties in favor of the reservees in the third degree and, consequently, to ignore the reservees in the second degree would be a glaring violation of article 891. That testamentary disposition cannot be allowed. This case is governed by the doctrine of Florentino vs. Florentino, where it was ruled: "Reservable property left, through a will or otherwise, by the death of ascendant (reservista) together with his own property in favor of another of his descendants as forced heir, forms no part of the latter's lawful inheritance nor of the legitime, for the reason that, as said property continued to be reservable, the heir receiving the same as an inheritance from his ascendant has the strict obligation of its delivery to the relatives, within the third degree, of the predecessor in interest ( prepositus), without prejudicing the right of the heir to an aliquot part of the property, if he has at the same time the right of a reservatario" (reservee). This means that as long as during the reservor's lifetime and upon his death, there are relatives within the third degree of the prepositus, regardless of whether those reservees are common descendants of the reservor and the ascendant from whom the property came, the property retains its reservable character. The property should go to the

nearest reservees. The reservor cannot, by means of his will, choose the reservee to whom the reservable property should be awarded. It should be repeated that the reservees do not inherit from the reservor but from the prepositus, of whom the reservees are the heirs mortis causa, subject to the condition that they must survive the reservor.

FLORENTINO v FLORENTINO 40 PHIL 480 TORRES; November 15, 1919

NATURE Appeal from an order of the Court of First Instance of Ilocos Sur

FACTS - Apolonio Jr.s first marriage to Antonia produced nine children. Antonia died so Apolonio contracted a second marriage with Severina with whom he had two children Merces and Apolonio III. - Out of Apolonios children by Antonia, three remained unmarried until their respective deaths. The petitioners in this case are the surviving children of Apolonios children by Antonia along with the heirs of Apolonios other married children who had since died. - Apolonio died on February 13, 1890, survived by his window Severina and his ten children. His second child Apolonio III by Severina was born after his death. - On January 17 and February 13, 1890, Apolonio Isabelo Florentino executed a will before the notary public of Ilocos Sur, instituting as his universal heirs his ten children, his widow Severina and his yet unborn son Apolonio III. He declared that his propery should be divided equally among his children. - Among the properties received by Apolonio III were the properties marked A, B, C, D, E and F. Apolonio III died in 1891 and his mother succeeded to all his property described in the complaint. When Severina died, she left a will designating her daughter Mercedes as the universal heiress. - Mercedes took possession of her mothers property, including the properties marked A to F which Severina inherited from her son. Mercedes had been gathering the fruits of the said properties for herself.

Petitioners Claims: - The complainants argue that they should each be entitled to 1/7 of the fruits of the said properties on the ground that Severina inherited the property from her son Apolonio III as reservable property. The properties then passed on to her daughter Mercedes who was the formers forced heiress. - The complainants amicably asked Mercedes for their corresponding share but Mercedes has refused to give them their alleged portion. Respondents Comments: - The cause of action is based on the obligation of the widow to reserve the property she inherited from her deceased son who, in turn, inherited the property from is father Apolonio Jr. - The object of the CC articles on reservation (then A811 and now A891 in the NCC) is to avoid he transfer of said reservable property to those extraneous to the family of the original owner. - Since the property passed on to Mercedes, a legitimate daughter of Apolonio Jr. and his second wife Severina, it cannot be said that the property passed on to strangers. - While in the possession of Severina, the property had ceased to become reservable because Severina lawfully inherited the property in question and Mercedes, being Severinas heir, had acquired the right to the said property. - Mercedes Florentino is a forced heiress of her mother so there is no property reserved for the plaintiffs since there is a forced heiress entitled to the property left by the death of the widow Severina who never remarried. - The CFI judge absolved Mercedes from the complaint.

ISSUE WON the property in question is reservable property

HELD YES Ratio Any ascendant who inherits from his descendant any property, while there are living, within the third degree, relatives of the latter, is nothing but a life usufructuary or a fiduciary of the reservable property received. He is, however, the legitimate owner of his own property which is not reservable, property and which constitutes his legitime. But if, afterwards, all of the relatives, within the third degree, of the descendant (from whom came the reservable property) die or disappear, the said property becomes free property, by operation of law, and is thereby

converted into the legitime of the ascendant heir who can transmit it at his death to his legitimate successors or testamentary heirs. This property has now lost its nature of reservable property, pertaining thereto at the death of the relatives, called reservatarios, who belonged within the third degree to the line from which such property came. Reasoning - Even if Severina left in her will said property, together with her own, to her only daughter and forced heiress, Mercedes Florentino, nevertheless this property had not lost its reservable nature inasmuch as it originated from the common ancestor of the litigants, Apolonio Jr. - The right of the nearest relative, called reservatario, over the property which the reservista (person holding it subject to reservation) should return to him, excludes that of the one more remote. The right of representation cannot be alleged when the one claiming same as a reservatario of the reservable property is not among the relatives within the third degree belonging to the line from which such property came from. - Nevertheless there is right of representation on the part of reservatarios who are within the third degree, mentioned by law, as in the case of nephews of the deceased person from whom the reservable property came. These reservatarios have the right to represent their ascendants (fathers and mothers) who are the brothers of the said deceased person and relatives within the third degree. - In this case it is conceded without denial by defendants, that the plaintiffs are the legitimate children of the first marriage of the deceased Apolonio Jr. to Antonia. There are then seven "reservatarios" who are entitled to the reservable property left at the death of Apolonio III: Encarnacion, Gabriel, Magdalena; his three children, Jose, Espirita and Pedro who are represented by their own twelve children respectively; and Mercedes Florentino, his daughter by a second marriage.

Nieva v. Alcala (1920) Juliana Nieva, the natural mother of Segunda Maria Nieva, married Francisco Deocampo. Of said marriage Alfeo Deocampo was born. Juliana died intestate on April 19, 1889, and her son, Alfeo Deocampo, inherited from her ab intestate, the parcels of land in question. Alfeo died intestate and without issue on July 7, 1890. Thus, the lands passed to his father, Francisco, by intestate succession. Thereafter, Francisco married Manuela Alcala, of which marriage was born Jose Deocampo. Francisco died on August 3, 1914, whereupon his widow and son took possession of the lands in question.

On September 30, 1915, Segunda, as acknowledged natural daughter of Juliana, instituted the present action for the purpose of recovering from the parcels of land in question, invoking the article 811 of the Civil Code. Issue: Whether or not an illegitimate relative within the 3rd degree is entitled to the reserva troncal? Held: Manresa, in determining the persons in whose favor the reservation is established, says: "Persons in whose favor the reservation is established. - In the interpretation of article 811 the reservation is established in favor of the parents who are within the third degree and belong to the line from which the properties came. "It treats of blood relationship It could not be otherwise, because relationship by affinity is established between each spouse and the family of the other, by marriage, and to admit it, would be to favor the transmission of the properties of the family of one spouse to that of the other, which is just what this article intends to prevent. "It also treats of legitimate relationship. The person obliged to reserve is a legitimate ascendant who inherits from a descendant property which proceeds from the same legitimate family, and this being true, there can be no question, because the line from which the properties proceed must be the line of that family and only in favor of that line is the reservation established. Furthermore, we have already said, the object is to protect the patrimony of the legitimate family, following the precedents of the foral law. And it could not be otherwise. Article 943 denies to legitimate parents the right to succeed the natural child and vice versa, from which it must be deduced that natural parents neither have the right to inherit from legitimate ones; the law in the article cited establishes a barrier between the two families; properties of the legitimate family shall never pass by operation of law to the natural family." Scaevola, arrives at the same conclusion as Manresa. "La reserva del articulo 811 es privilegio de la familia legitima. (The reservation in article 811 i6 a privilege of the legitimate family.)" Article 943, above referred to by Manresa, provides as follows: "A natural or legitimated child has no right to succeed ab intestate the legitimate children and relatives of the father or mother who has acknowledged it; nor shall such children or relatives so inherit from the natural or legitimated child." To hold that the appellant is entitled to the property left by her natural brother, Alfeo Deocampo, by operation of law, would be a flagrant violation of the express provisions of the foregoing article (943).

Sumaya v. IAC (1991)

Raul Balantakbo inherited from 2 different ascendants the 2 sets of properties subject of this case: 1) A 1/3 interest, pro-indiviso in a parcel of land situated in Dita, Lilio (Liliw), Laguna from his father Jose, Sr., who died on January 28, 1945 2) A 1/7 interest pro-indiviso in 10 parcels of registered lands from his maternal grandmother, Luisa Bautista, who died on November 3, 1950. On June 13, 1952, Raul died intestate, single, without any issue, and leaving only his mother, Consuelo Joaquin Vda. de Balantakbo, as his sole surviving heir to the real properties. On November 3, 1952, Consuelo adjudicated unto herself the said properties in an Affidavit entitled "Caudal Herederario del finado Raul Balantakbo." On December 21, 1959, Consuelo Joaquin vda de. Balantakbo sold the property inherited from Jose, Sr., to Mariquita H. Sumaya. The same property was subsequently sold by Sumaya to Villa Honorio Development Corporation, Inc., on December 30, 1963. Also on December 30, 1963, Consuelo Joaquin vda. de Balantakbo sold the properties inherited from Luisa Bautista, to Villa Honorio Development Corporation, Inc. The latter in turn transferred and assigned all its rights to the properties in favor of Laguna Agro-Industrial Coconut Cooperative, Inc. which properties are presently in its possession. On January 23, 1967, Villa Honorio Development Corporation transferred and assigned its rights over the property in favor of Agro-Industrial Coconut Cooperative, Inc. The properties are presently in the name of the Cooperative, 2/3 share and the remaining 1/3 share is in the name of Sancho Balantakbo. The parties admit that the certificates of titles covering the above described properties do not contain any annotation of its reservable character. On June 3, 1968, Consuelo Joaquin vda. de Balantakbo died. On March 4, 1970, Amadeo, Sancho, Donato, Luis, and Erasto, all surnamed Balantakbo, brothers in full blood of Raul Balantakbo and Luisa, Jose and Dolores, also all surnamed Balantakbo, surviving children of deceased Jose Balantakbo, Jr., another brother of the first named Balantakbos, filed suit to recover the properties which they claimed were subject to a reserva troncal in their favor. Held: On the question of registration of reserva troncal Upon the death of the propositus, Raul Balantakbo, the reservista, Consuelo vda. de Balantakbo caused the registration of an affidavit of self-adjudication of the estate of Raul, wherein it was clearly stated that the properties were inherited by Raul from his father Jose, Sr., and from his maternal grandmother, Luisa Bautista. Said affidavit was, in its form, declaration

and substance, a recording with the Registry of Deeds of the reservable character of the properties. In Spanish language, the affidavit clearly stated that the affiant, Consuelo, was a lone ascendant and heir to Raul Balantakbo, her son, who died leaving properties previously inherited from other ascendants and which properties were inventoried in the said affidavit. Although the certificates of titles covering the properties in question show that they were free from any liens and encumbrances at the time of the sale, the fact remains however, that the affidavit of self-adjudication executed by Consuelo stating the source of the properties thereby showing the reservable nature thereof was registered with the Register of Deeds of Laguna, and this is sufficient notice to the whole world. Thus, in Gatioan v. Gaffud, We held: "When a conveyance has been properly recorded such record is constructive notice of its contents and all interests, legal and equitable, included therein "Under the rule of notice, it is presumed that the purchaser has examined every instrument of record affecting the title. Such presumption is irrebuttable. He is charged with notice of every fact shown by the record and is presumed to know every fact shown by the record and is presumed to know every fact which an examination of the record would have disclosed. This presumption cannot be overcome by proof of innocence or good faith. Otherwise, the very purpose and object of the law requiring a record would be destroyed. Such presumption cannot be defeated by proof of want of knowledge of what the record contains any more than one may be permitted to show that he was ignorant of the provisions of the law. The rule that all persons must take notice of the facts which the public record contains is a rule of law. The rule must be absolute, any variation would lead to endless confusion and useless litigation"

On the question of whose duty the annotation of the reserva troncal rests The obligation to reserve rests upon the reservor, Consuelo Joaquin vda. de Balantakbo. Consistent with the rule in reserva viudal where the person obliged to reserve (the widowed spouse) had the obligation to annotate in the Registry of Property the reservable character of the property, in reserva troncal, the reservor (the ascendant who inherited from a descendant property which the latter inherited from another descendant) has the duty to reserve and therefore, the duty to annotate also.

On the question of prescription of cause of action

The cause of action of the reservees did not commence upon the death of the propositus Raul Balantakbo on June 13, 1952 but upon the death of the reservor Consuelo Vda. de Balantakbo on June 3, 1968. Relatives within the third degree in whose favor the right (or property) is reserved have no title of ownership or of fee simple over the reserved property during the lifetime of the reservor. Only when the reservor should die before the reservees will the latter acquire the reserved property, thus creating a fee simple, and only then will they take their place in the succession of the descendant of whom they are relatives within the third degree. The reserva is extinguished upon the death of the reservor, as it then becomes a right of full ownership on the part of the reservatarios, who can bring a reivindicatory suit therefor. Nonetheless, this right if not exercised within the time for recovery may prescribe in 10 years under the old Code of Civil Procedure or in thirty years under Article 1141 of the New Civil Code. The action for recovery of the reserved property was brought by the respondents on March 4, 1970 or less than two (2) years from the death of the reservor. Therefore, the respondents' cause of action has not prescribed yet. Carillo v. De Paz (1966) The property in question is Lot No. 221, originally owned by Severino Salak and Petra Garcia (deceased, September 21, 1941). On August 16, 1943, Severino sold to Honoria Salak his 1/2 portion of Lot 221. A year later, or on December 5, 1944, Severino died. Sometime in January 1945, Honoria and other members of her family died massacred by the Japanese. As a result, two settlement proceedings were instituted: (1) SP No. 3, to settle the estates of Severino Salak and Petra Garcia On September 4, 1946, a Project of Partition adjudicated Lot No. 221 to Francisca Salak de Paz (1/4 of it, in her capacity as heir, the other 3/4 by purchase and/or exchange with her co-heirs: Rita Sahagun, Aurea Sahagun and Ernesto Bautista). On November 9, 1948, Agustina de Guzman Vda. de Carrillo filed an action against the Francisca to recover 1/2 of Lot No. 221. (2) SP No. 23, to settle the estates of the Salak family Parents: Simeon Salak and Isabel Carrillo Children: Adolfo, Honoria, Consuelo and Ligaya The court held that the heirs entitled to the estates of the Salak family were Agustina (3/4 share) and Ernesto (1/4 share), applying the survivorship presumption:

i. ii. iii. iv.

Simeon died first his properties went to his children: Adolfo, Honoria, Consuelo and Ligaya (1/4, each); Honoria, Consuelo and Ligaya died next Honoria's and Consuelo's properties went to their mother, Isabel; those of Ligaya went to her son, Ernesto Bautista; Isabel died next her properties went to her son Adolfo; and Adolfo died last his properties went to his maternal grandmother, Agustina.

Agustina, thereby, succeeded to the properties that came by intestate succession from Honoria and Isabel, including 1/2 of Lot No. 221. On April 24, 1950, Agustina died. Subsequently, or on June 8, 1950, the court decreed the properties inherited by Agustina subject to reserva troncal. Thus, on November 6, 1950, Ernesto filed a petition for the execution of the said judgment. Acting on said petition, the court held: " in view of the death of the reservista, Doa Agustina, the court declares all her interest in the 3/4 share of the properties terminated, and that the reservee, Ernesto, entitled to the immediate delivery to him of the said 3/4 share declared reserved to him " On April 22, 1963, Prima Carrillo and Lorenzo Licup, heirs of Agustina, filed suit for the recovery of their share in Lot No. 221 against Francisca and Ernesto. On June 20, 1963, the defendants filed a motion to dismiss on the ground that the cause of action is barred by prescription. Held: According to Manresa, the reserva is extinguished upon the death of the reservista, as it then becomes a right of full ownership on the part of the reservatarios, who can bring a revindicatory suit therefor. However, this right, if not exercised within the time for recovering real properties, prescribes. Scaevola shares the view that prescription can apply against the reservatarios to cut off their right to the reservable property. Appellants, as reservatarios, had the right to claim the property from the time when the reservista, Agustina, died on April 24, 1950. Section 40 of the Code of Civil Procedure fixes 10 years as the period of prescription for actions to recover real property, counted from the time the cause of action accrued. Appellants' suit herein, having been filed only on April 22, 1963, or more than 10 years from April 24, 1950, has prescribed.

[G.R. No. 70722. July 3, 1991.] CANUTA PAGKATIPUNAN, FLORA VELASQUEZ, BENJAMIN VELASQUEZ, RODOLFO VELASQUEZ, ALFREDO VELASQUEZ, NAPOLEON VELASQUEZ, MANUEL VELASQUEZ, JULIO VELASQUEZ, VICTORIA VELASQUEZ, CARLOS VELASQUEZ, LEONOR VELASQUEZ, ELENA VELASQUEZ, PATROCINIO VELASQUEZ, PATRICLA VELASQUEZ, SANTIAGO ZAPANTA, HERMINIGILDO SISON, ALFREDO AGAPITO, MOISES SANTOS, MAGDALENA PAGKATIPUNAN, AGAPITO MANALO, MIGUEL ANGELES, MATIAS ALVAREZ, PATRICIO LAYSA, TEOFILO DE LUNA, ISIDRO ANINAO, APOLINAR CASAL, MOISES GALLARDO, BONIFACIO PEREZ, DELFIN LAYBA, AND HERMOGENES FLORES, petitioners, vs. HON. INTERMEDIATE APPELLATE COURT, JOSE R. VELASQUEZ, JR., LOURDES VELASQUEZ, EDGARDO VELASQUEZ, LOLITA VELASQUEZ, MINERVA VELASQUEZ, CYNTHIA VELASQUEZ, CESAR GONZALES, ADOLFO GONZALES, EVELYN GONZALES, AMELITA GONZALES, RUBEN GONZALES, AND CARMENCITA GONZALES, respondents. Bengzon, Zarraga, Narciso, Cudala, Pecson, Ascuna & Bengson for petitioners. Tomas P. Aonuevo for private respondents. SYLLABUS 1.CIVIL LAW; SUCCESSION; LIQUIDATION OF CONJUGAL PARTNERSHIPS; FAILURE TO COLLATE AND CONSIDER DONATIONS MADE DURING THE LIFETIME OF DONOR; DISTRIBUTION AMONG THE HEIRS CONSIDERED DEFECTIVE. It is a basic rule that before any conclusion about the legal share due to the heirs may be reached, it is necessary that certain steps be taken first. The trial court failed to consider among others, Articles 908 and 1061 of the Civil Code . It is undeniable that numerous donations inter vivos were made by Jose Velasquez, Sr. in favor of some of his compulsory heirs. Likewise, no collation of the donations he executed during his lifetime was undertaken by the trial court. With the avowed specific provisions of the laws respecting collation, which are ruled controlling even in intestate succession, this Court finds that the lower court's ruling adjudicating the remaining portion of the conjugal estate to the private respondents is purely speculative and conjectural. 2.ID.; LAND REGISTRATION; LAND FRAUDULENTLY REGISTERED, HELD AS MERE TRUSTEE BY THE PERSON IN WHOSE NAME THE SAME IS REGISTERED. The fact that they had succeeded in securing title over the said parcels of land does not warrant the reversal of the trial court's ruling that the sales and assignments were sham and fictitious. A Torrens title does not furnish a shield for fraud notwithstanding the long-standing rule that registration is a constructive notice of title binding upon the whole world. The legal principle is that if the registration of the land is fraudulent and the person in whose name the land is registered thus holds it as a mere trustee, the real owner is entitled to file an action for reconveyance of the property within a period of ten years (Pajarillo v. Intermediate Appellate Court, G.R. No. 72908, August 11, 1969, 176 SCRA 340). Since petitioners asserted claims of exclusive ownership over the said parcels of land but acted in fraud of the private respondents, the former may be

held to act as trustees for the benefit of the latter, pursuant to the provision of Article 1456 of the Civil Code: 3.ID.; ID.; ID.; RECONVEYANCE IN FAVOR OF ONE OF THE PARTIES TO THE CASE; NOT POSSIBLE UNTIL WHO AMONG THE HEIRS ARE DETERMINED ENTITLED THERETO. But while the trial court has the authority to order the reconveyance of the questioned titles, We cannot agree that the reconveyance should be made in favor of the private respondents. The reason is that it is still unproven whether or not the private respondents are the only ones entitled to the conjugal properties of Jose Velasquez, Sr. and Victorina Real. It is to be noted that as the lawful heirs of Jose Velasquez, Sr. the herein petitioners are also entitled to participate with his conjugal share. To reconvey said property in favor of the private respondents alone would not only be improper but will also make the situation more complicated. There are still things to be done before the legal share of all the heirs can be properly adjudicated. 4.ID.; SUCCESSION; STEPS NECESSARY TO DETERMINE LEGAL SHARE DUE THE COMPULSORY HEIRS. No conclusion as to the legal share due to the compulsory heirs can be reached in this case without (1) determining first the net value of the estate of Jose Velasquez, Sr.; (2) collating all the donations inter vivos in favor of some of the heirs; and (3) ascertaining the legitime of the compulsory heirs.

DECISION

MEDIALDEA, J p: This petition for certiorari seeks to nullify the decision of the Intermediate Appellate Court (now Court of Appeals) in AC-G.R. CV No. 68431 dated February 7, 1986, affirming the decision of the Court of First Instance (now Regional Trial Court) of Laguna, Branch II, Santa Cruz, Laguna, in Civil Case No. SC-894, the dispositive portion of which reads: "WHEREFORE, the appealed decision of the lower court is affirmed, with the following modification: "The entire house and lot on West Avenue, Quezon City, shall be divided as follows: "One-half value of said house and lot to defendant-appellant Canuta Pagkatipunan and her 13 co-defendants-appellants children (now petitioners) to the extent of their respective proportional contributions as stated above; and. "The other one-half value of the said house and lot goes to the second conjugal partnership of the deceased husband and his second spouse Canuta Pagkatipunan to be partitioned one-fourth to Canuta Pagkatipunan and the other one-fourth appertaining to the deceased Jose Velasquez, Sr. to be divided equally among his 18 heirs as follows: 1/18 undivided portion to Canuta Pagkatipunan;

1/18 undivided portion to the plaintiff-appellee Lourdes Velasquez; 1/18 undivided portion to the plaintiffs-appellees Edgardo, Lolita, Minerva, Cynthia, and Jennifer, all surnamed Velasquez; 1/18 undivided portion to the plaintiffs-appellee Teresa Magtibay and her children, Ricardo, Lourdes, Celia and Aida, all surnamed Velasquez; 1/18 undivided portion to the plaintiffs-appellees Cesar, Adolfo, Evelyn, Angelita, Ruben, and Carmencita, all surnamed Gonzales; 1/18 undivided portion to each of the 13 defendants-appellants Flora, Leonor, Patrocinio, Benjamin, Rodolfo, Alfredo, Napoleon, Manuel, Julio, Elena, Patricia, Victoria, and Carlos, all surnamed Velasquez. "SO ORDERED." (p. 55, Rollo) The facts from the records are as follows: The principal litigants in this case are the successors-in-interest of Jose Velasquez, Sr. who died intestate on February 24, 1961. Petitioner Canuta Pagkatipunan is the surviving spouse of Jose Velasquez, Sr. and the other 13 petitioners are their children namely: Flora, Leonor, Patrocinio, Julio, Benjamin, Rodolfo, Alfredo, Napoleon, Manuel, Elena, Patricia, Victoria and Carlos. On the other hand, the private respondents are the descendants of Jose Velasquez, Sr. with his first wife Victorina Real who died in 1920 at Santa Cruz, Laguna. Private respondents Jose Velasquez, Jr. (substituted after his death during the pendency of this suit by his surviving spouse Teresa Magtibay and their children Ricardo, Lourdes, Celia and Aida), and Lourdes Velasquez are two of the five children of Jose Velasquez, Sr. and Victorina Real. The other three, Amelia, Guillermo and Lutgarda, all surnamed Velasquez, all died before the commencement of this case. Amelia Velasquez died without any issue. Guillermo Velasquez was survived by private respondents Edgardo, Lolita, Minerva, Cynthia and Jennifer, all surnamed Velasquez, his children, forced heirs and lawful successors-in-interest. Lutgarda Velasquez was survived by private respondents Cesar, Adolfo, Evelyn, Amelita, Ruben and Carmencita, all surnamed Gonzales, likewise her children, forced heirs and successors-ininterest. This case was judicially instituted by the private respondents against the petitioners in 1969 in a complaint entitled "accion reivindicatoria, annulment of deeds of sale, partition and damages." However, both the trial and the appellate courts considered that the real controversy in this case is the liquidation of the conjugal partnership properties acquired by the deceased Jose Velasquez, Sr. in his two marriages, one with Victorina Real, who predeceased him, and the other with Canuta Pagkatipunan, as well as the partition of the estate of said Jose Velasquez, Sr. among his heirs. It appears that after the death of Victorina Real in 1920, no dissolution of the first conjugal property has been made. Consequently, Jose Velasquez, Sr. enjoyed full possession, use, usufruct and administration of the whole conjugal property of the first marriage. llcd In 1930, Jose Velasquez, Sr. took Canuta Pagkatipunan as his second wife although they cohabited as early as 1921, when she was 16, soon after his first wife's death. From this marriage, the other 13 co-petitioners were born. Neither had there been any liquidation of the

second conjugal partnership after the death of Jose Velasquez, Sr. in 1961. This situation gave rise to the controversies in the instant case spawned by the parties' conflicting claims from both sides of the two marriages. The trial court appointed two sets of commissioners one on January 31, 1975, for the purpose of making an inventory of the estate of Jose Velasquez, Sr., and the other on November 15, 1976, to determine which of the parcels of land listed in such inventory submitted by the first set of commissioners belong to the conjugal partnership of the first marriage or to the conjugal partnership of the second marriage. Based on the Report and Inventory submitted on May 29, 1975, the commissioners listed the following properties as acquired by the late Jose Velasquez, Sr. during his marriage with Victorina Real: 1.Tax Declaration No. 2718. A riceland, located in Luya and with an area of 93,662 square meters; 2.Tax Declaration No. 3125. A Secano land located in Luya and with an area of 12,540 square meters; 3.Tax Declaration No. 2623. A Cocal and Forestal, situated in Salang-Bato (Macasipac) and with an area of 500,000 square meters;

4.Tax Declaration No. 2096. A riceland, situated in Islang Munti and with an area of 40,328 square meters; 5.A Cocal and Forestal land situated in Bankang Bato containing an area of 240,000 square meters; 6.Tax Declaration No. 4251. A Cocal, Secano and Cogonal land situated in Cambuja and containing an area of 163,121 square meters; 7.Tax Declaration No. 1342. A parcel of land situated in Bagumbayan and containing an area of 80,258 square meters; 8.Tax Declaration No. 3541. A Cocal and Secano land, situated in Bagumbayan and containing an area of 20 hectares;(Total area as surveyed is 392,503 square meters. This includes the area of the land stated in Item 7 of the Inventory). 9.Tax Declaration No. 82. A Cogonal land situated in Tungkod (Ikalong Tuwid), containing an area of 385,324 square meters; 10.Tax Declaration No. 1500. A riceland, situated in Pague, containing an area of 9,228 square meters; 11.Tax Declaration No. 5688.

a)A parcel of land situated in NAPSE (Masinao), containing an area of 24,725 square meters; b)A parcel of land situated in NAPSE (Masinao), containing an area of 25,000 square meters; 12.Tax Declaration No. 543. A parcel of land situated in Gomez Street, containing an area of 755 square meters; 13.Tax Declaration No. 4139. A parcel of land situated in Caboam containing an area of 367.2 square meters; 14.Tax Declaration No. 4139. A parcel of land situated in Caboan, containing an area of 367.2 square meters. 15.Tax Declaration No. 4139. A parcel of land situated in Caboan, containing an area of 367.2 square meters. 16.Tax Declaration No. 4139. A parcel of land situated in Caboan, containing an area of 367.2 square meters. 17.Tax Declaration No. 4139. A parcel of land situated in Caboam, containing an area of 1,275 square meters. 18.Tax Declaration No. 804-A. Three parcels of land situated in Salang Bato, containing an area of 450,000 square meters; 19.Tax Declaration No. 2560. A parcel of land situated in Salang Bato which area is included in item no. 18. 20.A parcel of land situated in Burgos St. (Papers cannot be located but subject lot is known to both parties). 21.A parcel of land situated in Burgos St., containing an area of 5,000 square meters. (Papers cannot be located but subject lot is known to both parties). 22.A parcel of land situated in Gomez St., containing an area of 800 square meters. (Papers cannot be located but subject lot is known to both parties). 23.A parcel of land situated in Gomez St., containing an area of 1,050 square meters. (Papers cannot be located but subject lot is known to both parties). 24.A parcel of land situated in Gomez St. (Papers cannot be located but subject lot is known to both parties). 25.A parcel of land situated in Zamora St., containing an area of 3,605. (Papers cannot be located but subject lot is known to both parties).

26.Tax Declaration No. 2412: A parcel of land situated in Caboam, containing an area of 12,867 square meters; 27.A parcel of land situated in Dra. Amelia St." On the other hand, the commissioners listed the following properties as acquired by Jose Velasquez, Sr. on February 11, 1921 or after the death of Victorina Real: 28.Tax Declaration No. 2547. A parcel of land situated in Barandilla, containing an area of 21,566 square meters; 29.A parcel of land situated in Barandilla, containing an area of 93.191 square meters. (Commissioner's Inventory, Rollo, pp. 355-360). Worth noting are the following findings of the commissioners: "3)That among the properties acquired by the late Jose Velasquez, Sr. during his lifetime, only the one mentioned in Item 7 of the Inventory (Annex "A") is still intact. It is situated in Bagumbayan, Sta. Maria, Laguna, and is containing an area of 80,258 square meters, more or less; "4)That Item 8 of the Inventory is only 200,000 square meters, more or less in Tax Declaration No. 3541, but as per Survey caused by the defendants (which is not yet approved) it contains an area of 330,345 square meters. That the Tax Declaration of said parcel of land is under the name of Canuta Pagkatipunan, but plaintiff Jose Velasquez, Jr. is the one in possession of said property. That the area as contained in the Survey includes the area of the land mentioned in Item 7 of the Inventory (80,258 sq. m.); "5)That the other properties of the late Jose Velasquez Sr. were disposed of by the said decedent during his lifetime and some were sold and or disposed of by the parties and heirs of the late Jose Velasquez, Sr.; "6)That the Barandilla properties, as evidenced by the Venta Absoluta dated February 11, 1921 executed by Pedro Villanueva in favor of Jose Velasquez Sr., were disposed of portion by portion. It was sold by the late Jose Velasquez who disposed of some portions and the rest by either the plaintiffs or defendants. An area of 11,200 square meters more or less was DONATED (donacion propter Nupcias) in favor of Canuta Pagkatipunan by the decedent Jose Velasquez, Sr. as evidenced by Kasulatan ng Pambagong Documento Donacion Propter Nupcias notarized under Inst. 135; Page 47; Book I; Series of 1947 of Notary Public Bonifacio de Ramos; "7)That the parcels of land appearing in Items 5 and 6 of the Inventory (Annex "A") were DONATED by the late Jose Velasquez Sr. to Guillermo Velasquez; "8)That parcels of land mentioned in Items 18 and 19 of the Inventory (Annex "A") were DONATED by the late Jose Velasquez, Sr. to Jose Velasquez, Jr. Said properties were sold by the Donee to Sps. Santiago Recio and Filomena Dimaculangan;

"9)The property mentioned in Item 27, page 3 of the Inventory was given by the late Jose Velasquez, Sr. to one of his daughters, Dra. Amelia Velasquez while she was still living and now owned by her heirs; "10)A residential lot at 7 West Avenue, Quezon City, titled in the name of Canuta Pagkatipunan, was acquired from the PHHC (People's Homesite and Housing Corporation, now National Housing Authority) and presently occupied by the defendants." (Rollo, pp. 351-353) There is divergence of findings and opinion among the three members of the second set of commissioners with respect to the properties covered by Items 7 and 8 and the property in the unnumbered item relating to Lot 2-A West Avenue, Quezon City and the house thereon of the Inventory submitted by the first set of commissioners. They refuse to make findings as to the nature of the properties because the petitioners had caused the issuance of titles covering said properties. However, all the commissioners were in agreement that all the other properties listed in the Inventory belonged to the conjugal partnership of the first marriage. The records before Us will show that the properties covered by items 7 and 8 were originally declared for taxation purposes in the names of the spouses Real and Velasquez. This has been admitted by Canuta Pagkatipunan during the hearing before the Commissioner and is duly supported by documentary evidence. LexLib After the death of Jose Velasquez, Sr. the full possession of said property was acquired by Canuta Pagkatipunan. On March 4, 1967, she sold the same property to the spouses Moises Santos and Magdalena Pagkatipunan, her brother-in-law and sister, respectively (they were previously impleaded in the trial court as party-defendants). Subsequently, Tax Declaration No. 4843 was issued in the names of the said spouses who later resold the same property to Canuta Pagkatipunan. Thereafter, tax declaration covering said property was issued in her name. During the pendency of this suit, this property was subdivided and assigned by Canuta Pagkatipunan in favor of her thirteen children. The latter caused the issuance of separate free patent titles in their favor covering the subdivided lots conveyed to them by their mother. Original Certificates of Title Nos. P-2000 to P-2012 were accordingly issued in their names. With regard to the West Avenue property it is not disputed that said residential lot was purchased on installments from People's Homesite and Housing Corporation (now National Housing Authority) by the spouses Jose Velasquez Sr. and Canuta Pagkatipunan. The installments were paid by the said spouses until Jose Velasquez, Sr. died on February 24, 1961. Canuta Pagkatipunan, with the help of some of her children, shouldered the payment of the remaining installments until said property was fully paid in 1965. On February 23, 1968, the PHHC executed a deed of absolute sale conveying the said house and lot to Canuta Pagkatipunan. On August 11, 1980, a judgment was rendered by the trial court: "1)Declaring the properties listed in the Inventory submitted by the Commissioners on May 9, 1975, as belonging to the estate of the conjugal partnership of the deceased spouses Jose Velasquez, Sr. and Victorina Real; "2)Confirming all the conveyances, either by way of sale or donation, executed by Jose Velasquez, Sr. during his lifetime;

"3)Declaring null and void, sham and fictitious, the following sales, transfers, assignments or conveyances: (a) the sale executed by Canuta Pagkatipunan in favor of her sister Magdalena Pagkatipunan in favor of Canuta Pagkatipunan (sic); (b) the deeds of assignments executed by Canuta Pagkatipunan in favor of her children, covering the properties listed in Items 7 and 8 of the Inventory; and ordering defendants (petitioners) to reconvey in favor of the plaintiffs (private respondents) the parcels of land covered by Patent Titles Nos. P-2000 to P-2012; "4)Declaring as null, fictitious and fraudulent the sales by Canuta Pagkatipunan in favor of her children and her sister Magdalena Pagkatipunan and brother-inlaw Moises Santos, listed in paragraph 13 of the Amended Complaint; declaring the plaintiffs owners of the said properties; and ordering the defendant Canuta Pagkatipunan and her children-defendants to deliver possession of said properties to the plaintiffs; "5)Ordering the partition of the house and lot in West Avenue, Quezon City in the following manner:

"(a)One-half undivided portion to defendant Canuta Pagkatipunan; and the other half appertaining to Jose Velasquez, Sr. to be divided among his heirs, to wit: 1/18 undivided portion to Canuta Pagkatipunan; 1/18 undivided portion to Lourdes Velasquez; 1/18 undivided portion to the plaintiffs Edgardo, Lolita, Minerva, Cynthia and Jennifer, all surnamed Velasquez; 1/18 undivided portion to the plaintiffs Teresa Magtibay and her children Ricardo, Lourdes, Celia and Aida, all surnamed Velasquez; 1/18 undivided portion to the plaintiffs Cesar, Adolfo, Evelyn, Angelita, Ruben and Carmencita, all surnamed Gonzales; 1/18 undivided portion to each of the defendants Flora, Leonor, Patrocinio, Benjamin, Rodolfo, Alfredo, Napoleon, Manuel, Julio, Elena, Patricia, Victoria and Carlos, all surnamed Velasquez; "6)Ordering the defendant Canuta Pagkatipunan and her children-defendants to pay to the plaintiffs the sum of P5,000.00, as reimbursement for attorney's fees; "7)The defendant Canuta Pagkatipunan and her children-defendants are likewise ordered to pay the costs of this suit;

"8)The case against the other defendants, other than Canuta Pagkatipunan and her children and the spouses Moises Santos and Magdalena Pagkatipunan, is ordered dismissed." (pp. 614-617, Rollo). Petitioners appealed to the respondent Intermediate Appellate Court. On February 7, 1985, the Intermediate Appellate Court, Third Civil Cases Division promulgated a decision, affirming the decision of the trial court, with the modification that the entire house and lot in West Avenue, Quezon City be divided into two; one-half value to the petitioners Canuta Pagkatipunan and her 13 children to the extent of their respective proportional contributions and the other half value, to the second conjugal partnership of Jose Velasquez, Sr. and Canuta Pagkatipunan to be partitioned one-fourth to the wife and the other one-fourth appertaining to the deceased Jose Velasquez, Sr. to be divided equally among his heirs. Hence, this instant petition for review pointing out the following four (4) assignments of error, to wit: I "THE TRIAL COURT ERRED IN HOLDING THAT THE ENTIRE ESTATE LISTED IN THE INVENTORY SUBMITTED BY THE COMMISSIONERS ON MAY 9, 1975 AS BELONGING TO THE DECEASED SPOUSES JOSE VELASQUEZ, SR. AND VICTORINA REAL. II "THAT THE LOWER COURT ERRED IN CONFIRMING ALL THE CONVEYANCES EITHER BY WAY OF SALE OR DONATION EXECUTED BY JOSE VELASQUEZ, SR. DURING HIS LIFETIME. III "THAT THE LOWER COURT ERRED IN DECLARING NULL AND VOID, SHAM AND FICTITIOUS THE FOLLOWING SALES: a) THE SALE EXECUTED BY CANUTA PAGKATIPUNAN IN FAVOR OF HER SISTER MAGDALENA PAGKATIPUNAN AND BROTHER-IN-LAW MOISES SANTOS; b) THE RESALE EXECUTED BY MOISES SANTOS AND MAGDALENA PAGKATIPUNAN IN FAVOR OF CANUTA PAGKATIPUNAN c) THE DEEDS OF ASSIGNMENT EXECUTED BY CANUTA PAGKATIPUNAN IN FAVOR OF HER CHILDREN: COVERING THE PROPERTIES LISTED IN ITEMS 7 AND 8 OF THE INVENTORY; AND ORDERING DEFENDANT-APPELLANT CANUTA PAGKATIPUNAN AND HER CHILDREN DEFENDANTS-APPELLANTS TO RECONVEY IN FAVOR OF THE PLAINTIFFS-APPELLEES THE PARCELS OF LAND COVERED BY PATENT TITLES NOS. P2-000 TO P-2012. IV "THAT THE TRIAL COURT ERRED IN ORDERING THE PARTITION OF THE HOUSE AND LOT IN WEST AVENUE, QUEZON CITY, ONE-HALF UNDIVIDED PORTION TO DEFENDANT-APPELLANT CANUTA PAGKATIPUNAN AND THE OTHER HALF TO JOSE VELASQUEZ, SR." (pp. 21-22, Rollo)

After a careful review of the records and the arguments presented by both parties, the Court finds that both the trial court and the respondent Intermediate Appellate Court failed to consider some basic principles observed in the law on succession. Such an oversight renders the appealed decision defective and hard to sustain. prcd It is a basic rule that before any conclusion about the legal share due to the heirs may be reached, it is necessary that certain steps be taken first. In the assailed decision, the respondent court affirmed the trial court's ruling, that Jose Velasquez, Sr. had already disposed of and exhausted his corresponding share in the conjugal partnership owned by him and Victorina Real, so that his heirs have nothing more to inherit from him, and that accordingly, whatever remaining portion of the conjugal property must necessarily appertain only to the private respondents as heirs of the deceased Victorina Real. Clearly, the trial court failed to consider among others, the following provisions of the Civil Code: "ART. 908.To determine the legitime, the value of the property left at the death of the testator shall be considered, deducting all debts and charges, which shall not include those imposed in the will. "To the net value of the hereditary estate, shall be added the value of all donations by the testator that are subject to collation, at the time he made them." "ART. 1061.Every compulsory heir, who succeeds with other compulsory heirs, must bring into the mass of the estate any property or right which he may have received from the decedent, during the lifetime of the latter, by way of donation, or any other gratuitous title, in order that it may be computed in the determination of the legitime of each heir, and in the account of the partition." It is undeniable that numerous donations inter vivos were made by Jose Velasquez, Sr. in favor of some of his compulsory heirs. They include among others, the donation made in favor of Guillermo Velasquez on February 26, 1953, consisting of 403,000 square meters (Items 5 and 6); the donation made in 1926 in favor of Jose Velasquez, Jr., consisting of 450,000 square meters (Item No. 18); the donation in favor of Amelia Velasquez (Item No. 27), and the donation in favor of Canuta Pagkatipunan, consisting of 11,000 square meters (part of Item No. 29) (Commissioner's Report, Rollo, pp. 355-360). It appears that there was no determination whatsoever of the gross value of the conjugal properties of Jose Velasquez, Sr. and Victorina Real. Obviously it is impossible to determine the conjugal share of Jose Velasquez, Sr. from the said property relationship. Likewise, no collation of the donations he executed during his lifetime was undertaken by the trial court. Thus, it would be extremely difficult to ascertain whether or not such donations trenched on the heirs' legitime so that the same may be considered subject to reduction for being inofficious. Article 909 of the Civil Code provides: "Art. 909.Donations given to children shall be charged to their legitime. "Donations made to strangers shall be charged to that part of the estate of which the testator could have disposed by his last will.

"Insofar as they may be inofficious or may exceed the disposable portion, they shall be reduced according to the rules established by this Code." With the avowed specific provisions of the aforesaid laws respecting collation, which are ruled controlling even in intestate succession, this Court finds that the lower court's ruling adjudicating the remaining portion of the conjugal estate to the private respondents is purely speculative and conjectural. Relative to the sale executed by Canuta Pagkatipunan to the spouses Magdalena Pagkatipunan and Moises Santos; the resale of the same property to her; and the subsequent deeds of assignment she executed in favor of her children, the trial court had clearly established that Canuta Pagkatipunan employed fraudulent acts to acquire title over the said properties. Hence, the trial court, as well as the respondent court are correct in ruling that the said sales and assignments are null and void, sham and fictitious. The pertinent portion of the trial court's decision reads as follows: "From the evidence adduced by the parties during the hearing before this Court and before the Commissioners, these properties were acquired on November 19, 1918 by the spouses Jose Velasquez, Sr. and Victoria Real from Estanislao Balasoto (Exh. H-5, Commissioner). Said property was originally declared for taxation purposes in the names of said spouses. (Exh. H-Commissioner). On March 4, 1967, defendant Canuta Pagkatipunan sold the same property to the spouses Moises Santos and Magdalena Pagkatipunan (Exh. H-1Commissioner). The vendee Magdalena Pagkatipunan is the sister of the defendant Canuta Pagkatipunan. Subsequently, Tax Declaration No. 4843 (Exh. H-2-Commissioner) was issued in the names of the spouses Moises Santos and Magdalena Pagkatipunan resold (sic) the same property to Canuta Pagkatipunan (Exh. H-3-Commissioner). Thereafter, tax declaration covering said property was issued in the name of Canuta Pagkatipunan (Exhibit H-4Commissioner). During the pendency of this suit, this property was subdivided and assigned by Canuta Pagkatipunan in favor of her children, the defendants Flora, Leonor, Patrocinio, Benjamin, Rodolfo, Alfredo, Napoleon, Manuel, Elena, Patricia, Julio, Victoria and Carlos, all surnamed Velasquez. Said defendants-children of Canuta Pagkatipunan caused the issuance of free patent titles in their favor covering the subdivided lots conveyed to them respectively by their mother (Exh. 2, 2-A to 2-L). "It is evident that the parcels of land under Items 7 and 8 of the Inventory belonged to the conjugal partnership of the spouses Jose Velasquez, Sr. and Victorina Real. Canuta Pagkatipunan had no right to alienate the same. Her conveyance of the same property to her brother-in-law and sister is fictitious or simulated. Ten (10) days after she executed her sale, the same property was resold to her by the vendees. She utilized said conveyance and reconveyance only for the purpose of securing a tax declaration in her name over said property. Her subsequent subdivision of said lot and transfer of the subdivided lots to each of their children further show her fraudulent intent to deprive the plaintiffs of their rightful shares in the disputed property." (Rollo, pp. 606-607)

Despite the several pleadings filed by the petitioners in this Court, they did not rebut the foregoing findings of the trial court but merely held on to their argument that since Free Patent Titles Nos. P-2000 to P-2012 were already issued in their names, their title thereto is indefeasible and incontrovertible. This is a misplaced argument. prcd

The fact that they had succeeded in securing title over the said parcels of land does not warrant the reversal of the trial court's ruling that the above mentioned sales and assignments were sham and fictitious. A Torrens title does not furnish a shield for fraud notwithstanding the longstanding rule that registration is a constructive notice of title binding upon the whole world. The legal principle is that if the registration of the land is fraudulent and the person in whose name the land is registered thus holds it as a mere trustee, the real owner is entitled to file an action for reconveyance of the property within a period of ten years (Pajarillo v. Intermediate Appellate Court, G.R. No. 72908, August 11, 1969, 176 SCRA 340). Since petitioners asserted claims of exclusive ownership over the said parcels of land but acted in fraud of the private respondents, the former may be held to act as trustees for the benefit of the latter, pursuant to the provision of Article 1456 of the Civil Code: "ART. 1456. If property is acquired through mistake or fraud, the person obtaining it is, by force of law, considered a trustee of an implied trust for the benefit of the person from whom the property comes." But while the trial court has the authority to order the reconveyance of the questioned titles, We cannot agree that the reconveyance should be made in favor of the private respondents. The reason is that it is still unproven whether or not the private respondents are the only ones entitled to the conjugal properties of Jose Velasquez, Sr. and Victoria Real. It is to be noted that as the lawful heirs of Jose Velasquez, Sr. the herein petitioners are also entitled to participate in his conjugal share. To reconvey said property in favor of the private respondents alone would not only be improper but will also make the situation more complicated. There are still things to be done before the legal share of all the heirs can be properly adjudicated. Relative to the last assignment of error, We find the ruling made by the respondent appellate court proper and in accord with law insofar as it adjudicated the one-half (1/2) portion of the house and lot situated at West Avenue, Quezon City, as belonging to the petitioners to the extent of their respective proportional contributions, and the other half to the conjugal partnership of Jose Velasquez, Sr. and Canuta Pagkatipunan. We must modify it, however, as it readily partitioned the conjugal share of Jose Velasques, Sr. (1/2 of the conjugal property or 1/4 of the entire house and lot) to his 18 heirs. As already said, no conclusion as to the legal share due to the compulsory heirs can be reached in this case without (1 ) determining first the net value of the estate of Jose Velasquez, Sr.; (2) collating all the donations inter vivos in favor of some of the heirs; and (3) ascertaining the legitime of the compulsory heirs. LLjur ACCORDINGLY, the decision of the trial court as modified by the respondent appellate court is hereby SET ASIDE except insofar as it:

(a)declared the properties listed in the Inventory submitted by the commissioners on May 9, 1975 as belonging to the estate of the conjugal partnership of the spouses Jose Velasquez, Sr. and Victorina Real; b)declared null and void, sham and fictitious, the following sales, transfers, assignments or conveyances: 1)the sale executed by Canuta Pagkatipunan in favor of her sister Magdalena Pagkatipunan; 2) the resale of the same property executed in favor of Canuta Pagkatipunan; and 3) the deeds of assignments executed by Canuta Pagkatipunan in favor of her 13 children; covering the properties listed in Items 7 and 8; c)declared as null and void all the other conveyances made by Canuta Pagkatipunan with respect to Item No. 13 of the inventory; and d)dismissed the case against the other defendants except Canuta Pagkatipunan and her children and the spouses Moises Santos and Magdalena Pagkatipunan. Civil Case No. SC-894 is hereby remanded to the Regional Trial Court of Laguna, for further proceedings and the same Court is directed to: a)follow the procedure for partition herein prescribed; b)expand the scope of the trial to cover other possible illegal dispositions of the first conjugal partnership properties not only by Canuta Pagkatipunan but also by the other heirs as can be shown in the records; c)include the one-fourth (1/4) share of Jose Velasquez, Sr. in the residential house in Quezon City with his conjugal share under his first marriage, if any, to determine his net estate at the time of his death. The trial court's pronouncement as to cost and damages is hereby deleted. SO ORDERED.

HEIRS OF DORONIO vs. HEIRS OF DORONIO[2008] Facts: Spouses Simeon Doronio and Cornelia Gante, now both deceased,were the registered owners of a parcel of land located at BarangayCabalitaan, Asingan, Pangasinan. Marcelino Doronio and FortunatoDoronio, now both deceased, were the children of the spouses and theparties in this case are their heirs. Petitioners are the heirsof Marcelino Doronio, while respondents are the heirsof Fortunato Doronio.Eager to obtain the entire property, the heirs of MarcelinoDoronio and Veronica Pico filed before the RTC in Urdaneta, Pangasinana petition "For the Registration of a Private Deed of

Donation"docketed as Petition Case No. U-920. No respondents were named in thesaid petition although notices of hearing were posted on the bulletinboards of Barangay Cabalitaan, Municipalities of Asingan andLingayen.During the hearings, no one interposed an objection to thepetition. After the RTC ordered a general default, the petition waseventually granted on September 22, 1993. This led to the registrationof the deed of donation, cancellation of OCT No. 352 and issuance of anew Transfer Certificate of Title (TCT) No. 44481 in the names ofMarcelino Doronio and Veronica Pico. Thus, the entire property wastitled in the names of petitioners predecessors.On April 28, 1994,the heirs of Fortunato Doronio filed a pleading before the RTC in theform of a petition in the same Petition Case No. U-920. The petitionwas for the reconsideration of the decision of the RTC that orderedthe registration of the subject deed of donation. It was prayed in thepetition that an order be issued declaring null and void theregistration of the private deed of donation and that TCT No. 44481 becancelled. However, the petition was dismissed on the ground that thedecision in Petition Case No. U-920 had already become final as it wasnot appealed.Determined to remain in their possessed property,respondent heirs of Fortunato Doronio (as plaintiffs) filed an actionfor reconveyance and damages with prayer for preliminaryinjunction against petitioner heirs of Marcelino Doronio (asdefendants) before the RTC, Branch 45, Anonas, Urdaneta City,Pangasinan. After due proceedings, the RTC ruled in favor ofpetitioner heirs of Marcelino Doronio. Disagreeing with the judgment of the RTC, respondents appealed to the CA. the CA reversed the RTC decision.

Issues Petitioners now contend that the CA erred in:


1.DECLARING ADMISSIBILITY OF THE ORIGINAL CERTIFICATE OF TITLE NO. 352 DESPITE OF LACK OF TRANSLATION THEREOF. 2.(RULING THAT) ONLY HALF OF THE DISPUTED PROPERTY WAS DONATED TO THE PREDECESSORS-IN-INTEREST OF THE HEREIN APPELLANTS.
cHDEaC

3.(ITS) DECLARATION THAT THE DONATION PROPTER NUPTIAS IS INNOFICIOUS, IS PREMATURE, AND THUS IT IS ILLEGAL AND UNPROCEDURAL. 29

Our Ruling OCT No. 352 in Spanish Although Not Translated into English or Filipino Is Admissible For Lack of Timely Objection Petitioners fault the CA for admitting OCT No. 352 in evidence on the ground that it is written in Spanish language. They posit that "(d)ocumentary evidence in an unofficial language shall not be admitted as evidence, unless accompanied with a translation into English or Filipino." 30

The argument is untenable. The requirement that documents written in an unofficial language must be accompanied with a translation in English or Filipino as a prerequisite for its admission in evidence must be insisted upon by the parties at the trial to enable the court, where a translation has been impugned as incorrect, to decide the issue. 31 Where such document, not so accompanied with a translation in English or Filipino, is offered in evidence and not objected to, either by the parties or the court, it must be presumed that the language in which the document is written is understood by all, and the document is admissible in evidence. 32 Moreover, Section 36, Rule 132 of the Revised Rules of Evidence provides:
SECTION 36.Objection. Objection to evidence offered orally must be made immediately after the offer is made. Objection to a question propounded in the course of the oral examination of a witness shall be made as soon as the grounds therefor shall become reasonably apparent. An offer of evidence in writing shall be objected to within three (3) days after notice of the offer unless a different period is allowed by the court. In any case, the grounds for the objections must be specified. (Emphasis ours)

Since petitioners did not object to the offer of said documentary evidence on time, it is now too late in the day for them to question its admissibility. The rule is that evidence not objected may be deemed admitted and may be validly considered by the court in arriving at its judgment. 33 This is true even if by its nature, the evidence is inadmissible and would have surely been rejected if it had been challenged at the proper time. 34 As a matter of fact, instead of objecting, petitioners admitted the contents of Exhibit "A," that is, OCT No. 352 in their comment 35 on respondents' formal offer of documentary evidence. In the said comment, petitioners alleged, among others, that "Exhibits A, B, C, D, E, F and G, are admitted but not for the purpose they are offered because these exhibits being public and official documents are the best evidence of that they contain and not for what a party would like it to prove." 36 Said evidence was admitted by the RTC. 37 Once admitted without objection, even though not admissible under an objection, We are not inclined now to reject it. 38 Consequently, the evidence that was not objected to became property of the case, and all parties to the case are considered amenable to any favorable or unfavorable effects resulting from the said evidence. 39
EAcTDH

Issues on Impairment of Legitime Should Be Threshed Out in a Special Proceeding, Not in Civil Action for Reconveyance and Damages

On the other hand, petitioners are correct in alleging that the issue regarding the impairment of legitime of Fortunato Doronio must be resolved in an action for the settlement of estates of spouses Simeon Doronio and Cornelia Gante. It may not be passed upon in an action for reconveyance and damages. A probate court, in the exercise of its limited jurisdiction, is the best forum to ventilate and adjudge the issue of impairment of legitime as well as other related matters involving the settlement of estate. 40 An action for reconveyance with damages is a civil action, whereas matters relating to settlement of the estate of a deceased person such as advancement of property made by the decedent, partake of the nature of a special proceeding. Special proceedings require the application of specific rules as provided for in the Rules of Court. 41 As explained by the Court in Natcher v. Court of Appeals: 42
Section 3, Rule 1 of the 1997 Rules of Civil Procedure defines civil action and special proceedings, in this wise: . . . a) A civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong. A civil action may either be ordinary or special. Both are governed by the rules for ordinary civil actions, subject to specific rules prescribed for a special civil action. xxx xxx xxx c)A special proceeding is a remedy by which a party seeks to establish a status, a right or a particular fact. As could be gleaned from the foregoing, there lies a marked distinction between an action and a special proceeding. An action is a formal demand of one's right in a court of justice in the manner prescribed by the court or by the law. It is the method of applying legal remedies according to definite established rules. The term "special proceeding" may be defined as an application or proceeding to establish the status or right of a party, or a particular fact. Usually, in special proceedings, no formal pleadings are required unless the statute expressly so provides. In special proceedings, the remedy is granted generally upon an application or motion. Citing American Jurisprudence, a noted authority in Remedial Law expounds further:

It may accordingly be stated generally that actions include those proceedings which are instituted and prosecuted according to the ordinary rules and provisions relating to actions at law or suits in equity, and that special proceedings include those proceedings which are not ordinary in this sense, but is instituted and prosecuted according to some special mode as in the case of proceedings commenced without summons and prosecuted without regular pleadings, which are characteristics of ordinary actions . . . . A special proceeding must therefore be in the nature of a distinct and independent proceeding for particular relief, such as may be instituted independently of a pending action, by petition or motion upon notice.
aSTAIH

Applying these principles, an action for reconveyance and annulment of title with damages is a civil action, whereas matters relating to settlement of the estate of a deceased person such as advancement of property made by the decedent, partake of the nature of a special proceeding, which concomitantly requires the application of specific rules as provided for in the Rules of Court. Clearly, matters which involve settlement and distribution of the estate of the decedent fall within the exclusive province of the probate court in the exercise of its limited jurisdiction. Thus, under Section 2, Rule 90 of the Rules of Court, questions as to advancement made or alleged to have been made by the deceased to any heir may be heard and determined by the court having jurisdiction of the estate proceedings, and the final order of the court thereon shall be binding on the person raising the questions and on the heir. While it may be true that the Rules used the word "may," it is nevertheless clear that the same provision contemplates a probate court when it speaks of the "court having jurisdiction of the estate proceedings."

Corollarily, the Regional Trial Court in the instant case, acting in its general jurisdiction, is devoid of authority to render an adjudication and resolve the issue of advancement of the real property in favor of herein petitioner Natcher, inasmuch as Civil Case No. 71075 for reconveyance and annulment of title with damages is not, to our mind, the proper vehicle to thresh out said question. Moreover, under the present circumstances, the RTC of Manila, Branch 55, was not properly constituted as a probate court so as to validly pass upon the question of advancement made by the decedent Graciano Del Rosario to his wife, herein petitioner Natcher.

We likewise find merit in petitioners' contention that before any conclusion about the legal share due to a compulsory heir may be reached, it is necessary that certain steps be

taken first. 43 The net estate of the decedent must be ascertained, by deducting all payable obligations and charges from the value of the property owned by the deceased at the time of his death; then, all donations subject to collation would be added to it. With the partible estate thus determined, the legitime of the compulsory heir or heirs can be established; and only then can it be ascertained whether or not a donation had prejudiced the legitimes. 44 Declaration of Validity of Donation Can Be Challenged by an Interested Party Not Impleaded in Petition for Quieting of Title or Declaratory Relief or Where There is No Res Judicata. Moreover, This Court Can Consider a Factual Matter or Unassigned Error in the Interest of Substantial Justice. Nevertheless, petitioners cannot preclude the determination of validity of the deed of donation on the ground that (1) it has been impliedly admitted by respondents; (2) it has already been determined with finality by the RTC in Petition Case No. U-920; or (3) the only issue in an action for reconveyance is who has a better right over the land. 45 The validity of the private deed of donation propter nuptias in favor of petitioners' predecessors was one of the issues in this case before the lower courts. The pre-trial order 46 of the RTC stated that one of the issues before it is "(w)hether or not the transfer of the whole property covered by OCT No. 352 on the basis of the private deed of donation notwithstanding the discrepancy in the description is valid." Before the CA, one of the errors assigned by respondents is that "THE TRIAL COURT ERRED IN NOT FINDING THAT THE PRIVATE DEED OF DONATION DATED APRIL 26, 1919 WAS NULL AND VOID." 47
cHEATI

The issue of the validity of donation is likewise brought to Us by petitioners as they stated in their Memorandum 48 that one of the issues to be resolved is regarding the alleged fact that "THE HONORABLE COURT OF APPEALS ERRED IN FINDING THE DONATION INVALID." We are thus poised to inspect the deed of donation and to determine its validity. We cannot agree with petitioners' contention that respondents may no longer question the validity of the deed of donation on the ground that they already impliedly admitted it. Under the provisions of the Civil Code, a void contract is inexistent from the beginning. The right to set up the defense of its illegality cannot be waived. 49 The right to set up the nullity of a void or non-existent contract is not limited to the parties as in the case of annullable or voidable contracts; it is extended to third persons who are directly affected by the contract. 50

Consequently, although respondents are not parties in the deed of donation, they can set up its nullity because they are directly affected by the same. 51 The subject of the deed being the land they are occupying, its enforcement will definitely affect them. Petitioners cannot also use the finality of the RTC decision in Petition Case No. U-920 52 as a shield against the verification of the validity of the deed of donation. According to petitioners, the said final decision is one for quieting of title. 53 In other words, it is a case for declaratory relief under Rule 64 (now Rule 63) of the Rules of Court, which provides:
SECTION 1.Who may file petition. Any person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive order or regulation, or ordinance, may, before breach or violation thereof, bring an action to determine any question of construction or validity arising under the instrument or statute and for a declaration of his rights or duties thereunder. An action for the reformation of an instrument, to quiet title to real property or remove clouds therefrom, or to consolidate ownership under Article 1607 of the Civil Code, may be brought under this rule. SECTION 2. Parties. All persons shall be made parties who have or claim any interest which would be affected by the declaration; and no declaration shall, except as otherwise provided in these rules, prejudice the rights of persons not parties to the action. (Emphasis ours)

However, respondents were not made parties in the said Petition Case No. U-920. Worse, instead of issuing summons to interested parties, the RTC merely allowed the posting of notices on the bulletin boards of Barangay Cabalitaan, Municipalities of Asingan and Lingayen, Pangasinan. As pointed out by the CA, citing the ruling of the RTC:
. . . In the said case or Petition No. U-920, notices were posted on the bulletin boards of barangay Cabalitaan, Municipalities of Asingan and Lingayen, Pangasinan, so that there was a notice to the whole world and during the initial hearing and/or hearings, no one interposed objection thereto. 54

Suits to quiet title are not technically suits in rem, nor are they, strictly speaking, in personam, but being against the person in respect of the res, these proceedings are characterized as quasi in rem. 55 The judgment in such proceedings is conclusive only between the parties. 56 Thus, respondents are not bound by the decision in Petition Case No. U-920 as they were not made parties in the said case.
aATESD

The rules on quieting of title 57 expressly provide that any declaration in a suit to quiet title shall not prejudice persons who are not parties to the action.

That respondents filed a subsequent pleading 58 in the same Petition Case No. U-920 after the decision there had become final did not change the fact that said decision became final without their being impleaded in the case. Said subsequent pleading was dismissed on the ground of finality of the decision. 59 Thus, the RTC totally failed to give respondents their day in court. As a result, they cannot be bound by its orders. Generally accepted is the principle that no man shall be affected by any proceeding to which he is a stranger, and strangers to a case are not bound by judgment rendered by the court. 60 Moreover, for the principle of res judicata to apply, the following must be present: (1) a decision on the merits; (2) by a court of competent jurisdiction; (3) the decision is final; and (4) the two actions involve identical parties, subject matter and causes of action. 61 The fourth element is not present in this case. The parties are not identical because respondents were not impleaded in Petition Case No. U-920. While the subject matter may be the same property covered by OCT No. 352, the causes of action are different. Petition Case No. U-920 is an action for declaratory relief while the case below is for recovery of property. We are not persuaded by petitioners' posture that the only issue in this action for reconveyance is who has a better right over the land; and that the validity of the deed of donation is beside the point. 62 It is precisely the validity and enforceability of the deed of donation that is the determining factor in resolving the issue of who has a better right over the property. Moreover, notwithstanding procedural lapses as to the appropriateness of the remedies prayed for in the petition filed before Us, this Court can brush aside the technicalities in the interest of justice. In some instances, this Court even suspended its own rules and excepted a case from their operation whenever the higher interests of justice so demanded. 63 Moreover, although respondents did not directly raise the issue of validity of the deed of donation at the commencement of the case before the trial court, it was stipulated 64 by the parties during the pre-trial conference. In any event, this Court has authority to inquire into any question necessary in arriving at a just decision of a case before it. 65 Though not specifically questioned by the parties, additional issues may also be included, if deemed important for substantial justice to be rendered. 66 Furthermore, this Court has held that although a factual issue is not squarely raised below, still in the interest of substantial justice, this Court is not prevented from considering a pivotal factual matter. The Supreme Court is clothed with ample authority to review palpable errors not assigned as such if it finds that their consideration is necessary in arriving at a just decision. 67

A rudimentary doctrine on appealed cases is that this Court is clothed with ample authority to review matters, even if they are not assigned as errors on appeal, if it finds that their consideration is necessary at arriving at a just decision of the case. 68 Also, an unassigned error closely related to an error properly assigned or upon which the determination of the question raised by the error properly assigned is dependent, will be considered by the appellate court notwithstanding the failure to assign it as an error. 69 Donation Propter Nuptias of Real Property Made in a Private Instrument Before the New Civil Code Took Effect on August 30, 1950 is Void We now focus on the crux of the petition, which is the validity of the deed of donation. It is settled that only laws existing at the time of the execution of a contract are applicable to it and not the later statutes, unless the latter are specifically intended to have retroactive effect. 70 Accordingly, the Old Civil Code applies in this case as the donation propter nuptias was executed in 1919, while the New Civil Code took effect only on August 30, 1950.

Under the Old Civil Code, donations propter nuptias must be made in a public instrument in which the property donated must be specifically described. 71 Article 1328 of the Old Civil Code provides that gifts propter nuptias are governed by the rules established in Title 2 of Book 3 of the same Code. Article 633 of that title provides that the gift of real property, in order to be valid, must appear in a public document. 72 It is settled that a donation of real estate propter nuptias is void unless made by public instrument. 73 In the instant case, the donation propter nuptias did not become valid. Neither did it create any right because it was not made in a public instrument. 74 Hence, it conveyed no title to the land in question to petitioners' predecessors. Logically, then, the cancellation of OCT No. 352 and the issuance of a new TCT No. 44481 in favor of petitioners' predecessors have no legal basis. The title to the subject property should, therefore, be restored to its original owners under OCT No. 352. Direct reconveyance to any of the parties is not possible as it has not yet been determined in a proper proceeding who among the heirs of spouses Simeon Doronio and Cornelia Gante is entitled to it. It is still unproven whether or not the parties are the only ones entitled to the properties of spouses Simeon Doronio and Cornelia Gante. As earlier intimated, there are still things to be done before the legal share of all the heirs can be properly adjudicated. 75
aDHCcE

Titled Property Cannot Be Acquired By Another By Adverse Possession or Extinctive Prescription Likewise, the claim of respondents that they became owners of the property by acquisitive prescription has no merit. Truth to tell, respondents cannot successfully invoke the argument of extinctive prescription. They cannot be deemed the owners by acquisitive prescription of the portion of the property they have been possessing. The reason is that the property was covered by OCT No. 352. A title once registered under the torrens system cannot be defeated even by adverse, open and notorious possession; neither can it be defeated by prescription. 76 It is notice to the whole world and as such all persons are bound by it and no one can plead ignorance of the registration. 77 The torrens system is intended to guarantee the integrity and conclusiveness of the certificate of registration, but it cannot be used for the perpetration of fraud against the real owner of the registered land. 78 The system merely confirms ownership and does not create it. Certainly, it cannot be used to divest the lawful owner of his title for the purpose of transferring it to another who has not acquired it by any of the modes allowed or recognized by law. It cannot be used to protect a usurper from the true owner, nor can it be used as a shield for the commission of fraud; neither does it permit one to enrich himself at the expense of another. 79 Where such an illegal transfer is made, as in the case at bar, the law presumes that no registration has been made and so retains title in the real owner of the land. 80 Although We confirm here the invalidity of the deed of donation and of its resulting TCT No. 44481, the controversy between the parties is yet to be fully settled. The issues as to who truly are the present owners of the property and what is the extent of their ownership remain unresolved. The same may be properly threshed out in the settlement of the estates of the registered owners of the property, namely: spouses Simeon Doronio and Cornelia Gante. WHEREFORE, the appealed Decision is REVERSED AND SET ASIDE. A new one is entered: (1)Declaring the private deed of donation propter nuptias in favor of petitioners predecessors NULL AND VOID; and (2)Ordering the Register of Deeds of Pangasinan to: (a)CANCEL Transfer Certificate of Title No. 44481 in the names of Marcelino Doronio and Veronica Pico; and (b)RESTORE Original Certificate of Title No. 352 in the names of its original owners, spouses Simeon Doronio and Cornelia Gante.

SO ORDERED.
DISINHERITANCE

[G.R. No. L-23253. March 28, 1969.] IN THE MATTER OF THE PETITION FOR BETTY CHUA SY ALIAS "GRACE CABANGBANG" FOR THE ISSUANCE OF A WRIT OF HABEAS CORPUS. PACITA CHUA, petitioner-appellant, vs. MR. & MRS. BARTOLOME CABANGBANG, ET AL., respondents-appellees. Francisco R. Sotto and Associate for petitioner-appellant. Teofilo F . Manalo for respondent-appellee Mr. & Mrs. Cabangbang. Enrico R. Castro for respondent-appellee Victor T. Villareal. SYLLABUS 1.CIVIL LAW; PARENTAL AUTHORITY OVER CHILD; POWER OF COURTS TO DEPRIVE PARENTS OF PARENTAL AUTHORITY OVER THEIR CHILD. While in one breath, Art. 313 of the Civil Code lays down the rule that "Parental authority cannot be renounced or transferred, except in cases of guardianship or adoption approved by the courts, or emancipation by concession, " it indicates in the next that "The courts may, in cases specified by law, deprive parents of their (parental) authority." 2.ID.; ID.; ID.; CASE AT BAR. The reasons that "petitioner is not exactly an upright woman" and "it will be for the welfare of the child" are not, strictly speaking, proper grounds in law to deprive a mother of her inherent right to parental authority over her child. 3.ID.; ID.; ID.; ABANDONMENT AS ONE OF SAID GROUNDS. Under Art. 332, abandonment is one of the grounds for depriving parents of parental authority over their children. To our mind, however, mere acquiescence - without more - is not sufficient to constitute abandonment. 4.ID.; ID.; ID.; ID.; INSTANT CASE. The record yields a host of circumstances which, in their totality, unmistakably betray the petitioner's settled purpose and intention to completely forego all parental responsibilities and forever relinquish all parental claim in respect to the child. She continuously shunned the natural and legal obligations which

she owed to the child; completely withheld her love, her care, and the opportunity to display maternal affection; and totally denied her support and maintenance. Her silence and inaction have been prolonged to such a point that her abandonment of the child and her total relinquishment of parental claim over her, can and should be inferred as a matter of law. 5.ID.; CUSTODY OF MINOR CHILDREN; AWARD OF CUSTODY OF CHILD TO STRANGER, WHEN PROPER. The absence of any kinship between the child and the Cabangbangs alone cannot serve to bar the lower court from awarding her custody to them. Indeed, the law provides that in certain cases the custody of a child may be awarded even to strangers, as against either the father or the mother or against both. Thus, in proceedings involving a child whose parents are separated either legally or de facto and where it appears that both parents are improper persons to whom to entrust the care, custody and control of the child, "the court may either designate the paternal or maternal grandparents of the child, or his oldest brother or sister, or some reputable and discreet person to take charge of such child, or commit it to any suitable asylum, children's home, or benevolent society." 6.ID.; ID.; ID.; PROVISIONS OF LAW INVOLVED EXPLAINED. Sections 6 and 7 of Rule 99 of the Rules of Court belie the petitioner's contention that the first sentence of Art. 363 of the Civil Code, which states that "In all questions on the care, custody, education and property of children, the latter's welfare shall be paramount . . . " applies only when the litigation involving a child is between the father and the mother. That the policy enunciated in the abovequoted legal provision is of general application, is evident from the use of adjective all meaning, the whole extent or quantity of, the entire number of, every one of (Webster's New World Dictionary of the American Language, College Edition, 1959, ed., p. 38). 7.ID.; ID.; ID.; SUIT BETWEEN PARENTS AND STRANGER OVER CUSTODY OF CHILD CONTEMPLATED UNDER RULES INVOLVED. It is error to argue that if the suit involving a child's custody is between a parent and a stranger, the law must necessarily award such custody to the parent. Sec. 7, Rule 99 of the Rules of Court, precisely contemplates, among other, a suit between a parent and a stranger who, in the words of the provision, is "some reputable resident of the province." And under the authority of the said rule, the court if it is for the best interest of the child - may take the child away from its parents and commit it to, inter alia, a benevolent person. 8.REMEDIAL LAW; WRIT OF HABEAS CORPUS; COVERAGE. Sec. 1, Rule 102 of the Rules of Court provides that "Except as otherwise expressly provided by law, the writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto."

9.ID.; ID.; PETITION THEREFOR WAS CORRECTLY DISMISSED IN INSTANT CASE. The petitioner has not proven that she is entitled to the rightful custody of Betty Chua Sy or Grace Cabangbang. Upon the contrary, by wantonly and completely shunting aside her legal and moral obligations toward her child, she must be deemed as having forfeited all legitimate legal and moral claim to her custody. The lower court acted correctly in dismissing her petition.

DECISION

CASTRO, J :
p

This is an appeal direct to this Court from the decision of May 21, 1964 of the Court of First Instance of Rizal dismissing Pacita Chua's petition for habeas corpus directed against Bartolome Cabangbang and his wife Flora Cabangbang. Pacita Chua, when still in the prime of youth, supported herself by working in nightclubs as a hostess. And sexual liaison she had with man after man without benefit of marriage. She first lived with a certain Chua Ben in 1950 by whom she had a child who died in infancy. She afterwards cohabited with Sy Sia Lay by whom she had two children named Robert and Betty Chua Sy. The latter child was born on December 15, 1957. Shortly after the birth of Betty, Pacita Chua and Sy Sia Lay separated. Finding no one to fall back on after their separation, Pacita Chua lingered in and around nightclubs and gambling joints, until she met Victor Tan Villareal. In due time she became the latter's mistress. In 1960 another child, a girl, was born to her. In 1961 when this last child was still an infant, she and Villareal separated. Without means to support the said child, Pacita Chua gave her away to a comadre in Cebu. Sometime in May 1958 Bartolome Cabangbang and his wife, a childless couple, acquired the custody of the child Betty who was then barely four months old. They have since brought her up as their own. They had her christened as Grace Cabangbang on September 12, 1958. 1 There is some testimonial conflict on how the Cabangbang spouses acquired custody of the girl Betty (or Grace). Pacita Chua avers that in 'October 1958, while she and Villareal were still living together, the latter surreptitiously took the child away and gave her to the Cabangbangs, allegedly in recompense for favors received. She supposedly came to know of the whereabouts of her daughter only in 1960 when the girl, who was then about three years old, was brought to her by Villareal, who shortly thereafter returned the child to the Cabangbangs allegedly thru threats, intimidation, fraud and deceit. The Cabangbang spouses assert in rebuttal that Mrs. Cabangbang found the child, wrapped in

a bundle, at the gate of their residence; that she reared her as her own and grew very fond of her; and that nobody ever molested them until the child was 5-1/2 years of age. At all events, it is the lower court's finding that the child was given to the Cabangbang spouses by Villareal with the knowledge and consent of Pacita Chua. By letter dated June 6, 1963 addressed to the Cabangbang spouses, with copy furnished to Villareal, Pacita Chua thru counsel demanded the surrender to her of the custody of the child. Failing to secure such custody, Pacita Chua (hereinafter referred to as the petitioner) filed on June 14, 1963 a petition for habeas corpus with the Court of First Instance of Rizal, praying that the court grant her custody of and recognize her parental authority over the girl. Named respondents in the petition were Villareal and the spouses Cabangbang. On June 15, 1963 a writ was issued commanding the provincial sheriff of Rizal or any of his deputies to produce the body of Betty Chua Sy or Grace Cabangbang before the court a quo on June 17, 1963, at 8:30 a.m. However, for reasons not stated in the record, the child was not produced before the lower court as ordered. On June 21, 1963 Villareal filed his answer to the petition. The Cabangbangs filed their answer the next day. After due trial, the lower court on May 21, 1964 promulgated its decision, the dispositive portion of which reads as follows:
"IN VIEW OF THE FOREGOING, the Court has come to the conclusion that it will be for the welfare of the child Betty Chua Sy also known as Grace Cabangbang to be under the custody of respondents Mr. and Mrs. Bartolome Cabangbang. Petition dismissed. No pronouncement as to costs." In this appeal now before us, the petitioner tenders for resolution two issues of law which, by her own formulation, read as follows: "The lower court erred when it [1] awarded the custody of petitioner's daughter Betty Chua Sy or Grace Cabangbang, who is less than seven (7) years old, in favor of respondents Mr. and Mrs. Bartolome Cabangbang, and [2] illegally deprived petitioner of parental authority over her daughter."

We resolve both issues against the petitioner. I. Stated succinctly, the petitioner's thesis is that pursuant to the mandate contained in Article 363 of the Civil Code she cannot be separated from her child who was less than seven years of age, and that she cannot be deprived of her parental authority over the

child because not one of the grounds for the termination, loss, suspension or deprivation of parental authority provided in Article 332 of the same Code obtains in this case.

Whether the petitioner can be legally separated from her child, Betty Chua Sy or Grace Cabangbang, is an issue that is now moot and academic. Having been born on December 15, 1957, the child is now 11 years of age. Consequently, the second paragraph of Art. 363 of the Civil Code, which prohibits the separation of a child under seven years of age from her mother, "unless the court finds compelling reasons for such measure," has no immediate relevance. The petitioner correctly argues, however, that the reasons relied upon by the lower court i.e., "petitioner is not exactly an upright woman" and "it will be for the welfare of the child" are not, strictly speaking, proper grounds in law to deprive a mother of her inherent right to parental authority over her child. It must be conceded that minor children be they legitimate, recognized natural, adopted, natural by legal fiction or illegitimate, other than natural as specified in Art. 269 of the Civil Code are by law under the parental authority of both the father and the mother, or either the father or the mother, as the case may be. But we take the view that on the basis of the aforecited seemingly unpersuasive factual premises, the petitioner can be deprived of her parental authority. For while in one breath Art. 313 of the Civil Code lays down the rule that "Parental authority cannot be renounced or transferred, except in cases of guardianship or adoption approved by the courts, or emancipation by concession," it indicates in the next that "The courts may, in cases specified by law, deprive parents of their [parental] authority." And there are indeed valid reasons, as will presently be expounded, for depriving the petitioner of parental authority over the minor Betty Chua Sy or Grace Cabangbang. It is the lower court's finding that the child was given to the Cabangbangs by Villareal with the knowledge and consent of the petitioner. In support of this finding, it cited the facts that the petitioner did not at all not ever report to the authorities the alleged disappearance of her daughter, and had not been taken any step to see the child when she allegedly discovered that she was in the custody of the Cabangbangs. It discounted the petitioner's claim that she did not make any move to recover the child because the Cabangbangs are powerful and influential. The petitioner is bound by the foregoing findings of fact. Having taken her appeal directly to this Court, she is deemed to have waived the right to dispute any finding of fact made by the trial court. 2 Art. 332 of the Civil Code provides, inter alia:
"The courts may deprive the parents of their authority or suspend the exercise of the same if they should treat their children with excessive harshness or should

give them corrupting orders, counsels, or examples, or should make them beg or abandon them." (emphasis supplied)

Abandonment is therefore one of the grounds for depriving parents of parental authority over their children. Was the petitioner's acquiescence to the giving by Villareal of her child to the Cabangbangs tantamount to abandonment of the child? To our mind, mere acquiescence without more is not sufficient to constitute abandonment. But the record yields a host of circumstances which, in their totality, unmistakably betray the petitioner's settled purpose and intention to completely forego all parental responsibilities and forever relinquish all parental claim in respect to the child. She surrendered the custody of her child to the Cabangbangs in 1958. She waited until 1963, or after the lapse of a period of five long years, before she brought action to recover custody. Her claim that she did not take any step to recover her child because the Cabangbangs were powerful and influential, does not deserve any modicum of credence. A mother who really loves her child would go to any extent to be reunited with her. The natural and normal reaction of the petitioner once informed, as she alleged, that her child was in the custody of the Cabangbangs should have been to move heaven and earth, to use a worn-out but still respectable cliche, in order to recover her. Yet she lifted not a finger. It is a matter of record being the gist of her own unadulterated testimony under oath that she wants the child back so that Sy Sia Lay, the alleged father, would resume providing the petitioner the support which he peremptorily withheld and ceased to give when she gave the child away. A woman scorned, she desires to recover the child as a means of embarrassing Villareal who retrieved the jeep he gave her and altogether stopped living with and supporting her. But the record likewise reveals that at the pretrial conducted by the court a quo, she expressed her willingness that the child remain with the Cabangbangs provided the latter would in exchange give her a jeep and some money. The petitioners's inconsistent demands in the course of the proceedings below, reveal that her motives do not flow from the wellsprings of a loving mother's heart. Upon the contrary, they are unmistakably selfish nay, mercenary. She needs the child as a leverage to obtain concessions financial and otherwise either from the alleged father or the Cabangbangs. If she gets the child back, support for her would be forthcoming or so she thinks from the alleged father, Sy Sia Lay. On the other hand, if the Cabangbangs would keep the child, she would agree provided they gave her a jeep and some money.

Indeed, the petitioner's attitude, to our mind, does nothing but confirm her intention to abandon the child from the very outset when she allowed Villareal to give her away to the Cabangbangs. It must be noted that the abandonment took place when the child, barely four months old, was at the most fragile stage of life and needed the utmost care and solicitude of her mother. And for five long years thereafter she did not once move to recover the child. She continuously shunned the natural and legal obligations which she owed to the child; completely withheld her presence, her love, her care, and the opportunity to display maternal affection; and totally denied her support and maintenance. Her silence and inaction have been prolonged to such a point that her abandonment of the child and her total relinquishment of parental claim over her, can and should be inferred as a matter of law. 3 Note that this was not the only instance when she gave away a child of her own flesh and blood. She gave up her youngest child, named Betty Tan Villareal, to her comadre in Cebu because she could not support it. Of incalculable significance is the fact that nowhere in the course of the petitioner's lengthy testimony did she ever express a genuine desire to recover her child Betty Chua Sy or Grace Cabangbang or, for that matter, her other child Betty Tan Villareal because she loves her, cares for her, and wants to smother her with motherly affection. Far from it. She wants Betty Chua Sy or Grace Cabangbang back so that the alleged father would resume giving her (the petitioner) support. She wants her back to humiliate and embarrass the respondent Villareal who, with her knowledge and consent, gave the child to the Cabangbangs. But "most unkindest cut of all!" she nevertheless signified her readiness to give up the child, in exchange for a jeep and some money. We therefore affirm the lower court's decision, not on the grounds cited by it, but upon a ground which the court overlooked i.e., abandonment by the petitioner of her child. 4 Contrast the petitioner's attitude with that of the respondents Cabangbang especially the respondent Flora Cabangbang who, from the moment the child was given to them, took care of her as if she were her own flesh and blood, had her baptized, and when she reached school age enrolled her in a reputable exclusive school for girls. Ironically enough, the real heart-rending tragedy in this case would consist not in taking the child away from the Cabangbangs but in returning her to the custody of the petitioner. For, by her own admission, the petitioner has no regular source of income, and it is doubtful, to say the very least, that she can provide the child with the barest necessities of life, let alone send her to school. There is no assurance at all that the alleged father, Sy Sia Lay an unknown quantity, as far as the record goes would resume giving the petitioner support once she and the child are reunited. What would then prevent the petitioner from again doing that which she did before, i.e., give her away? These are of

course conjectures, but when the welfare of a helpless child is at stake, it is the bounden duty of courts which they cannot shirk to respect, enforce, and give meaning and substance to a child's natural and legal right to live and grow in the proper physical, moral and intellectual environment. 5 This is not to say that with the Cabangbang spouses, a bright and secure future is guaranteed for her. For life is beset at every turn with snares and pitfalls. But the record indubitably pictures the Cabangbang spouses as a childless couple of consequence in the community, who have given her their name and are rearing her as their very own child, and with whom there is every reason to hope she will have a fair chance of normal growth and development into respectable womanhood. Verily, to surrender the girl to the petitioner would be to assume quite incorrectly that only mothers are capable of parental love and affection. Upon the contrary, this case precisely underscores the homiletic admonition that parental love is not universal and immutable like a law of natural science. II. The petitioner assails as illegal and without basis the award of the custody of Grace Cabangbang or Betty Chua Sy to the Cabangbang spouses upon the grounds, first, that the couple are not related by consanguinity, or affinity to the child, and second, because the answer of the spouses contains no prayer for the custody of the child.

The absence of any kinship between the child and the Cabangbangs alone cannot serve to bar the lower court from awarding her custody to them. Indeed, the law provides that in certain cases the custody of a child may be awarded even to strangers, as against either the father or the mother or against both. Thus, in proceedings involving a child whose parents are separated either legally or de facto and where it appears that both parents are improper persons to whom to entrust the care, custody and control of the child, "the court may either designate the paternal or maternal grandparent of the child, or his oldest brother or sister, or some reputable and discreet person to take charge of such child, or commit it to any suitable asylum, children's home, or benevolent society." 6 Parenthetically, Sections 6 and 7 of Rule 99 of the Rules of Court belie the petitioner's contention that the first sentence of Art. 363 of the Civil Code, which states that.
"In all questions on the care, custody, education and property of children, the latter's welfare shall be paramount . . ."

applies only when the litigation involving a child is between the father and the mother. That the policy enunciated in the abovequoted legal provision is of general

application, is evident from the use of the adjective all meaning, the whole extent or quantity of, the entire number of, every of. 7 It is, therefore, error to argue that if the suit involving a child's custody is between a parent and a stranger, the law must necessarily award such custody to the parent. Sec. 7, Rule 99 of the Rules of Court, precisely contemplates, among others, a suit between a parent and a stranger who, in the words of the provision, is "some reputable resident of the province." And under the authority of the said rule, the court if it is for the best interest of the child may take the child away from its parents and commit it to, inter alia, a benevolent person. The petitioner's contention that the answer of the spouses Cabangbang contains no prayer for the retention by them of the custody of the child, is equally devoid of merit. The several moves taken by them are clear and definitive enough. First, they asked for her custody pendente lite. Second, they sought the dismissal of the petition below for lack of merit. Finally, they added a general prayer for other reliefs just and equitable in the premises. Surely the above reliefs prayed for are clearly indicative of the Cabangbangs' genuine desire to retain the custody of Betty Chua Sy or Grace Cabangbang. III. Sec. 1, Rule 102 of the Rules of Court provides that "Except as otherwise expressly provided by law, the writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto." The petitioner has not proven that she is entitled to the rightful custody of Betty Chua Sy or Grace Cabangbang. Upon the contrary, by wantonly and completely shunting aside her legal and moral obligations toward her child, she must be deemed as having forfeited all legitimate legal and moral claim to her custody. The lower court acted correctly in dismissing her petition. ACCORDINGLY, the judgment a quo is affirmed. No pronouncement as to costs.

G.R. No. 2386 MIGUEL FUENTES, ET AL., appellants-appellee, vs. JUANA CANON Y FAUSTINO, ET AL., defendant-appellant. Ramon Salinas, for appellants. Aguedo Velarde, for appellee.

WILLARD, J.: The twentieth clause of the will of Josefa Faustino y Mendoza, who died on the 1st day of April, 1887, is as follows: Vigesima. Mando se entreguen a los conyuges Don Miguel de la Fuente y Doa Potenciana Medrano tres mil pesos para invertirlos en compra de buenos terrenos de labor quedandose con una tercera parte y repartiendo las dos restantes la una a la viuda e hijo de Don Eriberto de la Fuente y la otra a los hijos y herederos de Don Honorio de la Fuente. The plaintiffs herein, Miguel de la Fuente and Potenciana Medrano, brought this action against the twenty heirs of Josefa to recover the 3,000 pesos mentioned in this legacy. Judgment was entered in favor of the plaintiffs in the court below. Defendants excepted to the judgment, and have brought the case here by bill of exceptions. No motion for a new trial was made in the court below. The first claim of the appellants is that the plaintiffs are required to give a bond before they are entitled to the delivery of the 3,000 pesos, the legacy here in question being defined in law 21, title 9, partida 6, and known as a legado modal. There is nothing in this claim. As far as the heirs of the testatrix are concerned, there is no condition whatever attached to the legacy. With the rights of the beneficiaries mentioned in the said twentieth clause the defendants in this case have nothing to do. As to them there was an absolute gift of 3,000 pesos, and the plaintiffs have the right to receive that from the heirs, and they are under no obligation to give security to the heirs before the money is paid. The court below ordered judgment against the defendants for 3,000 pesos and interest from January 1, 1894. The appellants claim that this was error. It was proved that in November, 1893, the plaintiffs commenced an action against the heirs of the testatrix to recover this legacy. For some reason that case was not brought to trial. It, however, amounted to a judicial demand for the payment of the money, and the interest commenced to run from that date. The case shows that upon the death of Josefa her property was divided among two nephews and a niece. One of the nephews afterwards died, and his property was divided among heirs of two other nephews who had died before Josefa and the nephew and niece who had survived her. The court ordered judgment against the twenty defendants for the payment of 3,000 pesos and interest, without any statement as to how much each defendant was to pay. The judgment as it stands must be construed as imposing an equal pro rata liability, and for this reason we think it is erroneous. The liability imposed upon the heirs to pay this legacy is pro rata (mancomunada) and in proportion to the amount of the estate to which each one was entitled. The judgment of the court below is modified, and judgment is rendered against the defendants for the following amounts, to wit: Maria Josefa Canon Faustino, 1,250 pesos; Cipriana Pilar Faustino, Lazaro Faustino, Filomena Faustino, and Francisco Faustino, 62.50 pesos each; Emerenciano Faustino, Jose Faustino, Exequiel Faustino, Trinidad Faustino, Pedro Faustino, Jose Faustino, and Manuel Faustino, 35.71 pesos each; Juana Canon Faustino, Fernanda Canon Faustino, Marciana Canon Faustino, and Fernando Canon Faustino, 250 pesos each; Concepcion Suarez y Canon Faustino,

Alfredo Suarez y Canon Faustino, Adolfo Suarez y Canon Faustino, and Alfonso Suarez y Canon Faustino, 62.50 pesos each. Judgment is also rendered against each one of the defendants for interest at the rate of 6 per cent per annum from the 1st day of January, 1894, on the sum for which judgment is herein entered as above set forth. With this modification the judgment of the court below is affirmed. No costs will be allowed to either party in this court. After the expiration of twenty days let final judgment be entered herewith and ten days thereafter let the case be remanded to the court below for proper procedure. So ordered. March 22, 1907 G.R. No. 3459 CHIONG JOC-SOY, petitioner-appellant, vs. JAIME VAO, ET AL., respondents-appellants. Levering & Wood for petitioner. Del-Pan, Ortigas & Fisher for respondents. WILLARD, J.: Genoveva Rosales, a resident of Cebu, made her will on the 26th day of October, 1903. The third clause is in part as follows: 3. Of the third part of the estate, which is at my free disposal, I bequeath to the Chinaman Chiong Joc-Soy, the sum of 50,000 pesos, Mexican currency, of which amount 20,000 pesos are for the aforesaid Chiong Joc-Soy, and the balance of 30,000 pesos for the expenses of interment etc. of my late husband Don Nicasio Veloso, . . . . The rest of her property, which amounted in all to upward of 800,000 pesos, she left to her children. After her death the will was presented for probate in the Court of First Instance of the Province of Cebu and was duly proved and allowed on the 24th of November, 1903, and an administrator with the will annexed was appointed. By order of the court he was allowed one year from the 24th of November, 1903, in which to pay the debts and legacies of the deceased. On the 6th of February, 1905, the petitioner, Chiong Joc-Soy, the legatee named in the will, filed a petition in the said proceeding for the settlement of the estate of the deceased, Genoveva Rosales, asking that the administrator be directed to pay him the 50,000 pesos mentioned in the will. An order was made by consent on the 28th of February, 1905, directing the administrator to pay to the petitioner the 20,000 pesos expressed in the first part of the legacy. As to the remainder of the amount therein expressed, the court, on the 6th day of May, 1906, made another order or judgment which as afterwards modified directed as follows: And the court hereby orders that the administrator shall immediately pay over the said to the JocSoy the sum of 30,000 pesos, Mexican currency, or its equivalent in Conant money, at this days

price, fixed by the court, with interest at the rate of 6 per cent annum from the date of the presentation of the claim, or that is, from the 6th of February, 1905. From this order both the petitioner, Chiong Joc-Soy, and the administrator and some of the heirs have appealed. No appeal was taken by any one from the order probating the will. I. As to the appeal of the administrator and the heirs: It is alleged as the first assignment of error that the will was not executed in accordance with the law; that the legacy therein did not, therefore, exist and consequently that the court erred in ordering the administrator to pay the amount thereof of the petitioner. The complete answer to this claim is that the validity of the will was conclusively established by the order of the court admitting it to probate. The question as to whether in the execution of the will the requirements of the law were complied with was then submitted to that court for decision. It had jurisdiction to decide that question. The heirs who have now appealed were parties to that proceeding. After a hearing, the court decided the question and from that decision none of the heirs appealed. The judgment of the probate court in such case stands like any other decision of a court of competent jurisdiction. Its judgments are binding upon the parties interested and their validity, in the absence of any proof of fraud or accidents, or mistakes, can be called in question only by an appeal. In this case there is no suggestion of the existence of any of those things. There is no claim made that the heirs were not properly notified of the hearing upon the probate of the will and nothing to indicate that they were not present and took part in that hearing. Section 625 of the Code of Civil Procedure provides that the allowance by the court of a will of real and personal estate shall be conclusive as to its due execution. The second error assigned is that the court below ordered the payment of the 30,000 pesos without requiring the petitioner to give a bond conditioned that he would dispose of the money as indicated in the will. Article 797 of the Civil Code is as follows: The statement of the object of the designation or of the legacy or the application to be given to what has been left by the testator, or the charge imposed by the same, shall not be considered as a condition, unless it appears that such was his will. What has been left in this manner may be immediately claimed and is transmissible to the heirs who give security for the fulfillment of the orders of the testator and the repayment of what they may have received, with its fruits and interest, should they fail to comply with this obligation. From the first paragraph of this article it is apparent that there is a presumption in cases of this kind that the legacy is not conditional, and unless it clearly appears in the will that it was the intention of the testratrix in this case to make the legacy conditional, the words used must be considered as not imposing any condition. We think under all the circumstances of the case that the testratrix did not intend to impose upon the legatee any condition in making this gift of 30,000 pesos. It is true, as claimed by the heirs, that it is very evident that she intended the 20,000 pesos to be the absolute property of the petitioner and that as to the 30,000 pesos she had

a different intention, but this does not resolve the question presented. That she wished and desired the petitioner to expend the 30,000 pesos as indicated in the will is apparent, but the question is, did she intent to make her gift conditional, or did she rely upon her confidence in the petitioner that he would carry out her suggestion without the necessity of imposing a condition upon him? It appears that the husband of the testratrix was a Chinaman; that she was a Filipina, and that the legatee was Chinaman. The manner in which persons of Chinese descent spend money to perpetuate the memory of a deceased person of their race does not appear, nor the amount that they are accustomed so to expend, nor the time during which it may be expended. All these circumstances were doubtless known to the testratrix and we believe that knowing them she intentionally selected a person of Chinese birth to carry out her purposes in these regard. We hold, therefore, that they legacy is not conditional. When the legacy is not conditional, there may, however, be cases which do not fall under the provisions of said article 797. Scaevola says in his Commentaries on the Civil Code, volume 13, page 646: It is doubtful if the definite directions of the testator, not imposed in the sense of a duty, are embraced in the quoted expression of the purpose of the legacy, with the consequences provided in paragraph 2 of the said article 797. Examples of this class of instructions: I bequeath to Luis my property and desire him to expend in good works all in excess of that which is necessary for his support. I name him my heir so that he may as in duty bound attend to the better education of his children. In these cases, capable of infinite variety, attention must be paid to the true intention of the testator, and if it appears that there was no wish to impose a definite condition, but merely to express a desire or personal opinion as to the best disposal of the estate, then article 797 would not be applicable. We do not find it necessary to decide whether the legacy in question comes within the provisions of the said article or not, for we are satisfied that, even if it does, the judgment of the court below may be affirmed. A fair construction of the second paragraph of the article indicates that the heirs of the legatee are the only ones who are required to give security, and that such security is not required of the legatee himself. In the case of Fuentes vs. Canon,[[1]] No. 2386, decided April 16, 1906 (4 Off. Gaz., 379), the will there in question contained the following clause: Twentieth. I order the sum of 3,000 pesos to be delivered to the spouses Don MIguel de la Fuente and Doa Potenciana Medrano to be expended in the purchase of good agricultural land, one-third of which shall belong to them, and of the remaining two-thirds, one third shall be given to the widow and son of Don Eriberto de la Fuente and the other third to the sons and heirs of Don Honorio de la Fuente. We held that the heirs were bound to pay the full 3,000 pesos to the legatee named in the will and that the court could not require such legatee to give security that they would deliver to the other persons named in the will the parts corresponding to them. The testratrix in that case, however, died prior to the enactment of the Civil Code.

The third assignment of error made by the heirs is that the court erred in ordering the payment of interest from the date of the presentation of the petition. The petitioner in his appeal has also assigned as error the failure of the court to order the payment of interest from the date of the death of the testratrix, or at least from the expiration of the period of one year granted to the administrator for the purpose of paying the debts. Article 882 of the Civil Code provides that when the legacy relates to a specific article the legatee is entitled to the income and rents from the death of the deceased, but article 884 is as follows: If the bequest should not be of a specific and determined thing, but generic or of quantity, its fruits and interest from the death of the testator shall belong to the legatee if the testator should have expressly so ordered. In this case the testratrix did not expressly provide that the legatee should be entitled to interest from her death. In the case of Fuentes vs. Canon, above cited, the same question was presented and we there held that the legatee was entitled to interest from the date of his demand for payment. We follow the rule laid down in that case and hold that the court committed no error in ordering the judgment of interest from the date of presentation of the petition by the legatee. II. As to the appeal of the petitioner, what has been said disposes of all the assignments of error made by him except one. After the court below had made its order of March 6, 1906, in which it directed the payment of 30,000 Mexican pesos, or its equivalent in Philippine currency at that days price fixed by the court, the petitioner made a motion that the court fix the rate at 100 pesos, Mexican currency, for 100 pesos and 25 centavos, Philippine currency, and presented an affidavit to the effect that was the market price of Mexican currency on the 6th day of March. The court below, in its order of the 28th of April, which was not made by the same judge who made the order of the 6th of March, held that it was improper at that time to receive evidence as to the market value of the two kinds of money; that no evidence had been presented at the trial as to such market value, and that consequently the court, in making the order, must have intended to apply the rate fixed by the Executive Order then in force. We can not agree with the courts construction of the order of the 6th of March. We think that order means that the rate of exchange should be the rate which actually existed in Cebu on the 6th day of March, 1906, and the court, not having determined that in his order, left it to the parties to ascertain and determine it when payment was made. That price is a matter which can be easily determined at any time, and we hold that it is the duty of the administrator, if he pays in Philippine currency, to pay at the market price of Mexican currency at Cebu on the 6th day of March, 1906. The judgment of the court below is affirmed, without costs to either party in this court. After the expiration of twenty days let judgment be entered in accordance herewith and ten days thereafter let the case be remanded to the court from whence it came for proper action. So ordered.

Arellano, C.J., Torres, Mapa, Johnson, and Tracey, JJ., concur.

[G.R. No. 34480. February 16, 1932.] In re Estate of the late Mrs. R. H. Frankel, PHILIPPINE TRUST COMPANY, administrator-appellee, vs. CLARA WEBBER ET AL., appellants. FREMA FISCHLER, appellee. Gibbs & McDonough, for appellants Clara and Gertrude Webber. J. A. Wolfson, for appellants Anna Hartske and Charles Albert Robinson. Harvey & O'Brien, for appellant Fred Frankel. Feria & La O, for administrator-appellee. Ross, Lawrence & Selph, for appellee Fischler. Benj. S. Ohnick, for Peoples Bank and Trust Co. as amicus curi. SYLLABUS 1.EXECUTORS AND ADMINISTRATORS; ADDITIONAL ALLOWANCE FOR JUDICIAL ADMINISTRATOR. It lay within the lower court's discretion to grant the judicial administrator an additional allowance for services rendered, and there is no reason for holding that said court abused that discretion or made an improper use of it, in view of the importance and duration of the work performed. 2.ID.; DEPOSIT OF FUNDS IN BANK. The conduct of the administrator of an inheritance who deposits the funds entrusted to his care in a current account with a solid and responsible bank, instead of depositing them in a fixed account at a higher rate of interest, with a view to having them subject to withdrawal at a moment's notice, is not unlawful or even improper, but rather worthy of approval; and he is not answerable for the low rate of interest thus obtained in exchange for the security in the custody of the funds, and the certainly of their withdrawal at a moment's notice. 3.ID.; MANAGEMENT OF ESTATE. A judicial administrator of an inheritance is not called upon to speculate with funds in his custody or to place them where they may not be withdrawn at once at the order of a competent court, but rather to manage them in accordance with law, keeping them subject to the orders of the proper court. (Sec. 643, Code of Civil Procedure.)

DECISION

ROMUALDEZ, J :
p

This appeal has been taken from an order of the Court of First Instance of Manila entered in the course of the present proceedings, and providing as follows:
"In view of the foregoing (1) the item of two thousand pesos (P2,000) for attorney's fees in the final account submitted by the administrator is hereby approved; but the scheme of partition must be amended so as to charge this sum proportionally to the estate of each of the spouses, Herman Frankel and Mrs. Frankel. In other words, this sum must be taken from the value of the estate of the husband and of the wife pro rata. "(2)The opposition of Anna Hartske, her son Charles Robinson, Clara Webber and her daughter, Gertrude Webber, to the scheme of partition is disallowed, together with every other opposition to the final account based upon the amount of the interest due on the sum of forty thousand eight hundred three pesos and seventy-three centavos (P40,803.73). To this sum, however, must be added the interest for the month of May, 1930, which, according to the report, amounts to eighty- three pesos and twenty-three centavos (P83.23), and the interest thereon at the same rate from the date last mentioned until these funds are finally delivered. "(3)Clara Webber's opposition in the matter of the jewels is also overruled. "(4)Lastly, Frema Fischler's opposition with reference to the payment of interest upon the principal of her legacy is also overruled. "The judicial administrator shall file a scheme of partition, amended in accordance with this order, within five (5) days after it becomes final under the law." (Pp. 54 and 55, Bill of Exceptions.)

The appellants, through counsel, assign the following alleged errors as committed by the trial court:
"1.In overruling the oppositions of the appellants to the final account and project of partition filed on May 19, 1930, and to the report filed on June 26, 1930. "2.In overruling Mrs. Clara Webber's additional objection to the project of partition with reference to the jewelry."

These proceedings deal with a final account, a report, and a scheme of partition filed by the administrator of the estate of the late R. H. Frankel. The appellants objected to said final account, scheme of partition, and report, upon the following grounds:

(1)That the value of the estate belonging to the conjugal partnership of Herman Frankel and his wife, at the time of the latter's death, is not shown; (2) that the additional item of P2,000 for the administrator's services is improper, unlawful, and exorbitant; (3) that the administrator did not invest the funds belonging to the estate adequately and advantageously; and (4) that the interest earned, according to the report filed by the administrator on June 26, 1930, is not accurate, and the statement of the income and the expenses cannot be understood by the parties. The value of the conjugal estate has been finally decided by a competent court, and is now res judicata. To grant an additional allowance for the services rendered by the judicial administrator was discretionary with the trial court, and we find no reason for holding that said court abused that discretion or made improper use of it, in view of the importance and duration of the work in question. With reference to the investment of the inheritance funds, we find that the trial court rightly held such investment to be in no way exceptionable or contrary to any law. The conduct of the administrator of an inheritance who deposits the funds entrusted to his care in a current account with a solid and responsible bank, instead of depositing them in a fixed account at a higher rate of interest, with a view to having them subject to withdrawal at a moment's notice, is not unlawful or even improper, but rather worthy of approval; and he is not answerable for the low rate of interest thus obtained, because, generally speaking and there is no reason for applying any special rule in default of instructions to the contrary, a judicial administrator of an inheritance is not called upon to speculate with funds in his custody or to place them where they may not be withdrawn at once at the order of a competent court, but rather to manage them in accordance with the law, keeping them subject to the orders of the proper court. (Sec. 643, Code of Civil Procedure.) To this end when the administrator happens to be a trust company engaged in banking, as in this case, there is nothing wrong in its depositing the inheritance funds in its own banking department rather than in another bank, if there is no evidence that its own bank is lacking in security. No question is raised regarding the rate of interest earned by such funds, but the computation of interest is said to be inaccurate. There is no merit in this contention, considering the administrator's report covering the period from August, 1926, to April 25, 1930. Furthermore, with reference to the deposit and the rate of interest obtained we consider the following remarks of the administrator-appellee just and sound:
"The Philippine Trust Company has had at all times and still now has sufficient lawful money of the Philippine Islands to pay all the cash of said estate on deposit with it. It has not invested the funds of the estate because it considers that in view of the will, the action of the residuary legatees, and the nature of its duties, any such investment would make the funds unliquid, and

would violate the duties of its trust, which were to assemble the assets, in order to distribute as this Honorable Court may decree." (Pp. 9 and 10, Brief of the administrator-appellee.)

As to the second assignment of error with reference to Mrs. Clara Webber's objection, we find no merit in it, considering the proposed adjudication of the jewelry according to the scheme of partition, and the grounds upon which the trial court overruled this additional objection, to wit:
"Mrs. Clara Webber filed an additional opposition to the scheme of partition in so far as it gives her one-half of the jewelry. She contends that inasmuch as the will gives her one-half of said jewelry, and as its value has depreciated considerably, being hardly worth P500 at present, it is a serious error and a manifest lack of equity to appraise its value at P2,995.50, adjudicating to her one-half thereof. She proposes that the jewelry be sold and the proceeds divided equally between her and the other legatee. This contention is not well taken: first, because the will of the testatrix must be carried out where it provides that one-half of the jewelry itself is to be given to this opponent; and secondly, because there is no need of selling the jewelry; as for the value, that is reasonable because it was fixed by the committee of appraisal, and no proper objection was entered in due time. This additional opposition must be rejected. "The last opposition is that filed by Frema Fischler, who claims the legal interest upon her legacy of P10,000. It is argued that since this sum of money has been in the administrator's hands for many years, this legatee is entitled to the legal interest upon it from the time of the testatrix's death. There is no merit in this opposition. While it is true that under article 882 of the Civil Code the legacy of a specific determinate thing vests in the legatee upon the testator's death, as well as any pending fruits or income, inasmuch as we are here concerned with a generic or a so-called legacy of quantity, article 884 of the Code must be applied, which provides that interest from the time of the testator's death shall be given the legatee if the testator's death shall be given the legatee if the testator has expressly so provided. With reference to the present opponent, it appears that the testatrix has not clearly and expressly provided for the payment of the interest upon the P10,000 legacy; according to the lastnamed article it is clear that the opponent is not entitled to the interest claimed. In Fuentes vs. Canon (6 Phil., 117), and Chiong Joc-Soy vs. Vao (8 Phil., 119), the Supreme Court ruled that generic legacies or legacies of quantity, like the one adjudicated to the opponent, do not draw legal interest until a demand is made for them: and a legacy cannot be legally demanded before the scheme of partition is duly approved by the probate court. And in the case cited by counsel for Fred Frankel (Ongpin vs. Rivera, 44 Phil., 808), the Supreme Court held that a cash legacy does not earn interest until the person bound to deliver it in this case the judicial administrator is in default. The administrator in the present case is not in default, for the scheme of partition not only has not yet been approved, but is actually the subject matter of many oppositions filed by the legatees and the heir." (Pp. 52, 53, and 54, Bill of Exceptions.)

Finding the order appealed from to be justified by the merits of the case, we hereby affirmed it, with costs against the appellants. So ordered.

Legal or intestate succession

[G.R. No. L-32328. September 30, 1977.] TESTATE ESTATE OF THE LATE ADRIANO MALOTO: ALDINA MALOTO CASIANO, CONSTANCIO MALOTO, PURIFICACION MIRAFLOR, ROMAN CATHOLIC CHURCH OF MOLO, and ASILO DE MOLO, petitioners-appellants, vs. PANFILO MALOTO and FELINO MALOTO, oppositors-appellees. Ramon C. Zamora, Lorenzo E. Coloso, Jose L. Castigador, Arthur Defensor & Sixto Demaisip and Flores, Macapagal, Ocampo & Balbastro for petitionersappellants. Nacianceno G. Rico & Felipe G. Espinosa for oppositors-appellees.

DECISION

FERNANDEZ, J :
p

This is a petition to review the order dated April 13, 1970 of the Court of First Instance of Iloilo, Branch III, in Special Proceeding No. 2176 dismissing the petition for the probate of a will. 1 One Adriana Maloto died on October 20, 1963 in Iloilo City, her place of residence. Aldina Maloto Casiano, Constancio Maloto, Panfilo Maloto, and Felino Maloto, niece and nephews, respectively, of Adriana Maloto, in the belief that decedent died intestate, commenced on November 4, 1963 in the Court of First Instance of Iloilo an intestate proceeding docketed as Special Proceeding No. 1736. In the course of said intestate proceeding, Aldina Maloto Casiano, Constancio Maloto, Panfilo Maloto and Felino Maloto executed an extrajudicial partition of the estate of Adriana Maloto on February 1, 1964 whereby they adjudicated said estate unto themselves in the proportion of onefourth (1/4) share for each. 2 The Court of First Instance of Iloilo, then presided by Judge Emigdio V. Nietes, approved the extrajudicial partition on March 21, 1964. 3

On April 1, 1967, a document dated January 3, 1940 purporting to be the last will and testament of Adriana Maloto was delivered to the Clerk of Court of the Court of First Instance of Iloilo. 4 It appears that Aldina Maloto Casiano, Constancio Maloto, Panfilo Maloto, and Felino Maloto are named as heirs but Aldina Maloto Casiano and Constancio Maloto allegedly have shares in said will which are bigger, different and more valuable than what they obtained in the extrajudicial partition. The said will also allegedly made dispositions to certain devisees and/or legatees, among whom being the Asilo de Molo, the Roman Catholic Church of Molo, and Purificacion Miraflor.
LibLex

On May 24, 1967, Aldina Maloto Casiano and Constancio Maloto filed in Special Proceeding No. 1736 a motion (1) for reconsideration; (2) annulment of the proceedings; and (3) for the allowance of the last will and testament of Adriana Maloto. 5 The Asilo de Molo, the Roman Catholic Church of Molo, and Purificacion Miraflor also filed in Special Proceeding No. 1736 petitions for the allowance of the will of Adriana Maloto. 6 Panfilo Maloto and Felino Maloto opposed the motion of Aldina Maloto Casiano and Constancio Maloto. The Court of First Instance of Iloilo, through Judge Emigdio V. Nietes, issued an order dated November 16, 1968 denying the motion to reopen the proceedings on the ground that the said motion had been filed out of time. A motion for reconsideration of said order was denied. Petitioners appealed from the order of denial. On motion of Panfilo Maloto and Felino Maloto, the lower court dismissed the appeal on the ground that it was filed late. A motion for reconsideration of the order of dismissal was denied. A supplemental order dated April 1, 1969 stating as additional ground that the appeal is improper was issued. The petitioners filed a petition for certiorari and mandamus with the Supreme Court docketed as G.R. No. L-30479. This Court dismissed the petition in a resolution dated May 14, 1969 which reads:
"L-30479 (Constancio Maloto, et al, vs. Hon. Emigdio V. Nietes, etc., et al.) THE COURT RESOLVED to dismiss the petition for certiorari and mandamus, without passing on the issue of whether or not the petitioners appeal from the order of November 16, 1968 of respondent Judge was made on time, it appearing that the more appropriate remedy of petitioners in the premises stated in the petition is for petitioners to initiate a separate proceeding for the probate of the alleged will in question." 7

Acting on the petitioners' motion for reconsideration and clarification, this Court issued a resolution dated July 15, 1969 which reads:
"Acting on the motion for reconsideration and/or clarification filed by petitioner in G. R. No. L-30479, Constancio Maloto, et al., vs. Hon. Emigdio V. Nietes,

etc. et al., dated June 11, 1969, the Court resolved to DENY the motion for reconsideration, with the clarification that the matter of whether or not the pertinent findings of facts of respondent Judge in his herein subject order of November 16, 1968 constitute res adjudicata may be raised in the proceedings for probate of the alleged will in question indicated in the resolution of this Court of May 14, 1969, wherein such matter will be more appropriately determined." 8

Thereupon, the herein petitioners commenced Special Proceeding No. 2176 in the Court of First Instance of Iloilo for the probate of the alleged last will and testament of Adriana Maloto. 9 Panfilo Maloto and Felino Maloto filed an opposition with a motion to dismiss on the following grounds:
"I.THAT THE ALLEGED WILL SOUGHT TO BE PROBATED HAD BEEN DESTROYED AND REVOKED BY THE TESTATRIX. II.THAT THE INSTANT PETITION FOR PROBATE IS NOW BARRED BY PRIOR JUDGMENT OR ORDER (OR RES JUDICATA). III.THAT THE ESTATE OF THE LATE ADRIANA MALOTO HAD ALREADY PASSED OUT OF EXISTENCE AND TITLE THERETO HAD ALREADY VESTED IN THE DISTRIBUTEES OF THEIR ASSIGNS. IV.THAT PETITIONERS ALDINA MALOTO CASIANO AND CONSTANCIO MALOTO ARE NOW ESTOPPED FROM SEEKING THE REMEDY UNDER THIS PROCEEDING, THEY HAVING CEASED TO BE INTERESTED PARTIES." 10

In an order dated April 13, 1970, the probate court dismissed the petition for the probate of the will on the basis of the finding of said court in Special Proceeding No. 1736 that the alleged will sought to be probated had been destroyed and revoked by the testatrix. The probate court sustained the oppositors' contention that the petition for probate is now barred by the order of November 16, 1968 in the intestate estate proceeding, Special Proceeding No. 1736. 11 The herein petitioners allege that the probate court committed the following errors:
"I THE LOWER COURT ERRED IN HOLDING THAT THE ADMITTEDLY GENUINE LAST WILL AND TESTAMENT OF THE LATE ADRIANA MALOTO (THE SUBJECT OF PETITION FOR PROBATE - SPECIAL

PROCEEDING NO. 2176, CFI ILOILO) HAD PREVIOUSLY BEEN REVOKED BY HER (ADRIANA MALOTO). II THE LOWER COURT ERRED IN HOLDING THAT SAID PETITION (FOR PROBATE OF THE AFORESAID LAST WILL AND TESTAMENT OF THE LATE ADRIANA MALOTO) IS NOW BARRED BY PRIOR JUDGMENT. I. E., THAT THE MATTER CONCERNED IS NOW RES ADJUDICATA. III THE LOWER COURT, THEREFORE, ERRED IN DISMISSING THE AFORESAID PETITION FOR PROBATE OF THE LAST WILL AND TESTAMENT OF THE LATE ADRIANA MALOTO AND IN NOT, INSTEAD, GIVING IT (THE PETITION ABOVE-CITED DUE COURSE."

12 The instant petition for review is meritorious. The probate court had no jurisdiction to entertain the petition for the probate of the alleged will of Adriana Maloto in Special Proceeding No. 1736. Indeed, the motion to reopen the proceedings was denied because the same was filed out of time. Moreover, it is not proper to make a finding in an intestate estate proceeding that the discovered will has been revoked. As a matter of fact, the probate court in Special Proceeding No. 1736 stated in the order of November 16, 1968 that "Movants should have filed a separate action for the probate of the will." 13 And this court stated in its resolution of May 14, 1969 that "The more appropriate remedy of the petitioners in the premises stated in the petition is for petitioners to initiate a separate proceeding for the probate of the alleged will in question." In view of the foregoing, the order of November 16, 1968 in Special Proceeding No. 1736 is not a bar to the present petition for the probate of the alleged will of Adriana Maloto. WHEREFORE, the order dated April 13, 1970 dismissing the petition for the probate of the alleged will of Adriana Maloto is hereby set aside and the lower court is directed to proceed with the hearing of the petition in Special Proceeding No. 2176 on the merits, with costs against the respondents. SO ORDERED.