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ARTICLE 780

SECOND DIVISION
G.R. No. L-39247 June 27, 1975
In the Matter of the Petition to Approve
the Will of Leodegaria Julian. FELIX
BALANAY, JR., petitioner,
vs.
HON. ANTONIO M. MARTINEZ, Judge of
the Court of First Instance of Davao,
Branch VI; AVELINA B. ANTONIO and
DELIA B. LANABAN, respondents.
Case also under Articles 788 and 792
AQUINO, J.:
Felix Balanay, Jr. appealed by certiorari
from the order of the Court of First
Instance of Davao dated February 28,
1974, declaring illegal and void the will of
his mother, Leodegaria Julian, converting
the testate proceeding into an intestate
proceeding and ordering the issuance of
the corresponding notice to creditors
(Special
Case
No.
1808).
The
antecedents of the appeal are as follows:
Leodegaria Julian, a native of Sta. Maria,
Ilocos Sur, died on February 12, 1973 in
Davao City at the age of sixty-seven. She
was survived by her husband, Felix
Balanay, Sr., and by their six legitimate
children named Felix Balanay, Jr., Avelina
B. Antonio, Beatriz B. Solamo, Carolina B.
Manguiob, Delia B. Lanaban and Emilia B.
Pabaonon.
Felix J. Balanay, Jr. filed in the lower court
a petition dated February 27, 1973 for
the probate of his mother's notarial will
dated September 5, 1970 which is
written in English. In that will Leodegaria
Julian declared (a) that she was the
owner of the "southern half of nine
conjugal lots (par. II); (b) that she was the
absolute owner of two parcels of land

which she inherited from her father (par.


III), and (c) that it was her desire that her
properties should not be divided among
her heirs during her husband's lifetime
and that their legitimes should be
satisfied out of the fruits of her properties
(Par. IV).
Then, in paragraph V of the will she
stated that after her husband's death (he
was eighty-two years old in 1973) her
paraphernal lands and all the conjugal
lands (which she described as "my
properties") should be divided and
distributed in the manner set forth in that
part of her will. She devised and
partitioned the conjugal lands as if they
were all owned by her. She disposed of in
the will her husband's one half share of
the conjugal assets. *
Felix Balanay, Sr. and Avelina B. Antonio
opposed the probate of the will on the
grounds of lack of testamentary capacity,
undue influence, preterition of the
husband and alleged improper partition
of the conjugal estate. The oppositors
claimed that Felix Balanay, Jr. should
collate certain properties which he had
received from the testatrix.
Felix Balanay, Jr., in his reply to the
opposition, attached thereto an affidavit
of Felix Balanay, Sr. dated April 18, 1973
wherein he withdrew his opposition to
the probate of the will and affirmed that
he was interested in its probate. On the
same date Felix Balanay, Sr. signed an
instrument captioned "Conformation (sic)
of
Division
and
Renunciation
of
Hereditary
Rights"
wherein
he
manifested that out of respect for his
wife's will he "waived and renounced' his
hereditary rights in her estate in favor of
their six children. In that same
instrument he confirmed the agreement,
which he and his wife had perfected
before her death, that their conjugal
properties would be partitioned in the
manner indicated in her will.

Avelina B. Antonio, an oppositor, in her


rejoinder contended that the affidavit
and "conformation" of Felix Balanay, Sr.
were void. The lower court in its order of
June 18, 1973 "denied" the opposition
and reset for hearing the probate of the
will. It gave effect to the affidavit and
conformity of Felix Balanay, Sr. In an
order dated August 28, 1973 it appointed
its branch clerk of court as special
administrator of the decedent's estate.
Mrs.
Antonio
moved
for
the
reconsideration of the lower court's order
of June 18, 1973 on the grounds (a) that
the testatrix illegally claimed that she
was the owner of the southern half of the
conjugal lots and (b) that she could not
partition the conjugal estate by allocating
portions of the nine lots to her children.
Felix Balanay, Jr., through his counsel,
Hermenegildo Cabreros, opposed that
motion. The lower court denied it in its
order of October 15, 1973.
In the meanwhile, another lawyer
appeared in the case. David O. Montaa,
Sr., claiming to be the lawyer of
petitioner Felix Balanay, Jr. (his counsel of
record was Atty. Cabreros), filed a motion
dated September 25, 1973 for "leave of
court to withdraw probate of alleged will
of Leodegaria Julian and requesting
authority to proceed by intestate estate
proceeding." In that motion Montaa
claimed to be the lawyer not only of the
petitioner but also of Felix Balanay, Sr.,
Beatriz B. Solamo, Carolina B. Manguiob
and Emilia B. Pabaonon.
Montaa in his motion assailed the
provision of the will which partitioned the
conjugal assets or allegedly effected a
compromise of future legitimes. He
prayed that the probate of the will be
withdrawn and that the proceeding be
converted into an intestate proceeding.
In another motion of the same date he
asked that the corresponding notice to
creditors be issued.

Avelina B. Antonio and Delia B. Lanaban,


through Atty. Jose B. Guyo, in their
comments dated October 15, 1973
manifested their conformity with the
motion for the issuance of a notice to
creditors. They prayed that the will be
declared void for being contrary to law
and that an intestacy be declared.
The lower court, acting on the motions of
Atty. Montaa, assumed that the
issuance of a notice to creditors was in
order since the parties had agreed on
that point. It adopted the view of Attys.
Montaa and Guyo that the will was void.
So, in its order of February 28, 1974 it
dismissed the petition for the probate,
converted the testate proceeding into an
intestate
proceeding,
ordered
the
issuance of a notice to creditors and set
the intestate proceeding for hearing on
April 1 and 2, 1974. The lower court did
not abrogate its prior orders of June 18
and October 15, 1973. The notice to
creditors was issued on April 1, 1974 and
published on May 2, 9 and 16 in the
Davao Star in spite of petitioner's motion
of April 17, 1974 that its publication be
held in abeyance.
Felix Balanay, Jr., through a new counsel,
Roberto M. Sarenas, in a verified motion
dated April 15, 1974, asked for the
reconsideration of the lower court's order
of February 28, 1974 on the ground that
Atty. Montaa had no authority to
withdraw the petition for the allowance of
the will. Attached to the motion was a
copy of a letter dated March 27, 1974
addressed to Atty. Montaa and signed
by Felix Balanay, Jr., Beatriz V. Solamo,
Carolina B. Manguiob and Emilia B.
Pabaonon, wherein they terminated
Montaa's services and informed him
that his withdrawal of the petition for the
probate of the will was without their
consent and was contrary to their
repeated reminder to him that their
mother's will was "very sacred" to them.

Avelina B. Antonio and Delia B. Lanaban


opposed the motion for reconsideration.
The lower court denied the motion in its
order of June 29, 1974. It clarified that it
declared the will void on the basis of its
own independent assessment of its
provisions and not because of Atty.
Montaa's arguments.
The basic issue is whether the probate
court erred in passing upon the intrinsic
validity of the will, before ruling on its
allowance or formal validity, and in
declaring it void.
We are of the opinion that in view of
certain unusual provisions of the will,
which are of dubious legality, and
because of the motion to withdraw the
petition for probate (which the lower
court assumed to have been filed with
the petitioner's authorization), the trial
court acted correctly in passing upon the
will's intrinsic validity even before its
formal validity had been established. The
probate of a will might become an idle
ceremony if on its face it appears to be
intrinsically
void.
Where
practical
considerations demand that the intrinsic
validity of the will be passed upon, even
before it is probated, the court should
meet the issue (Nuguid vs. Nuguid, 64
O.G. 1527, 17 SCRA 449. Compare with
Sumilang
vs.
Ramagosa,
L-23135,
December 26, 1967, 21 SCRA 1369;
Cacho vs. Udan, L-19996, April 30, 1965,
13 SCRA 693).1wph1.t
But the probate court erred in declaring,
in its order of February 28, 1974 that the
will was void and in converting the
testate proceeding into an intestate
proceeding notwithstanding the fact that
in its order of June 18, 1973 , it gave
effect to the surviving husband's
conformity to the will and to his
renunciation of his hereditary rights
which presumably included his one-half
share of the conjugal estate.

The rule is that "the invalidity of one of


several dispositions contained in a will
does not result in the invalidity of the
other dispositions, unless it is to be
presumed that the testator would not
have made such other dispositions if the
first invalid disposition had not been
made" (Art. 792, Civil Code). "Where
some of the provisions of a will are valid
and others invalid, the valid parts will be
upheld if they can be separated from the
invalid without defeating the intention of
the testator or interfering with the
general testamentary scheme, or doing
injustice to the beneficiaries" (95 C.J.S.
873).
The statement of the testatrix that she
owned the "southern half of the conjugal
lands is contrary to law because,
although she was a coowner thereof, her
share was inchoate and proindiviso (Art.
143, Civil Code; Madrigal and Paterno vs.
Rafferty and Concepcion, 38 Phil. 414).
But That illegal declaration does not
nullify the entire will. It may be
disregarded.
The provision of the will that the
properties of the testatrix should not be
divided among her heirs during her
husband's lifetime but should be kept
intact and that the legitimes should be
paid in cash is contrary to article 1080 of
the Civil Code which reads:
ART. 1080. Should a person make a
partition of his estate by an act inter
vivos, or by will, such partition shall be
respected, insofar as it does not
prejudice the legitime of the compulsory
heirs.
A parent who, in the interest of his or her
family,
to
keep
any
agricultural,
industrial, or manufacturing enterprise
intact, may avail himself of the right
granted him in this article, by ordering
that the legitime of the other children to
whom the property is not assigned be
paid in cash. (1056a)

The testatrix in her will made a partition


of the entire conjugal estate among her
six children (her husband had renounced
his hereditary rights and his one-half
conjugal share). She did not assign the
whole estate to one or more children as
envisaged in article 1080. Hence, she
had no right to require that the legitimes
be paid in cash. On the other hand, her
estate may remain undivided only for a
period of twenty years. So, the provision
that the estate should not be divided
during her husband's lifetime would at
most be effective only for twenty years
from the date of her death unless there
are compelling reasons for terminating
the coownership (Art. 1083, Civil Code).
Felix Balanay, Sr. could validly renounce
his hereditary rights and his one-half
share of the conjugal partnership (Arts.
179[1] and 1041, Civil Code) but insofar
as said renunciation partakes of a
donation of his hereditary rights and his
one-half share in the conjugal estate (Art.
1060[1] Civil Code), it should be subject
to the limitations prescribed in articles
750 and 752 of the Civil Code. A portion
of the estate should be adjudicated to
the widower for his support and
maintenance. Or at least his legitime
should be respected.
Subject to the foregoing observations
and the rules on collation, the will is
intrinsically valid and the partition
therein may be given effect if it does not
prejudice the creditors and impair the
legitimes. The distribution and partition
would become effective upon the death
of Felix Balanay, Sr. In the meantime, the
net income should be equitably divided
among the children and the surviving
spouse.
It should be stressed that by reason of
the surviving husband's conformity to his
wife's will and his renunciation of his
hereditary rights, his one-half conjugal
share became a part of his deceased
wife's estate. His conformity had the
effect of validating the partition made in

paragraph V of the will without prejudice,


of course, to the rights of the creditors
and the legitimes of the compulsory
heirs.
Article 793 of the Civil Code provides that
"property acquired after the making of a
will shall only pass thereby, as if the
testator had it at the time of making the
will, should it expressly appear by the will
that such was his intention". Under
article 930 of the Civil Code "the legacy
or devise of a thing belonging to another
person is void, if the testator erroneously
believed that the thing pertained to him.
But if the thing bequeathed, though not
belonging to the testator when he made
the will, afterwards becomes his, by
whatever title, the disposition shall take
effect."
In the instant case there is no doubt that
the testatrix and her husband intended
to partition the conjugal estate in the
manner set forth in paragraph V of her
will. It is true that she could dispose of by
will only her half of the conjugal estate
(Art. 170, Civil Code) but since the
husband, after the dissolution of the
conjugal partnership, had assented to
her testamentary partition of the
conjugal estate, such partition has
become valid, assuming that the will may
be probated.
The instant case is different from the
Nuguid case, supra, where the testatrix
instituted as heir her sister and
preterited her parents. Her will was
intrinsically void because it preterited her
compulsory heirs in the direct line. Article
854 of the Civil Code provides that "the
preterition or omission of one, some, or
all of the compulsory heirs in the direct
line, whether living at the time of the
execution of the will or born after the
death of the testator, shall annul the
institution of heir; but the devises and
legacies, shall be valid insofar as they
are not inofficious." Since the preterition
of the parents annulled the institution of

the sister of the testatrix and there were


no legacies and devises, total intestacy
resulted
(.Art.
960[2],
Civil
Code).1wph1.t
In the instant case, the preterited heir
was the surviving spouse. His preterition
did not produce intestacy. Moreover, he
signified his conformity to his wife's will
and renounced his hereditary rights. .
It results that the lower court erred in not
proceeding with the probate of the will as
contemplated in its uncancelled order of
June 18, 1973. Save in an extreme case
where the will on its face is intrinsically
void, it is the probate court's duty to pass
first upon the formal validity of the will.
Generally, the probate of the will is
mandatory (Art. 838, Civil Code; Guevara
vs. Guevara, 74 Phil. 479 and 98 Phil.
249; Fernandez vs. Dimagiba, L-23638,
October 12, 1967, 21 SCRA 428).
As aptly stated by Mr. Justice Barredo,
"the very existence of a purported
testament is in itself prima facie proof
that the supposed testator has willed
that his estate should be distributed in
the manner therein provided, and it is
incumbent upon the state that, if legally
tenable, such desire be given effect
independent of the attitude of the parties
affected thereby" (Resolution, Vda. de
Precilla vs. Narciso, L-27200, August 18,
1972, 46 SCRA 538, 565).
To give effect to the intention and wishes
of the testatrix is the first and principal
law in the matter of testaments (DizonRivera vs. Dizon, L-24561, June 30, 1970,
33 SCRA 554, 561). Testacy is preferable
to intestacy. An interpretation that will
render
a
testamentary
disposition
operative takes precedence over a
construction that will nullify a provision of
the will (Arts. 788 and 791, Civil Code).
Testacy is favored. Doubts are resolved in
favor of testacy especially where the will
evinces an intention on the part of the

testator to dispose of practically his


whole estate. So compelling is the
principle that intestacy should be
avoided and that the wishes of the
testator should prevail that sometimes
the language of the will can be varied for
the purpose of giving it effect (Austria vs.
Reyes, L-23079, February 27, 1970, 31
SCRA 754, 762).
As far as is legally possible, the
expressed desire of the testator must be
followed and the dispositions of the
properties in his will should be upheld
(Estorque vs. Estorque, L-19573, June 30,
1970, 33 SCRA 540, 546).
The law has a tender regard for the
wishes of the testator as expressed in his
will because any disposition therein is
better than that which the law can make
(Castro vs. Bustos, L-25913, February 28,
1969, 27 SCRA 327, 341).
Two other errors of the lower court may
be noticed. It erred in issuing a notice to
creditors although no executor or regular
administrator has been appointed. The
record reveals that it appointed a special
administrator. A notice to creditors is not
in order if only a special administrator
has been appointed. Section 1, Rule 86 of
the Rules of Court, in providing that
"immediately after granting letters of
testamentary or of administration, the
court shall issue a notice requiring all
persons having money claims against the
decedent to file them in the office of the
clerk of said court" clearly contemplates
the appointment of an executor or
regular administrator and not that of a
special administrator.
It is the executor or regular administrator
who is supposed to oppose the claims
against the estate and to pay such claims
when duly allowed (See. 10, Rule 86 and
sec. 1, Rule 88, Rules of Court).
We also take this occasion to point out
that the probate court's appointment of

its branch clerk of court as special


administrator (p. 30, Rollo) is not a
salutary practice because it might
engender the suspicion that the probate
Judge and his clerk of court are in
cahoots in milking the decedent's estate.
Should the branch clerk of court commit
any abuse or devastavit in the course of
his administration, the probate Judge
might find it difficult to hold him to a
strict accountability. A court employee
should devote his official time to his
official duties and should not have as a
sideline
the
administration
of
a
decedent's estate.
WHEREFORE, the lower court's orders of
February 28, and June 29, 1974 are set
aside and its order of June 18, 1973,
setting for hearing the petition for
probate, is affirmed. The lower court is
directed to conduct further proceedings
in Special Case No. 1808 in consonance
with this opinion. Costs, against the
private respondents.

"IV. It is my desire and I direct that in


the interest of my family, my properties
shall not be divided among my heirs
during the lifetime of my husband, Felix
Balanay, Sr. but should be kept intact.
The respective legitimes of my husband
and my children should be paid in cash
out of the proceeds of sale of the
produce and rents derived from said
properties.
"V.
After the death of my husband,
Felix Balanay, Sr., my properties shall be
divided and distributed in the manner as
follows:" (Here follows a partition of the
nine conjugal lots and the two
paraphernal lots. The testatrix divided
among her six children not only her two
paraphernal lots, one of which she
devised to Emilia Pabaonon and the other
lot to Felix Balanay, Jr., but also the nine
conjugal lots. She did not restrict the
partition to her one-half conjugal share
but included her husband's one-half
share.).

SO ORDERED.
Fernando (Chairman), Barredo, Antonio
and Concepcion, Jr., JJ., concur.
Footnotes
*
The pertinent provisions of the will
are as follows:
"II.
That I am the absolute owner of the
southern half of the following conjugal
properties which I acquired during my
married life with my husband, Felix
Balanay, Sr., namely: (Here follows an
enumeration of nine lots).1wph1.t
"III. I am the absolute owner of the
following paraphernal properties which I
inherited from my deceased father,
Cecilio Julian, namely: (Here follows a
description of two lots).

ARTICLE 783
THIRD DIVISION
[G.R. No. 113725. June 29, 2000]
JOHNNY S. RABADILLA,[1] petitioner, vs.
COURT
OF
APPEALS
AND
MARIA
MARLENA[2] COSCOLUELLA Y BELLEZA
VILLACARLOS, respondents.

DECISION

acknowledged by the children


spouse of Jorge Rabadilla.

PURISIMA, J.:

xxx

This is a petition for review of the


decision of the Court of Appeals,[3] dated
December 23, 1993, in CA-G.R. No. CV35555, 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.

FOURTH

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

and

(a)....It is also my command, in this my


addition (Codicil), that should I die and
Jorge Rabadilla shall have already
received the ownership of the said Lot
No. 1392 of the Bacolod Cadastre,
covered by Transfer Certificate of Title
No. RT-4002 (10942), and also at the
time that the lease of Balbinito G.
Guanzon of the said lot shall expire, Jorge
Rabadilla shall have the obligation until
he dies, every year to give to Maria
Marlina Coscolluela y Belleza, Seventy
(75) (sic) piculs of Export sugar and
Twenty Five (25) piculs of Domestic
sugar, until the said Maria Marlina
Coscolluela y Belleza dies.
FIFTH
(a) Should Jorge Rabadilla die, his heir to
whom he shall give Lot No. 1392 of the
Bacolod Cadastre, covered by Transfer
Certificate of Title No. RT-4002 (10492),
shall have the obligation to still give
yearly, the sugar as specified in the
Fourth paragraph of his testament, to
Maria Marlina Coscolluela y Belleza on
the month of December of each year.
SIXTH
I command, in this my addition (Codicil)
that the Lot No. 1392, in the event that
the one to whom I have left and
bequeathed, and his heir shall later sell,
lease, mortgage this said Lot, the buyer,
lessee, mortgagee, shall have also the
obligation to respect and deliver yearly
ONE HUNDRED (100) piculs of sugar to
Maria Marlina Coscolluela y Belleza, on
each month of December, SEVENTY FIVE
(75) piculs of Export and TWENTY FIVE
(25) piculs of Domestic, until Maria
Marlina shall die, lastly should the buyer,

lessee or the mortgagee of this lot, not


have respected my command in this my
addition
(Codicil),
Maria
Marlina
Coscolluela y Belleza, shall immediately
seize this Lot No. 1392 from my heir and
the latter's heirs, and shall turn it over to
my near desendants, (sic) and the latter
shall then have the obligation to give the
ONE HUNDRED (100) piculs of sugar until
Maria Marlina shall die. I further
command in this my addition (Codicil)
that my heir and his heirs of this Lot No.
1392, that they will obey and follow that
should they decide to sell, lease,
mortgage, they cannot negotiate with
others than my near descendants and
my sister."[4]
Pursuant to the same Codicil, Lot No.
1392 was transferred to the deceased,
Dr.
Jorge
Rabadilla,
and
Transfer
Certificate of Title No. 44498 thereto
issued in his name.
Dr. Jorge Rabadilla died in 1983 and was
survived by his wife Rufina and children
Johnny (petitioner), Aurora, Ofelia and
Zenaida, all surnamed Rabadilla.
On August 21, 1989, Maria Marlena
Coscolluela y Belleza Villacarlos brought
a complaint, docketed as Civil Case No.
5588, before Branch 52 of the Regional
Trial Court in Bacolod City, against the
above-mentioned heirs of Dr. Jorge
Rabadilla, to enforce the provisions of
subject Codicil. The Complaint alleged
that the defendant-heirs violated the
conditions of the Codicil, in that:
1. Lot No. 1392 was mortgaged to the
Philippine National Bank and the Republic
Planters Bank in disregard of the
testatrix's specific instruction to sell,
lease, or mortgage only to the near
descendants and sister of the testatrix.
2. Defendant-heirs failed to comply with
their obligation to deliver one hundred
(100) piculs of sugar (75 piculs export
sugar and 25 piculs domestic sugar) to

plaintiff Maria Marlena Coscolluela y


Belleza from sugar crop years 1985 up to
the filing of the complaint as mandated
by the Codicil, despite repeated demands
for compliance.
3. The banks failed to comply with the
6th paragraph of the Codicil which
provided that in case of the sale, lease,
or mortgage of the property, the buyer,
lessee, or mortgagee shall likewise have
the obligation to deliver 100 piculs of
sugar per crop year to herein private
respondent.
The plaintiff then prayed that judgment
be rendered ordering defendant-heirs to
reconvey/return-Lot No. 1392 to the
surviving heirs of the late Aleja Belleza,
the cancellation of TCT No. 44498 in the
name of the deceased, Dr. Jorge
Rabadilla, and the issuance of a new
certificate of title in the names of the
surviving heirs of the late Aleja Belleza.
On February 26, 1990, the defendantheirs 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 defendantheirs, 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;

of 50.80 piculs of sugar corresponding to


sugar crop year 1988 -1989.
On July 22, 1991, the Regional Trial Court
came out with a decision, dismissing the
complaint and disposing as follows:
"WHEREFORE, in the light of the
aforegoing findings, the Court finds that
the action is prematurely filed as no
cause of action against the defendants
has as yet arose in favor of plaintiff.
While there maybe the non-performance
of the command as mandated exaction
from them simply because they are the
children of Jorge Rabadilla, the title
holder/owner of the lot in question, does
not warrant the filing of the present
complaint. The remedy at bar must fall.
Incidentally, being in the category as
creditor of the left estate, it is opined
that plaintiff may initiate the intestate
proceedings, if only to establish the heirs
of Jorge Rabadilla and in order to give full
meaning and semblance to her claim
under the Codicil.
In the light of the aforegoing findings, the
Complaint being prematurely filed is
DISMISSED without prejudice.
SO ORDERED."[6]

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

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 plaintiffappellant;
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.

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.

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

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.
Under Article 776 of the New Civil Code,
inheritance includes all the property,
rights and obligations of a person, not
extinguished by his death. Conformably,
whatever rights Dr. Jorge Rabadilla had
by virtue of subject Codicil were
transmitted to his forced heirs, at the
time of his death. And since obligations
not extinguished by death also form part
of the estate of the decedent; corollarily,
the obligations imposed by the Codicil on
the deceased Dr. Jorge Rabadilla, were
likewise transmitted to his compulsory
heirs upon his death.
In the said Codicil, testatrix Aleja Belleza
devised Lot No. 1392 to Dr. Jorge
Rabadilla, subject to the condition that
the usufruct thereof would be delivered
to the herein private respondent every
year. Upon the death of Dr. Jorge
Rabadilla,
his
compulsory
heirs
succeeded to his rights and title over the
said property, and they also assumed his
(decedent's) obligation to deliver the
fruits of the lot involved to herein private
respondent. Such obligation of the
instituted heir reciprocally corresponds to
the right of private respondent over the
usufruct, the fulfillment or performance
of which is now being demanded by the
latter through the institution of the case
at bar. Therefore, private respondent has
a cause of action against petitioner and
the trial court erred in dismissing the
complaint below.
Petitioner also theorizes that Article 882
of the New Civil Code on modal
institutions is not applicable because
what the testatrix intended was a
substitution - Dr. Jorge Rabadilla was to
be substituted by the testatrix's near
descendants
should
there
be

noncompliance with the obligation to


deliver the piculs of sugar to private
respondent.
Again, the contention is without merit.
Substitution is the designation by the
testator of a person or persons to take
the place of the heir or heirs first
instituted. Under substitutions in general,
the testator may either (1) provide for
the designation of another heir to whom
the property shall pass in case the
original heir should die before him/her,
renounce
the
inheritance
or
be
incapacitated to inherit, as in a simple
substitution,[12] or (2) leave his/her
property to one person with the express
charge
that
it
be
transmitted
subsequently to another or others, as in
a fideicommissary substitution.[13] The
Codicil sued upon contemplates neither
of the two.
In simple substitutions, the second heir
takes the inheritance in default of the
first heir by reason of incapacity,
predecease or renunciation.[14] In the
case under consideration, the provisions
of subject Codicil do not provide that
should Dr. Jorge Rabadilla default due to
predecease, incapacity or renunciation,
the testatrix's near descendants would
substitute him. What the Codicil provides
is that, should Dr. Jorge Rabadilla or his
heirs not fulfill the conditions imposed in
the Codicil, the property referred to shall
be seized and turned over to the
testatrix's near descendants.
Neither is there a fideicommissary
substitution here and on this point,
petitioner is correct. In a fideicommissary
substitution, the first heir is strictly
mandated to preserve the property and
to transmit the same later to the second
heir.[15] In the case under consideration,
the instituted heir is in fact allowed under
the Codicil to alienate the property
provided the negotiation is with the near
descendants or the sister of the testatrix.

Thus, a very important element of a


fideicommissary substitution is lacking;
the obligation clearly imposing upon the
first heir the preservation of the property
and its transmission to the second heir.
"Without this obligation to preserve
clearly imposed by the testator in his will,
there
is
no
fideicommissary
substitution."[16]
Also,
the
near
descendants' right to inherit from the
testatrix is not definite. The property will
only pass to them should Dr. Jorge
Rabadilla or his heirs not fulfill the
obligation to deliver part of the usufruct
to private respondent.
Another
important
element
of
a
fideicommissary substitution is also
missing here. Under Article 863, the
second heir or the fideicommissary to
whom the property is transmitted must
not be beyond one degree from the first
heir or the fiduciary. A fideicommissary
substitution is therefore, void if the first
heir is not related by first degree to the
second heir.[17] In the case under
scrutiny, the near descendants are not at
all related to the instituted heir, Dr. Jorge
Rabadilla.
The Court of Appeals erred not in ruling
that the institution of Dr. Jorge Rabadilla
under subject Codicil is in the nature of a
modal institution and therefore, Article
882 of the New Civil Code is the provision
of law in point. Articles 882 and 883 of
the New Civil Code provide:
Art. 882. The statement of the object of
the institution or the application of the
property left by the testator, or the
charge imposed on him, shall not be
considered as a condition unless it
appears that such was his intention.
That which has been left in this manner
may be claimed at once provided that
the instituted heir or his heirs give
security for compliance with the wishes
of the testator and for the return of
anything he or they may receive,

together with its fruits and interests, if he


or they should disregard this obligation.
Art. 883. When without the fault of the
heir, an institution referred to in the
preceding article cannot take effect in
the exact manner stated by the testator,
it shall be complied with in a manner
most analogous to and in conformity with
his wishes.
The institution of an heir in the manner
prescribed in Article 882 is what is known
in the law of succession as an institucion
sub modo or a modal institution. In a
modal institution, the testator states (1)
the object of the institution, (2) the
purpose or application of the property
left by the testator, or (3) the charge
imposed by the testator upon the heir.
[18] A "mode" imposes an obligation
upon the heir or legatee but it does not
affect the efficacy of his rights to the
succession.[19] On the other hand, in a
conditional testamentary disposition, the
condition must happen or be fulfilled in
order for the heir to be entitled to
succeed the testator. The condition
suspends but does not obligate; and the
mode obligates but does not suspend.
[20] To some extent, it is similar to a
resolutory condition.[21]
From the provisions of the Codicil
litigated upon, it can be gleaned
unerringly that the testatrix intended
that subject property be inherited by Dr.
Jorge Rabadilla. It is likewise clearly
worded that the testatrix imposed an
obligation on the said instituted heir and
his successors-in-interest to deliver one
hundred piculs of sugar to the herein
private respondent, Marlena Coscolluela
Belleza, during the lifetime of the latter.
However, the testatrix did not make Dr.
Jorge Rabadilla's inheritance and the
effectivity of his institution as a devisee,
dependent on the performance of the
said obligation. It is clear, though, that
should the obligation be not complied
with, the property shall be turned over to

the testatrix's near descendants. The


manner of institution of Dr. Jorge
Rabadilla under subject Codicil is
evidently modal in nature because it
imposes a charge upon the instituted heir
without, however, affecting the efficacy
of such institution.
Then too, since testamentary dispositions
are generally acts of liberality, an
obligation imposed upon the heir should
not be considered a condition unless it
clearly appears from the Will itself that
such was the intention of the testator. In
case of doubt, the institution should be
considered as modal and not conditional.
[22]
Neither is there tenability in the other
contention of petitioner that the private
respondent has only a right of usufruct
but not the right to seize the property
itself from the instituted heir because the
right to seize was expressly limited to
violations by the buyer, lessee or
mortgagee.
In the interpretation of Wills, when an
uncertainty arises on the face of the Will,
as to the application of any of its
provisions, the testator's intention is to
be ascertained from the words of the
Will, taking into consideration the
circumstances under which it was made.
[23] Such construction as will sustain and
uphold the Will in all its parts must be
adopted.[24]
Subject Codicil
provides that the
instituted heir is under obligation to
deliver One Hundred (100) piculs of
sugar
yearly
to
Marlena
Belleza
Coscuella. Such obligation is imposed on
the instituted heir, Dr. Jorge Rabadilla, his
heirs, and their buyer, lessee, or
mortgagee should they sell, lease,
mortgage or otherwise negotiate the
property involved. The Codicil further
provides that in the event that the
obligation to deliver the sugar is not
respected, Marlena Belleza Coscuella

shall seize the property and turn it over


to the testatrix's near descendants. The
non-performance of the said obligation is
thus with the sanction of seizure of the
property and reversion thereof to the
testatrix's near descendants. Since the
said obligation is clearly imposed by the
testatrix, not only on the instituted heir
but also on his successors-in-interest, the
sanction imposed by the testatrix in case
of non-fulfillment of said obligation
should equally apply to the instituted heir
and his successors-in-interest.
Similarly unsustainable is petitioner's
submission that by virtue of the amicable
settlement, the said obligation imposed
by the Codicil has been assumed by the
lessee,
and
whatever
obligation
petitioner had become the obligation of
the lessee; that petitioner is deemed to
have
made
a
substantial
and
constructive compliance of his obligation
through the consummated settlement
between the lessee and the private
respondent, and having consummated a
settlement with the petitioner, the
recourse of the private respondent is the
fulfillment of the obligation under the
amicable settlement and not the seizure
of subject property.
Suffice it to state that a Will is a personal,
solemn, revocable and free act by which
a person disposes of his property, to take
effect after his death.[25] Since the Will
expresses the manner in which a person
intends how his properties be disposed,
the wishes and desires of the testator
must be strictly followed. Thus, a Will
cannot be the subject of a compromise
agreement which would thereby defeat
the very purpose of making a Will.
WHEREFORE, the petition is hereby
DISMISSED and the decision of the Court
of Appeals, dated December 23, 1993, in
CA-G.R. No. CV-35555 AFFIRMED. No
pronouncement as to costs
SO ORDERED.

1. Declaro que durante mi matrimonio


con mi esposa la hoy Isabel Herreros no
tuvimos hijos;

EN BANC
G.R. No. L-3362

March 1, 1951

TESTATE estate of Carlos Gil, deceased.


ISABEL
HERREROS
VDA.
DE
GIL,
administratrix-appellee,
vs.
PILAR GIL VDA. DE MURCIANO, oppositorappellant.
Eligio C. Lagman for appellant.
Reyes, Albert and Agcaoili for appellee.

2. Declaro que tengo propiedades


situadas en Manila y en la Provincia de
Pampanga;
3. Doy y adjudico a mi querida esposa
Isabel Herretos todos mis bienes ya que
muebles e inmuebles situados en Manila
y en Pampanga, bajo la condicion de que
cuando esta muera y si hayan bienes
remanentes heredadas por ella de mi,
que dichos bienes remanentes se
adjudicaran a Don Carlos Worrel.

JUGO, J.:
The Court of First Instance of Manila
admitted to probate the alleged will and
testament of the deceased Carlos Gil.
The oppositor Pilar Gil Vda. de Murciano
appealed to this Court, raising only
question of law. Her counsel assigns the
two following alleged errors:

4. Nombro como albacea de mis bienes


despues de mi fallecimiento al Dr.
Galicano Coronel a quien tengo absoluta
confianza, con relevacion de fianza;

Segundo Error. Erro finalmente a


legalizar el referido testamento.

En testimonio de todo lo cual, firmo este


mi testamento y en el margen izquierdo
de cada una de sus dos paginas, utiles
con la clausula de atestiguamiento en
presencia de los testigos, quienes a su
vez firmaron cada una de dichas paginas
y la clausula de atestiguamiento en mi
presencia cada uno de ellos con la de los
demas, hoy en Porac, Pampanga, I. F., el
dia 27 de Mayo de mil novecientos
treinta y nueve.

The alleged will read as follows:

CARLOS GIL

Primera Pagina (1)

Testificacion:

EN EL NOMBRE DE DIOS, AMEN

Segunda Pagina (2)

Yo, Carlos Gil, de 66 aos de edad,


residente de Porac, Pampanga, I. F.,
hallandome sano y en pleno goce de mis
facultades
intelectuales,
libre
y
expontaneamente,
sin
violencia,
coaccion, dolo o influencia ilegal de
persona extraa, otorgo y ordeno este mi
testamento y ultima voluntad en
castellano, idioma que poseo y entiendo,
de la manera siguiente:

Nosotros los que suscribimos, todos


mayores de edad, certificamos: que el
testamento que precede este escrito en
la lengua castellana que conoce la
testadora, compuesto de dos paginas
utiles con la clausula de atestiguamiento
paginadas correlativamente en letras y
numeros en la parte superior de la
casilla, asi como todas las hojas del
mismo, en nuestra presencia y que cada

Primer Error. El Juzgado inferior erro al


dejar de declarar que el alegado
testamento de Carlos Gil no ha sido
otogar de acuerdo con la ley.

uno de nosotros hemos atestiguado y


firmado dicho documento y todas las
hojas del mismo en presencia del
testador y en la de cada uno de nosotros.

Alleged errors may be overlooked or


correct only in matters of form which do
not affect the substance of the
statement.

(Fdo.) ALFREDO T. RIVERA

It is claimed that the correction may be


made by inference. If we cure a
deficiency by means of inferences, when
are we going to stop making inferences
to supply fatal deficiencies in wills?
Where are we to draw the line? Following
that procedure we would be making
interpolations by inferences, implication,
and even by internal circumtantial
evidence. This would be done in the face
of the clear, uniquivocal, language of the
statute as to how the attestation clause
should be made. It is to be supposed that
the drafter of the alleged will read the
clear words of the statute when he
prepared it. For the court to supply
alleged deficiencies would be against the
evident policy of the law. Section 618 of
Act No. 190, before it was amended,
contained the following provision:

(Fdo.) RAMON MENDIOLA


(Fdo.) MARIANO OMAA
Regarding the correctness and accuracy
of the above-copied alleged will, the
court below said:
. . . The only copy available is a printed
form contained in the record appeal in
case G.R. No. L-254, entitled "Testate
Estate of Carlos Gil; Isabel Herreros Vda.
de Gil, petitioner and appellant vs.
Roberto Toledo y Gil, oppositor and
appellee." Both parties are agreed that
this is a true and correct copy of the will.
(P. 10, Record on Appeal).
The appeal being only on questions of
law the above finding of the court below
cannot be disputed. The conclusions of
law reached by said court are based on
it. Moreover, the finding is correctly
based on the evidence of record. The
parties agreed that said copy is true and
correct. If it were otherwise, they would
not have so agreed, considering that the
defect is of an essential character and is
fatal to the validity of the attestation
clause.
It will be noted that the attestation
clause above quoted does not state that
the alleged testor signed the will. It
declares only that it was signed by the
witnesses. This is a fatal defect, for the
precise purpose of the attestation clause
is to certify that the testator signed the
will, this being the most essential
element of the clause. Without it there is
no attestation at all. It is said that the
court may correct a mere clerical error.
This is too much of a clerical error for it
effects the very essence of the clause.

. . . But the absence of such form of


attestation shall not render the will
invalid if it proven that the will was in
fact signed and attested as in this section
provided.
However, Act No. 2645 of the Philippine
Legislature, passed on July 1, 1916,
besides increasing the contents of the
attestation clause, entirely suppressed
the above-quoted provision. This would
show that the purpose of the amending
act was to surround the execution of a
will with greater guarantees
and
solemnities. Could we, in view of this,
hold that the court can cure alleged
deficiencies by inferences, implications,
and internal circumstantial evidence?
Even in ordinary cases the law requires
certain requisities for the conclusiveness
of circumstantial evidence.
It is contended that the deficiency in the
attestation clause is cured by the last
paragraph of the body of the alleged will,

which we have quoted above. At first


glance, it is queer that the alleged
testator should have made an attestation
clause, which is the function of the
witness. But the important point is that
he attests or certifies his own signature,
or, to be accurate, his signature certifies
itself. It is evident that one cannot certify
his own signature, for it does not
increase the evidence of its authenticity.
It would be like lifting one's self by his
own bootstraps. Consequently, the last
paragraph of the will cannot cure in any
way the fatal defect of the attestation
clause of the witnesses. Adding zero to
an insufficient amount does not make it
sufficient.
It is said that the rules of statutory
construction are applicable to documents
and wills. This is true, but said rules
apply to the body of the will, containing
the testamentary provisions, but not to
the attestation clause, which must be so
clear that it should not require any
construction.
The parties have cited pro and con
several decisions of the Supreme Court,
some of which are said to be rather strict
and others liberal, in the interpretation of
section 618 of Act No. 190, as amended
by Act No. 2645.
In the case of Gumban vs. Gorecho (50
Phil., 30, 31), the court had the following
to say:
1.
WILLS;
ALLOWANCE
OR
DISALLOWANCE; SECTIONS 618 AND 634
OF THE CODE OF CIVIL PROCEDURE
CONSTRUED. The right to dispose of
the property by will is governed entirely
by statute. The law is here found in
section 618 of the Code of Civil
Procedure, as amended. The law not
alone carefully makes use of the
imperative, but cautiously goes further
and makes use of the negative, to
enforce legislative intention.

2. ID.; ID.; ATTESTATION. The


Philippine authorities relating to the
attestation clause to wills reviewed. The
cases of Sao vs. Quintana ([1925], 48
Phil., 506), and Nayve vs. Mojal and
Aguilar
([1924],
47
Phil.,
152),
particularly compared. The decision in In
re Will of Quintana, supra, adopted and
reaffirmed. The decision in Nayve vs.
Mojal and Aguilar, supra, modified.
3. ID.; ID.; ID.; ID. The portion of
section 618 of the Code of Civil
Procedure, as amended, which provides
that "The attestation clause shall state
the number of sheets or pages used,
upon which the will is written, and the
fact that the testator signed the will and
every page thereof, or caused some
other person to write his name, under his
express direction, in the presence of
three witnesses, and the latter witnessed
and signed the will and all pages thereof
in the presence of the testator and of
each other" applied and enforced.
4. ID.; ID.; ID.; ID. An attestation
clause which does not recite that the
witnesses signed the will and each and
every page thereof on the left margin in
the presence of the testator is defective,
and such a defect annuls the will. (Sano
vs. Quintana, supra.)
In the subsequent case of Quinto vs.
Morata (54 Phil., 481, 482), Judge Manuel
V. Moran, now Chief Justice of the
Supreme Court, in his decision made the
following pronouncement:
. . . En la clausula de atestiguamiento del
testamento en cuestion, se hace constar
que
los
testadores
firmaron
el
testamento en presencia de los tres
testigos instrumentales y que estos
firmaron el testamento los unos en
presencia de los otros, pero no se hace
constar que dichos testigos firmaron el
testamento
en
presencia
de
los
testadores, ni que estos y aquellos
firmaron todas y cada una de las paginas

del testamento los primeros en presencia


de los segundos y vice-versa.
En su virtud, se deniega la solicitud en la
que se pide la legalizacion del alegado
testamento Exhibit A de Gregorio Pueblo
y Carmen Quinto, y se declara que
Gregorio Pueblo murio intestado.
The Supreme Court fully affirmed the
decision, laying down the following
doctrine:
1.
WILLS;
ATTESTATION
CLAUSE;
EVIDENCE TO SUPPLY DEFECTS OF. The
attestation clause must be made in strict
conformity with the requirements of
section 618 of Act No. 190, as amended.
Where said clause fails to show on its
face a full compliance with those
requirements, the defect constitutes
sufficient ground for the disallowance of
the will. (Sano vs. Quintana, 48 Phil., 506;
Gumban vs. Gorecho, 50 Phil., 30).
Evidence aliunde should not be admitted
to establish facts not appearing on the
attestation clause, and where said
evidence has been admitted it should not
be given the effect intended. (Uy Coque
vs. Navas L. Sioca, 43 Phil., 405, 409.).
2. ID.; ID.; INTERPRETATION OF SECTION
618 OF ACT NO. 190, AS AMENDED.
Section 618 of Act No. 190, as amended,
should be given a strict interpretation in
order to give effect to the intention of the
Legislature.
Statutes
prescribing
formalities to be observed in the
execution of wills are very strictly
construed. Courts cannot supply the
defensive execution of will. (40 Cyc., p.
1079; Uy Coque vs. Navas L. Sioca,
supra.)
It is true that in subsequent decisions,
the court has somewhat relaxed the
doctrine of the Gumban vs. Gorcho case,
supra, but not to the extent of validating
an attestation clause similar to that
involved herein.

In the case of Aldaba vs. Roque (43 Phil.,


378), the testatrix signed the attestation
clause which was complete, and it was
also signed by the two attesting
witnesses. For this reason, the court said:
In reality, it appears that it is the
testatrix who makes the declaration
about the points contained in the above
described paragraph; however, as the
witnesses, together with the testatrix,
have signed the said declaration, we are
of the opinion and so hold that the words
above quoted of the testament constitute
a
sufficient
compliance
with
the
requirements of section 1 of Act No. 2645
which provides that: . . . (p. 381, supra.)
The attestation clause involved herein is
very different.
In the case of Dischoso de Ticson vs. De
Gorotiza (57 Phil., 437), it was held that:
An attestation clause to a will, copied
from a form book and reading: "We, the
undersigned attesting witnesses, whose
residences are stated opposite our
respective names, do hereby certify that
the testatrix, whose name is signed
hereinabove, has publish unto us the
foregoing will consisting of two pages as
her Last Will and Testament, and has
signed the same in our presence, and in
witness whereof we have each signed the
same and each page thereof in the
presence of said testatrix and in the
presence of each other," held not to be
fatally defective and to conform to the
law.
This very different from the attestation
clause in the case at bar.
In the case of Grey vs. Fabie * (40 Off.
Gaz., 1st Supplement, 196, No. 3, May
23, 1939), the will was objected to on the
ground that, although the attestation
clause stated that "each of the pages of
which the said will is composed" was
signed by the testatrix at the left margin

and at the foot of the fifth page, it did not


state that the signature was made in the
presence of the witnesses. It was held,
however, that said deficiency was cured
by the phrase "as well as by each of us in
the presence of the testatrix." The words
"as well as" indicate that the testatrix
signed also in the presence of the
witnesses, for the phrase "as well as" in
this case is equivalent to "also." The
language is clear and, unlike the
attestation clause in the present case,
does not necessitate any correction. In
the body of the will the testatrix stated
that she signed in the presence of each
and all of the three witnesses. This was
considered as a corroboration, but it was
unnecessary.

Emiliano Alcala su ultima voluntad o


testamentao
compuesto
de
cuatro
paginas incluida ya esta clasula de
atestiguamiento.
Que
estabamos
presentes en el momento de leer y
ratificar el que el testamento arriba
mencionado es su ultima voluntad o
testamento
compuesto
de
cuatro
paginasen papel de maquinilla. Que
igualmente estabamos presentes cuando
el firmo este documento al pie del mismo
y en el margen izquierdo de cada pagina
del testador tambien en presencia suya y
de cada uno de nosotros en cada pagina
y en el margen izquierdo de esta
escritura o testamento. En su testimonio
firmamos abajo en prsencia del testador
y de cada uno de nosotros.

In the case of Leynez vs. Leynez (40 Off.


Gaz., 3rd Supplement, 51, 52, No. 7,
October 18, 1939; 68 Phil., 745), the
attestation clause reads as follows:

The
above
attestation
clause
is
substantially perfect. The only clerical
error is that it says "testador" instead of
"testamento" in the phrase "cada pagina
del testador." The word "tambien"
renders unnecessary the use of the verb
"firmamos."

Suscrito y declarado por el testador


Valerio Leynez, como su ultima voluntad
y testamento en presencia de todos y
cada uno de nosotros, y a ruego de dicho
testador, firmamos el presente cada uno
en presencia de los otros, o de los demas
y de la del mismo testsador, Valerio
Leynez. El testamento consta de dos (2)
paginas solamente.
The objection was that the attestation
clause did not state that the testator and
the witnesses signed each and every
page of the will. This fact , however,
appears in the will itself. It is clear,
therefore, that in case of the will
complied with all the requisites for its
due execution. In the instant case,
essential words were omitted.
In the case of Alcala vs. De Villa 1 (40
Off. Gaz., 14th Supplement, 131, 134135, No. 23, April 18, 1939), the
attestation clause reads as follows:
Hacemos constar que en la fecha y
pueblo arriba mencionadios otorgo el Sr.

In the case of Mendoza vs. Pilapil 2 (40


Off. Gaz., 1855, No. 9, June 27, 1941),
the attestation clause did not state the
number of pages of the will. However, it
was held that this deficiency was cured
by the will itself, which stated that it
consisted of three pages and in fact it
had three pages.
In the case of Rallos vs. Rallos (44 Off.
Gaz., 4938, 4940, No. 12, October 23,
1947), decided by the Court of Appeals,
the attestation clause (translated in
Spanish) reads as follows:
Nosotros, los testigos, certificamos que
este que hemos firmado es el testamento
y ultima voluntad, que se ha redactado
en cuatro paginas, de Numeriano Rallos,
quien despues de leer y de leer y de
leerle el mencionado testamento, y
despues de que ella dio su conformidad,
firmo y marco con su dedo pulgar
derecho en nuestra presencia y en

presencia
asimismo
testigos,
testadora
nosotros.

de cada uno de nosotros, que


cada uno de nosotros, los
firmamos enpresencia de la
y en presencia de cada uno de

It will be noticed that the only thing


omitted is the statement as to the
signing of the testatrix and the witnesses
of each and every page of the will, but
the omission is cured by the fact that
their signatures appear on every page.
This attestation clause is different from
that involved in the present case.
There is no reason why wills should not
be executed by complying substantially
with the clear requisites of the law,
leaving it to the courts to supply
essential elements. The right to dispose
of property by will is not natural but
statutory, and statutory requirements
should be satisfied.
The right to make a testamentary
disposition of one's property is purely of
statutory creation, and is available only
upon
the
compliance
with
the
requirements of the statute. The
formalities which the Legislature has
prescribed for the execution of a will are
essential to its validity, and cannot be
disregarded. The mode so prescribed is
the measure for the exercise of the right,
and the heir can be deprived of his
inheritance only by a compliance with
this
mode.
For
the
purpose
of
determining whether a will has been
properly executed, the intention of the
testator in executing it is entitled to no
consideration. For that purpose only
intention of the Legislature, as expressed
in the language of the statute, can be
considered by the court, and whether the
will as presented, shows a compliance
with the statute. Estate of Walker, 110
Cal., 387, 42 Pac., 815, 30 L. R. A., 460,
52 Am. St. Rep. 104. In re Seaman's
Estate, 80 Pac., 700, 701.)

In interpreting the legislature's thought,


courts
have
rigidly
opposed
any
exception tending to weaken the basic
principle underlying the law, the chief
purpose of which is to see that the
testator's wishes are observed. It is
possible, in some or many cases, a
decedent may have thought he had
made a will, but the statute says he had
not. The question is not one of his
intention, but of what he actually did, or .
. . failed to do. . . . It may happen . . . that
. . . wills . . . truly expressing the
intertions of the testator are made
without observations of the required
forms; and whenever that happens, the
genuine intention is frustrated. . . . The
Legislature . . . has taught of it best and
has therefore determined, to run the risk
of frustrating (that intention, . . . in
preference to the risk of giving effect to
or facilitating the formation of spurious
wills, by the absence of forms. . . . The
evil probably to arise by giving to wills
made without any form, . . ." or, in
derogation
of
testator's
wishes,
fraudulently imposing spurious wills on
his effect on his estate. Churchill's Estate,
260 Pac. 94, 101, 103 Atl. 533.
It has always been the policy of this court
to sustain a will if it is legally possible to
do so, but we cannot break down the
legislative barriers protecting a man's
property after death, even if a situation
may
be
presented
apparently
meritorious. (In Re: Maginn, 30 A. L. R.,
pp. 419, 420.)
In view of the foregoing, the decision
appealed from is reversed, denying the
probate of the alleged will and declaring
intestate the estate of the deceased
Carlos Gil. With costs against the
appellee. It is so ordered.
Moran, C.J., Pablo, Bengzon, Padilla and
Reyes, JJ., concur.
Separate Opinions

TUAZON, J., dissenting:


The decision takes for granted that the
will was written just as it was copied in
the stipulation of facts by the parties. But
counsel
for
appellee
makes
the
correctness of the copy an issue thereby
raising the question of not whether the
burnt will possessed the statutory
requirements but whether the copy is
erroneous. Since this is a chief feature on
which the appellee's case is built; since,
in fact, the objection to form of the
attestation clause, with which the
decision wholly deals, would disappear if
the appellee's contention were well
founded, it is proper that in this
dissenting opinion we should accord the
matter at least a passing notice.
It may be stated as background that the
original of the will was filed in the Court
of First Instance of Manila in 1943; that in
1945, before the will came up for
probate, it was destroyed by fire or
looters; that in the probate proceeding
after liberation, the parties submitted an
agreed statement of facts in which the
will was reproduced as copied in the
record on appeal in another case
docketed in this court on appeal as G.R.
No. L-254 and decided on April 30, 1948.
It further appears from the record of that
case and from the decision of this court
that the controversy there concerned the
right of a nephew of the testator to
impugn the will, it being alleged that he
was not a legal heir and had no interest
in the probate.
As transcribed in the majority decision, it
will be seen that the attestation clause is
truncated and meaningless. The last of
the compound sentence in incomplete,
lacking an adjective phrase. Counsel for
appellee contends that the phrase "ha
sido firmado por el testador" or
equivalent expression between the words
"del mismo" and the words "en nuestra
presencia" should be inserted if the

sentence is to be complete and have


sense. The attestation clause with the
inclusion of the omitted phrase, which we
italicize should read thus:
Nosotros, los que suscribimos, todos
mayores de edad, certificamos que el
testamento que precede escrito en la
lengua castellana que conoce la testador,
compuesto de las paginadas utiles con la
clausula de atestiguamiento paginadas
correlativamente en letras y numeros en
la parte superior de la casilla, asi como
todos las hojas del mismo (Ha sido
firmado por el testador) en nuestra
presencia y que cada de nosotros hemos
atestiguado y firmado dicho documento y
todas las hojas del mismo presencia del
testador y en la de cada uno de nosotros.
It seems obvious that the missing phrase
was
inadvertently
left
out.
The
probabilities of error in the copy are
enhanced by the fact that the form of the
will was not in controversy. The form of
the will being immaterial, it is easily
conceivable that little or on care was
employed in the copying thereof in the
pleading or record on appeal above
mentioned. The absence of the signature
of the testator on the first page of the
copy is an additional proof that little or
on pain was taken to insure accuracy in
the transcription. The appearance of "la
testadora" in the copy instead of "el
testador" is another.
Quite aside from all this, the testator was
presumed to know the law, as the
decision
says.
Certainly,
Attorney
Mariano Omaa, who drafted the whole
instrument and signed it as an attesting
witness, knew the law and, by the
context of the whole instrument, has
shown familiarity with the rules of
grammar and ability to express his idea
properly.
Read in the light of these circumstances
without mentioning the evidence or
record, not objected to, that the testator

signed the will in the presence of the


attesting witnesses so important an
omission as to make the sentence
senseless granting such omission
existed in the original document-could
not have been intentional or due to
ignorance. The most that can be said is
that the flaw was due to a clerical
mistake, inadvertance, or oversight.
There is insinuation that the appellee in
agreeing that the will read as it was
"reproduced in the record on Appeal"
above mentioned is bound by the
agreement. This is not an absolute rule.
The binding effect of a stipulation on the
parties does not go to the extent of
barring them or either of them from
impeaching it on the score of clerical
error or clear mistake. That there was
such mistake, is indubitable. It is
noteworthy that the opponent and
appellant herself appears not to have
noticed any defect in the attestation
clause as copied in the stipulation. It
would seem that in the court below she
confined her attack on the will to the
alleged failure of the testator to sign the
first page. We say this because it was
only the alleged unsigning of the first
page of the document which the trial
court in the appealed decision discussed
and ruled upon. There is not the slightest
reference in the decision, direct or
implied, to any flaw in the attestation
clause which is by far more important
than the alleged absence of the
testator's signature on the first page.
As stated the problem posed by the
omission in question is governed, not by
the law of wills which requires certain
formalities to be observed in the
execution,
but
by
the
rules
of
construction applicable to statues and
documents in general. And this rule
would obtain even if the omission had
occurred in the original document and
not in the copy alone. In either case, the
court may and should correct the error by
supplying the omitted word or words.

In Testamentaria del finado Emilio Alcala,


a similar situation arose and the Court
said:
Es evidente que leyendo la clausula de
atestiguacion se nota a simple vista que
en su redaccion se ha incurrido en
omisiones que la razon y el sentido
comon pueden suplirlas sin alterar ni
tergiversar la intencion tanto del testador
como la de los tres testigos que
intervinieron en el otorgamiento de la
misma. Teniendo en cuenta la fraselogia
de la segunda parte de la clausula se
observara que las omisiones, aunque son
substanciales,
consisten
en
meros
errores gramaticales que los tribunales,
en el ejercicio de su discrecion y en la
aplicacion de las reglas de interpretacion
de documentos, pueden subsanarlos
para dar efectividad a la intencion y
hacer que el conjunto de los terminos de
la clausula de atestacion surtan sus
efectos.
La interpritacion que se acaba de bar a la
clausula de atestacion y la correccion de
los errores gramaticales de que misma
adolece, incluyendo la insercion del
verbo
"firmamos"
que
se
omitio
involuntariamente, esta de acuerdo con
las reglas fundamentals de interpretacion
de documentos segun las cuales se debe
hacer prevalecer siempre la intencion del
que haya redactado el instrumento (art.
288, Cod. de Proc. Civ.; Pecson contra, 45
Jur. Fil., 224; 28 R. C. L., sec. 187, pags.
225, 226.)
La solucion que se acaba de bar al
asunto es la que se halla mas conforme
con la justificia en vista de que se ha
presentado prueba alguna que insinue
siquiera que en el otorgamiento del
testamento se ha cometido dolo o fraude
con el animo de perjudiar a cualquiera.
(Testamentaria de Emiano Alcala, 40 G.
O., 14. Suplemento, No. 23, pags. 131,
132.)

From 69 C. J., 82 83, we quote: "Words


omitted from a will may be supplied by
the court whenever necessary to
effectuate the testator's intention as
expressed in the will; but not where the
effect of inserting the words in the will
would alter or defeat such intention, or
change the meaning of words that are
clear and unequivocal." On pages 50, 51,
the same work says: "To aid the court in
ascertaining and giving effect to the
testator's intention in the case of an
ambiguous will, certain rules have been
established
for
guidance
in
the
construction or interpretation to be
placed upon such a will, and in general a
will should be construed according to
these established rules of construction."
Speaking of construction of statutes
which, as has been said, is applicable to
construction of documents, the same
work, in Vol. 59, p. 992, says: "Where it
appears from the context that certain
words have been inadvertently omitted
from a statute, the court may supply
such words as are necessary to complete
the sense, and to express the legislative
intent.
Adding force to the above principle is the
legal presumption that the will is in
accordance with law. (2 Page on Wills,
840, 841; 57 Am. Jur., 720.)
Let us assume, for the purpose of this
decision only, that the attestation clause
was drawn as the draftsman intended,
that the mistake in language in said
clause was not inadvertent, and consider
the case on the premise from which the
court has approached it; is the decision
well grounded, at least in the light of this
court's previous decisions?
At the outset, it should be pointed out
that as early as 1922 a similar case, in
which the validity of the will was
sustained, found its way into this court.
(Aldaba vs. Roque, 43 Phil., 378). The
case was more than four-square behind
the case at bar. There the departure from

the statutory formality was more radical,


in that the testator took charge or writing
the entire attestation clause in the body
of the will, the witnesses limiting their
role to signing the document below the
testator's signature. Here, at most, the
testator took away from the witness only
a small part of their assigned task,
leaving them to perform the rest.
Referring to "the lack of attestation
clause required by law," this court, in a
unanimous decision in banc, through Mr.
Justice Villamor said (syllabus): "When
the attestation clause is signed by the
witnesses to the instruments besides the
testator, such attestation clause is valid
and constitutes a substantial compliance
with the provisions of section 1 of Act No.
2645, even though the facts recited in
said attestation appear to have been
make by the testator himself."
That was good doctrine when it was
announced. We think it is good law still.
That ruling should set the present case at
rest unless the court wants to discard it.
On the possibility that this is the
intention, we will dwell on the subject
further.
This Court noted in Dichoso de Ticson vs.
De Gorostiza, (1922), 57 Phil., 437, "that
there have been noticeable in the
Philippines two divergent tendencies in
the law of wills the one being planted
on strict construction and the other on
liberal construction. A late example of
the former views may be found in the
decision in Rodriguez vs. Alcala (1930),
55 Phil., 150, sanctioning a literal
enforcement of the law. The basic case in
the other direction, predicated on reason,
is Abangan vs. Abangan (1919), 40 Phil.,
476, oft-cited approvingly in later
decisions." In the Abangan case,
unanimous court, speaking through Mr.
Justice Avancea, later Chief Justice,
observed: "The object of the solemnities
surrounding the execution of wills is to
close the door against bad faith and

fraud, to avoid substitution of wills and


testaments and to guaranty their truth
and authenticity. Therefore the laws on
this subject should be interpreted in such
a way as to attain these primodial ends.
But, on the other hand, also one must
not lose sight of the fact that it is not the
object of the law to restrain and curtail
the exercise of the right to make a will.
So when an interpretation already given
assures
such
ends,
any
other
interpretation whatsoever, that adds
nothing but demands more requisites
entirely
unnecessary,
useless
and
frustrative of the testator's last will, must
be disregarded."
Subsequent decisions which followed and
adopted the Abangan principle were
numerous: Avera vs. Garcia (1921), 42
Phil., 145; Aldaba vs. Roque (1922), 43
Phil., 378; Unson vs. Abella (1922,) 43
Phil., 494; Pecson vs. Coronel (1923), 45
Phil., 216; Fernandez vs. Vergel de Dios
(1924), 46 Phil., 922; Nayve vs. Mojal
(1924), 47 Phil., 152; De Gala vs.
Gonzales (1929), 53 Phil., 104; Rey vs.
Cartegana (1931), 56 Phil., 282; Ticson
vs. Gorostiza (1932), 57 Phil., 437;
Testamentaria de M. Ozoa (1933), 57 J. F.,
1007; Sebastian vs. Paganiban (1934),
59 Phil., 653; Rodriguez vs. Yap (1939)1,
40 Off. Gaz., 1st Suppl. No. 3, p. 194;
Grey vs. Fabia (1939)2, 40 Off. Gaz., 1st
Suppl. No. 3, p. 196; Leynez vs. Leynez
(1939)3, 40 Off. Gaz., 3rd Suppl. No. 7, p.
51; Martir vs. Martir (1940)4, 40 Off.
Gaz., 7th Suppl. No. 11, p. 215; Sabado
vs. Fernandez (1941)5, 40 Off. Gaz.,
1844; Mendoza vs. Pilapil (1941)6 40 Off.
Gaz., 1855; Alcala vs. De Villa (1941)7,
40 Off. Gaz., 14th Suppl. No. 23, p. 131;
and Lopez vs. Liboro (1948)8, 46 Off.
Gaz., Suppl. No. 1, p. 211.
The majority decision says, and we
quote: "If we cure a deficiency by means
of inferences, when are we going to stop
making inferences to supply fatal
deficiencies in wills? Where are we to
draw the line?" These same questions

might well have been asked in the case


above cited by the opponents of the new
trends. But the so-called liberal rule does
not offer any puzzle or difficulty, nor does
it
open
the
door
to
serious
consequences. The decisions we have
cited to tell us when and where to stop;
the dividing line is drawn with precision.
They say "Halt" when and where
evidence aliunde to fill a void in any part
of the document is attempted. They only
permit a probe, an exploration within the
confines of the will, to ascertain its
meaning and to determine the existence
or absence of the formalities of law. They
do not allow the courts to go outside the
will or to admit extrinsic evidence to
supply missing details that should appear
in the will itself. This clear, sharp
limitation eliminates uncertainly and
ought to banish any fear of dire results.
The case at hand comes within the
bounds thus defined. If the witnesses
here purposely omitted or forgot that the
testator signed the will in their presence,
the testator said that he did and the
witnesses by their signatures in the will
itself said it was so. No extraneous proof
was necessary and none was introduced
or taken into consideration.
To regard the letter rather than the spirit
of the will and of the law behind it was
the thing that led to unfortunate
consequences. It was the realization of
the injustice of the old way that impelled
this court, so we believe, to forsake the
antiquated, outworn worship of form in
preference to substance. It has been
said, and experience has known, that the
mechanical system of construction has
operated more to defeat honest wills
than prevent fraudulent ones. That, it
must be conceded, is the effect in this
case of this court's rejection of the will
under consideration. For the adverse
party concedes the genuineness of the
document. At least, the genuineness is
super obvious, and there is not the
slightest insinuation of undue pressure,

mental incapacity of the testator of


fraud.
It is said that for the testator to certify
that he signed the will in the witnesses'
presence "would be like lifting one's self
by his own bootstraps." The simile, we
say with due respect, does not look to us
quite well placed. Under physical law a
man cannot raise his body from the
ground by his own bare hands without
the aid of some mechanical appliance, at
least not for more than a flitting moment.
But there is no impossibility or
impropriety in one attesting to his own
act unless forbidden by rules of positive
law. The rationale of our dissent is that
he is not. If we were to make a
metaphorical comparison, it would be
more appropriate to say that a man can
and generally does himself pull the
bootstraps to put the boots on.

another method slightly different from


the prescribed manner, what has been
done by the testator and the witnesses in
the execution of the instant will should
satisfy both law and conscience. The
chief requirements of statutes are
writing, signature by the testator, and
attestation and signature of three
witnesses. Whether the courts profess to
follow the harsher rule, whether to follow
the milder rule, they agree on one thing
that as long as the testator performs
each of those acts the courts should
require no more. (1 Page on Wills, 481,
484.)
Paras, Feria, Montemayor and Bautista
Angelo, JJ., concur.
RESOLUTION
March 20, 1953

Coming to execution of wills, we see no


legitimate practical reason for objecting
to the testator instead of the witnesses
certifying that he signed the will in the
presence of the latter. The will is the
testator's and the intervention of
attesting witnesses is designed merely to
protect the testator's and not anybody
else's interest.
If the sole purpose of the statute is to
make it certain that the testator has
definite and complete intention to pass
his property, and to prevent, as far as
possible, any chance of substituting one
instrument for another (1 Page on Wills,
481), What better guaranty of the
genuineness of the will can there be than
a certification by the testator himself in
the body of the will so long as the
testator's
signature
is
duly
authenticated? Witnesses may sabotage
the will by muddling it or attestation
clause. For the testator, who is desirous
of making a valid will, to do so would be
a contradiction. If the formalities are only
a means to an end and not the end
themselves, and that end is achieved by

TUASON, J.:
This appeal is before us on a motion for
reconsideration of this court's decision.
Whereas formerly six justices voted for
reversal and five for affirmance of the
probate court's order admitting the will to
probate, the vote upon reconsideration
was six for affirmance and five for
reversal, thereby making the dissenting
opinion, which had been filed, the
prevailing rule of the case. Under the
circumstances, this resolution will largely
be confined to a restatement of that
dissenting opinion.
The will in question was presented for
probate in the Court of First Instance of
Manila in 1943 with Roberto Toledo y Gil,
decedent's nephew, and Pilar Gil Vda. de
Murciano, decedent's sister opposing the
application. Toledo's legal right to
intervene was questioned by the
proponent of the will, and the objection
was sustained in an order which was
affirmed by this court in G. R. No. L-254.
As a result of the latter decision, Toledo

was eliminated from the case and did not


appear when the trial was resumed.
The proceeding seems to have held in
abeyance pending final disposition of
Toledo's appeal, and early in 1945, before
the application was heard on the merit,
the record, along with the will, was
destroyed,
necessitating
its
reconstitution after liberation. In the
reconstitution, a stipulation of facts was
submitted in which, according to the
appealed order, "both parties . . . agreed
that the will as transcribed in the record
on appeal in Case G. R. No. L-254 is true
and a correct copy.
The will consisted of only two pages, and
the attestation clause as thus copied
reads:
NOSOTROS los que suscribimos, todos
mayores de edad, certificamos: que el
testamento que precede escrito en la
lengua castellana que canoce la testador,
compuesto de dos paginas utiles con la
clausula de atestigamiento paginadas
correlativamente en letras y numeros en
la parte superior de la casilla, asi como
todas las hojas del mismo, en nuestra
presencia y que cada uno de nosotros
hemos atestiguado y firmado dicho
documento y todas las hojas del mismo
en presencia del testador y en la de cada
uno de nosotros.

between the words "del mismo" and the


words "en nuestra presencia" should be
inserted if the attestation clause is to be
complete and have sense. With this
insertion the attestation clause would
read ". . ., asi como todas las hojas del
mismo han sido firmadas por el testador
en nuestra presencia . . ." The point is
well taken.
It seems obvious that the missing phrase
was left out from the copy. The
probabilities of error in the copy are
enhanced by the fact that the form of the
Will was not controversy in Toledo's
appeal. The form of the will being
immaterial, it is easily conceivable that
little or no care was employed in
transcribing the document in the
agreement or record on appeal. The
absence of the signature of the testator
on the first page of the copy is an
additional proof that little or no pain
taken to insure accuracy in the
transcription. The appearance of "la
testadora" in the copy instead of "el
testador" is another indication of the
haste
and
carelessness
in
the
transcription.

It will be noted from the above copy that


the last of the compound sentence is
truncated and meaningless. This defect is
the main basis of the appellant's sole
assignment of error.

Quite aside from all this, the testator was


presumed to know the law, as the trial
court says. Certainly, Attorney Mariano
Omaa, who drew the instrument and
signed it as an attesting witness, knew
the law and, by the context thereof, has
shown familiarity with the rules of
grammar and ability to express his idea
properly.
In
the
light
of
these
circumstances and of further fact that
the clause was brief and, by its
importance, must have been written with
utmost concern, so important an
omission as to make the clause or
sentence senseless could not have been
made, intentionally or otherwise, in the
original.

Counsel for appellee contend that the


phrase "han sido firmadas por el
testador"
or
equivalent
expression

There is insinuation that the appellee in


agreeing that the will read as it was
"reproduced in the Record on appeal" is

(Fdo.) ALFREDO T. RIVERA.


(Fdo.) RAMON MENDIOLA.
(Fdo.) MARIANO OMAA

bound by the agreement. This is not an


absolute rule. The binding effect of a
stipulation on the parties does not go to
the extent of barring either of them from
impeaching it on the score of clerical
error or clear mistake. The mistake just
pointed out clearly brings the case within
the exceptions of the rule. The able
counsel for the proponent of the will
could not possibly have subscribed to the
agreement if they had noticed the
incomplete sentence in the copy without
making an objection or reservation.

La interpretacion que se acaba de dar a


la clausula de atestacion y la correccion
de los errores gramanticales de que
misma adolece, incluyedo la insercion del
verbo
"firmamos"
que
se
omitio
involuntariamente, esta de acurdo con
las
reglas
fundamentales
de
interpretacion de documentos segun las
cuales se debe hacer prevalecer siempre
la intencion del que haya redactado el
instrumento (art 286, Cod. de Proc. Civil;
Pecson contra Coronel, 45 Jur. Fil., 224;
28 R. C. L., sec. 187, pages. 225, 226).

The problem posed by the omission in


question is governed, not by the law of
wills which requires certain formalities to
be fulfilled in the execution, but by the
rules of construction applicable to
statutes and documents in general. And
this rule would obtain whether the
omission occurred in the original
document or in the copy alone. In either
case, the court may and should correct
the error by supplying the omitted word
or words.

La solucion que se acaba de dar al


asunto es la que se halla mas conforme
con la justicia en vista de que no se ha
presentado prueba alguna que insinue
siquiera que en el otorgamiento del
testamiento se ha cometido dolo o
fraude con el animo de perjudicar a
cualquiera. Testamentaria de Emiliano
Alcala, 40 Gaz. Of., 14. Supplemento, No.
23, pags. 131, 132.)

In Testamentaria del finado Emiliano


Alcala, a similar situation arose and the
court said:
Es evidente que leyendo la clausula de
atestiguacion se nota a simple vista que
en su redaccion se ha incurrido en
omisiones que la razon y el sentido
cumon pueden suplirlas sin altenar ni
tergiversar la intencion tanto del testador
como la de los tres testigos que
intervenieron en el otorgamiento de la
misma. Teniendo en cuenta la fraseologia
de la segunda parte de la clausula se
observara que las omisiones, aunque son
substanciales,
consisten
en
meros
errores gramaticales que los tribunales,
en el ejercicio de su discrecion y en la
aplicacion de las reglas de interpretacion
de documentos, pueden subsanarlos
para dar efectividad a la intencion y
hacer que el conjunto de los terminos de
la clausula de atestacion surtan efectos.

From 69 C. J. 82, 83, we quote: "Words


omitted from a will may be supplied by
the court whenever necessary to
effectuate the testator's intention as
expressed in the will: but not where the
effect of inserting the words in the will
would alter or defeat such intention, or
change the meaning of words that are
clear and unequivocal." On pages 50 and
51, the same work says: "To aid the court
in ascertaining and giving effect to the
testator's intention in the case of an
ambiguous will, certain rules been
established
for
guidance
in
the
construction or interpretation to be
placed upon such a will, and in general a
will should be construed according to
these established rules of construction."
And referring to construction of statues
which, as has been said, is applicable to
construction of documents, C. J. S., in Vol.
59, p. 992, tells us that "Where it appears
from the context that certain words have
been inadvertently from a statute, the
court may supply such words as are

necessary to complete the sense, and to


express the legislative intent."
Adding force to the above principle is the
legal presumption that the will is in
accordance with law. (2 Page on Wills
840; 57 Am. Jur., 720.)
But let it be assumed, for the sake of this
decision only, that the attestation clause
was drawn exactly as it was copied in
Toledo's record on appeal, was the
mistake fatal? Was it, or was it not, cured
by the testator's own declaration? to wit:
"En testimonio de lo cual, firmo este mi
testamento y en el margen izquierdo de
cada una de sus dos paginas utiles con la
clausula de atestiguamiento en presencia
de los testigos, quienes a su vez firmaron
cada una de dichas paginas y la clausula
de atestiguamiento en mi presencia cada
uno de ellos con la de los demas, hoy en
Porac, Pampanga, I. F., el dia 27 de marzo
de mil novecientos treinta y nueve." The
answer is in the negative.
As early as 1922 a similar case, in which
the validity of the will was sustained,
found its way into this court. See Aldaba
vs. Roque, 43 Phil., 378. That case was
more than foursquare behind the case at
bar. There the departure from the
statutory formality was more radical, in
that the testator took charge of writing
the entire attestation clause in the body
of the will, the witnesses limiting their
role to signing the document below the
testator's signature. Here, at the most,
the testator took away from the
witnesses only a small part of their
assigned task, leaving to them the rest.
Referring to "the lack of attestation
clause required by law," this court, in a
unanimous decision in banc, through Mr.
Justice Villamor said in the Adalba-Roque
case (syllabus):
When the attestation clause is signed by
the witnesses to the instruments, besides
the testator, such attestation clause is

valid and constitutes a substantial


compliance with the provisions of section
1 of Act No. 2645, even though the facts
recited in said attestation clause appear
to have been made by the testator
himself.
That ruling should set the present case at
rest unless we want to revert to the old,
expressly abandoned doctrine, in a long
line of what we believe to be betterconsidered decisions.
This court noted in Dichoso de Ticson vs.
De Gorostiza (1922), 57 Phil., 437, "that
there have been noticeable in the
Philippines two divergent tendencies in
the lie of wills the one being planted
on strict construction and the other on
liberal construction. A late example of
the former views be found in the decision
in Rodriguez vs. Alcala (1930), 55 Phil.,
150, sanctioning a literal enforcement of
the law. The basic rule in the other
direction, predicated on reason, is
Abangan vs. Abangan (1919), 40 Phil.,
476, oft-cited approvingly in later
decisions."
In the Abangan case, a unanimous court,
speaking through Mr. Justice Avancea,
later Chief Justice, observed:
"The
object
of
the
solemnities
surrounding the execution of wills is to
close the door against bad faith and
fraud, to avoid substitution of wills and
testaments and to guaranty their truth
and authenticity. Therefore the laws on
this subject should be interpreted in such
a way as to attain these primodial ends.
But, on the other hand, also one must
not lose sight of the fact that it is not the
object of the law to restrain and curtail
the exercise of the right to make a will.
So when an interpretation already given
assures
such
ends,
any
other
interpretation whatsoever, that adds
nothing but demands more requisites
entirely
unnecessary,
useless
and

frustrative of the testator's last will, must


be disregarded."
Subsequent decisions which followed and
adopted the Abangan principle were:
Avera vs. Garcia (1921), 42 Phil., 145;
Aldaba vs. Roque (1922), 43 Phil., 378;
Unson vs. Abella (1922), 43 Phil., 494;
Pecson vs. Coronel (1923), 45 Phil., 216;
Fernandez vs. Vergel de Dios (1924), 46
Phil., 922; Neyve vs. Mojal (1924), 47
Phil., 152; De Gala vs. Gonzales (1929),
53 Phil., 104; Rey vs. Cartagena (1931),
56 Phil., 282; Ticson vs. Gorostiza (1932),
57 Phil., 437; Testamentaria de N. Ozoa
(1933), 57 J. F., 1007; Sebastian vs.
Panganiban (1934), 59 Phil., 653;
Rodriguez vs. Yap (1939), 40 Off. Gaz.,
1st Suppl. No. 3, p. 194; Grey vs. Fabia
(1939), 40 Off. Gaz., 1st Suppl., No. 3, p.
196; Leynez vs. Leynez (1939), 40 Off.
Gaz., 3rd Suppl. No. 7, p. 51; Martir vs.
Martir (1940), 40 Off. Gaz., 7th Suppl. No.
11, p. 215; Sabado vs. Fernandez (1941),
40 Off. Gaz., 1844; Mendoza vs. Pilapil
(1941), 40 Off. Gaz., 1855; Alcala vs. De
Villa (1941), 40 Off. Gaz., 14th Suppl. No.
23, p. 131; and Lopez vs. Liboro (1948),
46 Off. Gaz., Suppl. No. 1, p. 211.
It is objected that "If we cure a deficiency
by means of inferences, when are we
going to stop making inferences to
supply fatal deficiencies in wills? Where
are we to draw the line?" These same
question might well have been asked by
the opponents of the new trends in the
cases above cited. But the so-called
liberal rule does not offer any puzzle or
difficulty, nor does it open the door to
serious
consequences.
The
later
decisions do tell us when and where to
stop; they draw the dividing line with
precision. They do not allow evidence
aliunde to fill a void in any part of the
document or supply missing details that
should appear in the will itself. They only
permit a probe into the will, an
exploration within its confines, to
ascertain its meaning or to determine the
existence or absence of the requisite

formalities of law. This clear, sharp


limitation eliminates uncertainty and
ought to banish any fear of dire results.
The case at hand comes within the
bounds thus defined if the witnesses here
purposely omitted or forgot to say that
the testator signed the will in their
presence, the testator said that he did
and the witnesses by their signatures in
the will itself said it was so. No
extraneous proof was necessary and
none was introduced or taken into
consideration.
To regard the letter rather than the spirit
of the will and of the law behind it was
the thing that led to unfortunate
consequences. It was the realization of
the injustice of the old way that impelled
this court, so we believe, to forsake the
antiquated, outworn worship of form in
preference to substance. It has been
said, and experience has shown, that the
mechanical system of construction has
operated more to defeat honest wills
than prevent fraudulent ones. That, must
be conceded, would be the effect in this
case if the will under consideration were
rejected. For the adverse party now
concedes the genuineness of the
document. At any rate, the genuineness
is super obvious, and there is not the
slightest insinuation of undue pressure,
mental incapacity of the testator, or
fraud.
It is said that for the testator to certify
that he signed the will in the witnesses'
presence "would be like lifting one's self
by his own bootstraps." The simile does
not look to us quite well placed. There is
no impossibility or impropriety in one
attesting to his own act unless forbidden
by rules of positive law. The rationale of
this decision is that he is not. If we were
to make a metaphorical comparison, it
would be more correct to say that a man
can and generally does himself pull the
bootstraps when he puts his boots on.

Coming to execution of wills, we see no


legitimate, practical reason for objecting
to the testator instead of the witnesses
certifying that he signed the will in the
presence of the latter. The will is of the
testator's own making, the intervention
of attesting witnesses being designed
merely to protect his interest. If the sole
purpose of the statute in requiring the
intervention of witnesses is to make it
certain that the testator has definite and
complete intention to pass his property,
and to prevent, as far as possible, any
chance of substituting one instrument for
another (1 Page on Wills, 481), what
better guaranty of the genuineness of
the will can there be than a certification
by the testator himself in the body of the
will so long as the testator's signature is
duly authenticated? Witnesses may
sabotage the will by muddling and
bungling it or the attestation clause. For
the testator, who is desirous of making a
valid will, to do so would be a
contradiction. If the formalities are only a
means to an end and not the end
themselves, and that end is achieved by
another method slightly from the
prescribed manner, what has been done
by the testator and the witnesses in the
execution of the instant will should
satisfy both law and conscience.
A second ground of attack on the
questioned will is that the first page or
sheet thereof does not bear the testator's
signature.
The
discussion
on
the
correctness of the copy of the attestation
clause amply answers this objection in
fact, the appellee's case is much stronger
on this point for the reason that there is
not only speculative but also positive
basis for the conclusion that the
testator's signature was affixed to the
first page of the original. Both the
testator and the attesting witnesses
stated in the will and in the attestation
clause, respectively, that the former
signed both pages or sheets of the
testament.

Upon the foregoing consideration, the


order of the probate court is affirmed
with costs.
A motion dated February 17, 1953, was
filed after the motion for reconsideration
was deliberated and voted upon, in
behalf of the minor children of Carlos
Worrel, who was a residuary legatee
under the will and who is alleged to have
died on February 6, 1949. The motion
prays that a guardian ad litem be
appointed for the said children, and
allowed to intervene and file "A
Supplementary Memorandum in Support
of Appellant's (Appellee's?) Motion for
reconsideration."
Counsel
for
the
appellant objects to the motion on the
ground that the movants having only a
contingent interest under the will are not
of right entitled to intervene.
As
this
case
has
already
been
considerably delayed and thoroughly
considered and discussed from all angles,
it is the sense of the court that the
children's
intervention
with
the
consequent further delay of the decision
would not serve the best interest of the
parties. For this reason, the motion is
denied.
Paras, Feria, Montemayor, Bautista
Angelo and Labrador, JJ., concur.
Padilla and Reyes, JJ., dissent.
JUGO,
PABLO
dissenting:

and

BENGZON,

JJ.,

I dissent on the ground set forth in my


opinion rendered in this case.

G. R. No. L-4888, May 25, 1953


JOSE MERZA, PETITIONER, VS. PEDRO
LOPEZ PORRAS, RESPONDENT.
DECISION
TUASON, J.:
This is an appeal from the Court of
Appeals which affirmed an order of the
Court of First Instance of Zambales
denying the probate of the last will and
testament and a so-called codicil,
identified as Exhibits A and B, of Pilar
Montealegre, deceased.
The testatrix
was survived by her husband and
collateral relatives, some of whom, along
with the husband, were disinherited in
Exhibit B for the reasons set forth
therein.
The opposition to Exhibit A was
predicated on alleged defects of the
attestation clause. Written in the local
dialect known to the testatrix, the
attestation clause, as translated into
English in the record on appeal, reads:
"The foregoing instrument consisting of
three pages, on the date abovementioned, was executed, signed and
published by testatrix Pilar Montealegre
and she declared that the said
instrument is her last will and testament;
that in our presence and also in the very
presence of the said testatrix as likewise
in the presence of two witnesses and the

testatrix each of us three witnesses


signed this testament."
The opponent objected that this clause
did not state that the testatrix and the
witnesses had signed each and every
page of the will or that she had signed
the instrument in the presence of the
witnesses.
The
Appellate
Court
dismissed the first objection, finding that
"failure to state in the attestation clause
in question that the testatrix and/or the
witnesses had signed each and every
page of Exhibit A were cured by the fact
that each one of the pages of the
instrument appears to be signed by the
testatrix
and
the
three
attesting
witnesses (Nayve vs. Mojal, 47 Phil., 152,
(1924); Ticson vs. Gorostiza, 57 Phil.,
437, (1932); Leynes vs. Leynes, 40 Off.
Gaz., 3rd Suppl. (October 18, 1939), 510,
528; Rallos vs. Rallos, 44 Off. Gaz., 4938,
4940)." But granting the correctness of
the premise, the court held the second
objection well taken and thus concluded:
"The question whether the testatrix had
signed in the presence of said witnesses
can not be verified upon physical
examination of the instrument. Hence,
the absence of the required statement in
said clause may not, pursuant to the
decisions of the Supreme Court, be offset
by proof aliunde even if admitted without
objection."
The premise of this conclusion is, in our
opinion, incorrect.
It must be admitted that the attestation
clause was very poorly drawn, its
language exceedingly ungrammatical to
the point of being difficult to understand;
but from a close examination of the
whole context in relation to its purpose
the implication seems clear that the
testatrix signed in the presence of the
witnesses.
Considering
that
the
witnesses' only business at hand was to
sign and attest to the testatrix's signing
of the document, and that the only actors
in the proceeding were the maker and
the witnesses acting and speaking

collectively and in the first person, the


phrase "in our presence," used as it was
in connection with the process of signing,
can not imply anything but that the
testatrix signed before them. No other
inference is possible. The prepositional
phrase "in our presence" denotes an
active verb and the verb a subject. The
verb could be no other than signed and
the subject no other than the testatrix.
The use of the word "also" is no less
enlightening. It denotes that, as each of
the witnesses signed in the presence of
the testatrix and of one another, so the
testatrix signed in similar or like manner
in their presence.
In consonance with the principle of liberal
interpretation, adhered to in numerous
later decisions of this Court and affirmed
and translated into enactment in the new
Civil Code (Article 827), we are
constrained to hold the attestation clause
under consideration sufficient and valid.
"Precision of language in the drafting of
the attestation clause is desirable.
However, it is not imperative that a
parrot-like copy of the words of the
statute be made. It is sufficient if from
the language employed it can reasonably
be deduced that the attestation clause
fulfills what the law expects of it."
(Ticson vs. Gorostiza, supra.)
"It could not have been the intention of
the legislature in providing for the
essential safeguards in the execution of a
will to shackle the very right of
testamentary disposition which the law
recognizes and holds sacred." (Leynes
vs. Leynes, supra.)
With reference to Exhibit B the Court of
Appeals agreed with the trial court that
the document having been executed one
day before Exhibit A could not be
considered as a codicil "because a
codicil, as the word implies, is only an
addition to, or modification of, the will."
The Court of Appeals added that "the
contents of Exhibit B are couched in the

language ordinarily used in a simple


affidavit and as such, may not have the
legal effect and force of a testamentary
disposition." Furthermore, the Court of
Appeals observed, disinheritance "may
not be made in any instrument other
than the will Exhibit A, as expressly
provided for in article 849 of the Civil
Code," and, "there being no disposition
as to the disinheritance of the oppositor,
Pedro Lopez Porras (the surviving
spouse), in the said Exhibit A, it is quite
clear that he can not be disinherited in
any other instrument including Exhibit B,
which is, as above stated, a simple
affidavit."
Exhibit B does partake of the nature of a
will. A will is defined in article 667 of the
Civil Code of Spain as "the act by which a
person disposes of all his property or a
portion of it," and in article 783 of the
new Civil Code as "an act whereby a
person is permitted, with the formalities
prescribed by law, to control to a certain
degree the disposition of his estate, to
take effect after his death." Exhibit B
comes within this definition.

decision seems to insinuate, require that


the
disinheritance
should
be
accomplished in the same instrument by
which the maker provides for the
disposition of his or her property after his
or her death.
This article merely
provides that "disinheritance can be
effected only by a will (any will) in which
the legal cause upon which it is based is
expressly stated."
It is our judgment therefore that the
instruments Exhibits A and B should be
admitted to probate, subject of course to
the right of the disinherited person under
article 850 to contest the disinheritance,
and it is so ordered, with costs against
the appellee.
Paras, C. J., Feria, Bengzon, Bautista
Angelo and Labrador, JJ., concur.

Being of testamentary character and


having been made with all the formalities
of law, Exhibit B is entitled to probate as
an independent testamentary disposition.
In the absence of any legal provision to
the contraryand there is none in this
jurisdictionit is the general, wellestablished rule that two separate and
distinct wills may be probated if one does
not revoke the other (68 C. J., 885) and
provided that the statutory requirements
relative to the execution of wills have
been complied with (Id. 881). As seen,
Exhibit B embodies all the requisites of a
will, even free of such formal or literary
imperfections as are found in Exhibit A.
It also follows that Exhibit B is a legal and
effective vehicle for excluding lawful
heirs
from
testate
or
intestate
succession. Article 849 of the Civil Code
of Spain does not, as the appealed

SECOND DIVISION
G.R. No. 82027

March 29, 1990

ROMARICO G. VITUG, petitioner,

vs.
THE HONORABLE COURT OF APPEALS and
ROWENA
FAUSTINO-CORONA,
respondents.
Rufino B. Javier Law Office for petitioner.
Quisumbing, Torres & Evangelista for
private respondent.

SARMIENTO, J.:
This case is a chapter in an earlier suit
decided by this Court 1 involving the
probate of the two wills of the late
Dolores Luchangco Vitug, who died in
New York, U. S.A., on November 10,
1980,
naming
private
respondent
Rowena Faustino-Corona executrix. In our
said decision, we upheld the appointment
of
Nenita
Alonte
as
co-special
administrator of Mrs. Vitug's estate with
her (Mrs. Vitug's) widower, petitioner
Romarico G. Vitug, pending probate.
On January 13, 1985, Romarico G. Vitug
filed a motion asking for authority from
the probate court to sell certain shares of
stock and real properties belonging to
the estate to cover allegedly his
advances to the estate in the sum of
P667,731.66, plus interests, which he
claimed were personal funds. As found by
the Court of Appeals, 2 the alleged
advances consisted of P58,147.40 spent
for the
payment of estate tax,
P518,834.27 as deficiency estate tax,
and P90,749.99 as "increment thereto." 3
According to Mr. Vitug, he withdrew the
sums of P518,834.27 and P90,749.99
from savings account No. 35342-038 of
the Bank of America, Makati, Metro
Manila.
On April 12, 1985, Rowena Corona
opposed the motion to sell on the ground
that the same funds withdrawn from
savings account No. 35342-038 were
conjugal partnership properties and part

of the estate, and hence, there was


allegedly no ground for reimbursement.
She also sought his ouster for failure to
include the sums in question for
inventory and for "concealment of funds
belonging to the estate." 4
Vitug insists that the said funds are his
exclusive property having acquired the
same through a survivorship agreement
executed with his late wife and the bank
on June 19, 1970. The agreement
provides:
We hereby agree with each other and
with the BANK OF AMERICAN NATIONAL
TRUST AND SAVINGS ASSOCIATION
(hereinafter referred to as the BANK),
that all money now or hereafter
deposited by us or any or either of us
with the BANK in our joint savings current
account shall be the property of all or
both of us and shall be payable to and
collectible or withdrawable by either or
any of us during our lifetime, and after
the death of either or any of us shall
belong to and be the sole property of the
survivor or survivors, and shall be
payable
to
and
collectible
or
withdrawable by such survivor or
survivors.
We further agree with each other and the
BANK that the receipt or check of either,
any or all of us during our lifetime, or the
receipt or check of the survivor or
survivors, for any payment or withdrawal
made for our above-mentioned account
shall be valid and sufficient release and
discharge of the BANK for such payment
or withdrawal. 5
The trial courts 6 upheld the validity of
this agreement and granted "the motion
to sell some of the estate of Dolores L.
Vitug, the proceeds of which shall be
used to pay the personal funds of
Romarico Vitug in the total sum of
P667,731.66 ... ." 7

On the other hand, the Court of Appeals,


in the petition for certiorari filed by the
herein private respondent, held that the
above-quoted survivorship agreement
constitutes a conveyance mortis causa
which "did not comply with the
formalities of a valid will as prescribed by
Article 805 of the Civil Code," 8 and
secondly, assuming that it is a mere
donation inter vivos, it is a prohibited
donation under the provisions of Article
133 of the Civil Code. 9

complies with duties to take effect after


his death." 14 In other words, the
bequest or device must pertain to the
testator. 15 In this case, the monies
subject of savings account No. 35342038 were in the nature of conjugal funds
In the case relied on, Rivera v. People's
Bank and Trust Co., 16 we rejected claims
that a survivorship agreement purports
to deliver one party's separate properties
in favor of the other, but simply, their
joint holdings:

The dispositive portion of the decision of


the Court of Appeals states:

xxx

WHEREFORE, the order of respondent


Judge dated November 26, 1985 (Annex
II, petition) is hereby set aside insofar as
it granted private respondent's motion to
sell certain properties of the estate of
Dolores L. Vitug for reimbursement of his
alleged advances to the estate, but the
same order is sustained in all other
respects. In addition, respondent Judge is
directed to include provisionally the
deposits in Savings Account No. 35342038 with the Bank of America, Makati, in
the inventory of actual properties
possessed by the spouses at the time of
the decedent's death. With costs against
private respondent. 10
In his petition, Vitug, the surviving
spouse, assails the appellate court's
ruling on the strength of our decisions in
Rivera v. People's Bank and Trust Co. 11
and Macam v. Gatmaitan 12 in which we
sustained the validity of "survivorship
agreements" and considering them as
aleatory contracts. 13
The petition is meritorious.
The conveyance in question is not, first of
all, one of mortis causa, which should be
embodied in a will. A will has been
defined
as
"a
personal,
solemn,
revocable and free act by which a
capacitated person disposes of his
property and rights and declares or

xxx

xxx

...
Such
conclusion
is
evidently
predicated on the assumption that
Stephenson was the exclusive owner of
the funds-deposited in the bank, which
assumption was in turn based on the
facts (1) that the account was originally
opened in the name of Stephenson alone
and (2) that Ana Rivera "served only as
housemaid of the deceased." But it not
infrequently happens that a person
deposits money in the bank in the name
of another; and in the instant case it also
appears that Ana Rivera served her
master for about nineteen years without
actually receiving her salary from him.
The fact that subsequently Stephenson
transferred the account to the name of
himself and/or Ana Rivera and executed
with
the
latter
the
survivorship
agreement in question although there
was no relation of kinship between them
but only that of master and servant,
nullifies the assumption that Stephenson
was the exclusive owner of the bank
account. In the absence, then, of clear
proof to the contrary, we must give full
faith and credit to the certificate of
deposit which recites in effect that the
funds in question belonged to Edgar
Stephenson and Ana Rivera; that they
were joint (and several) owners thereof;
and that either of them could withdraw
any part or the whole of said account
during the lifetime of both, and the
balance, if any, upon the death of either,
belonged to the survivor. 17

xxx

xxx

xxx

In Macam v. Gatmaitan, 18 it was held:


xxx

xxx

xxx

This Court is of the opinion that Exhibit C


is
an
aleatory
contract
whereby,
according to article 1790 of the Civil
Code, one of the parties or both
reciprocally bind themselves to give or
do something as an equivalent for that
which the other party is to give or do in
case of the occurrence of an event which
is uncertain or will happen at an
indeterminate time. As already stated,
Leonarda was the owner of the house
and Juana of the Buick automobile and
most of the furniture. By virtue of Exhibit
C, Juana would become the owner of the
house in case Leonarda died first, and
Leonarda would become the owner of the
automobile and the furniture if Juana
were to die first. In this manner Leonarda
and Juana reciprocally assigned their
respective property to one another
conditioned upon who might die first, the
time of death determining the event
upon which the acquisition of such right
by the one or the other depended. This
contract, as any other contract, is
binding upon the parties thereto.
Inasmuch as Leonarda had died before
Juana, the latter thereupon acquired the
ownership of the house, in the same
manner as Leonarda would have
acquired the ownership of the automobile
and of the furniture if Juana had died
first. 19
xxx

xxx

because it was to take effect after the


death of one party. Secondly, it is not a
donation between the spouses because it
involved no conveyance of a spouse's
own properties to the other.

xxx

There is no showing that the funds


exclusively belonged to one party, and
hence it must be presumed to be
conjugal, having been acquired during
the existence of the marita. relations. 20
Neither is the survivorship agreement a
donation inter vivos, for obvious reasons,

It is also our opinion that the agreement


involves no modification petition of the
conjugal partnership, as held by the
Court of Appeals, 21 by "mere
stipulation" 22 and that it is no "cloak" 23
to circumvent the law on conjugal
property relations. Certainly, the spouses
are not prohibited by law to invest
conjugal property, say, by way of a joint
and
several
bank
account,
more
commonly denominated in banking
parlance as an "and/or" account. In the
case at bar, when the spouses Vitug
opened savings account No. 35342-038,
they merely put what rightfully belonged
to them in a money-making venture.
They did not dispose of it in favor of the
other, which would have arguably been
sanctionable as a prohibited donation.
And since the funds were conjugal, it can
not be said that one spouse could have
pressured the other in placing his or her
deposits in the money pool.
The validity of the contract seems
debatable by reason of its "survivor-takeall" feature, but in reality, that contract
imposed a mere obligation with a term,
the term being death. Such agreements
are permitted by the Civil Code. 24
Under Article 2010 of the Code:
ART. 2010. By an aleatory contract, one
of the parties or both reciprocally bind
themselves to give or to do something in
consideration of what the other shall give
or do upon the happening of an event
which is uncertain, or which is to occur at
an indeterminate time.
Under the aforequoted provision, the
fulfillment of an aleatory contract
depends on either the happening of an
event which is (1) "uncertain," (2) "which

is to occur at an indeterminate time." A


survivorship agreement, the sale of a
sweepstake
ticket,
a
transaction
stipulating on the value of currency, and
insurance have been held to fall under
the first category, while a contract for life
annuity or pension under Article 2021, et
sequentia, has been categorized under
the second. 25 In either case, the
element of risk is present. In the case at
bar, the risk was the death of one party
and survivorship of the other.
However, as we have warned:
xxx

xxx

xxx

But although the survivorship agreement


is per se not contrary to law its operation
or effect may be violative of the law. For
instance, if it be shown in a given case
that such agreement is a mere cloak to
hide an inofficious donation, to transfer
property in fraud of creditors, or to defeat
the legitime of a forced heir, it may be
assailed and annulled upon such
grounds. No such vice has been imputed
and established against the agreement
involved in this case. 26
xxx

xxx

xxx

There is no demonstration here that the


survivorship
agreement
had
been
executed for such unlawful purposes, or,
as held by the respondent court, in order
to frustrate our laws on wills, donations,
and conjugal partnership.
The
conclusion
is
accordingly
unavoidable that Mrs. Vitug having
predeceased her husband, the latter has
acquired upon her death a vested right
over the amounts under savings account
No. 35342-038 of the Bank of America.
Insofar as the respondent court ordered
their inclusion in the inventory of assets
left by Mrs. Vitug, we hold that the court
was in error. Being the separate property
of petitioner, it forms no more part of the
estate of the deceased.

WHEREFORE, the decision of the


respondent appellate court, dated June
29, 1987, and its resolution, dated
February 9, 1988, are SET ASIDE.
No costs.
SO ORDERED.
Melencio-Herrera (Chairperson),
Padilla and Regalado JJ., concur.

Paras,

DY YIENG SEANGIO, BARBARA D.


SEANGIO and VIRGINIA D. SEANGIO,
Petitioners,
vs.
HON. AMOR A. REYES, in her capacity as
Presiding Judge, Regional Trial Court,
National Capital Judicial Region, Branch
21, Manila, ALFREDO D. SEANGIO,
ALBERTO D. SEANGIO, ELISA D. SEANGIOSANTOS, VICTOR D. SEANGIO, ALFONSO
D. SEANGIO, SHIRLEY D. SEANGIO-LIM,
BETTY D. SEANGIO-OBAS and JAMES D.
SEANGIO, Respondents.
DECISION
AZCUNA, J.:
This is a petition for certiorari1 with
application for the issuance of a writ of
preliminary injunction and/or temporary
restraining order seeking the nullification
of the orders, dated August 10, 1999 and
October 14, 1999, of the Regional Trial
Court of Manila, Branch 21 (the RTC),
dismissing the petition for probate on the
ground of preterition, in the consolidated
cases, docketed as SP. Proc. No. 9890870 and SP. Proc. No. 99-93396, and
entitled, "In the Matter of the Intestate
Estate of Segundo C. Seangio v. Alfredo
D. Seangio, et al." and "In the Matter of
the Probate of the Will of Segundo C.
Seangio v. Dy Yieng Seangio, Barbara D.
Seangio and Virginia Seangio."
The facts of the cases are as follows:

SECOND DIVISION
G.R. Nos. 140371-72
27, 2006

November

On
September
21,
1988,
private
respondents filed a petition for the
settlement of the intestate estate of the
late Segundo Seangio, docketed as Sp.
Proc. No. 9890870 of the RTC, and
praying for the appointment of private
respondent Elisa D. SeangioSantos as
special administrator and guardian ad
litem of petitioner Dy Yieng Seangio.
Petitioners Dy Yieng, Barbara and
Virginia, all surnamed Seangio, opposed
the petition. They contended that: 1) Dy

Yieng is still very healthy and in full


command of her faculties; 2) the
deceased Segundo executed a general
power of attorney in favor of Virginia
giving her the power to manage and
exercise control and supervision over his
business in the Philippines; 3) Virginia is
the most competent and qualified to
serve as the administrator of the estate
of Segundo because she is a certified
public accountant; and, 4) Segundo left a
holographic will, dated September 20,
1995, disinheriting one of the private
respondents, Alfredo Seangio, for cause.
In view of the purported holographic will,
petitioners averred that in the event the
decedent is found to have left a will, the
intestate
proceedings
are
to
be
automatically suspended and replaced by
the proceedings for the probate of the
will.

Virginia Seangio labis kong kinasama ng


loob ko at sasabe rin ni Alfredo sa akin na
ako nasa ibabaw gayon gunit daratin ang
araw na ako nasa ilalim siya at siya nasa
ibabaw.

On April 7, 1999, a petition for the


probate of the holographic will of
Segundo, docketed as SP. Proc. No. 99
93396, was filed by petitioners before the
RTC. They likewise reiterated that the
probate
proceedings
should
take
precedence over SP. Proc. No. 9890870
because
testate
proceedings
take
precedence and enjoy priority over
intestate proceedings.2

Dito ako nagalit din kaya gayon ayoko na


bilanin si Alfredo ng anak ko at hayanan
kong inaalisan ng lahat at anoman mana
na si Alfredo at si Alfredo Seangio ay
hindi ko siya anak at hindi siya makoha
mana.

The document that petitioners refer to as


Segundos holographic will is quoted, as
follows:

(signed)

Kasulatan sa pag-aalis ng mana

Nilagdaan sa harap namin

Tantunin ng sinuman

(signed)

Ako si Segundo Seangio Filipino may


asawa naninirahan sa 465-A Flores St.,
Ermita,
Manila
at
nagtatalay
ng
maiwanag na pag-iisip at disposisyon ay
tahasan at hayagang inaalisan ko ng
lahat at anumang mana ang paganay
kong anak na si Alfredo Seangio dahil
siya ay naging lapastangan sa akin at
isan beses siya ng sasalita ng masama
harapan ko at mga kapatid niya na si

Dy Yieng Seangio (signed)

Labis kong ikinasama ng loob ko ang


gamit ni Alfredo ng akin pagalan para
makapagutang na kuarta siya at kanya
asawa na si Merna de los Reyes sa China
Bangking Corporation na millon pesos at
hindi ng babayad at hindi ng babayad ito
ay nagdulot sa aking ng malaking
kahihiya sa mga may-ari at stockholders
ng China Banking.
At ikinagalit ko pa rin ang pagkuha ni
Alfredo at ng kanyang asawa na mga
custome[r] ng Travel Center of the
Philippines na pinagasiwaan ko at ng
anak ko si Virginia.

Nila[g]daan ko ngayon ika 20 ng


Setyembre 1995 sa longsod ng Manila sa
harap ng tatlong saksi. 3

Segundo Seangio

Unang Saksi ikalawang saksi


(signed)
ikatlong saksi

On May 29, 1999, upon petitioners


motion, SP. Proc. No. 9890870 and SP.
Proc. No. 9993396 were consolidated.4
On July 1, 1999, private respondents
moved for the dismissal of the probate
proceedings5 primarily on the ground
that the document purporting to be the
holographic will of Segundo does not
contain any disposition of the estate of
the deceased and thus does not meet the
definition of a will under Article 783 of
the Civil Code. According to private
respondents, the will only shows an
alleged act of disinheritance by the
decedent of his eldest son, Alfredo, and
nothing else; that all other compulsory
heirs were not named nor instituted as
heir, devisee or legatee, hence, there is
preterition
which
would
result
to
intestacy. Such being the case, private
respondents maintained that while
procedurally the court is called upon to
rule only on the extrinsic validity of the
will, it is not barred from delving into the
intrinsic validity of the same, and
ordering the dismissal of the petition for
probate when on the face of the will it is
clear that it contains no testamentary
disposition of the property of the
decedent.
Petitioners filed their opposition to the
motion to dismiss contending that: 1)
generally, the authority of the probate
court is limited only to a determination of
the extrinsic validity of the will; 2) private
respondents question the intrinsic and
not the extrinsic validity of the will; 3)
disinheritance constitutes a disposition of
the estate of a decedent; and, 4) the rule
on preterition does not apply because
Segundos will does not constitute a
universal heir or heirs to the exclusion of
one or more compulsory heirs.6

A perusal of the document termed as


"will" by oppositors/petitioners Dy Yieng
Seangio, et al., clearly shows that there
is preterition, as the only heirs
mentioned thereat are Alfredo and
Virginia. [T]he other heirs being omitted,
Article 854 of the New Civil Code thus
applies. However, insofar as the widow
Dy Yieng Seangio is concerned, Article
854 does not apply, she not being a
compulsory heir in the direct line.
As such, this Court is bound to dismiss
this petition, for to do otherwise would
amount to an abuse of discretion. The
Supreme Court in the case of Acain v.
Intermediate Appellate Court [155 SCRA
100 (1987)] has made its position clear:
"for respondents to have tolerated the
probate of the will and allowed the case
to progress when, on its face, the will
appears to be intrinsically void would
have been an exercise in futility. It would
have meant a waste of time, effort,
expense, plus added futility. The trial
court could have denied its probate
outright or could have passed upon the
intrinsic validity of the testamentary
provisions before the extrinsic validity of
the will was resolved (underscoring
supplied).
WHEREFORE, premises considered, the
Motion to Suspend Proceedings is hereby
DENIED for lack of merit. Special
Proceedings No. 9993396 is hereby
DISMISSED without pronouncement as to
costs.
SO ORDERED.7
Petitioners motion for reconsideration
was denied by the RTC in its order dated
October 14, 1999.
Petitioners contend that:

On August 10, 1999, the RTC issued its


assailed order, dismissing the petition for
probate proceedings:

THE RESPONDENT JUDGE ACTED IN


EXCESS OF HER JURISDICTION OR WITH
GRAVE
ABUSE
OF
DISCRETION
AMOUNTING TO LACK OR EXCESS OF

JURISDICTION AND DECIDED A QUESTION


OF LAW NOT IN ACCORD WITH LAW AND
JURISPRUDENCE
IN
ISSUING
THE
QUESTIONED
ORDERS,
DATED
10
AUGUST 1999 AND 14 OCTOBER 1999
(ATTACHMENTS "A" AND "B" HEREOF)
CONSIDERING THAT:
I
THE RESPONDENT JUDGE, WITHOUT
EVEN COMPLYING WITH SECTIONS 3 AND
4 OF RULE 76 OF THE RULES OF COURT
ON THE PROPER PROCEDURE FOR
SETTING THE CASE FOR INITIAL HEARING
FOR THE ESTABLISHMENT OF THE
JURISDICTIONAL FACTS, DISMISSED THE
TESTATE CASE ON THE ALLEGED
GROUND THAT THE TESTATORS WILL IS
VOID ALLEGEDLY BECAUSE OF THE
EXISTENCE OF PRETERITION, WHICH
GOES INTO THE INTRINSIC VALIDITY OF
THE WILL, DESPITE THE FACT THAT IT IS A
SETTLED RULE THAT THE AUTHORITY OF
PROBATE COURTS IS LIMITED ONLY TO A
DETERMINATION OF THE EXTRINSIC
VALIDITY OF THE WILL, I.E., THE DUE
EXECUTION THEREOF, THE TESTATORS
TESTAMENTARY CAPACITY AND THE
COMPLIANCE WITH THE REQUISITES OR
SOLEMNITIES PRESCRIBED BY LAW;
II
EVEN ASSUMING ARGUENDO THAT THE
RESPONDENT
JUDGE
HAS
THE
AUTHORITY
TO
RULE
UPON
THE
INTRINSIC VALIDITY OF THE WILL OF THE
TESTATOR, IT IS INDUBITABLE FROM THE
FACE OF THE TESTATORS WILL THAT NO
PRETERITON EXISTS AND THAT THE WILL
IS
BOTH
INTRINSICALLY
AND
EXTRINSICALLY VALID; AND,

PROCEEDINGS TAKE PRECEDENCE OVER


INTESTATE PROCEEDINGS.
Petitioners argue, as follows:
First, respondent judge did not comply
with Sections 3 and 4 of Rule 76 of the
Rules of Court which respectively
mandate the court to: a) fix the time and
place for proving the will when all
concerned may appear to contest the
allowance thereof, and cause notice of
such time and place to be published
three weeks successively previous to the
appointed time in a newspaper of
general circulation; and, b) cause the
mailing of said notice to the heirs,
legatees and devisees of the testator
Segundo;
Second, the holographic will does not
contain any institution of an heir, but
rather, as its title clearly states,
Kasulatan ng Pag-Aalis ng Mana, simply
contains a disinheritance of a compulsory
heir. Thus, there is no preterition in the
decedents will and the holographic will
on its face is not intrinsically void;
Third, the testator intended all his
compulsory heirs, petitioners and private
respondents
alike,
with
the
sole
exception of Alfredo, to inherit his estate.
None of the compulsory heirs in the
direct line of Segundo were preterited in
the holographic will since there was no
institution of an heir;
Fourth, inasmuch as it clearly appears
from the face of the holographic will that
it is both intrinsically and extrinsically
valid, respondent judge was mandated to
proceed with the hearing of the testate
case; and,

III
RESPONDENT JUDGE WAS DUTY BOUND
TO SUSPEND THE PROCEEDINGS IN THE
INTESTATE CASE CONSIDERING THAT IT
IS A SETTLED RULE THAT TESTATE

Lastly,
the
continuation
of
the
proceedings in the intestate case will
work injustice to petitioners, and will
render nugatory the disinheritance of
Alfredo.

The purported holographic will of


Segundo
that
was
presented
by
petitioners was dated, signed and written
by him in his own handwriting. Except on
the ground of preterition, private
respondents did not raise any issue as
regards
the
authenticity
of
the
document.
The document, entitled Kasulatan ng
Pag-Aalis ng Mana, unmistakably showed
Segundos intention of excluding his
eldest son, Alfredo, as an heir to his
estate for the reasons that he cited
therein.
In
effect,
Alfredo
was
disinherited by Segundo.
For disinheritance to be valid, Article 916
of the Civil Code requires that the same
must be effected through a will wherein
the legal cause therefor shall be
specified. With regard to the reasons for
the disinheritance that were stated by
Segundo in his document, the Court
believes that the incidents, taken as a
whole, can be considered a form of
maltreatment of Segundo by his son,
Alfredo, and that the matter presents a
sufficient cause for the disinheritance of
a child or descendant under Article 919
of the Civil Code:
Article 919. The following shall be
sufficient causes for the disinheritance of
children and descendants, legitimate as
well as illegitimate:
(1) When a child or descendant has been
found guilty of an attempt against the life
of the testator, his or her spouse,
descendants, or ascendants;
(2) When a child or descendant has
accused the testator of a crime for which
the law prescribes imprisonment for six
years or more, if the accusation has been
found groundless;
(3) When a child or descendant has been
convicted of adultery or concubinage
with the spouse of the testator;

(4) When a child or descendant by fraud,


violence, intimidation, or undue influence
causes the testator to make a will or to
change one already made;
(5) A refusal without justifiable cause to
support the parents or ascendant who
disinherit such child or descendant;
(6) Maltreatment of the testator by word
or deed, by the child or descendant;8
(7) When a child or descendant leads a
dishonorable or disgraceful life;
(8) Conviction of a crime which carries
with it the penalty of civil interdiction.
Now, the critical issue to be determined
is whether the document executed by
Segundo can be considered as a
holographic will.
A holographic will, as provided under
Article 810 of the Civil Code, must be
entirely written, dated, and signed by the
hand of the testator himself. It is subject
to no other form, and may be made in or
out of the Philippines, and need not be
witnessed.
Segundos document, although it may
initially come across as a mere
disinheritance instrument, conforms to
the formalities of a holographic will
prescribed by law. It is written, dated and
signed by the hand of Segundo himself.
An intent to dispose mortis causa[9] can
be clearly deduced from the terms of the
instrument, and while it does not make
an affirmative disposition of the latters
property, the disinheritance of Alfredo,
nonetheless, is an act of disposition in
itself. In other words, the disinheritance
results in the disposition of the property
of the testator Segundo in favor of those
who would succeed in the absence of
Alfredo.10

Moreover, it is a fundamental principle


that the intent or the will of the testator,
expressed in the form and within the
limits prescribed by law, must be
recognized as the supreme law in
succession. All rules of construction are
designed to ascertain and give effect to
that intention. It is only when the
intention of the testator is contrary to
law, morals, or public policy that it
cannot be given effect.11
Holographic
wills,
therefore,
being
usually prepared by one who is not
learned in the law, as illustrated in the
present case, should be construed more
liberally than the ones drawn by an
expert,
taking
into
account
the
circumstances surrounding the execution
of the instrument and the intention of the
testator.12 In this regard, the Court is
convinced that the document, even if
captioned as Kasulatan ng Pag-Aalis ng
Mana, was intended by Segundo to be his
last testamentary act and was executed
by him in accordance with law in the
form of a holographic will. Unless the will
is probated,13 the disinheritance cannot
be given effect.14

be dispensed with. Article 838 of the Civil


Code provides that no will shall pass
either real or personal property unless it
is proved and allowed in accordance with
the Rules of Court. Thus, unless the will is
probated, the right of a person to dispose
of his property may be rendered
nugatory.17
In view of the foregoing, the trial court,
therefore, should have allowed the
holographic will to be probated. It is
settled that testate proceedings for the
settlement of the estate of the decedent
take
precedence
over
intestate
proceedings for the same purpose.18
WHEREFORE, the petition is GRANTED.
The Orders of the Regional Trial Court of
Manila, Branch 21, dated August 10,
1999 and October 14, 1999, are set
aside. Respondent judge is directed to
reinstate and hear SP Proc. No. 99-93396
for the allowance of the holographic will
of Segundo Seangio. The intestate case
or SP. Proc. No. 98-90870 is hereby
suspended until the termination of the
aforesaid testate proceedings.
No costs.

With regard to the issue on preterition,15


the Court believes that the compulsory
heirs in the direct line were not preterited
in the will. It was, in the Courts opinion,
Segundos last expression to bequeath
his estate to all his compulsory heirs,
with the sole exception of Alfredo. Also,
Segundo did not institute an heir16 to
the exclusion of his other compulsory
heirs. The mere mention of the name of
one of the petitioners, Virginia, in the
document did not operate to institute her
as the universal heir. Her name was
included plainly as a witness to the
altercation between Segundo and his
son, Alfredo.1wphi1
Considering
that
the
questioned
document is Segundos holographic will,
and that the law favors testacy over
intestacy, the probate of the will cannot

SO ORDERED.

dated June 22, 2001 in CA-G.R. CR No.


23015 which affirmed with modification
the Decision of the Regional Trial Court
(RTC) of Manila, Branch 1, finding herein
Miguel Cosme, Jr. (petitioner) guilty
beyond reasonable doubt of the crime of
Estafa; and the CA Resolution dated
September 10, 2001, denying petitioners
motion for reconsideration.
An Information dated January 16, 1996,
was filed against petitioner, alleging as
follows:

Note: This is the GR 149753 case,


which was used as the citation for
the SEANGIO case in the outline.
FIRST DIVISION
G.R. No. 149753
2006

November 27,

MIGUEL COSME, JR., Petitioner,


vs.
PEOPLE
OF
THE
PHILIPPINES,
Respondent.
DECISION

That in [sic] or about and during the


period comprised between September
12, 1994 and October 13, 1994,
inclusive, in the City of Manila,
Philippines, the said accused did then
and there wilfully [sic] unlawfully and
feloniously defraud Paul P.A. Bunda in the
following manner, to wit: the said
accused received in trust from the said
Paul
P.A.
Bunda
the
sum
of
P1,800,000.00,
under
the
express
obligation on the part of the said accused
to settle and clear the accrued real
estate taxes of 231,707 square meters of
land covered by PSU-20888 located at
Almanza, Las Pias, Metro Manila, but
said accused once in possession of the
said amount, far from complying with his
aforesaid obligation, failed and refused
and still fails and refuses to settle and
clear the accrued real estate taxes of the
aforesaid lot despite repeated demands
made upon him to that effect, and with
intent to defraud and with grave abuse of
confidence,
he
thereafter
misappropriated,
misapplied
and
converted the same to his own personal
use and benefit, to the damage and
prejudice of the said Paul P.A. Bunda in
the aforesaid amount of P1,800,000.00,
Philippine currency.

AUSTRIA-MARTINEZ, J.:
Contrary to law.2
Before the Court is a petition for review
on certiorari under Rule 45 of the Rules
of Court seeking to set aside the
Decision1 of the Court of Appeals (CA)

On June 3, 1997, upon being arraigned,


petitioner with the assistance of a
counsel de oficio pleaded not guilty.3

Thereafter, trial ensued, after which, the


RTC rendered its Decision with the
following findings and disposition:
Records disclose that on April 9, 1993,
Judith
Rodriguez
and
the
private
complainant, Paul Bunda, entered into a
Memorandum Agreement concerning lots
nos. 1 and 2, PSU-208888, with an
aggregate area of 231,907 sq.m.,
situated at Barrio Almanza, Las Pias,
Metro Manila, Exhibit "G". Under the
agreement, Judith agreed to assign and
convey 40% of the aforementioned lots
in
favor
of
the
complainant
as
consideration for the payment by the
latter of the accrued real estate taxes on
the property.
Sometime
in
August,
1994,
the
complainant visited the property and, for
the first time, met the accused who
represented himself as the overseer of
the property where he also resided.
Sometime in September 1994, the
complainant and the accused met at the
Aurelio Hotel on Roxas Blvd., Manila. It
was in this meeting that accused
succeeded in convincing the complainant
to
entrust
to
him
Two
Million
(P2,000,000.00) Pesos for the payment of
the accrued real estate taxes on the
property, telling the complainant that he
was a nephew of the then incumbent
mayor of Las Pias and had good
connections with the Mayors Office as
well as with the Offices of the Treasurer
and of the Assessor of Las Pias.
On September 12, 1994, the complainant
again met the accused at the same hotel
and gave to the latter an initial amount
of One Hundred Thousand (P100,000.00)
Pesos for the payment of the accrued
real estate taxes on the property. Another
One Hundred Thousand (P100,000.00)
Pesos in cash was given to the accused
by the complainant on September 14,
1994. Both payments were unreceipted
because
the
accused
told
the

complainant
necessary.

that

it

was

no

longer

Again, on two separate occasions


thereafter, complainant handed to the
accused two checks both payable to
cash, dated September 28 and October
13, 1994, in the respective sums of One
Million (P1,000,000.00) Pesos and Six
Hundred Thousand (P600,000.00) Pesos,
Exhibits "B" and "C", which checks were
later encashed by the accused, Exhibits
"B-3", "B-4", "C-3" and "C-4". Accused,
however, did not use the money for the
payment of the accrued real estate taxes
on the property in question, but instead
misappropriated it for his own use and
benefit.
The court has judiciously examined the
evidence on record and finds that the
prosecution has established beyond
reasonable doubt that the accused
committed estafa under Article 315 (b) of
the Revised Penal Code x x x.
xxxx
WHEREFORE, the court finds
the
accused, Miguel Cosme, Jr., guilty beyond
reasonable doubt of the crime of Estafa
and, as a consequence, sentences him to
suffer the indeterminate penalty of
twelve (12) years of prision mayor as
minimum to twenty (20) years of
reclusion temporal as maximum and to
pay the costs.
Further, accused is ordered to pay the
complainant actual damages in the total
amount of P1,800,000.00 with interest
thereon at the legal rate from date of
filing of this action until fully paid.
SO ORDERED.4
Petitioner appealed the case to the CA.
On June 22, 2001, the CA rendered its
Decision with the following dispositive
portion:

WHEREFORE, foregoing considered, the


appealed Decision dated October 20,
1998 is hereby AFFIRMED with the
modification that the amount of actual
damages be reduced to P1,600,000.00
with legal rate of interest from the date
of filing of the action until fully paid.5
Petitioner
filed
a
Motion
for
Reconsideration but the same was
denied by the CA in its Resolution of
September 10, 2001.
Hence, herein petition with the following
assignment of errors:
I
THE COURT OF APPEALS LIKE THE COURT
A QUO ERRED IN GIVING CREDENCE TO
THE SOLE, UNCORROBORATED, VARIABLE
AND INCOHERENT TESTIMONY OF THE
PRIVATE COMPLAINANT.
II
THE COURT OF APPEALS LIKE THE COURT
A QUO ERRED IN FINDING THAT THE
ALLEGED
DEMAND
LETTER
WAS
RECEIVED BY THE PETITIONER.
III
THE COURT OF APPEALS LIKE THE COURT
A QUO ERRED IN FAILING TO GIVE
CREDENCE TO THE DEFENSE OF THE
PETITIONER.6
In his first assigned error, petitioner
argues that the private complainants
testimony is full of improbabilities,
falsehoods and half-truths, to wit: (1) that
it is highly improbable that the private
complainant entrusted to him the
amount of P200,000.00 cash which was
allegedly
given
on
two
separate
occasions; (2) it is irrational and
improbable for private complainant, who
is an experienced real estate dealer, to
delegate and commission the petitioner,

a mere overseer and security guard


whom he hardly knows, to undertake the
payment of real estate taxes with the
Treasurers Office considering that with
his knowledge and experience he can do
it himself; (3) it boggles the mind why
private complainant could not care less
even if petitioner allegedly had not told
him the exact amount to be paid for the
accrued real estate taxes and that
notwithstanding the alleged lack of
computation, he freely gave in to
petitioners demand and paid him
P1,800,000.00 without demanding any
receipt or written agreement as evidence
to prove why he paid such amount; (4) it
is difficult to believe that as an
experienced real estate dealer private
complainant does not know that real
estate taxes cannot be paid on staggered
or installment basis; (5) if indeed the
check payments in the amount of
P1,600,000.00
were
intended
as
payment for accrued real estate taxes
how come the checks were paid to cash
and not made specifically payable to the
Municipal Treasurers Office; (6) if it were
true
that
petitioner
told
private
complainant to prepare P2,000,000.00 as
payment for the real estate taxes, how
come the latter only paid P1,800,000.00;
(7) if private complainant has indeed
entered into an agreement with the
owner of the property that the former
shall be given 40% of the subject
property in exchange for his payment of
the accrued real estate taxes, he should
have been aware of the actual real estate
taxes due and that the amount of
P1,800,000.00 would not suffice to cover
the said taxes.
Anent the second assigned error,
petitioner contends that no less than the
evidence presented by the prosecution
shows that he (petitioner) never received
the demand letter sent by private
complainant. Citing authorities on the
rule on service of notice, petitioner
argues that the prosecution cannot
presume on the basis of the registry

return receipt that the demand letter was


sent through registered mail and that the
same was actually received by petitioner
or his agent, especially in the present
case where petitioner denies having
received the said demand letter.
As to the third assigned error, petitioner
asserts that it is error on the part of the
trial and appellate courts to rely hook,
line and sinker on the inconsistent and
uncorroborated testimony of the private
complainant and at the same time brush
aside as "difficult to believe" the defense
of petitioner. Petitioner maintains that he
has sufficiently shown that it is not far
fetched
for
the
complainant
to
commission petitioner to act as overseer
of the subject property and facilitate its
titling after the former pays the accrued
real estate taxes considering that
complainant claims to have an interest
over 40% of the subject property; that
the amount of P1,600,000.00 is given as
payment for a "package deal" which
includes the hiring of security guards to
look after the property, the construction
of a steel fence on portions of the same,
the facilitation in the computation of
accrued real estate taxes and the
eventual titling of the property. Petitioner
also contends that it is error on the part
of the trial court to completely disregard
the affidavit of denial executed by Judith
Rodriguez
considering
that
the
prosecution admitted the existence,
authenticity and genuineness of the said
affidavit by way of stipulation.
In its Comment, the Office of the Solicitor
General (OSG) contends at the outset
that the petition should be dismissed as
it essentially raises issues of fact which
are not the proper subjects of a petition
for review on certiorari under Rule 45 of
the Rules of Court. On the trial courts act
of giving credence to the testimony of
private complainant, the OSG argues that
under settled jurisprudence, the Supreme
Court will not interfere in the judgment of
the trial court in passing upon the

credibility of witnesses unless there


appears in the record some facts or
circumstances of weight and influence
which have been overlooked and, if
considered, would affect the outcome of
the case. The OSG submits that there is
no reason to assail the credibility of the
private complainant especially in the
absence of any showing that he was
motivated by bad faith. The OSG also
contends that the testimony of a single
witness, if found credible and positive is
sufficient to convict.
The Court deems it proper to discuss first
the issue whether the present petition
should be dismissed on the ground that it
raises issues of fact which are not proper
subjects of a petition for review on
certiorari.
Settled is the rule that the Supreme
Courts jurisdiction in a petition for
review on certiorari as a mode of appeal
under Rule 45 of the Rules of Court, as
amended, is limited to reviewing only
errors of law not of fact.7 The rationale of
this rule is founded on the fact that the
Supreme Court is not a trier of facts.8
However, as exceptions to this rule, the
Court may pass upon questions of fact in
a petition for review when, among
others: (1) the conclusion is a finding
grounded
entirely
on
speculation,
surmise and conjecture; (2) the inference
made is manifestly mistaken; (3) there is
grave abuse of discretion; (4) the
judgment is based on misapprehension
of facts; (5) the findings of fact are
premised on the absence of evidence;
and (6) the findings of fact are
contradicted by evidence on record.9 The
Court finds that the present case does
not fall under any of the foregoing
exceptions. Thus, on this ground alone,
the instant petition should be dismissed.
However, considering that an appeal in a
criminal case opens the whole case for
review,10 the Court deems it proper to

delve into the merits of the present


petition.
The Court notes, at the outset, that the
RTC found petitioner guilty of Estafa by
conversion or misappropriation under
Article 315 (1) (b) of the Revised Penal
Code, to wit:
Art. 315. Swindling (estafa). Any person
who shall defraud another by any of the
means mentioned hereinbelow shall be
punished by:
xxxx
1. With unfaithfulness
confidence, namely:

or

abuse

of

xxxx
(b) By misappropriating or converting, to
the prejudice of another, money, goods
or any other personal property received
by the offender in trust, or on
commission, or for administration, or
under any other obligation involving the
duty to make delivery of, or to return the
same, even though such obligation be
totally or partially guaranteed by a bond;
or by denying having received such
money, goods, or other property;
xxxx
On the other hand, the CA found
petitioner guilty of Estafa as defined
under Article 315 (2) (a) of the Revised
Penal Code, to wit:
2. By means of any of the following false
pretenses or fraudulent acts executed
prior to or simultaneously with the
commission of the fraud:
(a) By using a fictitious name, or falsely
pretending to possess power, influence,
qualifications, property, credit, agency,
business or imaginary transactions; or by
means of other similar deceits.

xxxx
As correctly enumerated by the CA, the
elements of Estafa by means of deceit as
defined under Article 315 (2) (a) of the
Revised Penal Code are as follows: (1)
that there must be a false pretense,
fraudulent act or fraudulent means; (2)
that such false pretense, fraudulent act
or fraudulent means must be made or
executed prior to or simultaneously with
the commission of the fraud; (3) that the
offended party must have relied on the
false
pretense,
fraudulent
act
or
fraudulent means, that is, he was
induced to part with his money or
property because of the false pretense,
fraudulent act or fraudulent means; and
(d) that as a result thereof, the offended
party suffered damage.11 The CA ruled
that the deceit employed by petitioner
consisted in his act of pretending "that
he had the authority and capability to
cover the payment of the realty taxes for
he is influential in Las Pias and has
connections with the Assessors &
Treasurers Offices being an alleged
nephew of then incumbent Mayor
Casimiro of Las Pias City."
However, a reading of the Information
filed against petitioner shows that while
it contains conclusions that petitioner
committed
fraud
against
private
complainant, there are no allegations
indicating specific acts which constitute
fraud as contemplated under Article 315
(2) (a) of the Revised Penal Code, more
particularly petitioners alleged act of
falsely pretending that he had the
needed connections to settle the realty
taxes due on the subject property.
Prior to its most recent amendment,
Section 9, Rule 110 of the Rules of Court,
which was in effect at the time the
Information against petitioner was filed,
states:
Sec. 9. Cause of accusation. The acts or
omissions complained of as constituting

the offense must be stated in ordinary


and concise language without repetition,
not necessarily in the terms of the
statute defining the offense, but in such
form as is sufficient to enable a person of
common understanding to know what
offense is intended to be charged and
enable
the
court
to
pronounce
judgment.12
In People v. Almendral, 13 the Court held
thus:
The information filed against an accused
is intended to inform him of the
accusations against him in order that he
could adequately prepare his defense. It
is thus textbook doctrine that an accused
cannot be convicted of an offense unless
it is clearly charged in the complaint or
information.
To
ensure
that
the
constitutional right of the accused to be
informed of the nature and cause of the
accusation against him is not violated,
the information must state the name of
the accused, the designation given to the
offense by the statute, a statement of
the acts or omissions so complained of as
constituting the offense; the name of the
offended party; the approximate time
and date of the commission of the
offense, and the place where the offense
has been committed. It must embody the
essential elements of the crime charged
by
setting
forth
the
facts
and
circumstances that have a bearing on the
culpability and liability of the accused so
that he can properly prepare for and
undertake his defense.14
In the present case, the Information filed
against petitioner did not specify the
alleged fraudulent acts or false pretenses
that
supposedly
induced
private
complainant to part with his money.
Hence, petitioner may not be convicted
of Estafa as defined under Article 315 (2)
(a) of the Revised Penal Code since the
prosecution failed to allege the essential
elements of this kind of offense.

However, the RTC correctly found that


petitioner has been properly charged
with estafa as defined under Article 315
(1) (b) of the Revised Penal Code. In Lee
v. People,15 this Court held that the
elements of Estafa by conversion or
misappropriation as defined under Article
315 (1) (b) of the Revised Penal Code are
as follows: (1) that money, goods, or
other personal properties are received by
the offender in trust, or on commission,
or for administration, or under any other
obligation involving the duty to make
delivery of, or to return, the same; (2)
that there is a misappropriation or
conversion of such money or property by
the offender or denial on his part of such
receipt; (3) that such misappropriation or
conversion or denial is to the prejudice of
another.16
Clearly, the aforequoted Information filed
by the prosecution against petitioner was
able to allege all the essential elements
of estafa under Article 315 (1) (b) of the
RPC.
In finding petitioner guilty, the RTC and
the CA relied on the testimony of private
complainant.
The Court agrees with both the defense
and the prosecution that the present
petition dwells basically on the issue of
credibility of witnesses. Settled is the rule
that in assessing the credibility of
witnesses, this Court gives great respect
to the evaluation of the trial court for it
had the unique opportunity to observe
the demeanor of witnesses and their
deportment on the witness stand, an
opportunity denied the appellate courts,
which merely rely on the records of the
case.17 The assessment by the trial
court is even conclusive and binding if
not tainted with arbitrariness or oversight
of some fact or circumstance of weight
and influence, especially when such
finding is affirmed by the CA.18 After
examining the records of the instant
case, the Court finds no cogent reason to

depart from the lower courts assessment


of the credibility of private complainant.
The absence of evidence as to an
improper motive actuating the sole
witness of the prosecution strongly tends
to indicate that his testimony is worthy of
full faith and credence.19 Moreover, the
Court agrees with the OSG that truth is
established not by the number of
witnesses but by the quality of their
testimonies, for in determining the value
and credibility of evidence, the witnesses
are to be weighed not numbered.20

Q What security agency did you hire for


the security guards?

In his defense, petitioner does not deny


having
received
the
amount
of
P1,600,000.00 from private complainant.
However, he asserts that the said sum
was given as payment for his services in
hiring men to provide additional security
within the premises of the subject
property, in building a fence along
portions of the propertys perimeters, for
facilitating the computation of the
accrued real estate taxes, and for the
eventual titling of the land after the
realty taxes shall have been paid by
private complainant. He testified thus:

Q For how long did you hire these


security guards?

Q You said that Mr. Bunda offered to you


a proposal, did he immediately tell you
that he would give you 1.6 million as
payment for your services?

Q Everytime you paid them you did not


also prepare any receipt or any
document signed by the security guards?

A I did not hire from any agency, I just


hired from private persons because if I
would hire security guards from the
agency there will be more paper works.
Q What proof do you have to show that
you hired security guards?
A None sir, because I hired private
persons.

A From the time Paul Bunda gave me 1.6


million, I immediately hired ten security
guards and that was until December
1994.
Q But all this time you did not maintain
any payroll for the security guards?
A None sir, I did not maintain any payroll.
I just paid them in cash every 15th and
30th of the month.

A None sir.
A No sir. In fact I was the one who asked
for such amount because I told him that I
would be needing the money for more
security guards as well as expenses for
fencing and for the processing of the title
of the property.

Q You did not also maintain or keep any


list of the names of the security guards?
You did not have any logbook?
A None sir, because I know all of them.

Q Did you hire security guards?

xxxx

A Yes sir.
Q How many security guards did you
hire?

Q I would say that you dont have any


proof also that you spent for the fencing
as you obliged to perform for the private
complainant, is that correct?

A Ten (10).

A No sir, I dont have any proof.

Q What kind of fence was that which you


installed?
A Steel fence.
Q That would require concrete posts?
A No sir. What were used were just steel
posts with barbed wire.
Q How much did you spend for this
fence?
A I cannot recall.
Q You did not keep any receipt for the
materials?
A I did not keep copies of the receipts.21
Aside from his bare assertions, petitioner
failed to present any proof that he
actually hired security guards or that he
caused the erection of fences along the
subject propertys perimeters.
Settled is the rule that, to be credible,
testimonial evidence should come not
only from the mouth of a credible
witness.22 The testimony must also be
credible, reasonable and in accord with
human experience.23 No better test has
yet to be found to determine the weight
of the testimony of a witness than its
conformity to the knowledge and
common experience of mankind.24 In the
present case, petitioner claims that he is
a legitimate, respected and learned
businessman.25 As such, he is expected
to take ordinary care of his concerns by
keeping evidence of the salaries he gave
to the security guards he hired as well as
the expenses he incurred in the building
of fences around the property. At the
least, he could have kept his own record
of the expenditures he made pursuant to
his
contract
with
the
private
complainant.
Thus, the RTC and the CA did not give
credence to petitioners claims. This

Court finds no compelling reason to


depart from the trial and appellate
courts
assessment
of
petitioners
credibility because he failed to present
substantial and convincing evidence to
prove his claim.
Furthermore, to prove his claim that he
facilitated the computation of accrued
real estate taxes due on the subject
property, petitioner presented a copy of a
Real Property Tax Order of Payment
dated December 13, 1994,26 together
with a detailed computation of the land
tax due on the property. He claims that
he gave copies of these documents to
private complainant.27 However, a
perusal of these documents convinces
the Court that they are, at best, dubious.
Why is the Real Property Tax Order of
Payment dated December 13, 1994 when
petitioner claims that he was able to
obtain said document prior to or
sometime in October 1994? Petitioner
testified in his re-direct examination that
the Order of Payment covers the period
up to December 1994.28 If that is the
case, why was the computation only up
to December 13 and not December 31?
Petitioner
failed
to
explain
this
discrepancy.
As
to
the
detailed
computation attached to the Real
Property Tax Order of Payment, the
document is a mere piece of paper
without any indication that it was
officially issued by the Assessors Office
of Las Pias. Such document can easily
be printed out of any cash register.
As to petitioners contention that the
prosecution failed to prove that he
received the demand letter sent to him
by private complainants counsel, the
rule is that demand is not an element of
the felony or a condition precedent to the
filing of a criminal complaint for estafa.29
Indeed, the accused may be convicted of
the felony under Article 315, paragraph
1(b) of the Revised Penal Code if the
prosecution proved misappropriation or
conversion by the accused of the money

or property subject of the Information.30


In a prosecution for estafa, demand is not
necessary where there is evidence of
misappropriation
or
conversion.31
However, failure to account upon
demand, for funds or property held in
trust, is circumstantial evidence of
misappropriation.32 As found earlier,
petitioner failed to account for the money
given to him in trust by private
complainant.
The CA held:
The prosecution has not adduced any
evidence to substantiate its claim that
aside from the P1.6 Million shelled out by
private complainant to appellant in the
form of checks, private complainant had
earlier given appellant P200,000.00 in
cash.33
Petitioner makes much of the fact that
the CA gave credence to his defense that
he did not receive the amount of
P200,000.00 in cash from private
complainant. On this premise, petitioner
concludes that, in effect, private
complainants testimony should not be
given credence because it is full of
falsehoods,
half-truths
and
improbabilities.
The Court is not persuaded. The modern
trend of jurisprudence is that the
testimony of a witness may be believed
in part and disbelieved in part,
depending
upon
the
corroborative
evidence and the probabilities and
improbabilities of the case.34 Consistent
with this rule, the fact that the CA
discounted private complainants claim
that he gave P200,000.00 in cash to
petitioner does not mean that the
remaining portions of his testimony
should not also be given credence.
With respect to the imposable penalty,
Article 315 of the Revised Penal Code
provides:

ART. 315 Swindling (estafa). Any person


who shall defraud another by any of the
means mentioned hereinbelow shall be
punished by:
1st. The penalty of prision correccional in
its maximum period to prision mayor in
its minimum period, if the amount of the
fraud is over 12,000 but does not exceed
22,000 pesos, and if such amount
exceeds the latter sum, the penalty
provided in this paragraph shall be
imposed in its maximum period, adding
one year for each additional 10,000
pesos; but the total penalty which may
be imposed shall not exceed twenty
years. In such case, and in connection
with the accessory penalties which may
be imposed and for the purpose of the
other provisions of this Code, the penalty
shall be termed prision mayor or
reclusion temporal, as the case may be.
The penalty prescribed by Article 315 is
composed of only two, not three, periods,
in which case, Article 65 of the same
Code requires the division of the time
included in the penalty into three equal
portions of time included in the penalty
prescribed, forming one period of each of
the three portions.35 Applying the latter
provisions, the maximum, medium and
minimum
periods
of
the
penalty
prescribed are:
Maximum 6 years, 8 months, 21 days
to 8 years
Medium 5 years, 5 months, 11 days to
6 years, 8 months, 20 days
Minimum 4 years, 2 months, 1 day to 5
years, 5 months, 10 days36
In the present case, since the amount
involved is P1,600,000.00, exceeds
P22,000.00, the penalty to be imposed
should be the maximum period of 6
years, 8 months and 21 days to 8 years
of prision mayor. Article 315 further
states that a period of one year shall be

added to the penalty for every additional


P10,000.00 defrauded in excess of
P22,000.00, but in no case shall the total
penalty which may be imposed exceed
20 years. The amount swindled from
private complainant greatly exceeds the
amount of P22,000.00, which when
translated to the additional penalty of
one year for every P10,000.00 defrauded
goes beyond 20 years. Under the law,
the maximum penalty to be imposed in
the present case should be 20 years of
reclusion temporal.
As regards the imposition of the
minimum penalty, the leading case of
People v. Gabres37 is instructive:
The fact that the amounts involved in the
instant case exceed P22,000.00 should
not be considered in the initial
determination of the indeterminate
penalty; instead, the matter should be so
taken as analogous to modifying
circumstances in the imposition of the
maximum term of the full indeterminate
sentence. This interpretation of the law
accords with the rule that penal laws
should be construed in favor of the
accused. Since the penalty prescribed by
law for the estafa charge against
accused-appellant is prision correccional
maximum to prision mayor minimum, the
penalty next lower would then be prision
correccional minimum to medium. Thus,
the minimum term of the indeterminate
sentence should be anywhere within six
(6) months and one (1) day to four (4)
years and two (2) months while the
maximum term of the indeterminate
sentence should at least be six (6) years
and one (1) day because the amounts
involved exceeded P22,000.00, plus an
additional one (1) year for each
additional P10,000.00.38
As to the rate of interest, the guidelines
laid down in Eastern Shipping Lines, Inc.
v. Court of Appeals39 are applicable to
the present case, to wit:

I. When an obligation, regardless of its


source, i.e., law contracts, quasicontracts, delicts or quasi-delicts is
breached, the contravenor can be held
liable for damages. The provisions under
Tile XVIII on "Damages" of the Civil Code
govern in determining the measure of
recoverable damages.1wphi1
II. With regard particularly to an award of
interest in the concept of actual and
compensatory damages, the rate of
interest, as well as the accrual thereof, is
imposed, as follows:
1. When the obligation is breached, and
it consists in the payment of a sum of
money, i.e., a loan or forbearance of
money, the interest due should be that
which may have been stipulated in
writing. Furthermore, the interest due
shall itself earn legal interest from the
time it is judicially demanded. In the
absence of stipulation, the rate of
interest shall be 12% per annum to be
computed from default, i.e., from judicial
or extrajudicial demand under and
subject to the provisions of Article 1169
of the Civil Code.
2. When an obligation, not constituting a
loan or forbearance of money, is
breached, an interest on the amount of
damages awarded may be imposed at
the discretion of the court at the rate of
6% per annum. No interest, however,
shall be adjudged on unliquidated claims
or damages except when or until the
demand can be established with
reasonable certainty. Accordingly, where
the
demand
is
established
with
reasonable certainty, the interest shall
begin to run from the time the claim is
made judicially or extrajudicially (Art.
1169, Civil Code) but when such
certainty cannot be so reasonably
established at the time the demand is
made, the interest shall begin to run only
from the date the judgment of the court
is made (at which time the quantification
of damages may be deemed to have

been reasonably ascertained). The actual


base for the computation of legal interest
shall, in any case, be on the amount
finally adjudged.
3. When the judgment of the court
awarding a sum of money becomes final
and executory, the rate of legal interest,
whether the case falls under paragraph 1
or paragraph 2, above, shall be 12% per
annum from such finality until its
satisfaction, this interim period being
deemed to be by then an equivalent to a
forbearance of credit.40 (emphasis
supplied).
WHEREFORE, the petition is DENIED. The
assailed Decision and Resolution of the
Court of Appeals are AFFIRMED with
MODIFICATION that petitioner is found
guilty of Estafa under Article 315 (1) (b)
of the Revised Penal Code. He is
sentenced to suffer the indeterminate
penalty of two (2) years and four (4)
months of prision correccional as
minimum to twenty (20) years of
reclusion
temporal
as
maximum.
Petitioner is held civilly liable to return to
private complainant Paul P.A. Bunda the
amount of P1,600,000.00 with legal
interest at 6% per annum from the date
of filing of the action until finality of the
judgment. After the judgment becomes
final and executory, the amount due shall
further earn interest at 12% per year
until the obligation is fully satisfied.
SO ORDERED.

ARTICLE 784
EN BANC
G.R. No. 1439

March 19, 1904

ANTONIO CASTAEDA, plaintiff-appellee,


vs.
JOSE E. ALEMANY, defendant-appellant.
Ledesma, Sumulong
appellant.

and

Quintos

for

The court erred in holding that all legal


formalities had been complied with in the
execution of the will of Doa Juana
Moreno, as the proof shows that the said
will was not written in the presence of
under the express direction of the

testratrix as required by section 618 of


the Code of Civil Procedure.
Antonio V. Herrero for appellee.
The grounds upon which a will may be
disallowed
are
limited
to
those
mentioned in section 634 of the Code of
Civil Procedure.
WILLARD, J.:
(1) The evidence in this case shows to
our satisfaction that the will of Doa
Juana Moreno was duly signed by herself
in the presence of three witnesses, who
signed it as witnesses in the presence of
the testratrix and of each other. It was
therefore executed in conformity with
law.
There is nothing in the language of
section 618 of the Code of Civil
Procedure which supports the claim of
the appellants that the will must be
written by the testator himself or by
someone else in his presence and under
his express direction. That section
requires (1) that the will be in writing and
(2) either that the testator sign it himself
or, if he does sign it, that it be signed by
some one in his presence and by his
express
direction.
Who
does
the
mechanical work of writing the will is a
matter
of
indifference.
The
fact,
therefore, that in this case the will was
typewritten in the office of the lawyer for
the testratrix is of no consequence. The
English text of section 618 is very plain.
The mistakes in translation found in the
first Spanish edition of the code have
been corrected in the second.
(2) To establish conclusively as against
everyone, and once for all, the facts that
a will was executed with the formalities
required by law and that the testator was
in a condition to make a will, is the only
purpose of the proceedings under the
new code for the probate of a will. (Sec.
625.) The judgment in such proceedings

determines and can determine nothing


more. In them the court has no power to
pass upon the validity of any provisions
made in the will. It can not decide, for
example, that a certain legacy is void
and another one valid. It could not in this
case make any decision upon the
question whether the testratrix had the
power to appoint by will a guardian for
the property of her children by her first
husband, or whether the person so
appointed was or was not a suitable
person to discharge such trust.
All such questions must be decided in
some other proceeding. The grounds on
which a will may be disallowed are stated
the section 634. Unless one of those
grounds appears the will must be
allowed. They all have to do with the
personal condition of the testator at the
time of its execution and the formalities
connected therewith. It follows that
neither this court nor the court below has
any jurisdiction in his proceedings to
pass upon the questions raised by the
appellants by the assignment of error
relating to the appointment of a guardian
for the children of the deceased.
It is claimed by the appellants that there
was no testimony in the court below to
show that the will executed by the
deceased was the same will presented to
the court and concerning which this
hearing was had. It is true that the
evidence does not show that the
document in court was presented to the
witnesses and identified by them, as
should have been done. But we think
that we are justified in saying that it was
assumed by all the parties during the
trial in the court below that the will about
which the witnesses were testifying was
the document then in court. No
suggestion of any kind was then made by
the counsel for the appellants that it was
not the same instrument. In the last
question put to the witness Gonzales the
phrase "this will" is used by the counsel
for the appellants. In their argument in

that court, found on page 15 of the


record, they treat the testimony of the
witnesses as referring to the will probate
they were then opposing.
The judgment of the court below is
affirmed, eliminating therefrom, however,
the clause "el cual debera ejecutarse fiel
y exactamente en todas sus partes." The
costs of this instance will be charged
against the appellants.
Arellano, C. J., Torres, Cooper, Mapa,
McDonough and Johnson, JJ., concur.

ARTICLE 788
EN BANC

G.R. No. L-24561 June 30, 1970


MARINA
DIZON-RIVERA,
executrixappellee,
vs.
ESTELA DIZON, TOMAS V. DIZON,
BERNARDITA DIZON, JOSEFINA DIZON,
ANGELINA DIZON and LILIA DIZON,
oppositors-appellants.
(Case also under Article 791)
TEEHANKEE, J.:
Appeal from orders of the Court of First
Instance of Pampanga approving the
Executrix-appellee's project of partition
instead
of
Oppositors-Appellants'
proposed counter-project of partition. 1
On January 28, 1961, the testatrix,
Agripina J. Valdez, a widow, died in
Angeles, Pampanga, and was survived by
seven compulsory heirs, to wit, six
legitimate children named Estela Dizon,
Tomas V. Dizon, Bernardita Dizon, Marina
Dizon
(herein
executrix-appellee),
Angelina Dizon and Josefina Dizon, and a
legitimate granddaughter named Lilia
Dizon, who is the only legitimate child
and heir of Ramon Dizon, a pre-deceased
legitimate son of the said decedent. Six
of these seven compulsory heirs (except
Marina Dizon, the executrix-appellee) are
the oppositors-appellants.
The deceased testatrix left a last will
executed on February 2, 1960 and
written in the Pampango dialect. Named
beneficiaries in her will were the abovenamed compulsory heirs, together with
seven other legitimate grandchildren,
namely Pablo Rivera, Jr., Gilbert D.
Garcia, Cayetano Dizon, Francisco Rivera,
Agripina Ayson, Jolly Jimenez and
Laureano Tiambon.
In her will, the testatrix divided,
distributed and disposed of all her
properties appraised at P1,801,960.00

(except two small parcels of land


appraised at P5,849.60, household
furniture valued at P2,500.00, a bank
deposit in the sum of P409.95 and ten
shares of Pampanga Sugar Development
Company valued at P350.00) among her
above-named heirs.
Testate proceedings were in due course
commenced 2 and by order dated March
13, 1961, the last will and testament of
the decedent was duly allowed and
admitted to probate, and the appellee
Marina Dizon-Rivera was appointed
executrix of the testatrix' estate, and
upon her filing her bond and oath of
office, letters testamentary were duly
issued to her.
After the executrix filed her inventory of
the estate, Dr. Adelaido Bernardo of
Angeles, Pampanga was appointed
commissioner to appraise the properties
of the estate. He filed in due course his
report of appraisal and the same was
approved in toto by the lower court on
December 12, 1963 upon joint petition of
the parties.
The real and personal properties of the
testatrix at the time of her death thus
had
a
total
appraised
value
of
P1,811,695.60, and the legitime of each
of the seven compulsory heirs amounted
to P129,362.11. 3 (/7 of the half of the
estate reserved for the legitime of
legitimate children and descendants). 4
In her will, the testatrix "commanded
that her property be divided" in
accordance
with
her
testamentary
disposition, whereby she devised and
bequeathed specific real properties
comprising practically the entire bulk of
her estate among her six children and
eight grandchildren. The appraised
values of the real properties thus
respectively devised by the testatrix to
the beneficiaries named in her will, are
as follows:

1.
Estela
Dizon ....................................... P
98,474.80
2.
Angelina
Dizon .................................. 106,307.06
3.
Bernardita
Dizon .................................. 51,968.17
4. Josefina Dizon ......................................
52,056.39
5.
Tomas
Dizon .......................................
131,987.41
6.
Lilia
Dizon ..............................................
72,182.47
7.
Marina
Dizon .....................................
1,148,063.71
8.
Pablo Rivera,
Jr. ...................................... 69,280.00
9.
Lilia Dizon, Gilbert Garcia,
Cayetano Dizon, Francisco Rivera,
Agripina Ayson, Dioli or Jolly
Jimenez, Laureano Tiamzon .................
72,540.00
Total Value ...................... P1,801,960.01
The executrix filed her project of partition
dated February 5, 1964, in substance
adjudicating the estate as follows:
(1)
with the figure of P129,254.96 as
legitime for a basis Marina (exacultrixappellee) and Tomas (appellant) are
admittedly considered to have received
in the will more than their respective
legitime, while the rest of the appellants,
namely, Estela, Bernardita, Angelina,
Josefina and Lilia received less than their
respective legitime;
(2)
thus, to each of the latter are
adjudicated the properties respectively
given them in the will, plus cash and/or
properties, to complete their respective
legitimes to P129,254.96; (3) on the
other hand, Marina and Tomas are
adjudicated the properties that they
received in the will less the cash and/or
properties necessary to complete the

prejudiced legitime mentioned in number


2 above;
(4)
the adjudications made in the will
in favor of the grandchildren remain
untouched.<re||an1w>
On the other hand oppositors submitted
their own counter-project of partition
dated February 14, 1964, wherein they
proposed the distribution of the estate on
the following basis:
(a) all the testamentary dispositions were
proportionally reduced to the value of
one-half () of the entire estate, the
value of the said one-half () amounting
to P905,534.78; (b) the shares of the
Oppositors-Appellants should consist of
their legitime, plus the devises in their
favor proportionally reduced; (c) in
payment of the total shares of the
appellants in the entire estate, the
properties devised to them plus other
properties left by the Testatrix and/or
cash are adjudicated to them; and (d) to
the
grandchildren
who
are
not
compulsory heirs are adjudicated the
properties respectively devised to them
subject to reimbursement by Gilbert D.
Garcia, et al., of the sums by which the
devise in their favor should be
proportionally reduced.
Under the oppositors' counter-project of
partition, the testamentary disposition
made by the testatrix of practically her
whole estate of P1,801,960.01, as above
stated, were proposed to be reduced to
the amounts set forth after the names of
the respective heirs and devisees
totalling one-half thereof as follows:
1.
Estela
Dizon
...........................................
P
49,485.56
2.
Angelina
Dizon
.........................................
53,421.42
3.
Bernardita
Dizon ....................................... 26,115.04

4.
Josefina
Dizon
..........................................
26,159.38
5.
Tomas
V.
Dizon
.........................................
65,874.04
6.
Lilia
Dizon
..................................................
36,273.13
7.
Marina
Dizon
...........................................
576,938.82
8.
Pablo
Rivera,
Jr. ......................................... 34,814.50
9.
Grandchildren Gilbert Garcia et
al .......... 36,452.80
T o t a l ...................................................
P905,534.78
while the other half of the estate
(P905,534.78) would be deemed as
constituting the legitime of the executrixappellee and oppositors-appellants, to be
divided among them in seven equal parts
of P129,362.11 as their respective
legitimes.
The lower court, after hearing, sustained
and approved the executrix' project of
partition, ruling that "(A)rticles 906 and
907 of the New Civil Code specifically
provide that when the legitime is
impaired or prejudiced, the same shall be
completed and satisfied. While it is true
that this process has been followed and
adhered to in the two projects of
partition, it is observed that the executrix
and the oppositors differ in respect to the
source from which the portion or portions
shall be taken in order to fully restore the
impaired legitime. The proposition of the
oppositors, if upheld, will substantially
result in a distribution of intestacy, which
is in controversion of Article 791 of the
New Civil Code" adding that "the testatrix
has chosen to favor certain heirs in her
will for reasons of her own, cannot be
doubted. This is legally permissible within
the limitation of the law, as aforecited."
With reference to the payment in cash of

some P230,552.38, principally by the


executrix as the largest beneficiary of the
will to be paid to her five co-heirs, the
oppositors (excluding Tomas Dizon), to
complete their impaired legitimes, the
lower court ruled that "(T)he payment in
cash so as to make the proper
adjustment
to
meet
with
the
requirements of the law in respect to
legitimes which have been impaired is, in
our opinion, a practical and valid solution
in order to give effect to the last wishes
of the testatrix."
From the lower court's orders of approval,
oppositors-appellants have filed this
appeal, and raise anew the following
issues: .
1.
Whether or not the testamentary
dispositions made in the testatrix' will are
in the nature of devises imputable to the
free portion of her estate, and therefore
subject to reduction;
2.
Whether the appellants are entitled
to the devise plus their legitime under
Article 1063, or merely to demand
completion of their legitime under Article
906 of the Civil Code; and
3.
Whether the appellants may be
compelled to accept payment in cash on
account of their legitime, instead of some
of the real properties left by the Testatrix;
which were adversely decided against
them in the proceedings below.
The issues raised present a matter of
determining the avowed intention of the
testatrix which is "the life and soul of a
will." 5 In consonance therewith, our Civil
Code included the new provisions found
in Articles 788 and 791 thereof that "(I)f
a testamentary disposition admits of
different interpretations, in case of doubt,
that
interpretation
by
which
the
disposition is to be operative shall be
preferred" and "(T)he words of a will are
to receive an interpretation which will

give to every expression some effect,


rather than one which will render any of
the expressions inoperative; and of two
modes of interpreting a will, that is to be
preferred which will prevent intestacy." In
Villanueva vs. Juico 6 for violation of
these rules of interpretation as well as of
Rule 123, section 59 of the old Rules of
Court, 7 the Court, speaking through Mr.
Justice J.B.L. Reyes, overturned the lower
court's decision and stressed that "the
intention and wishes of the testator,
when clearly expressed in his will,
constitute the fixed law of interpretation,
and all questions raised at the trial,
relative to its execution and fulfillment,
must be settled in accordance therewith,
following the plain and literal meaning of
the testator's words, unless it clearly
appears
that
his
intention
was
otherwise." 8
The testator's wishes and intention
constitute the first and principal law in
the matter of testaments, and to
paraphrase an early decision of the
Supreme Court of Spain, 9 when
expressed clearly and precisely in his last
will amount to the only law whose
mandate must imperatively be faithfully
obeyed and complied with by his
executors, heirs and devisees and
legatees, and neither these interested
parties nor the courts may substitute
their own criterion for the testator's will.
Guided
and
restricted
by
these
fundamental premises, the Court finds
for the appellee.
1.
Decisive of the issues at bar is the
fact that the testatrix' testamentary
disposition was in the nature of a
partition of her estate by will. Thus, in
the third paragraph of her will, after
commanding that upon her death all her
obligations as well as the expenses of her
last illness and funeral and the expenses
for probate of her last will and for the
administration of her property in
accordance with law, be paid, she
expressly provided that "it is my wish

and I command that my property be


divided"
in
accordance
with
the
dispositions
immediately
thereafter
following, whereby she specified each
real property in her estate and
designated the particular heir among her
seven compulsory heirs and seven other
grandchildren to whom she bequeathed
the same. This was a valid partition 10 of
her estate, as contemplated and
authorized in the first paragraph of
Article 1080 of the Civil Code, providing
that "(S)hould a person make a partition
of his estate by an act inter vivos or by
will, such partition shall be respected,
insofar as it does not prejudice the
legitime of the compulsory heirs." This
right of a testator to partition his estate
is subject only to the right of compulsory
heirs to their legitime. The Civil Code
thus provides the safeguard for the right
of such compulsory heirs:
ART. 906. Any compulsory heir to whom
the testator has left by any title less than
the legitime belonging to him may
demand that the same be fully satisfied.
ART. 907. Testamentary
dispositions
that impair or diminish the legitime of
the compulsory heirs shall be reduced on
petition of the same, insofar as they may
be inofficious or excessive.
This was properly complied with in the
executrix-appellee's project of partition,
wherein the five oppositors-appellants
namely Estela, Bernardita, Angelina,
Josefina and Lilia, were adjudicated the
properties respectively distributed and
assigned to them by the testatrix in her
will, and the differential to complete their
respective legitimes of P129,362.11 each
were taken from the cash and/or
properties of the executrix-appellee,
Marina, and their co-oppositor-appellant,
Tomas, who admittedly were favored by
the testatrix and received in the partition
by will more than their respective
legitimes.

2.
This right of a testator to partition
his estate by will was recognized even in
Article 1056 of the old Civil Code which
has been reproduced now as Article 1080
of the present Civil Code. The only
amendment in the provision was that
Article 1080 "now permits any person
(not a testator, as under the old law) to
partition his estate by act inter vivos." 11
This was intended to repeal the then
prevailing doctrine 12 that for a testator
to partition his estate by an act inter
vivos, he must first make a will with all
the
formalities
provided
by
law.
Authoritative commentators doubt the
efficacy of the amendment 13 but the
question does not here concern us, for
this is a clear case of partition by will,
duly admitted to probate, which perforce
must be given full validity and effect.
Aside from the provisions of Articles 906
and 907 above quoted, other codal
provisions
support
the
executrixappellee's
project
of
partition
as
approved by the lower court rather than
the counter-project of partition proposed
by oppositors-appellants whereby they
would
reduce
the
testamentary
disposition or partition made by the
testatrix to one-half and limit the same,
which they would consider as mere
devises or legacies, to one-half of the
estate as the disposable free portion, and
apply the other half of the estate to
payment of the legitimes of the seven
compulsory heirs. Oppositors' proposal
would
amount
substantially
to
a
distribution by intestacy and pro tanto
nullify the testatrix' will, contrary to
Article 791 of the Civil Code. It would
further run counter to the provisions of
Article 1091 of the Civil Code that "(A)
partition legally made confers upon each
heir the exclusive ownership of the
property adjudicated to him."
3.
In Habana vs. Imbo, 14 the Court
upheld the distribution made in the will
of the deceased testator Pedro Teves of
two large coconut plantations in favor of
his daughter, Concepcion, as against

adverse claims of other compulsory


heirs, as being a partition by will, which
should be respected insofar as it does
not prejudice the legitime of the
compulsory heirs, in accordance with
Article 1080 of the Civil Code. In
upholding the sale made by Concepcion
to a stranger of the plantations thus
partitioned in her favor in the deceased's
will which was being questioned by the
other compulsory heirs, the Court ruled
that "Concepcion Teves by operation of
law, became the absolute owner of said
lots because 'A partition legally made
confers upon each heir the exclusive
ownership of the property adjudicated to
him' (Article 1091, New Civil Code), from
the death of her ancestors, subject to
rights and obligations of the latter, and,
she can not be deprived of her rights
thereto except by the methods provided
for by law (Arts. 657, 659, and 661, Civil
Code). 15 Concepcion Teves could, as she
did, sell the lots in question as part of her
share of the proposed partition of the
properties, especially when, as in the
present case, the sale has been expressly
recognized by herself and her coheirs ..."
4.
The
burden
of
oppositors'
contention is that the testamentary
dispositions in their favor are in the
nature of devises of real property, citing
the testatrix' repeated use of the words "I
bequeath"
in
her
assignment
or
distribution of her real properties to the
respective heirs. From this erroneous
premise, they proceed to the equally
erroneous conclusion that "the legitime
of the compulsory heirs passes to them
by operation of law and that the testator
can only dispose of the free portion, that
is, the remainder of the estate after
deducting the legitime of the compulsory
heirs
...
and
all
testamentary
dispositions, either in the nature of
institution of heirs or of devises or
legacies, have to be taken from the
remainder of the testator's estate
constituting the free portion." 16

Oppositors err in their premises, for the


adjudications and assignments in the
testatrix' will of specific properties to
specific heirs cannot be considered all
devises, for it clearly appear from the
whole context of the will and the
disposition by the testatrix of her whole
estate (save for some small properties of
little value already noted at the
beginning of this opinion) that her clear
intention was to partition her whole
estate through her will. The repeated use
of the words "I bequeath" in her
testamentary dispositions acquire no
legal significance, such as to convert the
same into devises to be taken solely from
the free one-half disposable portion of
the estate. Furthermore, the testatrix'
intent that her testamentary dispositions
were by way of adjudications to the
beneficiaries as heirs and not as mere
devisees, and that said dispositions were
therefore on account of the respective
legitimes of the compulsory heirs is
expressly borne out in the fourth
paragraph of her will, immediately
following her testamentary adjudications
in the third paragraph in this wise:
"FOURTH: I likewise command that in
case any of those I named as my heirs in
this testament any of them shall die
before I do, his forced heirs under the law
enforced at the time of my death shall
inherit the properties I bequeath to said
deceased." 17
Oppositors' conclusions necessarily are in
error. The testamentary dispositions of
the testatrix, being dispositions in favor
of compulsory heirs, do not have to be
taken only from the free portion of the
estate, as contended, for the second
paragraph of Article 842 of the Civil Code
precisely provides that "(O)ne who has
compulsory heirs may dispose of his
estate provided he does not contravene
the provisions of this Code with regard to
the legitime of said heirs." And even
going by oppositors' own theory of
bequests, the second paragraph of

Article 912 Civil Code covers precisely


the case of the executrix-appellee, who
admittedly was favored by the testatrix
with the large bulk of her estate in
providing that "(T)he devisee who is
entitled to a legitime may retain the
entire property, provided its value does
not exceed that of the disposable portion
and of the share pertaining to him as
legitime." For "diversity of apportionment
is the usual reason for making a
testament; otherwise, the decedent
might as well die intestate." 18
Fundamentally,
of
course,
the
dispositions by the testatrix constituted a
partition by will, which by mandate of
Article 1080 of the Civil Code and of the
other cited codal provisions upholding
the primacy of the testator's last will and
testament, have to be respected insofar
as they do not prejudice the legitime of
the other compulsory heirs.
Oppositors' invoking of Article 1063 of
the Civil Code that "(P)roperty left by will
is not deemed subject to collation, if the
testator has not otherwise provided, but
the legitime shall in any case remain
unimpaired"
and
invoking
of
the
construction thereof given by some
authorities that "'not deemed subject to
collation' in this article really means not
imputable to or chargeable against the
legitime", while it may have some
plausibility 19 in an appropriate case, has
no application in the present case. Here,
we have a case of a distribution and
partition of the entire estate by the
testatrix, without her having made any
previous donations during her lifetime
which
would
require
collation
to
determine the legitime of each heir nor
having left merely some properties by
will which would call for the application of
Articles 1061 to 1063 of the Civil Code on
collation. The amount of the legitime of
the heirs is here determined and
undisputed.
5.
With this resolution of the decisive
issue raised by oppositors-appellants, the

secondary issues are likewise necessarily


resolved. Their right was merely to
demand completion of their legitime
under Article 906 of the Civil Code and
this has been complied with in the
approved project of partition, and they
can no longer demand a further share
from the remaining portion of the estate,
as bequeathed and partitioned by the
testatrix principally to the executrixappellee.
Neither may the appellants legally insist
on their legitime being completed with
real properties of the estate instead of
being paid in cash, per the approved
project of partition. The properties are
not available for the purpose, as the
testatrix had specifically partitioned and
distributed them to her heirs, and the
heirs are called upon, as far as feasible to
comply with and give effect to the
intention of the testatrix as solemnized in
her will, by implementing her manifest
wish of transmitting the real properties
intact to her named beneficiaries,
principally the executrix-appellee. The
appraisal report of the properties of the
estate as filed by the commissioner
appointed by the lower court was
approved in toto upon joint petition of
the parties, and hence, there cannot be
said to be any question and none is
presented as to fairness of the
valuation thereof or that the legitime of
the heirs in terms of cash has been
understated. The plaint of oppositors that
the purchasing value of the Philippine
peso has greatly declined since the
testatrix' death in January, 1961 provides
no legal basis or justification for
overturning the wishes and intent of the
testatrix. The transmission of rights to
the succession are transmitted from the
moment of death of the decedent (Article
777, Civil Code) and accordingly, the
value thereof must be reckoned as of
then, as otherwise, estates would never
be settled if there were to be a
revaluation
with
every
subsequent
fluctuation in the values of the currency

and properties of the estate. There is


evidence in the record that prior to
November 25, 1964, one of the
oppositors, Bernardita, accepted the sum
of P50,000.00 on account of her
inheritance, which, per the parties'
manifestation, 20 "does not in any way
affect the adjudication made to her in the
projects of partition of either party as the
same is a mere advance of the cash that
she should receive in both projects of
partition." The payment in cash by way
of making the proper adjustments in
order to meet the requirements of the
law on non-impairment of legitimes as
well as to give effect to the last will of the
testatrix has invariably been availed of
and sanctioned. 21 That her cooppositors would receive their cash
differentials only now when the value of
the currency has declined further,
whereas they could have received them
earlier, like Bernardita, at the time of
approval of the project of partition and
when the peso's purchasing value was
higher, is due to their own decision of
pursuing the present appeal.
ACCORDINGLY, the orders appealed from
are hereby affirmed. Without cost.
Concepcion, C.J., Reyes, J.B.L., Dizon,
Makalintal, Zaldivar, Castro, Fernando,
Barredo and Villamor, JJ., concur.

personal properties, giving the other half


to his brother Don Fausto Villaflor.
Clause 6th, containing the institution of
heirs, reads as follows: .

EN BANC
G.R. No. L-15737
1962

February 28,

LEONOR
VILLAFLOR
VDA.
DE
VILLANUEVA, plaintiff-appellant,
vs.
DELFIN N. JUICO, in his capacity as
Judicial Administrator of the testate
estate
of
FAUSTA
NEPOMUCENO,
defendant-appellee.
Amado G. Salazar for plaintiff-appellant.
Sycip, Salazar, Luna and Associates for
defendant-appellee.
(also under Article 791)
REYES, J.B.L., J.:
Subject to this direct appeal to us on
points of law is the decision of the Court
of First Instance of Rizal, in its Civil Case
No.
Q-2809,
dismissing
plaintiffappellant's complaint for the recovery of
certain properties that were originally
owned by the plaintiff's granduncle,
Nicolas Villaflor, and which he granted to
his widow, Doa Fausta Nepomuceno,
bequeathing to her "su uso y posesion
mientras viva y no se case en segundas
nupcias".
The following facts appear of record: On
October 9, 1908, Don Nicolas Villaflor, a
wealthy man of Castillejos, Zambales,
executed a will in Spanish in his own
handwriting, devising and bequeathing in
favor
of
his
wife,
Dona
Fausta
Nepomuceno, one-half of all his real and

SEXTO En virtud de las facultades que


me conceden las leyes, instituyo per mis
unicos y universales herederos de todos
mis derechos y acciones a mi hermano D.
Fausto Villaflor y a mi esposa Da. Fausta
Nepomuceno para que partan todos mis
bienes que me pertenescan, en iguales
partes, para despues de mi muerte,
exceptuando las donaciones y legados
que, abajo mi mas expontanea voluntad,
lo hago en la forma siguiente: .
SEPTIMO: Lego para dispues de mi
muerte a mi esposa Da. Fausta
Nepomuceno, en prueba de mi amor y
carino, los bienes, alhajas y muebles que
a continuacion se expresan; .
OCTAVO: Que estos legades disfrutaria
mi
referida
esposa
Da.
Fausta
Nepomuceno su uso y posesion mientras
viva y no se case en segundas nupcias,
de la contrario, pasara a ser propiedad
estos dichos legados de mi sobrina nieta
Leonor Villaflor.
The 12th clause of the will provided,
however, that Clauses 6th and 7th
thereof would be deemed annulled from
the moment he bore any child with Doa
Fausta Nepomuceno. Said Clause 12th
reads as follows: .
DUODECIMO: Quedan anulados las
parrafos 6.0 y 7.0 de este testamento
que tratan de institucion de herederos y
los legados que se haran despues de mi
muerte a favor de mi esposa, en el
momento que podre tener la dicha de
contrar con hijo y hijos legitimos o
legitimados, pues estos, conforme a ley
seran mis herederos.
Don Nicolas Villaflor died on March 3,
1922, without begetting any child with

his wife Doa Fausta Nepomuceno. The


latter, already a widow, thereupon
instituted Special Proceeding No. 203 of
the Court of First Instance of Zambales,
for the settlement of her husband's
estate and in that proceeding, she was
appointed judicial administratrix. In due
course of administration, she submitted a
project of partition, now Exhibit "E". In
the order of November 24, 1924, now
exhibit "C", the probate court approved
the project of partition and declared the
proceeding closed. As the project of
partition, Exhibit "E", now shows Doa
Fausta Nepomuceno received by virtue
thereof the ownership and possession of
a considerable amount of real and
personal estate. By virtue also of the said
project of partition, she received the use
and possession of all the real and
personal properties mentioned and
referred to in Clause 7th of the will. The
order approving the project of partition
(Exh. "C"), however, expressly provided
that approval thereof was "sin perjuicio
de lo dispuesto en la clausula 8.o del
testamento de Nicolas Villaflor." .
On
May
1,
1956,
Doa
Fausta
Nepomuceno
died
without
having
contracted a second marriage, and
without having begotten any child with
the deceased Nicolas Villaflor. Her estate
is now being settled in Special
Proceeding No. Q-1563 in the lower
court, with the defendant Delfin N. Juico
as the duly appointed and qualified
judicial administrator.
The plaintiff Leonor Villaflor Vda. de
Villanueva is admitted to be the same
Leonor Villaflor mentioned by Don
Nicolas Villaflor in his will as his "sobrina
nieta Leonor Villaflor".
Plaintiff Leonor Villaflor instituted the
present action against the administrator
of the estate of the widow Fausta
Nepomuceno, on February 8, 1958,
contending that upon the widow's death,
said plaintiff became vested with the

ownership of the real and personal


properties bequeathed by the late
Nicolas Villaflor to clause 7 of his will,
pursuant to its eight (8th) clause.
Defendant's position, adopted by the trial
court, is that the title to the properties
aforesaid became absolutely vested in
the widow upon her death, on account of
the fact that she never remarried.
We agree with appellant that the plain
desire and intent of the testator, as
manifested in clause 8 of his testament,
was to invest his widow with only a
usufruct or life tenure in the properties
described in the seventh clause, subject
to the further condition (admitted by the
appellee) that if the widow remarried, her
rights would thereupon cease, even
during her own lifetime. That the widow
was meant to have no more than a life
interest in those properties, even if she
did not remarry at all, is evident from the
expressions used by the deceased "uso y
posesion mientras viva" (use and
possession while alive) in which the first
half of the phrase "uso y posesion"
instead of "dominio" or "propiedad")
reinforces the second ("mientras viva").
The testator plainly did not give his
widow the full ownership of these
particular properties, but only the right to
their possession and use (or enjoyment)
during her lifetime. This is in contrast
with the remainder of the estate in which
she was instituted universal heir together
with the testator's brother (clause 6).
1wph1.t
SEXTO: En virtud de las facultades que
me conceden las leyes, instituyo por mis
unicos y universales herederos de todos
mis derechos y acciones a mi hermano D.
Fausto Villaflor y a mi esposa Da. Fausta
Nepomuceno para que parten todos mis
bienes que me pertenescan, en iguales
partes, para despues de mi muerte,
exceptuando las donaciones y legados
que, abajo mi mas expontanea voluntad,
lo hago en la forma siguiente.

The court below, in holding that the


appellant Leonor Villaflor, as reversionary
legatee, could succeed to the properties
bequeathed by clause 7 of the testament
only in the event that the widow
remarried, has unwarrantedly discarded
the expression "mientras viva," and
considered the words "uso y posesion" as
equivalent to "dominio" (ownership). In
so doing, the trial court violated Article
791 of the Civil Code of the Philippines,
as well as section 59 of Rule 123 of the
Rules of Court.
ART. 791. The words of a will are to
receive an interpretation which will give
to every expression some effect, rather
than one which will render any of the
expressions inoperative; and of two
modes of interpreting a will, that one is
to be preferred which will prevent
intestacy." .
SEC. 59. Instrument construed so as to
give effect to all provisions. In the
construction of an instrument where
there
are
several
provisions
or
particulars, such a construction is, if
possible, to be adopted as will give effect
to all." .
Speculation as to the motives of the
testator in imposing the conditions
contained in clause 7 of his testament
should not be allowed to obscure the
clear and unambiguous meaning of his
plain words, which are over the primary
source in ascertaining his intent. It is well
to note that if the testator had intended
to impose as sole condition the nonremarriage of his widow, the words "uso
y posesion mientras viva" would have
been unnecessary, since the widow could
only remarry during her own lifetime.
The Civil Code, in Article 790, p. 1 (Article
675 of the Code of 1889), expressly
enjoins the following: .
ART. 790. The words of a will are to be
taken in their ordinary and grammatical

sense, unless a clear intention to use


them in another sense can be gathered,
and that other can be ascertained." .
Technical words in a will are to be taken
in their technical sense, unless the
context clearly indicates a contrary
intention, or unless it satisfactorily
appears that the will was drawn solely by
the
testator,
and
that
he
was
unacquainted with such technical sense.
(675a)
In consonance with this rule, this
Supreme Court has laid the doctrine in In
re Estate of Calderon, 26 Phil., 233, that
the intention and wishes of the testator,
when clearly expressed in his will,
constitute the fixed law of interpretation,
and all questions raised at the trial,
relative to its execution and fulfillment,
must be settled in accordance therewith,
following the plain and literal meaning of
the testator's words, unless it clearly
appears that his intention was otherwise.
The same rule is adopted by the
Supreme Court of Spain (TS. Sent. 20
Marzo 1918; 28 Mayo 1918; 30 Abril
1913; 16 Enero 1915; 23 Oct. 1925).
La voluntad del testador, clara, precisa y
constantemente expresada al ordenar su
ultimo voluntad, es ley unica, imperativa
y obligatoria que han de obedecer y
cumplir fieldmente albaceas, legatarios y
heredera, hoy sus sucesores, sin que esa
voluntad patente, que no ha menester de
interpretaciones, pues no ofrece la
menor duda, pueda sustituirse, pues no
ofrece la menor duda, pueda sustituirse
por ningun otro criterio de alguna de los
interesados, ni tampoco por el judicial.
(Tribunal Supremo of Spain, Sent. 20
March 1918) .
The American decisions invoked by
appellee in his brief inapplicable,
because they involve cases where the
only condition imposed on the legatee
was that she should remain a widow. As
already shown, the testament of Don

Nicolas Villaflor clearly and unmistakably


provided that his widow should have the
possession and use of the legacies while
alive and did not remarry. It necessarily
follows that by the express provisions of
the 8th clause of his will, the legacies
should
pass
to
the
testator's
"sobrinanieta", appellant herein, upon
the widow's death, even if the widow
never
remarried
in
her
lifetime.
Consequently, the widow had no right to
retain or dispose of the aforesaid
properties, and her estate is accountable
to the reversionary legatee for their
return, unless they had been lost due to
fortuitous event, or for their value should
rights of innocent third parties have
intervened.
PREMISES CONSIDERED, the decision
appealed from is reversed, and the
appellant Leonor Villaflor Vda. de
VILLANUEVA is declared entitled to the
ownership and fruits of the properties
described in clause 7 of the will or
testament, from the date of the death of
Doa Fausta Nepomuceno. The records
are ordered remanded to the court of
origin for liquidation, accounting and
further proceedings conformably to this
decision. Costs against the Administratorappellee.
Bengzon, C.J., Padilla, Bautista Angelo,
Concepcion, Barrera, Paredes, Dizon and
De Leon, JJ., concur.
Labrador, J., took no part.

*This case is under Articles 788 and 789


EN BANC
G.R. No. 1027

May 19, 1903

RAMON DEL ROSARIO, plaintiff-appellee,


vs.
CLEMENTE DEL ROSARIO, defendantappellant.
Lucas Gonzalez for appellant.
Rodriguez and Foz for appellee.
WILLARD, J.:
I. Don Nicolas del Rosario died in this city
on July 14, 1897, leaving a last will, the
eighth, ninth, eleventh, and eighteenth
clauses of which are as follows:
Eight. The testator declares that the
5,000 pesos which he brought to his
marriage he hereby bequeathes to his
nephew Enrique Gloria y Rosario and
Ramon del Rosario, natural children of his
brother
Clemente
del
Rosario,
notwithstanding the fact that they
purport to be the issue of the marriage of
Escolastico Gloria and Rosendo del
Rosario, successively.
Ninth. The testator declares that the said
sum of 5,000 pesos is to be divided,
3,000 pesos for the first named and
2,000 pesos for the second named, the
delivery of the said sums to be effected
by the wife of the testator, provided that
these young men behave themselves as
they have done up to the present time,

and do not cease to study until taking the


degree of bachelor of arts, and then take
a business course, if their health will
permit, their support to be paid out of the
testamentary estate and they to live in
the house of the widow.
Eleventh. The testator declares that in a
case the said young men should be still
engaged in study at the time of the
death of the testator's wife, they shall
continue to be supported at the expense
of the testamentary estate, without
deducting such expenses from their
legacies, if they should desire to continue
the same studies.
Eighteenth. The testator further states
that although his wife is at the present
time fifty-five years of age, and
consequently is not likely to marry again,
as she herself says, nevertheless it is
impossible that the opposite of what she
asserts might occur, and, if so, then it is
to be regarded as sufficient reason to
authorize the young men Ramon and
Enrique, so often referred to, separate
from their aunt, in which event they are
to be supported by the testamentary
estate on a small allowance of twentyfive pesos per month, provided that they
continue their studies or should be in
poor health, this without in any respect
reducing the amount of their shares.
Don Ramon del Rosario, one of the
persons mentioned in these clauses,
brought this action in 1902 against Don
Clemente del Rosario, the then executor,
asking, among other things, that the said
executor pay him an allowance from the
death of the widow of the testator at the
rate of 75 pesos a month, and that the
executor allow him to live in the house in
which the widow was living at that time.
The widow of the testator, Doa
Honorata Valdez, died on July 7, 1900.
The court below ordered judgment in
respect to this allowance, and the right to

live in the house as prayed for by the


plaintiff. In this we think that the court
erred.
While by the eight clause the support of
the plaintiff and of Don Enrique Gloria is
charged against the estate, yet the
eleventh clause makes it plain that this
unconditional right was to last only
during the lifetime of the widow. After her
death the right to this allowance is made
to depend on the continuance of their
studies. That this is the correct
construction of the will is made more
plain by the eighteenth clause above
quoted. In the case of their separation
from their aunt by her remarriage, they
were entitled to the specified allowance
of 25 pesos a month only on condition
that they were pursuing their studies or
were in poor health.
The court did not find that the plaintiff
was still pursuing his studies. On the
contrary, he found that the plaintiff had
fulfilled the condition by obtaining the
degree of bachelor of arts in 1898.
The right to live in the house of the
widow terminated at her death.
II. The seventh clause of the will of Don
Nicolas is as follows:
Seventh. The testator states that in the
present condition of his affairs he has
acquired, during his married life, some
tens of thousands of dollars, of which
one-half belongs to his wife as her share
of the profits of the conjugal partnership,
and the other half belongs to him as his
share of such profits; but, in view of the
agreement entered into between the two
spouses, the property will not be
partitioned, and upon the death of the
testator all the said property will pass to
his wife, in order that she may enjoy the
revenue therefrom during her lifetime,
but without authority to convey any of
such property, inasmuch as she, being
grateful for the benefit resulting to her,

binds herself in turn to deliver said


property at her death to the testator's
brothers, Don Clemente del Rosario and
Don Rosendo del Rosario, and his sister,
Doa Luisa del Rosario, who shall enjoy
the revenue from the said property
during their respective lives, and shall
then, in turn, transmit the same to their
male children, both those born in
wedlock and natural children who may be
known.
This was later modified by a codicil, as
follows:
That in seventh clause of said testament
he desires and wills that in the
distribution of his property and that of his
wife among the male children of his
brothers, Clemente and Rosendo del
Rosario, and those of his sister, Luisa del
Rosario, in such distribution his nephews
Enrique Gloria and Ramon del Rosario
must be understood to be included, in
addition to the legacies mentioned in his
said testament.
The thirteenth clause of his will was as
follows:
The testator declares that in case Doa
Luisa del Rosario should die before or
after the wife of the testator, then the
legacy due her by virtue of this will shall
not pass in its entirety to her male
children, except as to the sum of 1,000
pesos, the remainder to pass to Don
Enrique Gloria Rosario and Don Ramon
del Rosario, natural sons of Don
Clemente del Rosario, as already stated.

of all her portion should be divided into


equal parts, one-third to go to his brother
Don Clemente del Rosario and the other
two-thirds to be divided equally among
his said nephews, Enrique Gloria and
Ramon del Rosario.
Doa Honorata Valdez made her will
three days after that of her husband. The
seventh clause is as follows:
The testatrix declares that she institutes
her beloved husband, Don Nicolas del
Rosario y Alejo, as her heir to all the
property which she may have at her
death, and in the unexpected case of the
death of her said husband then she
institute as heirs her brothers-in-law, Don
Rosendo and Don Clemente del Rosario y
Alejo, and her sister-in-law, Doa Luisa
del Rosario, who shall enjoy the usufruct
during their lifetime of all the revenue of
the said property. Upon the death of any
of them, the property shall pass to the
male children of her said brothers-in-law
and sister-in-law, the issue of lawful
marriage or natural children who may be
known; that upon the death of her sisterin-law, Doa Luisa, then her share shall
not pass in its entirety to her male
children, except the sum of 1,000 pesos,
Enrique Gloria and Don Ramon del
Rosario, natural children of her brotherin-law Don Clemente del Rosario.
Doa Luisa died one yea after Don
Nicolas and two years before the death of
Doa Honorata, which, as has been said,
occurred on July, 7, 1900.
Don Enrique Gloria died on July 6, 1900.

This was modified by the codicil as


follows:
That in the thirteenth clause the testator
provided that upon the death of his
sister, Luisa del Rosario, her male
children were to inherit from her up to
the sum of 1,000 pesos, and this he
rectifies, for better understanding, to the
effect that it is his will that the remainder

Don Ramon del Rosario claims in this


action that he is now entitled, by virtue
of both wills, to a certain part of the
share of the estates left to said Doa
Luisa during her life, and he asks that the
defendant be directed to render accounts
and to proceed to the partition of the
said estates. The controversy between

the parties upon this branch of the case


is as follows:
The defendant claims that the plaintiff is
entitled to nothing under the wills,
because the gift to him was conditional,
the condition being that he should be the
natural son of Don Clemente, recognized
by the latter as such in one of the ways
pointed out by the Civil Code; that he can
not prove such recognition, the parol
evidence presented at the trial being
prohibited by said Code, and that he has
therefore
not
complied
with
the
condition.
The plaintiff claims that such evidence
was proper, that both wills state that Don
Ramon del Rosario is the natural son of
Don Clemente, and that in any event the
bequests are made to the plaintiff by
name.
The court below, holding the parol
evidence immaterial, ordered judgment
for the plaintiff as prayed for.
(1) So far as the disposition of that part
of the inheritance left in the aunt's will to
Doa Luisa for life is concerned, the
question is free from doubt. It is distinctly
declared that Ramon del Rosario and
Enrique Gloria shall take certain parts of
it after 1,000 pesos have been deducted.
They are pointed out by name as the
legatees. It is true that they are called
the natural sons of Don Clemente. But
this is merely a further description of
persons already well identified, and, if
false, can be rejected in accordance with
the provision of article 773 of the Civil
Code, which by article 789 is applicable
to legatees.
(2) The ninth clause of the will of Doa
Honorata is as follows:
The testatrix bequeaths the sum of 3,000
pesos to her nephews Enrique Gloria and
Ramon del Rosario in equal parts that
is, 1,500 pesos each.

The plaintiff was entitled to one-half of


this legacy in his own right. This has
been paid to him. Don Enrique Gloria
died before his the testatrix. By the
provisions of articles 982 and 983 of the
Civil Code the right of accretion exists as
to the other half in favor of the plaintiff
and he is entitled to have it paid to him.
(3) The will of Doa Honorata plainly
declares that, on the death of any one of
the life tenants, the male children of such
tenant shall inherit, and in respect to
Doa Luisa it is expressly declared that
this shall take place whether she dies
before or after the testatrix. The derecho
de acrecer did not therefore exist in favor
of the other two life tenants, Don
Clemente and Don Rosendo. "En la
sucesion testada es ley preferente la
voluntad del testador, de modo que este
prohibiendo expresamente el derecho de
acrecer,
nombrando
sustitutos,
o
marcando el destino especial de cada
porcion vacante, excluye la aplicacion de
los articulos que vamos a examinar." (7
Manresa, Comentarios al Codigo Civil, p.
276.)
This right does, however, exist in the
share of Doa Luisa in favor of the
plaintiff, for the reasons stated in
connection with the legacy of 3,000
pesos.
(4) We have passed upon the rights of
the plaintiff to the share of Doa Luis
under the will of Doa Honorata, because
the interest is expressly left to him (en
concepto de legado) as a legacy. This is
controlling. (5 Manresa, 315.)
These or equivalent words are wanting in
the will of Don Nicolas. Applying article
668 of the Civil Code, we must hold that
any interest which the plaintiff may have
taken in the share of Doa Luisa under
the will of Don Nicolas he took as an heir
and not as a legatee.

The distinction between the two is


constantly maintained throughout the
Code, and their rights and obligations
differ materially. (Arts. 660, 668, 768,
790, 858, 891, 1003.)
(5) The legatee can demand his legacy
from the heir or from the executor, when
the latter is authorized to give it. (Art.
885.) The powers given to the executors
by the will of Doa Honorata are
contained in the fourteenth clause, which
is as follows:
The testatrix appoints as the executors of
her will, in the first place, her beloved
husband, Nicolas del Rosario y Alejo, in
the second place her brother-in-law
Clemente del Rosario, in the third place
her brother-in-law Rosendo del Rosario, in
the fourth place Don Ramon del Rosario
when he shall attain his majority, all of
them without bond and free from the
obligation
of
terminating
the
administration within the legal term. At
her death they shall take possession of
all such goods and things as may be her
property, and are hereby authorized fully
and as required by law to prepare an
inventory of said property, and to effect
the division and partition of the estate
among her heirs. She also authorizes
them to execute and sign deeds of
partition,
sales
with
a
resolutory
condition,
cancellations,
receipts,
acquittances, and such other documents
as may be necessary.
The twenty-first clause of the will of Don
Nicolas is substantially the same. Each
will prohibited any judicial intervention in
the settlement of the estates.
The clause in the will of Doa Honorata
which is a copy of that in the will of Don
Nicolas is as follows:
The testatrix declares that she expressly
prohibits any judicial intervention in this
her will, although minors, absentees, or
persons under disability be interested

therein, as it is her wish and will that all


the
proceedings
be
conducted
extrajudicially, and in case a family
council should be necessary, she
designates
the
persons
who,
in
accordance with the provisions of the
Civil Code now in force, should form such
council, or else leaves their appointment
to the discretion of her executors.
If the executor was not authorized to pay
these legacies, the heirs must pay them.
The life tenants and the heirs who take
the remainder under these wills are
numerous. If they did not pay the
legacies and did not agree upon an
administrator, judicial intervention would
be necessary, the very thing which the
testators had expressly prohibited. The
important power of making the partition
was attempted to be given to the
executors.
In
view
of
these
considerations and a study of the whole
will, we hold that the executors are given
power to pay the legacies.
The action, therefore, was properly
directed against the executor so far as it
related to the allowance and the legacy
of 3,000 pesos. As to these legacies, the
action may be supported also under
article 902, 2, which allows executors to
pay money legacies.
It was also properly directed against him,
so far as it related to the share to which
the plaintiff is entitled under the will of
Doa Honorata in the portion to Doa
Luisa for life.
The provisions of articles 1025-1027 are
no obstacle to this suit. That an inventory
is being formed, or that the creditors
have not been paid, is a matter of
defense which should have been set up
in the answer.
It was not properly directed against him
in so far as it related to the similar share
left to him by the will of Don Nicolas. He

took that as heir and not a legatee, and


the heir can maintain no such action
against the executor.
The fact that the plaintiff under the will of
Doa Honorata is a legatee of an aliquot
part of the estate, having become
entitled to receive one-third of it on the
death of Doa Luisa, does not prevent
him from maintaining this action against
the executor. Though such a legatee
closely resembles an heir, yet, like all
other legatees, he must seek his share
from the heir or executor. (6 Manresa,
561.)
(6) While in this action he has a right to
have his interest as legatee declared, yet
it can not be delivered to him without a
partition of the estate.
It remains to be considered whether the
executor has power to make the
partition. Such power is expressly given
by the will. This provision is, however,
void under the terms of article 1057 of
the Civil Code, which is as follows:
The testator may, by an act inter vivos or
causa mortis, intrust the mere power of
making the division after his death to any
person who is not one of the coheirs.
The provisions of this and the foregoing
articles shall be observed even should
there be a minor or a person subject to
guardianship among the coheirs; but the
trustee must in such case make an
inventory of the property of the
inheritance, citing the coheirs, the
creditors, and the legatees.
Don Clemente, the executor, against
whom the action was directed, was not
only an heir as a life tenant but also in
the fee after his death of Don Rosendo if
the latter died without issue. Upon the
death of the widow, Doa Luisa then
being dead, it became his duty to divide
the estate into three parts, or at least to
set off the third, which was to pass to the

plaintiff by the death of the widow and


Doa Luisa. In this partition he was
directly interested, for, with his brother
Don Rosendo, he had a life interest in the
part of the estate not set off to the
plaintiff. Article 1057 prohibited an heir
from being contador for this very reason,
namely, that the partition should be
made impartially.
Although the executor has no power to
make the partition, the heirs can do so.
Arts. 1058-1060, Civil Code.)
The plaintiff is not bound to remain a coowner with the other heirs. Being a
legatee of an aliqout part, he has the
same right to seek a partition that an
heir has. (7 Manresa, 578; art. 1051,
Codigo Civil.) But in so seeking it he must
make parties to his suit all persons
interested in the estate (7 Manresa, 577).
This he has not done in this suit, and he
consequently is not entitled to the
partition ordered by the court below.
(7) We have held that the only thing that
can be decided in this case is the rights
of the plaintiff as legatee.
The court below ordered the executor to
render accounts of his administration of
both estates.
As to the estate of Don Nicolas, the only
thing here in question is the right to the
allowance. As we hold that the plaintiff is
not entitled to it, he is not entitled to any
statement of accounts as such pretended
legatee.
As to the estate of Doa Honorata, he is
entitled to be paid a legacy of 1,500
pesos. Article 907 requires the executor
to render accounts to the heir, not to the
legatee; and although by article 789 all
of the provisions of Chapter II (in which
both articles are found) relating to heirs
are made applicable to legatees, we can
not hold that this requires an executor to
submit his accounts to one who has no

interest in the estate except to a money


legacy when there is no suggestion that
it will not be paid when the right to it is
established.
In respect to the share of Doa Luisa,
there is reason for saying that a legatee
on an aliquot part is entitled to an
accounting. But, inasmuch as in this case
there can be no final determination of the
rights of the parties interested in the
estate, because they are not all parties
to this suit, the executor should not in
this suit be ordered to submit his
accounts.
(8) The plaintiff in his complaint has
limited himself to claiming the allowance,
his rights to the share of Doa Luisa, and
the legacies left to him.
The question as to whether he would be
entitled to any part of the share of Don
Clemente upon the latter's death, under
the seventh clause of the two wills, was
not presented by the complaint nor
passed upon by the court and is not
before us for decision.
(9)
The
result
considerations is:

of

the

foregoing

1. The plaintiff is not entitled to any


allowance under either will.
2. He is not entitled to live in the house
No. 128 Calle Clavel.
3. He is entitled to be paid, under the
ninth clause of the will of Doa Honorata,
the sum of 1,500 pesos, in addition to the
1,500 pesos already received under that
clause.
4. He is entitled to the share of the estate
left by the will of Doa Honorata to Doa
Luisa during her life, after deducting
1,000 pesos.
5. This share can not be set off to him in
this suit, but only in a proceeding to

which all persons interested in the estate


are parties.
6. His interest in the share left to Doa
Luis during her life by the will of Don
Nicolas can not be determined in this
suit.
7. The executor can not be required to
render in this suit his accounts as such
executor.
8. The plaintiff's rights under the seventh
clause of the two wills, to the share left
to Don Clemente for life are not before us
for decision.
III. After judgment had been rendered in
the court below and a bill of exceptions
allowed, but before the record had been
sent to this court, Don Clemente del
Rosario, the defendant, died. After his
death Don Rosendo del Rosario, who was
named in both wills to succeed to the
executorship on the death of Don
Clemente, appeared in the court below
and withdrew the appeal and bill of
exceptions. Thereupon the widow of Don
Clemente,
for
herself
and
in
representation of the minor son of her
late husband, asked and was granted
leave to prosecute the appeal.
This ruling was correct. According to the
Spanish authorities, anyone legally
affected by the judgment might appeal.
According to the American authorities, if
a trustee refuses to appeal, the
beneficiary may do so in his name.
That the son of Don Clemente has a
direct interest in the question of the
allowance of 75 pesos a month to the
plaintiff is plain. We have held that in
respect to this allowance the executor
represents the estate and the judgment
against him binds it.
It would be manifestly unjust to allow an
executor, with perhaps only a slight
personal interest in an estate, by

withdrawing an appeal, to fasten upon


the estate a claim which, as we hold, it
should not bear.
IV. At the argument of this case on the
merits, after the appellant had closed,
the respondent made the point for the
first time that the appellant's brief
contained no assignment of errors.

ARTICLE 789
SECOND DIVISION
G.R. No. L-22036 April 30, 1979

This is true. But a full assignment of


errors is found in the bill of exceptions at
pages 14 and 15. The appellee answered
the brief of the appellant without making
any suggestion of this mistake. He has
been in no way prejudiced by it, and we
can not affirm the judgment on this
ground.
The judgment of the court below is
reversed and the case remanded with
directions to the court below to enter
judgment in accordance with this
opinion. The costs of this instance will be
equally divided between the parties. So
ordered.
Arellano, C.J., Cooper, Mapa and Ladd, JJ.,
concur.
Torres, J., did not sit in this case.

TESTATE ESTATE OF THE LATE REVEREND


FATHER PASCUAL RIGOR. THE PARISH
PRIEST OF THE ROMAN CATHOLIC
CHURCH
OF
VICTORIA,
TARLAC,
petitioner-appellant,
vs.
BELINA
RIGOR,
NESTORA
RIGOR,
FRANCISCA ESCOBAR DE RIGOR and
JOVITA
ESCOBAR
DE
FAUSTO,
respondents-appellees.
D. Taedo, Jr. for appellants.
J. Palanca, Sr. for appellee.

AQUINO, J.:
This case is about the efficaciousness or
enforceability of a devise of ricelands
located at Guimba, Nueva Ecija, with a
total area of around forty- four hectares
That devise was made in the will of the
late Father Pascual Rigor, a native of
Victoria Tarlac, in favor of his nearest
male relative who would study for the
priesthood.
The parish priest of Victoria, who claimed
to be a trustee of the said lands,
appealed to this Court from the decision
of the Court of Appeals affirming the
order of the probate court declaring that
the said devise was inoperative (Rigor vs.
Parish Priest of the Roman Catholic
Church of Victoria, Tarlac, CA-G.R. No.
24319-R, August 1, 1963).

The record discloses that Father Rigor,


the parish priest of Pulilan, Bulacan, died
on August 9, 1935, leaving a will
executed on October 29, 1933 which was
probated by the Court of First Instance of
Tarlac in its order of December 5, 1935.
Named as devisees in the will were the
testators nearest relatives, namely, his
three sisters: Florencia Rigor-Escobar,
Belina Rigor-Manaloto and Nestora RigorQuiambao. The testator gave a devise to
his cousin, Fortunato Gamalinda.
In addition, the will contained the
following
controversial
bequest
(paragraphing supplied to facilitate
comprehension of the testamentary
provisions):
Doy y dejo como legado CUATRO (4)
PARCELAS de terreno palayeros situados
en el municipiooo de Guimba de la
provinciaaa de NUEVA ECIJA, cuyo num.
de CERTIFICADO DE TRANSFERENCIA DE
TITULO SON; Titulo Num. 6530, mide
16,249 m. cuadrados de superficie Titulo
Num. 6548, mide 242,998 m. cuadrados
de superficie y annual 6525, mide 62,665
m. cuadrados de superficie; y Titulo Num.
6521, mide 119,251 m. cuadrados de
superficie; a cualquier pariente mio varon
mas cercano que estudie la carrera
eclesiatica
hasta
ordenarse
de
Presbiterado o sea Sacerdote; las
condiciones de estate legado son;
(1.a) Prohibe en absoluto la venta de
estos terrenos arriba situados objectos
de este legado;
(2.a) Que el legatario pariente mio mas
cercano tendra derecho de empezar a
gozar y administrar de este legado al
principiar a curzar la Sagrada Teologio, y
ordenado de Sacerdote, hasta su muerte;
pero que pierde el legatario este derecho
de administrar y gozar de este legado al
dejar de continuar sus estudios para
ordenarse de Presbiterado (Sacerdote).

Que el legatario una vez Sacerdote ya


estara obligado a celebrar cada ao
VEINTE (20) Misas rezadas en sufragio de
mi alma y de mis padres difuntos, y si el
actual legatario, quedase excomulgado,
IPSO FACTO se le despoja este legado, y
la administracion de esto pasara a cargo
del actual Parroco y sus sucesores de la
Iglecia Catolica de Victoria, Tarlac.
Y en intervalo de tiempo que no haya
legatario acondicionado segun lo arriba
queda
expresado,
pasara
la
administracion de este legado a cargo
del actual Parroco Catolico y sus
sucesores, de Victoria, Tarlac.
El Parroco administrador de estate
legado, acumulara, anualmente todos los
productos que puede tener estate
legado, ganando o sacando de los
productos anuales el CINCO (5) por
ciento para su administracion, y los
derechos correspondientes de las VEINTE
(20) Misas rezadas que debiera el Parroco
celebrar cada ao, depositando todo lo
restante de los productos de estate
legado, en un banco, a nombre de estate
legado.
To implement the foregoing bequest, the
administratix in 1940 submitted a project
containing the following item:
5.

LEGACY OF THE CHURCH

That it be adjudicated in favor of the


legacy purported to be given to the
nearest male relative who shall take the
priesthood, and in the interim to be
administered by the actual Catholic Priest
of the Roman Catholic Church of Victoria,
Tarlac, Philippines, or his successors, the
real properties hereinbelow indicated, to
wit:
Title No.
Lot No.
Area in Has.

the obligations of the estate (including


the sum of P3,132.26 due to the church
of the Victoria parish) the administratrix
should deliver to the devisees their
respective shares.

Tax Dec.
Ass. Value
T-6530

It may be noted that the administratrix


and Judge Cruz did not bother to analyze
the meaning and implications of Father
Rigor's bequest to his nearest male
relative who would study for the
priesthood. Inasmuch as no nephew of
the testator claimed the devise and as
the administratrix and the legal heirs
believed that the parish priest of Victoria
had no right to administer the ricelands,
the same were not delivered to that
ecclesiastic. The testate proceeding
remained pending.

3663
1.6249
18740
P 340.00
T-6548
3445-C
24.2998

About thirteen years after the approval of


the project of partition, or on February
19, 1954, the parish priest of Victoria
filed in the pending testate proceeding a
petition praying for the appointment of a
new administrator (succeeding the
deceased administration Florencia Rigor),
who should deliver to the church the said
ricelands, and further praying that the
possessors thereof be ordered to render
an accounting of the fruits. The probate
court granted the petition. A new
administrator was appointed. On January
31, 1957 the parish priest filed another
petition for the delivery of the ricelands
to the church as trustee.

18730
7,290.00
T-6525
3670
6.2665
18736
1,880.00
T-6521
3666
11.9251
18733
3,580.00
Total

amount and
P13,090.00

value

44.1163

Judge Roman A. Cruz in his order of


August 15, 1940, approving the project of
partition, directed that after payment of

The intestate heirs of Father Rigor


countered with a petition dated March
25, 1957 praying that the bequest be d
inoperative and that they be adjudged as
the persons entitled to the said ricelands
since, as admitted by the parish priest of
Victoria, "no nearest male relative of" the
testator "has ever studied for the
priesthood" (pp. 25 and 35, Record on
Appeal). That petition was opposed by
the parish priest of Victoria.
Finding that petition to be meritorious,
the lower court, through Judge Bernabe

de Aquino, declared the bequest


inoperative and adjudicated the ricelands
to the testator's legal heirs in his order of
June 28, 1957. The parish priest filed two
motions for reconsideration.
Judge De Aquino granted the respond
motion for reconsideration in his order of
December 10, 1957 on the ground that
the testator had a grandnephew named
Edgardo G. Cunanan (the grandson of his
first cousin) who was a seminarian in the
San Jose Seminary of the Jesuit Fathers in
Quezon City. The administrator was
directed to deliver the ricelands to the
parish priest of Victoria as trustee.
The legal heirs appealed to the Court of
Appeals. It reversed that order. It held
that Father Rigor had created a
testamentary trust for his nearest male
relative who would take the holy orders
but that such trust could exist only for
twenty years because to enforce it
beyond that period would violate "the
rule against perpetuities. It ruled that
since no legatee claimed the ricelands
within twenty years after the testator's
death, the same should pass to his legal
heirs, citing articles 888 and 912(2) of
the old Civil Code and article 870 of the
new Civil Code.
The parish priest in this appeal contends
that the Court of Appeals erred in not
finding that the testator created a public
charitable trust and in not liberally
construing the testamentary provisions
so as to render the trust operative and to
prevent intestacy.
As refutation, the legal heirs argue that
the Court of Appeals d the bequest
inoperative because no one among the
testator's nearest male relatives had
studied for the priesthood and not
because the trust was a private
charitable trust. According to the legal
heirs, that factual finding is binding on
this Court. They point out that appellant

priest's change of theory cannot be


countenanced in this appeal .
In this case, as in cases involving the law
of contracts and statutory construction,
where the intention of the contracting
parties or of the lawmaking body is to be
ascertained, the primary issue is the
determination of the testator's intention
which is the law of the case (dicat testor
et erit lex. Santos vs. Manarang, 27 Phil.
209, 215; Rodriguez vs. Court of Appeals,
L-28734, March 28, 1969, 27 SCRA 546).
The will of the testator is the first and
principal law in the matter of testaments.
When his intention is clearly and
precisely expressed, any interpretation
must be in accord with the plain and
literal meaning of his words, except when
it may certainly appear that his intention
was
different
from
that
literally
expressed (In re Estate of Calderon, 26
Phil. 333).
The intent of the testator is the cardinal
rule in the construction of wills." It is "the
life and soul of a will It is "the first
greatest rule, the sovereign guide, the
polestar, in giving effect to a will". (See
Dissent of Justice Moreland in Santos vs.
Manarang, 27 Phil. 209, 223, 237-8.)
One canon in the interpretation of the
testamentary provisions is that "the
testator's intention is to be ascertained
from the words of the wilt taking into
consideration the circumstances under
which it was made", but excluding the
testator's oral declarations as to his
intention (Art. 789, Civil Code of the
Philippines).
To ascertain Father Rigor's intention, it
may be useful to make the following restatement of the provisions of his will.
1.
that he bequeathed the ricelands
to anyone of his nearest male relatives
who would pursue an ecclesiastical
career until his ordination as a priest.

2.
That the devisee could not sell the
ricelands.
3.
That the devisee at the inception of
his studies in sacred theology could enjoy
and administer the ricelands, and once
ordained as a priest, he could continue
enjoying and administering the same up
to the time of his death but the devisee
would cease to enjoy and administer the
ricelands if he discontinued his studies
for the priesthood.
4.
That if the devisee became a
priest, he would be obligated to celebrate
every year twenty masses with prayers
for the repose of the souls of Father Rigor
and his parents.
5.
That
if
the
devisee
is
excommunicated, he would be divested
of the legacy and the administration of
the riceland would pass to the incumbent
parish priest of Victoria and his
successors.
6.
That during the interval of time
that there is no qualified devisee as
contemplated above, the administration
of the ricelands would be under the
responsibility of the incumbent parish
priest of Victoria and his successors, and
7.
That the parish priest-administrator
of the ricelands would accumulate
annually the products thereof, obtaining
or getting from the annual produce five
percent thereof for his administration and
the fees corresponding to the twenty
masses with prayers that the parish
priest would celebrate for each year,
depositing the balance of the income of
the devise in the bank in the name of his
bequest.
From
the
foregoing
testamentary
provisions, it may be deduced that the
testator intended to devise the ricelands
to his nearest male relative who would
become a priest, who was forbidden to

sell the ricelands, who would lose the


devise if he discontinued his studies for
the priesthood, or having been ordained
a priest, he was excommunicated, and
who would be obligated to say annually
twenty masses with prayers for the
repose of the souls of the testator and his
parents.
On the other hand, it is clear that the
parish priest of Victoria would administer
the ricelands only in two situations: one,
during the interval of time that no
nearest male relative of the testator was
studying for the priesthood and two, in
case the testator's nephew became a
priest and he was excommunicated.
What is not clear is the duration of "el
intervalo de tiempo que no haya
legatario acondicionado", or how long
after the testator's death would it be
determined that he had a nephew who
would pursue an ecclesiastical vocation.
It is that patent ambiguity that has
brought about the controversy between
the parish priest of Victoria and the
testator's legal heirs.
Interwoven with that equivocal provision
is the time when the nearest male
relative who would study for the
priesthood should be determined. Did the
testator contemplate only his nearest
male relative at the time of his death? Or
did he have in mind any of his nearest
male relatives at anytime after his
death?
We hold that the said bequest refers to
the testator's nearest male relative living
at the time of his death and not to any
indefinite time thereafter. "In order to be
capacitated to inherit, the heir, devisee
or legatee must be living at the moment
the succession opens, except in case of
representation, when it is proper" (Art.
1025, Civil Code).
The said testamentary provisions should
be sensibly or reasonably construed. To

construe them as referring to the


testator's nearest male relative at
anytime after his death would render the
provisions difficult to apply and create
uncertainty as to the disposition of his
estate. That could not have been his
intention.
In 1935, when the testator died, his
nearest leagal heirs were his three sisters
or second-degree relatives, Mrs. Escobar,
Mrs. Manaloto and Mrs. Quiambao.
Obviously, when the testator specified
his nearest male relative, he must have
had in mind his nephew or a son of his
sister, who would be his third-degree
relative, or possibly a grandnephew. But
since he could not prognosticate the
exact date of his death or state with
certitude what category of nearest male
relative would be living at the time of his
death, he could not specify that his
nearest male relative would be his
nephew or grandnephews (the son of his
nephew or niece) and so he had to use
the term "nearest male relative".
It is contended by the legal heirs that the
said devise was in reality intended for
Ramon Quiambao, the testator's nephew
and godchild, who was the son of his
sister, Mrs. Quiambao. To prove that
contention, the legal heirs presented in
the lower court the affidavit of Beatriz
Gamalinda, the maternal grandmother of
Edgardo Cunanan, who deposed that
after Father Rigor's death her own son,
Valentin Gamalinda, Jr., did not claim the
devise, although he was studying for the
priesthood at the San Carlos Seminary,
because she (Beatriz) knew that Father
Rigor had intended that devise for his
nearest male relative beloning to the
Rigor family (pp. 105-114, Record on
Appeal).
Mrs. Gamalinda further deposed that her
own grandchild, Edgardo G. Cunanan,
was not the one contemplated in Father
Rigor's will and that Edgardo's father told
her that he was not consulted by the

parish priest of Victoria before the latter


filed
his
second
motion
for
reconsideration which was based on the
ground that the testator's grandnephew,
Edgardo, was studying for the priesthood
at the San Jose Seminary.
Parenthetically, it should be stated at this
juncture that Edgardo ceased to be a
seminarian in 1961. For that reason, the
legal heirs apprised the Court of Appeals
that
the
probate
court's
order
adjudicating the ricelands to the parish
priest of Victoria had no more leg to
stand on (p. 84, Appellant's brief).
Of course, Mrs. Gamalinda's affidavit,
which is tantamount to evidence aliunde
as to the testator's intention and which is
hearsay, has no probative value. Our
opinion that the said bequest refers to
the testator's nephew who was living at
the time of his death, when his
succession
was
opened
and
the
successional rights to his estate became
vested, rests on a judicious and unbiased
reading of the terms of the will.
Had the testator intended that the
"cualquier pariente mio varon mas
cercano
que
estudie
la
camera
eclesiatica" would include indefinitely
anyone of his nearest male relatives born
after his death, he could have so
specified in his will He must have known
that such a broad provision would
suspend for an unlimited period of time
the efficaciousness of his bequest.
What then did the testator mean by "el
intervalo de tiempo que no haya
legatario
acondicionado"?
The
reasonable view is that he was referring
to a situation whereby his nephew living
at the time of his death, who would like
to become a priest, was still in grade
school or in high school or was not yet in
the seminary. In that case, the parish
priest of Victoria would administer the
ricelands before the nephew entered the
seminary. But the moment the testator's

nephew entered the seminary, then he


would be entitled to enjoy and administer
the ricelands and receive the fruits
thereof. In that event, the trusteeship
would be terminated.
Following that interpretation of the will
the inquiry would be whether at the time
Father Rigor died in 1935 he had a
nephew who was studying for the
priesthood or who had manifested his
desire to follow the ecclesiastical career.
That query is categorically answered in
paragraph 4 of appellant priest's
petitions of February 19, 1954 and
January 31, 1957. He unequivocally
alleged therein that "not male relative of
the late (Father) Pascual Rigor has ever
studied for the priesthood" (pp. 25 and
35, Record on Appeal).
Inasmuch as the testator was not
survived by any nephew who became a
priest, the unavoidable conclusion is that
the bequest in question was ineffectual
or
inoperative.
Therefore,
the
administration of the ricelands by the
parish priest of Victoria, as envisaged in
the wilt was likewise inoperative.
The appellant in contending that a public
charitable trust was constituted by the
testator in is favor assumes that he was
a trustee or a substitute devisee That
contention is untenable. A reading of the
testamentary provisions regarding the
disputed bequest not support the view
that the parish priest of Victoria was a
trustee or a substitute devisee in the
event that the testator was not survived
by a nephew who became a priest.
It should be understood that the parish
priest of Victoria could become a trustee
only when the testator's nephew living at
the time of his death, who desired to
become a priest, had not yet entered the
seminary or, having been ordained a
priest, he was excommunicated. Those
two contingencies did not arise, and
could not have arisen in this case

because no nephew of the testator


manifested any intention to enter the
seminary or ever became a priest.
The Court of Appeals correctly ruled that
this case is covered by article 888 of the
old Civil Code, now article 956, which
provides that if "the bequest for any
reason should be inoperative, it shall be
merged into the estate, except in cases
of substitution and those in which the
right of accretion exists" ("el legado ...
por qualquier causa, no tenga efecto se
refundira en la masa de la herencia,
fuera de los casos de sustitucion y
derecho de acrecer").
This case is also covered by article
912(2) of the old Civil Code, now article
960 (2), which provides that legal
succession takes place when the will
"does not dispose of all that belongs to
the testator." There being no substitution
nor accretion as to the said ricelands the
same should be distributed among the
testator's legal heirs. The effect is as if
the testator had made no disposition as
to the said ricelands.
The Civil Code recognizes that a person
may die partly testate and partly
intestate, or that there may be mixed
succession. The old rule as to the
indivisibility of the testator's win is no
longer valid. Thus, if a conditional legacy
does not take effect, there will be
intestate succession as to the property
recovered by the said legacy (Macrohon
Ong Ham vs. Saavedra, 51 Phil. 267).
We find no merit in the appeal The
Appellate Court's decision is affirmed.
Costs against the petitioner.
SO ORDERED
Fernando, C.J.(Actg. ), Barredo (Actg.
Chairman), Antonio, Concepcion, Jr., and
Santos, JJ., concur.
Abad Santos, J., took no part.

COURT
OF
APPEALS
AND
MARIA
MARLENA2 COSCOLUELLA Y BELLEZA
VILLACARLOS, respondents.
DECISION
PURISIMA, J.:
This is a petition for review of the
decision of the Court of Appeals,3 dated
December 23, 1993, in CA-G.R. No. CV35555, 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:
THIRD DIVISION
G.R. No. 113725

June 29, 2000

JOHNNY S. RABADILLA,1 petitioner,


vs.

(a) Lot No. 1392 of the Bacolod Cadastre,


covered by Transfer Certificate of Title
No. RT-4002 (10942), which is registered
in my name according to the records of
the Register of Deeds of Negros
Occidental.

(b) That should Jorge Rabadilla die ahead


of me, the aforementioned property and
the rights which I shall set forth
hereinbelow, shall be inherited and
acknowledged by the children and
spouse of Jorge Rabadilla.
xxx
FOURTH
(a)....It is also my command, in this my
addition (Codicil), that should I die and
Jorge Rabadilla shall have already
received the ownership of the said Lot
No. 1392 of the Bacolod Cadastre,
covered by Transfer Certificate of Title
No. RT-4002 (10942), and also at the
time that the lease of Balbinito G.
Guanzon of the said lot shall expire, Jorge
Rabadilla shall have the obligation until
he dies, every year to give to Maria
Marlina Coscolluela y Belleza, Seventy
(75) (sic) piculs of Export sugar and
Twenty Five (25) piculs of Domestic
sugar, until the said Maria Marlina
Coscolluela y Belleza dies.
FIFTH
(a) Should Jorge Rabadilla die, his heir to
whom he shall give Lot No. 1392 of the
Bacolod Cadastre, covered by Transfer
Certificate of Title No. RT-4002 (10492),
shall have the obligation to still give
yearly, the sugar as specified in the
Fourth paragraph of his testament, to
Maria Marlina Coscolluela y Belleza on
the month of December of each year.
SIXTH
I command, in this my addition (Codicil)
that the Lot No. 1392, in the event that
the one to whom I have left and
bequeathed, and his heir shall later sell,
lease, mortgage this said Lot, the buyer,
lessee, mortgagee, shall have also the
obligation to respect and deliver yearly
ONE HUNDRED (100) piculs of sugar to
Maria Marlina Coscolluela y Belleza, on

each month of December, SEVENTY FIVE


(75) piculs of Export and TWENTY FIVE
(25) piculs of Domestic, until Maria
Marlina shall die, lastly should the buyer,
lessee or the mortgagee of this lot, not
have respected my command in this my
addition
(Codicil),
Maria
Marlina
Coscolluela y Belleza, shall immediately
seize this Lot No. 1392 from my heir and
the latter's heirs, and shall turn it over to
my near desendants, (sic) and the latter
shall then have the obligation to give the
ONE HUNDRED (100) piculs of sugar until
Maria Marlina shall die. I further
command in this my addition (Codicil)
that my heir and his heirs of this Lot No.
1392, that they will obey and follow that
should they decide to sell, lease,
mortgage, they cannot negotiate with
others than my near descendants and
my sister."4
Pursuant to the same Codicil, Lot No.
1392 was transferred to the deceased,
Dr.
Jorge
Rabadilla,
and
Transfer
Certificate of Title No. 44498 thereto
issued in his name.
Dr. Jorge Rabadilla died in 1983 and was
survived by his wife Rufina and children
Johnny (petitioner), Aurora, Ofelia and
Zenaida, all surnamed Rabadilla.
On August 21, 1989, Maria Marlena
Coscolluela y Belleza Villacarlos brought
a complaint, docketed as Civil Case No.
5588, before Branch 52 of the Regional
Trial Court in Bacolod City, against the
above-mentioned heirs of Dr. Jorge
Rabadilla, to enforce the provisions of
subject Codicil. The Complaint alleged
that the defendant-heirs violated the
conditions of the Codicil, in that:
1. Lot No. 1392 was mortgaged to the
Philippine National Bank and the Republic
Planters Bank in disregard of the
testatrix's specific instruction to sell,
lease, or mortgage only to the near
descendants and sister of the testatrix.

2. Defendant-heirs failed to comply with


their obligation to deliver one hundred
(100) piculs of sugar (75 piculs export
sugar and 25 piculs domestic sugar) to
plaintiff Maria Marlena Coscolluela y
Belleza from sugar crop years 1985 up to
the filing of the complaint as mandated
by the Codicil, despite repeated demands
for compliance.
3. The banks failed to comply with the
6th paragraph of the Codicil which
provided that in case of the sale, lease,
or mortgage of the property, the buyer,
lessee, or mortgagee shall likewise have
the obligation to deliver 100 piculs of
sugar per crop year to herein private
respondent.
The plaintiff then prayed that judgment
be rendered ordering defendant-heirs to
reconvey/return-Lot No. 1392 to the
surviving heirs of the late Aleja Belleza,
the cancellation of TCT No. 44498 in the
name of the deceased, Dr. Jorge
Rabadilla, and the issuance of a new
certificate of title in the names of the
surviving heirs of the late Aleja Belleza.
On February 26, 1990, the defendantheirs 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 defendantheirs, arrived at an amicable settlement
and entered into a Memorandum of
Agreement on the obligation to deliver
one hundred piculs of sugar, to the
following effect:

"That for crop year 1988-89, the annuity


mentioned in Entry No. 49074 of TCT No.
44489 will be delivered not later than
January of 1989, more specifically, to wit:
75 piculs of 'A' sugar, and 25 piculs of 'B'
sugar, or then existing in any of our
names, Mary Rose Rabadilla y Azurin or
Alan Azurin, during December of each
sugar crop year, in Azucar Sugar Central;
and, this is considered compliance of the
annuity as mentioned, and in the same
manner will compliance of the annuity be
in the next succeeding crop years.
That the annuity above stated for crop
year 1985-86, 1986-87, and 1987-88, will
be complied in cash equivalent of the
number of piculs as mentioned therein
and which is as herein agreed upon,
taking into consideration the composite
price of sugar during each sugar crop
year, which is in the total amount of ONE
HUNDRED
FIVE
THOUSAND
PESOS
(P105,000.00).
That the above-mentioned amount will
be paid or delivered on a staggered cash
installment, payable on or before the end
of December of every sugar crop year, to
wit:
For 1985-86, TWENTY SIX THOUSAND
TWO HUNDRED FIFTY (P26,250.00)
Pesos, payable on or before December of
crop year 1988-89;
For 1986-87, TWENTY SIX THOUSAND
TWO HUNDRED FIFTY (P26,250.00)
Pesos, payable on or before December of
crop year 1989-90;
For 1987-88, TWENTY SIX THOUSAND
TWO HUNDRED FIFTY (P26,250.00)
Pesos, payable on or before December of
crop year 1990-91; and
For 1988-89, TWENTY SIX THOUSAND
TWO HUNDRED FIFTY (P26,250.00)
Pesos, payable on or before December of
crop year 1991-92."5

However, there was no compliance with


the
aforesaid
Memorandum
of
Agreement except for a partial delivery
of 50.80 piculs of sugar corresponding to
sugar crop year 1988 -1989.
On July 22, 1991, the Regional Trial Court
came out with a decision, dismissing the
complaint and disposing as follows:
"WHEREFORE, in the light of the
aforegoing findings, the Court finds that
the action is prematurely filed as no
cause of action against the defendants
has as yet arose in favor of plaintiff.
While there maybe the non-performance
of the command as mandated exaction
from them simply because they are the
children of Jorge Rabadilla, the title
holder/owner of the lot in question, does
not warrant the filing of the present
complaint. The remedy at bar must fall.
Incidentally, being in the category as
creditor of the left estate, it is opined
that plaintiff may initiate the intestate
proceedings, if only to establish the heirs
of Jorge Rabadilla and in order to give full
meaning and semblance to her claim
under the Codicil.
In the light of the aforegoing findings, the
Complaint being prematurely filed is
DISMISSED without prejudice.
SO ORDERED."6
On appeal by plaintiff, the First Division
of the Court of Appeals reversed the
decision of the trial court; ratiocinating
and ordering thus:
"Therefore, the evidence on record
having established plaintiff-appellant's
right to receive 100 piculs of sugar
annually out of the produce of Lot No.
1392; defendants-appellee's obligation
under Aleja Belleza's codicil, as heirs of
the modal heir, Jorge Rabadilla, to deliver
such amount of sugar to plaintiffappellant;
defendants-appellee's

admitted non-compliance with said


obligation since 1985; and, the punitive
consequences enjoined by both the
codicil and the Civil Code, of seizure of
Lot No. 1392 and its reversion to the
estate of Aleja Belleza in case of such
non-compliance, this Court deems it
proper to order the reconveyance of title
over Lot No. 1392 from the estates of
Jorge Rabadilla to the estate of Aleja
Belleza. However, plaintiff-appellant must
institute separate proceedings to re-open
Aleja Belleza's estate, secure the
appointment of an administrator, and
distribute Lot No. 1392 to Aleja Belleza's
legal heirs in order to enforce her right,
reserved to her by the codicil, to receive
her legacy of 100 piculs of sugar per year
out of the produce of Lot No. 1392 until
she dies.
Accordingly, the decision appealed from
is SET ASIDE and another one entered
ordering defendants-appellees, as heirs
of Jorge Rabadilla, to reconvey title over
Lot No. 1392, together with its fruits and
interests, to the estate of Aleja Belleza.
SO ORDERED."7
Dissatisfied with the aforesaid disposition
by the Court of Appeals, petitioner found
his way to this Court via the present
petition, contending that the Court of
Appeals erred in ordering the reversion of
Lot 1392 to the estate of the testatrix
Aleja Belleza on the basis of paragraph 6
of the Codicil, and in ruling that the
testamentary institution of Dr. Jorge
Rabadilla is a modal institution within the
purview of Article 882 of the New Civil
Code.
The petition is not impressed with merit.
Petitioner contends that the Court of
Appeals erred in resolving the appeal in
accordance with Article 882 of the New
Civil Code on modal institutions and in
deviating from the sole issue raised
which is the absence or prematurity of

the cause of action. Petitioner maintains


that Article 882 does not find application
as there was no modal institution and the
testatrix intended a mere simple
substitution - i.e. the instituted heir, Dr.
Jorge Rabadilla, was to be substituted by
the testatrix's "near descendants" should
the obligation to deliver the fruits to
herein private respondent be not
complied with. And since the testatrix
died single and without issue, there can
be no valid substitution and such
testamentary provision cannot be given
any effect.
The petitioner theorizes further that
there can be no valid substitution for the
reason that the substituted heirs are not
definite, as the substituted heirs are
merely referred to as "near descendants"
without a definite identity or reference as
to who are the "near descendants" and
therefore, under Articles 8438 and 8459
of the New Civil Code, the substitution
should be deemed as not written.
The contentions of petitioner are
untenable. Contrary to his supposition
that the Court of Appeals deviated from
the issue posed before it, which was the
propriety of the dismissal of the
complaint on the ground of prematurity
of cause of action, there was no such
deviation. The Court of Appeals found
that the private respondent had a cause
of action against the petitioner. The
disquisition made on modal institution
was, precisely, to stress that the private
respondent had a legally demandable
right against the petitioner pursuant to
subject Codicil; on which issue the Court
of Appeals ruled in accordance with law.
It is a general rule under the law on
succession that successional rights are
transmitted from the moment of death of
the decedent10 and compulsory heirs are
called to succeed by operation of law.
The legitimate children and descendants,
in relation to their legitimate parents,
and the widow or widower, are

compulsory heirs.11 Thus, the petitioner,


his mother and sisters, as compulsory
heirs of the instituted heir, Dr. Jorge
Rabadilla, succeeded the latter by
operation of law, without need of further
proceedings, and the successional rights
were transmitted to them from the
moment of death of the decedent, Dr.
Jorge Rabadilla.
Under Article 776 of the New Civil Code,
inheritance includes all the property,
rights and obligations of a person, not
extinguished by his death. Conformably,
whatever rights Dr. Jorge Rabadilla had
by virtue of subject Codicil were
transmitted to his forced heirs, at the
time of his death. And since obligations
not extinguished by death also form part
of the estate of the decedent; corollarily,
the obligations imposed by the Codicil on
the deceased Dr. Jorge Rabadilla, were
likewise transmitted to his compulsory
heirs upon his death.
In the said Codicil, testatrix Aleja Belleza
devised Lot No. 1392 to Dr. Jorge
Rabadilla, subject to the condition that
the usufruct thereof would be delivered
to the herein private respondent every
year. Upon the death of Dr. Jorge
Rabadilla,
his
compulsory
heirs
succeeded to his rights and title over the
said property, and they also assumed his
(decedent's) obligation to deliver the
fruits of the lot involved to herein private
respondent. Such obligation of the
instituted heir reciprocally corresponds to
the right of private respondent over the
usufruct, the fulfillment or performance
of which is now being demanded by the
latter through the institution of the case
at bar. Therefore, private respondent has
a cause of action against petitioner and
the trial court erred in dismissing the
complaint below.
Petitioner also theorizes that Article 882
of the New Civil Code on modal
institutions is not applicable because
what the testatrix intended was a

substitution - Dr. Jorge Rabadilla was to


be substituted by the testatrix's near
descendants
should
there
be
noncompliance with the obligation to
deliver the piculs of sugar to private
respondent.
Again, the contention is without merit.
Substitution is the designation by the
testator of a person or persons to take
the place of the heir or heirs first
instituted. Under substitutions in general,
the testator may either (1) provide for
the designation of another heir to whom
the property shall pass in case the
original heir should die before him/her,
renounce
the
inheritance
or
be
incapacitated to inherit, as in a simple
substitution,12 or (2) leave his/her
property to one person with the express
charge
that
it
be
transmitted
subsequently to another or others, as in
a fideicommissary substitution.13 The
Codicil sued upon contemplates neither
of the two.
In simple substitutions, the second heir
takes the inheritance in default of the
first heir by reason of incapacity,
predecease or renunciation.14 In the
case under consideration, the provisions
of subject Codicil do not provide that
should Dr. Jorge Rabadilla default due to
predecease, incapacity or renunciation,
the testatrix's near descendants would
substitute him. What the Codicil provides
is that, should Dr. Jorge Rabadilla or his
heirs not fulfill the conditions imposed in
the Codicil, the property referred to shall
be seized and turned over to the
testatrix's near descendants.
Neither is there a fideicommissary
substitution here and on this point,
petitioner is correct. In a fideicommissary
substitution, the first heir is strictly
mandated to preserve the property and
to transmit the same later to the second
heir.15 In the case under consideration,
the instituted heir is in fact allowed under

the Codicil to alienate the property


provided the negotiation is with the near
descendants or the sister of the testatrix.
Thus, a very important element of a
fideicommissary substitution is lacking;
the obligation clearly imposing upon the
first heir the preservation of the property
and its transmission to the second heir.
"Without this obligation to preserve
clearly imposed by the testator in his will,
there
is
no
fideicommissary
substitution."16
Also,
the
near
descendants' right to inherit from the
testatrix is not definite. The property will
only pass to them should Dr. Jorge
Rabadilla or his heirs not fulfill the
obligation to deliver part of the usufruct
to private respondent.
Another
important
element
of
a
fideicommissary substitution is also
missing here. Under Article 863, the
second heir or the fideicommissary to
whom the property is transmitted must
not be beyond one degree from the first
heir or the fiduciary. A fideicommissary
substitution is therefore, void if the first
heir is not related by first degree to the
second heir.17 In the case under
scrutiny, the near descendants are not at
all related to the instituted heir, Dr. Jorge
Rabadilla.
The Court of Appeals erred not in ruling
that the institution of Dr. Jorge Rabadilla
under subject Codicil is in the nature of a
modal institution and therefore, Article
882 of the New Civil Code is the provision
of law in point. Articles 882 and 883 of
the New Civil Code provide:
Art. 882. The statement of the object of
the institution or the application of the
property left by the testator, or the
charge imposed on him, shall not be
considered as a condition unless it
appears that such was his intention.
That which has been left in this manner
may be claimed at once provided that
the instituted heir or his heirs give

security for compliance with the wishes


of the testator and for the return of
anything he or they may receive,
together with its fruits and interests, if he
or they should disregard this obligation.
Art. 883. When without the fault of the
heir, an institution referred to in the
preceding article cannot take effect in
the exact manner stated by the testator,
it shall be complied with in a manner
most analogous to and in conformity with
his wishes.
The institution of an heir in the manner
prescribed in Article 882 is what is known
in the law of succession as an institucion
sub modo or a modal institution. In a
modal institution, the testator states (1)
the object of the institution, (2) the
purpose or application of the property
left by the testator, or (3) the charge
imposed by the testator upon the heir.18
A "mode" imposes an obligation upon the
heir or legatee but it does not affect the
efficacy of his rights to the succession.19
On the other hand, in a conditional
testamentary disposition, the condition
must happen or be fulfilled in order for
the heir to be entitled to succeed the
testator. The condition suspends but
does not obligate; and the mode
obligates but does not suspend.20 To
some extent, it is similar to a resolutory
condition.21
From the provisions of the Codicil
litigated upon, it can be gleaned
unerringly that the testatrix intended
that subject property be inherited by Dr.
Jorge Rabadilla. It is likewise clearly
worded that the testatrix imposed an
obligation on the said instituted heir and
his successors-in-interest to deliver one
hundred piculs of sugar to the herein
private respondent, Marlena Coscolluela
Belleza, during the lifetime of the latter.
However, the testatrix did not make Dr.
Jorge Rabadilla's inheritance and the
effectivity of his institution as a devisee,
dependent on the performance of the

said obligation. It is clear, though, that


should the obligation be not complied
with, the property shall be turned over to
the testatrix's near descendants. The
manner of institution of Dr. Jorge
Rabadilla under subject Codicil is
evidently modal in nature because it
imposes a charge upon the instituted heir
without, however, affecting the efficacy
of such institution.
Then too, since testamentary dispositions
are generally acts of liberality, an
obligation imposed upon the heir should
not be considered a condition unless it
clearly appears from the Will itself that
such was the intention of the testator. In
case of doubt, the institution should be
considered
as
modal
and
not
conditional.22
Neither is there tenability in the other
contention of petitioner that the private
respondent has only a right of usufruct
but not the right to seize the property
itself from the instituted heir because the
right to seize was expressly limited to
violations by the buyer, lessee or
mortgagee.
In the interpretation of Wills, when an
uncertainty arises on the face of the Will,
as to the application of any of its
provisions, the testator's intention is to
be ascertained from the words of the
Will, taking into consideration the
circumstances under which it was
made.23 Such construction as will
sustain and uphold the Will in all its parts
must be adopted.24
Subject Codicil
provides that the
instituted heir is under obligation to
deliver One Hundred (100) piculs of
sugar
yearly
to
Marlena
Belleza
Coscuella. Such obligation is imposed on
the instituted heir, Dr. Jorge Rabadilla, his
heirs, and their buyer, lessee, or
mortgagee should they sell, lease,
mortgage or otherwise negotiate the
property involved. The Codicil further

provides that in the event that the


obligation to deliver the sugar is not
respected, Marlena Belleza Coscuella
shall seize the property and turn it over
to the testatrix's near descendants. The
non-performance of the said obligation is
thus with the sanction of seizure of the
property and reversion thereof to the
testatrix's near descendants. Since the
said obligation is clearly imposed by the
testatrix, not only on the instituted heir
but also on his successors-in-interest, the
sanction imposed by the testatrix in case
of non-fulfillment of said obligation
should equally apply to the instituted heir
and his successors-in-interest.
Similarly unsustainable is petitioner's
submission that by virtue of the amicable
settlement, the said obligation imposed
by the Codicil has been assumed by the
lessee,
and
whatever
obligation
petitioner had become the obligation of
the lessee; that petitioner is deemed to
have
made
a
substantial
and
constructive compliance of his obligation
through the consummated settlement
between the lessee and the private
respondent, and having consummated a
settlement with the petitioner, the
recourse of the private respondent is the
fulfillment of the obligation under the
amicable settlement and not the seizure
of subject property.
Suffice it to state that a Will is a personal,
solemn, revocable and free act by which
a person disposes of his property, to take
effect after his death.25 Since the Will
expresses the manner in which a person
intends how his properties be disposed,
the wishes and desires of the testator
must be strictly followed. Thus, a Will
cannot be the subject of a compromise
agreement which would thereby defeat
the very purpose of making a Will.
WHEREFORE, the petition is hereby
DISMISSED and the decision of the Court
of Appeals, dated December 23, 1993, in

CA-G.R. No. CV-35555 AFFIRMED. No


pronouncement as to costs
SO ORDERED.

ARTICLE 791
EN BANC
G.R. No. L-10763

April 29, 1961

DELFIN YAMBAO, plaintiff-appellant,


vs.
ANGELINA
GONZALES,
ET
defendants-appellees.

AL.,

Marcial
G.
Mendiola
for
plaintiffappellant.
Onofre P. Guevara for defendantsappellees.
BAUTISTA ANGELO, J.:
This is an action filed by Delfin Yambao
against Angelina Gonzales and Maria
Pablo praying that the latter be ordered
to appoint and employ him as tenant
during his lifetime on the parcels of land
bequeathed to and inherited by them
from Maria Gonzales, as well as to deliver
to him the value of the harvests
belonging to him as tenant of said
parcels of land. In their answer,
defendants averred that the provisions of
the will relied upon by plaintiff is not
mandatory; that the determination of
who should be the tenant of the land is
vested in a special court; and that the
present action is not the proper remedy.
After trial, the court dismissed the
complaint for lack of sufficient cause of
action. It held that the provisions of the
will relied upon by plaintiff merely
amount to a suggestion to the
defendants who, though morally bound,
are not legally compelled to follow said
suggestion, invoking as authority Article

797 of the old Civil Code. Plaintiff has


appealed.
The pertinent provisions of the will relied
upon by appellant read as follows:
Dapat din naman malaman ng dalawa
kong tagapagmana na sila MARIA PABLO
at ANGELINA GONZALES na sila ay may
dapat TUNGKULIN O GANGPANAN GAYA
ng mga sumusunod:
xxx

xxx

xxx

(2) Pahihintulutan nila na si Delfin


Yambao ang makapagtrabajo ng bukid
habang panahon, at ang nasabing bukid
ay isasailalim ng pamamahala ng
Albasea samantalang ang bukid ay nasa
usapin at may utang pa.
It appears that on August 10, 1942, Maria
Gonzales executed a will bequeathing to
appellees all her properties situated in
Sta. Rosa, Laguna. The will was probated
in
1948.
Immediately,
thereafter,
appellant went to appellees to request
that he be placed as tenant of the
riceland which, by an express provision
of said will, they were directed to give to
him for cultivation, as tenant, and when
they refused alleging that they had
already given it to another tenant he filed
the present action.
In holding that the provisions of the will
relied upon by appellant imposes only a
moral but not a legal obligation, the trial
court went on to consider the import of
the word "Pahihintulutan" employed with
reference to appellant. In its opinion said
word only means to permit or to allow,
but not to direct appellees to appoint
appellant as tenant. Rather, it opines, it
merely contains a suggestion to employ
because the testatrix did not use the
words "ipinaguutos ko" which she used in
connection with other provisions of the
will, so that there is no clear indication
that it was her intention to make such
provision compulsory.

We believe, however, that the trial court


has not properly interpreted the real
import of the wish of the testatrix.
Analyzing it carefully we will find that the
same contains a clear directive to employ
appellant as may be seen from the words
preceding the word "pahihintulutan",
which say: "Dapat din naman malaman
ng dalawa kong tagapagmana na sila
MARIA PABLO at ANGELINA GONZALES na
sila ay may dapat TUNGKULIN O
GANGPANAN GAYA ng mga sumusunod."
The
words
'dapat
TUNGKULIN
O
GANGPANAN" mean to do or to carry out
as a mandate or directive, and having
reference to the word "pahihintulutan",
can convey no other meaning than to
impose a duty upon appellees. To follow
the interpretation given by the trial court
would be to devoid the wish of the
testatrix of its real and true meaning.
Article 797 of the old Civil Code, invoked
by the trial court, is inapplicable. That
refers to an institution of an heir
intended to be conditional by providing
that a statement to the effect cannot be
considered as a condition unless it
appears clearly that such is the intention
of the testator. We are not faced here
with any conditional institution of
heirship. What we have is a clear-cut
mandate which the heirs cannot fail to
carry out.
WHEREFORE, the decision appealed from
is reversed. Appellees are hereby ordered
to
employ
appellant
as
tenant
immediately after this decision has
become final. Costs against appellees.
Bengzon,
C.J.,
Padilla,
Labrador,
Concepcion,
Reyes,
J.B.L.,
Barrera,
Paredes and Dizon, JJ., concur.

ARTICLE 795
In Re Will of RIOSA*
EN BANC
G.R. No. L-7188

August 9, 1954

In re: Will and Testament of the deceased


REVEREND SANCHO ABADIA.
SEVERINA A. VDA. DE ENRIQUEZ, ET AL.,
petitioners-appellees,
vs.
MIGUEL ABADIA, ET AL., oppositorsappellants.
Manuel A. Zosa, Luis B. Ladonga, Mariano
A. Zosa and B. G. Advincula for
appellants.
C. de la Victoria for appellees.
MONTEMAYOR, J.:
On September 6, 1923, Father Sancho
Abadia, parish priest of Talisay, Cebu,
executed a document purporting to be

his Last Will and Testament now marked


Exhibit "A". Resident of the City of Cebu,
he died on January 14, 1943, in the
municipality of Aloguinsan, Cebu, where
he was an evacuee. He left properties
estimated at P8,000 in value. On October
2, 1946, one Andres Enriquez, one of the
legatees in Exhibit "A", filed a petition for
its probate in the Court of First Instance
of Cebu. Some cousins and nephews who
would inherit the estate of the deceased
if he left no will, filed opposition.
During the hearing one of the attesting
witnesses, the other two being dead,
testified without contradiction that in his
presence and in the presence of his cowitnesses, Father Sancho wrote out in
longhand Exhibit "A" in Spanish which
the testator spoke and understood; that
he (testator) signed on he left hand
margin of the front page of each of the
three folios or sheets of which the
document is composed, and numbered
the same with Arabic numerals, and
finally signed his name at the end of his
writing at the last page, all this, in the
presence of the three attesting witnesses
after telling that it was his last will and
that the said three witnesses signed their
names on the last page after the
attestation clause in his presence and in
the presence of each other. The
oppositors did not submit any evidence.
The learned trial court found and
declared Exhibit "A" to be a holographic
will; that it was in the handwriting of the
testator and that although at the time it
was executed and at the time of the
testator's death, holographic wills were
not permitted by law still, because at the
time of the hearing and when the case
was to be decided the new Civil Code
was already in force, which Code
permitted the execution of holographic
wills, under a liberal view, and to carry
out the intention of the testator which
according to the trial court is the
controlling factor and may override any
defect in form, said trial court by order

dated January 24, 1952, admitted to


probate Exhibit "A", as the Last Will and
Testament of Father Sancho Abadia. The
oppositors are appealing from that
decision; and because only questions of
law are involved in the appeal, the case
was certified to us by the Court of
Appeals.
The new Civil Code (Republic Act No.
386) under article 810 thereof provides
that a person may execute a holographic
will which must be entirely written, dated
and signed by the testator himself and
need not be witnessed. It is a fact,
however, that at the time that Exhibit "A"
was executed in 1923 and at the time
that Father Abadia died in 1943,
holographic wills were not permitted, and
the law at the time imposed certain
requirements for the execution of wills,
such as numbering correlatively each
page (not folio or sheet) in letters and
signing on the left hand margin by the
testator and by the three attesting
witnesses, requirements which were not
complied with in Exhibit "A" because the
back pages of the first two folios of the
will were not signed by any one, not even
by the testator and were not numbered,
and as to the three front pages, they
were signed only by the testator.
Interpreting
and
applying
this
requirement this Court in the case of In
re Estate of Saguinsin, 41 Phil., 875, 879,
referring to the failure of the testator and
his witnesses to sign on the left hand
margin of every page, said:
. . . . This defect is radical and totally
vitiates the testament. It is not enough
that
the
signatures
guaranteeing
authenticity should appear upon two
folios or leaves; three pages having been
written on, the authenticity of all three of
them should be guaranteed by the
signature of the alleged testatrix and her
witnesses.

And in the case of Aspe vs. Prieto, 46


Phil., 700, referring to the same
requirement, this Court declared:
From an examination of the document in
question, it appears that the left margins
of the six pages of the document are
signed only by Ventura Prieto. The
noncompliance with section 2 of Act No.
2645 by the attesting witnesses who
omitted to sign with the testator at the
left margin of each of the five pages of
the document alleged to be the will of
Ventura Prieto, is a fatal defect that
constitutes an obstacle to its probate.
What is the law to apply to the probate of
Exh. "A"? May we apply the provisions of
the new Civil Code which not allows
holographic wills, like Exhibit "A" which
provisions were invoked by the appelleepetitioner and applied by the lower
court? But article 795 of this same new
Civil Code expressly provides: "The
validity of a will as to its form depends
upon the observance of the law in force
at the time it is made." The above
provision is but an expression or
statement of the weight of authority to
the affect that the validity of a will is to
be judged not by the law enforce at the
time of the testator's death or at the time
the supposed will is presented in court
for probate or when the petition is
decided by the court but at the time the
instrument was executed. One reason in
support of the rule is that although the
will operates upon and after the death of
the testator, the wishes of the testator
about the disposition of his estate among
his heirs and among the legatees is given
solemn expression at the time the will is
executed, and in reality, the legacy or
bequest then becomes a completed act.
This ruling has been laid down by this
court in the case of In re Will of Riosa, 39
Phil., 23. It is a wholesome doctrine and
should be followed.
Of course, there is the view that the
intention of the testator should be the

ruling and controlling factor and that all


adequate remedies and interpretations
should be resorted to in order to carry
out said intention, and that when
statutes passed after the execution of
the will and after the death of the
testator lessen the formalities required
by law for the execution of wills, said
subsequent statutes should be applied so
as to validate wills defectively executed
according to the law in force at the time
of execution. However, we should not
forget that from the day of the death of
the testator, if he leaves a will, the title
of the legatees and devisees under it
becomes a vested right, protected under
the
due
process
clause
of
the
constitution
against
a
subsequent
change in the statute adding new legal
requirements of execution of wills which
would invalidate such a will. By parity of
reasoning, when one executes a will
which is invalid for failure to observe and
follow the legal requirements at the time
of its execution then upon his death he
should be regarded and declared as
having died intestate, and his heirs will
then inherit by intestate succession, and
no subsequent law with more liberal
requirements or which dispenses with
such requirements as to execution should
be allowed to validate a defective will
and thereby divest the heirs of their
vested rights in the estate by intestate
succession. The general rule is that the
Legislature can not validate void wills (57
Am. Jur., Wills, Sec. 231, pp. 192-193).
In view of the foregoing, the order
appealed from is reversed, and Exhibit
"A" is denied probate. With costs.
Paras, C.J., Pablo, Bengzon, Padilla,
Reyes, A., Jugo, Bautista Angelo,
Labrador, Concepcion and Reyes J.B.L.,
JJ., concur.

4th. That on April 15, 1946, the


surviving spouse Catalina Navarro Vda.
de Winstanley sold the entire parcel of
land to the spouses Maria Canoy, alleging
among other things, that she needed
money for the support of her children;

EN BANC
G.R. No. L-5064
1953

February 27,

BIENVENIDO
A.
IBARLE,
plaintiffappellant,
vs.
ESPERANZA M. PO, defendant-appellant.
Quirico del Mar for appellant.
Daniel P. Tumulak and Conchita F. Miel
appellee.
TUASON, J.:
This action commenced in the Court of
First Instance of Cebu to annul a deed of
sale conveying to the defendant, in
consideration of P1,700, one undivided
half of a parcel of land which previously
had been sold, along with the other half,
by the same vendor to the plaintiff's
grantors. judgment was against the
plaintiff.
The case was submitted for decision
upon an agreed statement of facts, the
pertinent parts of which are thus
summarized in the appealed decision:
1st. That Leonard j. Winstanley and
Catalina Navarro were husband and wife,
the former having died on June 6, 1946
leaving heir the surviving spouse and
some minor children;
2nd. hat upon the death of L.J.
Winstanley, he left a parcel of land
described under Transfer Certificate of
title No. 2391 of the Registry of Deeds of
the Province of Cebu;
3rd. That the above mentioned
property was a conjugal property;

5th. That on May 24, 1947, the


spouses Maria Canoy and Roberto Canoy
sold the same parcel of land to the
plaintiff in this case named Bienvenido A.
Ebarle;
6th. That the two deeds of sale
referred to above were not registered
and have never been registered up to the
date;
7th. That on January 17, 1948
surviving spouse Catalina Navarro Vda.
de Winstanley, after her appointment as
guardian of her children by this court
(Special proceeding no. 212-R) sold onehalf of the land mentioned above to
Esperanza M. Po, defendant in the instant
case, which portion belongs to the
children of the above named spouses.
As stated by the trial Judge, the sole
question for determination is the validity
of the sale to Esperanza M. Po, the last
purchaser. This question in turn depends
upon the validity of the prior ale to Maria
Canoy and Roberto Canoy.
Article 657 of the old Civil Code provides:
"The rights to the succession of a person
are transmitted from the moment of his
death." in a slightly different language,
this article is incorporated in the new
Civil Code as article 777.
Manresa, commending on article 657 of
the Civil Code of Spain, says:
The moment of death is the determining
factor when the heirs acquire a definite
right to the inheritance, whether such
right be pure or contingent. It is
immaterial whether a short or long
period of time lapses between the death

of the predecessor and the entry into


possession of the property of the
inheritance because the right is always
deemed to be retroactive from the
moment of death. (5 Manresa, 317.)
The above provision and comment make
it clear that when Catalina Navarro Vda.
de Winstanley sold the entire parcel to
the Canoy spouses, one-half of it already
belonged to the seller's children. No
formal or judicial declaration being
needed to confirm the children's title, it
follows that the first sale was null and
void in so far as it included the children's
share.
On the other hand, the sale to the
defendant having been made by
authority of the competent court was
undeniably legal and effective. The fact
that it has not been recorded is of no
consequence.
If
registration
were
necessary, still the non-registration
would not avail the plaintiff because it
was due to no other cause than his own
opposition.
The decision will be affirmed subject to
the reservation, made in said decision, of
the right of the plaintitff and/or the
Canoy spouses to bring such action
against Catalina Navarro Vda. de
Winstanley as may be appropriate for
such damages as they may have incurred
by reason of the voiding of the sale in
their favor.
Paras, C.J., Feria, Pablo, Bengzon, Padilla,
Montemayor, Reyes, Jugo, Bautista
Angelo and Labrador, JJ., concur.

Abada died sometime in May 1940.4 His


widow Paula Toray ("Toray") died
sometime in September 1943. Both died
without legitimate children.
On 13 September 1968, Alipio C. Abaja
("Alipio") filed with the then Court of First
Instance of Negros Occidental (now RTCKabankalan) a petition,5 docketed as SP
No. 070 (313-8668), for the probate of
the last will and testament ("will") of
Abada. Abada allegedly named as his
testamentary heirs his natural children
Eulogio Abaja ("Eulogio") and Rosario
Cordova. Alipio is the son of Eulogio.

FIRST DIVISION
G.R. No. 147145

January 31, 2005

TESTATE ESTATE OF THE LATE ALIPIO


ABADA, BELINDA CAPONONG-NOBLE,
petitioner,
vs.
ALIPIO ABAJA and NOEL ABELLAR,
respondents.
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for review1
assailing the Decision2 of the Court of
Appeals of 12 January 2001 in CA-G.R. CV
No. 47644. The Court of Appeals
sustained the Resolution3 of the Regional
Trial Court of Kabankalan, Negros
Occidental,
Branch
61
("RTCKabankalan"), admitting to probate the
last will and testament of Alipio Abada
("Abada").
The Antecedent Facts

Nicanor Caponong ("Caponong") opposed


the petition on the ground that Abada left
no will when he died in 1940. Caponong
further alleged that the will, if Abada
really executed it, should be disallowed
for the following reasons: (1) it was not
executed and attested as required by
law; (2) it was not intended as the last
will of the testator; and (3) it was
procured by undue and improper
pressure and influence on the part of the
beneficiaries. Citing the same grounds
invoked by Caponong, the alleged
intestate heirs of Abada, namely, Joel,
Julian,
Paz,
Evangeline,
Geronimo,
Humberto, Teodora and Elena Abada
("Joel Abada, et al."), and Levi, Leandro,
Antonio, Florian, Hernani and Carmela
Tronco ("Levi Tronco, et al."), also
opposed the petition. The oppositors are
the nephews, nieces and grandchildren
of Abada and Toray.
On 13 September 1968, Alipio filed
another petition6 before the RTCKabankalan, docketed as SP No. 071
(312-8669), for the probate of the last
will and testament of Toray. Caponong,
Joel Abada, et al., and Levi Tronco, et al.
opposed the petition on the same
grounds they cited in SP No. 070 (3138668).

On 20 September 1968, Caponong filed a


petition7 before the RTC-Kabankalan,
docketed as SP No. 069 (309), praying for
the issuance in his name of letters of
administration of the intestate estate of
Abada and Toray.
In an Order dated 14 August 1981,
RTC-Kabankalan admitted to probate
will of Toray. Since the oppositors did
file any motion for reconsideration,
order allowing the probate of Torays
became final and executory.8

the
the
not
the
will

discharge his duties as such after letters


of administration shall have been issued
in his favor and after taking his oath and
filing a bond in the amount of Ten
Thousand (P10,000.00) Pesos.
Mrs. Belinda C. Noble, the present
administratrix of the estate of Alipio
Abada shall continue discharging her
duties as such until further orders from
this Court.
SO ORDERED.12

In an order dated 23 November 1990, the


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

The RTC-Kabankalan ruled on the only


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

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

Not satisfied with the Resolution,


Caponong-Noble filed a notice of appeal.

There having been sufficient notice to the


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

Hence,
the
present
Caponong-Noble.

As prayed for by counsel, Noel


Abbellar11 is appointed administrator of
the estate of Paula Toray who shall

3. Whether the will must expressly state


that it is written in a language or dialect
known to the testator;

In a Decision promulgated on 12 January


2001, the Court of Appeals affirmed the
Resolution of the RTC-Kabankalan. The
appellate court found that the RTCKabankalan properly admitted to probate
the will of Abada.
recourse

by

The Issues
The petition raises the following issues:
1. What laws apply to the probate of the
last will of Abada;
2. Whether the will of Abada requires
acknowledgment
before
a
notary
public;13

4. Whether the will of Abada has an


attestation clause, and if so, whether the
attestation clause complies with the
requirements of the applicable laws;
5. Whether Caponong-Noble is precluded
from raising the issue of whether the will
of Abada is written in a language known
to Abada;
6. Whether evidence aliunde may be
resorted to in the probate of the will of
Abada.
The Ruling of the Court
The Court of Appeals did not err in
sustaining
the
RTC-Kabankalan
in
admitting to probate the will of Abada.
The Applicable Law
Abada executed his will on 4 June 1932.
The laws in force at that time are the
Civil Code of 1889 or the Old Civil Code,
and Act No. 190 or the Code of Civil
Procedure14
which
governed
the
execution of wills before the enactment
of the New Civil Code.
The matter in dispute in the present case
is the attestation clause in the will of
Abada. Section 618 of the Code of Civil
Procedure, as amended by Act No.
2645,15 governs the form of the
attestation clause of Abadas will.16
Section 618 of the Code of Civil
Procedure, as amended, provides:
SEC. 618. Requisites of will. No will,
except as provided in the preceding
section,17 shall be valid to pass any
estate, real or personal, nor charge or
affect the same, unless it be written in
the language or dialect known by the
testator and signed by him, or by the
testators name written by some other
person in his presence, and by his
express direction, and attested and
subscribed by three or more credible

witnesses in the presence of the testator


and of each other. The testator or the
person requested by him to write his
name and the instrumental witnesses of
the will, shall also sign, as aforesaid,
each and every page thereof, on the left
margin, and said pages shall be
numbered correlatively in letters placed
on the upper part of each sheet. The
attestation shall state the number of
sheets or pages used, upon which the
will is written, and the fact that the
testator signed the will and every page
thereof, or caused some other person to
write his name, under his express
direction, in the presence of three
witnesses, and the latter witnessed and
signed the will and all pages thereof in
the presence of the testator and of each
other.
Requisites of a Will under the Code of
Civil Procedure
Under Section 618 of the Code of Civil
Procedure, the requisites of a will are the
following:
(1) The will must be written in the
language or dialect known by the
testator;
(2) The will must be signed by the
testator, or by the testators name
written by some other person in his
presence, and by his express direction;
(3) The will must be attested and
subscribed by three or more credible
witnesses in the presence of the testator
and of each other;
(4) The testator or the person requested
by him to write his name and the
instrumental witnesses of the will must
sign each and every page of the will on
the left margin;
(5) The pages of the will must be
numbered correlatively in letters placed
on the upper part of each sheet;

(6) The attestation shall state the


number of sheets or pages used, upon
which the will is written, and the fact that
the testator signed the will and every
page of the will, or caused some other
person to write his name, under his
express direction, in the presence of
three witnesses, and the witnesses
witnessed and signed the will and all
pages of the will in the presence of the
testator and of each other.
Caponong-Noble asserts that the will of
Abada does not indicate that it is written
in a language or dialect known to the
testator. Further, she maintains that the
will is not acknowledged before a notary
public. She cites in particular Articles 804
and 805 of the Old Civil Code, thus:
Art. 804. Every will must be in writing
and executed in [a] language or dialect
known to the testator.
Art.
806.
Every
will
must
be
acknowledged before a notary public by
the testator and the witnesses. xxx18
Caponong-Noble actually cited Articles
804 and 806 of the New Civil Code.19
Article 804 of the Old Civil Code is about
the
rights
and
obligations
of
administrators of the property of an
absentee, while Article 806 of the Old
Civil Code defines a legitime.
Articles 804 and 806 of the New Civil
Code are new provisions. Article 804 of
the New Civil Code is taken from Section
618 of the Code of Civil Procedure.20
Article 806 of the New Civil Code is taken
from Article 685 of the Old Civil Code21
which provides:
Art. 685. The notary and two of the
witnesses who authenticate the will must
be acquainted with the testator, or,
should they not know him, he shall be
identified by two witnesses who are
acquainted with him and are known to

the notary and to the attesting


witnesses. The notary and the witnesses
shall also endeavor to assure themselves
that the testator has, in their judgment,
the legal capacity required to make a
will.
Witnesses authenticating a will without
the attendance of a notary, in cases
falling under Articles 700 and 701, are
also required to know the testator.
However, the Code of Civil Procedure22
repealed Article 685 of the Old Civil
Code. Under the Code of Civil Procedure,
the intervention of a notary is not
necessary in the execution of any will.23
Therefore, Abadas will does not require
acknowledgment
before
a
notary
public.1awphi1.nt
Caponong-Noble points out that nowhere
in the will can one discern that Abada
knew the Spanish language. She alleges
that such defect is fatal and must result
in the disallowance of the will. On this
issue, the Court of Appeals held that the
matter was not raised in the motion to
dismiss, and that it is now too late to
raise the issue on appeal. We agree with
Caponong-Noble that the doctrine of
estoppel does not apply in probate
proceedings.24 In addition, the language
used in the will is part of the requisites
under Section 618 of the Code of Civil
Procedure and the Court deems it proper
to pass upon this issue.
Nevertheless,
Caponong-Nobles
contention must still fail. There is no
statutory requirement to state in the will
itself that the testator knew the language
or dialect used in the will.25 This is a
matter that a party may establish by
proof aliunde.26 Caponong-Noble further
argues that Alipio, in his testimony, has
failed, among others, to show that Abada
knew or understood the contents of the
will and the Spanish language used in the
will. However, Alipio testified that Abada
used to gather Spanish-speaking people

in their place. In these gatherings, Abada


and his companions would talk in the
Spanish language.27 This sufficiently
proves that Abada speaks the Spanish
language.

every page in the presence of three


witnesses. She then faults the Court of
Appeals for applying to the present case
the rule on substantial compliance found
in Article 809 of the New Civil Code.29

The Attestation Clause of Abadas Will

The first sentence of the attestation


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

A scrutiny of Abadas will shows that it


has an attestation clause. The attestation
clause of Abadas will reads:
Suscrito y declarado por el testador Alipio
Abada como su ultima voluntad y
testamento en presencia de nosotros,
habiendo tambien el testador firmado en
nuestra presencia en el margen izquierdo
de todas y cada una de las hojas del
mismo. Y en testimonio de ello, cada uno
de nosotros lo firmamos en presencia de
nosotros y del testador al pie de este
documento y en el margen izquierdo de
todas y cada una de las dos hojas de que
esta compuesto el mismo, las cuales
estan paginadas correlativamente con las
letras "UNO" y "DOS en la parte superior
de la carrilla.28
Caponong-Noble proceeds to point out
several defects in the attestation clause.
Caponong-Noble
alleges
that
the
attestation clause fails to state the
number of pages on which the will is
written.
The allegation has no merit. The phrase
"en el margen izquierdo de todas y cada
una de las dos hojas de que esta
compuesto el mismo" which means "in
the left margin of each and every one of
the two pages consisting of the same"
shows that the will consists of two pages.
The pages are numbered correlatively
with the letters "ONE" and "TWO" as can
be gleaned from the phrase "las cuales
estan paginadas correlativamente con las
letras "UNO" y "DOS."
Caponong-Noble further alleges that the
attestation clause fails to state expressly
that the testator signed the will and its

However, Caponong-Noble is correct in


saying that the attestation clause does
not indicate the number of witnesses. On
this point, the Court agrees with the
appellate court in applying the rule on
substantial compliance in determining
the number of witnesses. While the
attestation clause does not state the
number of witnesses, a close inspection
of the will shows that three witnesses
signed it.
This Court has applied the rule on
substantial compliance even before the
effectivity of the New Civil Code. In
Dichoso de Ticson v. De Gorostiza,30 the
Court recognized that there are two
divergent tendencies in the law on wills,
one being based on strict construction
and the other on liberal construction. In
Dichoso, the Court noted that Abangan v.
Abangan,31 the basic case on the liberal
construction, is cited with approval in
later decisions of the Court.
In Adeva vda. De Leynez v. Leynez,32 the
petitioner, arguing for liberal construction

of applicable laws, enumerated a long


line of cases to support her argument
while the respondent, contending that
the rule on strict construction should
apply, also cited a long series of cases to
support his view. The Court, after
examining the cases invoked by the
parties, held:
x x x It is, of course, not possible to lay
down a general rule, rigid and inflexible,
which would be applicable to all cases.
More than anything else, the facts and
circumstances of record are to be
considered in the application of any
given
rule.
If
the
surrounding
circumstances
point
to
a
regular
execution of the will, and the instrument
appears
to
have
been
executed
substantially in accordance with the
requirements of the law, the inclination
should, in the absence of any suggestion
of bad faith, forgery or fraud, lean
towards its admission to probate,
although the document may suffer from
some imperfection of language, or other
non-essential defect. x x x.
An attestation clause is made for the
purpose of preserving, in permanent
form, a record of the facts attending the
execution of the will, so that in case of
failure of the memory of the subscribing
witnesses, or other casualty, they may
still be proved. (Thompson on Wills, 2d
ed., sec. 132.) A will, therefore, should
not be rejected where its attestation
clause serves the purpose of the law. x x
x 331a\^/phi1.net
We rule to apply the liberal construction
in the probate of Abadas will. Abadas
will clearly shows four signatures: that of
Abada and of three other persons. It is
reasonable to conclude that there are
three witnesses to the will. The question
on the number of the witnesses is
answered by an examination of the will
itself and without the need for
presentation of evidence aliunde. The

Court explained the extent and limits of


the rule on liberal construction, thus:
[T]he so-called liberal rule does not offer
any puzzle or difficulty, nor does it open
the door to serious consequences. The
later decisions do tell us when and where
to stop; they draw the dividing line with
precision. They do not allow evidence
aliunde to fill a void in any part of the
document or supply missing details that
should
appear
in
the
will
itself.l^vvphi1.net They only permit a
probe into the will, an exploration within
its confines, to ascertain its meaning or
to determine the existence or absence of
the requisite formalities of law. This clear,
sharp limitation eliminates uncertainty
and ought to banish any fear of dire
results.34 (Emphasis supplied)
The phrase "en presencia de nosotros" or
"in our presence" coupled with the
signatures appearing on the will itself
and after the attestation clause could
only mean that: (1) Abada subscribed to
and professed before the three witnesses
that the document was his last will, and
(2) Abada signed the will and the left
margin of each page of the will in the
presence of these three witnesses.
Finally, Caponong-Noble alleges that the
attestation clause does not expressly
state the circumstances that the
witnesses witnessed and signed the will
and all its pages in the presence of the
testator and of each other. This Court has
ruled:
Precision of language in the drafting of
an attestation clause is desirable.
However, it is not imperative that a
parrot-like copy of the words of the
statute be made. It is sufficient if from
the language employed it can reasonably
be deduced that the attestation clause
fulfills what the law expects of it.35
The last part of the attestation clause
states "en testimonio de ello, cada uno

de nosotros lo firmamos en presencia de


nosotros y del testador." In English, this
means "in its witness, every one of us
also signed in our presence and of the
testator." This clearly shows that the
attesting witnesses witnessed the signing
of the will of the testator, and that each
witness signed the will in the presence of
one another and of the testator.
WHEREFORE, we AFFIRM the Decision of
the Court of Appeals of 12 January 2001
in CA-G.R. CV No. 47644.
SO ORDERED.

ARTICLE 16?
EN BANC
G.R. No. L-22595
1927

November 1,

Testate Estate of Joseph G. Brimo, JUAN


MICIANO,
administrator,
petitionerappellee,
vs.
ANDRE BRIMO, opponent-appellant.
Ross, Lawrence and Selph for appellant.
Camus and Delgado for appellee.

ROMUALDEZ, J.:
The partition of the estate left by the
deceased Joseph G. Brimo is in question
in this case.
The judicial administrator of this estate
filed a scheme of partition. Andre Brimo,
one of the brothers of the deceased,
opposed it. The court, however, approved
it.
The errors which the oppositor-appellant
assigns are:
(1) The approval of said scheme of
partition; (2) denial of his participation in
the inheritance; (3) the denial of the
motion for reconsideration of the order
approving the partition; (4) the approval
of the purchase made by the Pietro Lana
of the deceased's business and the deed
of transfer of said business; and (5) the
declaration that the Turkish laws are
impertinent to this cause, and the failure
not to postpone the approval of the
scheme of partition and the delivery of
the deceased's business to Pietro Lanza
until the receipt of the depositions
requested in reference to the Turkish
laws.

The appellant's opposition is based on


the fact that the partition in question
puts into effect the provisions of Joseph
G. Brimo's will which are not in
accordance with the laws of his Turkish
nationality, for which reason they are
void as being in violation or article 10 of
the Civil Code which, among other
things, provides the following:
Nevertheless, legal and testamentary
successions, in respect to the order of
succession as well as to the amount of
the successional rights and the intrinsic
validity of their provisions, shall be
regulated by the national law of the
person whose succession is in question,
whatever may be the nature of the
property or the country in which it may
be situated.
But the fact is that the oppositor did not
prove that said testimentary dispositions
are not in accordance with the Turkish
laws, inasmuch as he did not present any
evidence showing what the Turkish laws
are on the matter, and in the absence of
evidence on such laws, they are
presumed to be the same as those of the
Philippines. (Lim and Lim vs. Collector of
Customs, 36 Phil., 472.)
It has not been proved in these
proceedings what the Turkish laws are.
He, himself, acknowledges it when he
desires to be given an opportunity to
present evidence on this point; so much
so that he assigns as an error of the
court in not having deferred the approval
of the scheme of partition until the
receipt of certain testimony requested
regarding the Turkish laws on the matter.
The refusal to give the oppositor another
opportunity to prove such laws does not
constitute an error. It is discretionary with
the trial court, and, taking into
consideration that the oppositor was
granted ample opportunity to introduce
competent evidence, we find no abuse of
discretion on the part of the court in this

particular. There is, therefore, no


evidence in the record that the national
law of the testator Joseph G. Brimo was
violated in the testamentary dispositions
in question which, not being contrary to
our laws in force, must be complied with
and executed. lawphil.net

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.

Therefore, the approval of the scheme of


partition in this respect was not
erroneous.

The fact is, however, that the said


condition is void, being contrary to law,
for article 792 of the civil Code provides
the following:

In regard to the first assignment of error


which deals with the exclusion of the
herein appellant as a legatee, inasmuch
as he is one of the persons designated as
such in will, it must be taken into
consideration that such exclusion is
based on the last part of the second
clause of the will, which says:
Second. I like desire to state that
although by law, I am a Turkish citizen,
this citizenship having been conferred
upon me by conquest and not by free
choice, nor by nationality and, on the
other hand, having resided for a
considerable length of time in the
Philippine Islands where I succeeded in
acquiring all of the property that I now
possess, it is my wish that the
distribution
of
my
property
and
everything in connection with this, my
will, be made and disposed of in
accordance with the laws in force in the
Philippine islands, requesting all of my
relatives to respect this wish, otherwise, I
annul and cancel beforehand whatever
disposition found in this will favorable to
the person or persons who fail to comply
with this request.
The institution of legatees in this will is
conditional, and the condition is that the
instituted legatees must respect the
testator's will to distribute his property,
not in accordance with the laws of his
nationality, but in accordance with the
laws of the Philippines.

Impossible conditions and those contrary


to law or good morals shall be considered
as not imposed and shall not prejudice
the heir or legatee in any manner
whatsoever, even should the testator
otherwise provide.
And said condition is contrary to law
because
it
expressly
ignores
the
testator's national law when, according
to article 10 of the civil Code above
quoted, such national law of the testator
is the one to govern his testamentary
dispositions.
Said condition then, in the light of the
legal
provisions
above
cited,
is
considered unwritten, and the institution
of legatees in said will is unconditional
and consequently valid and effective
even as to the herein oppositor.
It results from all this that the second
clause of the will regarding the law which
shall govern it, and to the condition
imposed upon the legatees, is null and
void, being contrary to law.
All of the remaining clauses of said will
with all their dispositions and requests
are perfectly valid and effective it not
appearing that said clauses are contrary
to the testator's national law.
Therefore, the orders appealed from are
modified and it is directed that the
distribution of this estate be made in
such a manner as to include the herein

appellant Andre Brimo as one of the


legatees, and the scheme of partition
submitted by the judicial administrator is
approved in all other respects, without
any pronouncement as to costs.

J. R. Balonkita for appellee People's Bank


& Trust Company.
Ozaeta, Gibbs and Ozaeta for appellee A.
B. Allsman.
BENGZON, J.P., J.:

So ordered.
This is a direct appeal to Us, upon a
question purely of law, from an order of
the Court of First Instance of Manila
dated April 30, 1964, approving the
project of partition filed by the executor
in
Civil
Case
No.
37089
therein.1wph1.t
The facts of the case are as follows:
Amos G. Bellis, born in Texas, was "a
citizen of the State of Texas and of the
United States." By his first wife, Mary E.
Mallen, whom he divorced, he had five
legitimate children: Edward A. Bellis,
George Bellis (who pre-deceased him in
infancy), Henry A. Bellis, Alexander Bellis
and Anna Bellis Allsman; by his second
wife, Violet Kennedy, who survived him,
he had three legitimate children: Edwin
G. Bellis, Walter S. Bellis and Dorothy
Bellis; and finally, he had three
illegitimate children: Amos Bellis, Jr.,
Maria Cristina Bellis and Miriam Palma
Bellis.

N BANC
G.R. No. L-23678

June 6, 1967

TESTATE ESTATE OF AMOS G. BELLIS,


deceased.
PEOPLE'S BANK and TRUST COMPANY,
executor.
MARIA CRISTINA BELLIS and MIRIAM
PALMA BELLIS, oppositors-appellants,
vs.
EDWARD A. BELLIS, ET AL., heirsappellees.
Vicente R. Macasaet and Jose D. Villena
for oppositors appellants.
Paredes, Poblador, Cruz and Nazareno for
heirs-appellees E. A. Bellis, et al.
Quijano and Arroyo for heirs-appellees W.
S. Bellis, et al.

On August 5, 1952, Amos G. Bellis


executed a will in the Philippines, in
which he directed that after all taxes,
obligations,
and
expenses
of
administration
are
paid
for,
his
distributable estate should be divided, in
trust, in the following order and manner:
(a) $240,000.00 to his first wife, Mary E.
Mallen; (b) P120,000.00 to his three
illegitimate children, Amos Bellis, Jr.,
Maria Cristina Bellis, Miriam Palma Bellis,
or P40,000.00 each and (c) after the
foregoing two items have been satisfied,
the remainder shall go to his seven
surviving children by his first and second
wives, namely: Edward A. Bellis, Henry A.
Bellis, Alexander Bellis and Anna Bellis
Allsman, Edwin G. Bellis, Walter S. Bellis,

and Dorothy E.
shares.1wph1.t

Bellis,

in

equal

children and, therefore, compulsory heirs


of the deceased.

Subsequently, or on July 8, 1958, Amos


G. Bellis died a resident of San Antonio,
Texas, U.S.A. His will was admitted to
probate in the Court of First Instance of
Manila on September 15, 1958.

Amos Bellis, Jr. interposed no opposition


despite notice to him, proof of service of
which is evidenced by the registry receipt
submitted on April 27, 1964 by the
executor.1

The People's Bank and Trust Company, as


executor of the will, paid all the bequests
therein
including
the
amount
of
$240,000.00 in the form of shares of
stock to Mary E. Mallen and to the three
(3) illegitimate children, Amos Bellis, Jr.,
Maria Cristina Bellis and Miriam Palma
Bellis,
various
amounts
totalling
P40,000.00 each in satisfaction of their
respective legacies, or a total of
P120,000.00, which it released from time
to time according as the lower court
approved and allowed the various
motions or petitions filed by the latter
three requesting partial advances on
account of their respective legacies.

After the parties filed their respective


memoranda
and
other
pertinent
pleadings, the lower court, on April 30,
1964, issued an order overruling the
oppositions and approving the executor's
final account, report and administration
and project of partition. Relying upon Art.
16 of the Civil Code, it applied the
national law of the decedent, which in
this case is Texas law, which did not
provide for legitimes.

On January 8, 1964, preparatory to


closing its administration, the executor
submitted and filed its "Executor's Final
Account, Report of Administration and
Project of Partition" wherein it reported,
inter alia, the satisfaction of the legacy of
Mary E. Mallen by the delivery to her of
shares
of
stock
amounting
to
$240,000.00, and the legacies of Amos
Bellis, Jr., Maria Cristina Bellis and Miriam
Palma Bellis in the amount of P40,000.00
each or a total of P120,000.00. In the
project of partition, the executor
pursuant to the "Twelfth" clause of the
testator's Last Will and Testament
divided the residuary estate into seven
equal portions for the benefit of the
testator's seven legitimate children by
his first and second marriages.
On January 17, 1964, Maria Cristina Bellis
and Miriam Palma Bellis filed their
respective oppositions to the project of
partition on the ground that they were
deprived of their legitimes as illegitimate

Their
respective
motions
for
reconsideration having been denied by
the lower court on June 11, 1964,
oppositors-appellants appealed to this
Court to raise the issue of which law
must apply Texas law or Philippine law.
In this regard, the parties do not submit
the case on, nor even discuss, the
doctrine of renvoi, applied by this Court
in Aznar v. Christensen Garcia, L-16749,
January 31, 1963. Said doctrine is usually
pertinent where the decedent is a
national of one country, and a domicile of
another. In the present case, it is not
disputed that the decedent was both a
national of Texas and a domicile thereof
at the time of his death.2 So that even
assuming Texas has a conflict of law rule
providing that the domiciliary system
(law of the domicile) should govern, the
same would not result in a reference
back (renvoi) to Philippine law, but would
still refer to Texas law. Nonetheless, if
Texas has a conflicts rule adopting the
situs theory (lex rei sitae) calling for the
application of the law of the place where
the properties are situated, renvoi would
arise, since the properties here involved
are found in the Philippines. In the

absence, however, of proof as to the


conflict of law rule of Texas, it should not
be presumed different from ours.3
Appellants' position is therefore not
rested on the doctrine of renvoi. As
stated, they never invoked nor even
mentioned it in their arguments. Rather,
they argue that their case falls under the
circumstances mentioned in the third
paragraph of Article 17 in relation to
Article 16 of the Civil Code.
Article 16, par. 2, and Art. 1039 of the
Civil Code, render applicable the national
law of the decedent, in intestate or
testamentary successions, with regard to
four items: (a) the order of succession;
(b) the amount of successional rights; (e)
the intrinsic validity of the provisions of
the will; and (d) the capacity to succeed.
They provide that
ART. 16. Real property as well as personal
property is subject to the law of the
country where it is situated.
However, intestate and testamentary
successions, both with respect to the
order of succession and to the amount of
successional rights and to the intrinsic
validity of testamentary provisions, shall
be regulated by the national law of the
person whose succession is under
consideration, whatever may he the
nature of the property and regardless of
the country wherein said property may
be found.
ART. 1039. Capacity to succeed is
governed by the law of the nation of the
decedent.
Appellants would however counter that
Art. 17, paragraph three, of the Civil
Code, stating that
Prohibitive laws concerning persons, their
acts or property, and those which have
for their object public order, public policy
and good customs shall not be rendered
ineffective by laws or judgments

promulgated, or by determinations or
conventions agreed upon in a foreign
country.
prevails as the exception to Art. 16, par.
2 of the Civil Code afore-quoted. This is
not correct. Precisely, Congress deleted
the
phrase,
"notwithstanding
the
provisions of this and the next preceding
article" when they incorporated Art. 11 of
the old Civil Code as Art. 17 of the new
Civil Code, while reproducing without
substantial change the second paragraph
of Art. 10 of the old Civil Code as Art. 16
in the new. It must have been their
purpose to make the second paragraph
of Art. 16 a specific provision in itself
which must be applied in testate and
intestate
succession.
As
further
indication of this legislative intent,
Congress added a new provision, under
Art. 1039, which decrees that capacity to
succeed is to be governed by the
national law of the decedent.
It is therefore evident that whatever
public policy or good customs may be
involved in our System of legitimes,
Congress has not intended to extend the
same to the succession of foreign
nationals. For it has specifically chosen to
leave, inter alia, the amount of
successional rights, to the decedent's
national law. Specific provisions must
prevail over general ones.
Appellants would also point out that the
decedent executed two wills one to
govern his Texas estate and the other his
Philippine estate arguing from this that
he intended Philippine law to govern his
Philippine estate. Assuming that such
was the decedent's intention in executing
a separate Philippine will, it would not
alter the law, for as this Court ruled in
Miciano v. Brimo, 50 Phil. 867, 870, a
provision in a foreigner's will to the effect
that his properties shall be distributed in
accordance with Philippine law and not
with his national law, is illegal and void,
for his national law cannot be ignored in

regard to those matters that Article 10


now Article 16 of the Civil Code states
said national law should govern.
The parties admit that the decedent,
Amos G. Bellis, was a citizen of the State
of Texas, U.S.A., and that under the laws
of Texas, there are no forced heirs or
legitimes. Accordingly, since the intrinsic
validity of the provision of the will and
the amount of successional rights are to
be determined under Texas law, the
Philippine law on legitimes cannot be
applied to the testacy of Amos G. Bellis.
Wherefore, the order of the probate court
is hereby affirmed in toto, with costs
against appellants. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon,
Regala, Makalintal, Zaldivar, Sanchez and
Castro, JJ., concur.

Footnotes
1He later filed a motion praying that as a
legal heir he be included in this case as
one of the oppositors-appellants; to file
or adopt the opposition of his sisters to
the project of partition; to submit his
brief after paying his proportionate share
in the expenses incurred in the printing
of the record on appeal; or to allow him
to adopt the briefs filed by his sisters
but this Court resolved to deny the
motion.
2San Antonio,
residence.

Texas

was

his

legal

3Lim vs. Collector, 36 Phil. 472; In re


Testate Estate of Suntay, 95 Phil. 500.

EN BANC
G.R. No. L-16749
1963

January 31,

IN THE MATTER OF THE TESTATE ESTATE


OF
EDWARD
E.
CHRISTENSEN,
DECEASED.
ADOLFO C. AZNAR, Executor and LUCY
CHRISTENSEN, Heir of the deceased,
Executor and Heir-appellees,
vs.
HELEN CHRISTENSEN GARCIA, oppositorappellant.
M. R. Sotelo for executor and heirappellees.
Leopoldo M. Abellera and Jovito Salonga
for oppositor-appellant.
LABRADOR, J.:

This is an appeal from a decision of the


Court of First Instance of Davao, Hon.
Vicente N. Cusi, Jr., presiding, in Special
Proceeding No. 622 of said court, dated
September 14, 1949, approving among
things the final accounts of the executor,
directing the executor to reimburse Maria
Lucy Christensen the amount of P3,600
paid by her to Helen Christensen Garcia
as her legacy, and declaring Maria Lucy
Christensen entitled to the residue of the
property to be enjoyed during her
lifetime, and in case of death without
issue, one-half of said residue to be
payable to Mrs. Carrie Louise C. Borton,
etc., in accordance with the provisions of
the will of the testator Edward E.
Christensen. The will was executed in
Manila on March 5, 1951 and contains
the following provisions:
3. I declare ... that I have but ONE (1)
child, named MARIA LUCY CHRISTENSEN
(now Mrs. Bernard Daney), who was born
in the Philippines about twenty-eight
years ago, and who is now residing at No.
665 Rodger Young Village, Los Angeles,
California, U.S.A.
4. I further declare that I now have no
living ascendants, and no descendants
except my above named daughter,
MARIA LUCY CHRISTENSEN DANEY.
xxx

xxx

xxx

7. I give, devise and bequeath unto


MARIA
HELEN
CHRISTENSEN,
now
married to Eduardo Garcia, about
eighteen years of age and who,
notwithstanding the fact that she was
baptized Christensen, is not in any way
related to me, nor has she been at any
time adopted by me, and who, from all
information I have now resides in Egpit,
Digos, Davao, Philippines, the sum of
THREE THOUSAND SIX HUNDRED PESOS
(P3,600.00), Philippine Currency the
same to be deposited in trust for the said
Maria Helen Christensen with the Davao
Branch of the Philippine National Bank,

and paid to her at the rate of One


Hundred Pesos (P100.00), Philippine
Currency per month until the principal
thereof as well as any interest which may
have accrued thereon, is exhausted..
xxx

xxx

xxx

12. I hereby give, devise and bequeath,


unto my well-beloved daughter, the said
MARIA LUCY CHRISTENSEN DANEY (Mrs.
Bernard Daney), now residing as
aforesaid at No. 665 Rodger Young
Village, Los Angeles, California, U.S.A., all
the income from the rest, remainder, and
residue of my property and estate, real,
personal and/or mixed, of whatsoever
kind or character, and wheresoever
situated, of which I may be possessed at
my death and which may have come to
me from any source whatsoever, during
her lifetime: ....
It is in accordance with the above-quoted
provisions that the executor in his final
account and project of partition ratified
the payment of only P3,600 to Helen
Christensen Garcia and proposed that the
residue of the estate be transferred to his
daughter, Maria Lucy Christensen.
Opposition to the approval of the project
of
partition
was
filed
by
Helen
Christensen Garcia, insofar as it deprives
her (Helen) of her legitime as an
acknowledged natural child, she having
been declared by Us in G.R. Nos. L11483-84 an acknowledged natural child
of the deceased Edward E. Christensen.
The legal grounds of opposition are (a)
that the distribution should be governed
by the laws of the Philippines, and (b)
that said order of distribution is contrary
thereto insofar as it denies to Helen
Christensen, one of two acknowledged
natural children, one-half of the estate in
full ownership. In amplification of the
above grounds it was alleged that the
law that should govern the estate of the
deceased Christensen should not be the
internal law of California alone, but the

entire law thereof because several


foreign elements are involved, that the
forum is the Philippines and even if the
case were decided in California, Section
946 of the California Civil Code, which
requires that the domicile of the
decedent should apply, should be
applicable. It was also alleged that Maria
Helen Christensen having been declared
an acknowledged natural child of the
decedent, she is deemed for all purposes
legitimate from the time of her birth.
The court below ruled that as Edward E.
Christensen was a citizen of the United
States and of the State of California at
the time of his death, the successional
rights and intrinsic validity of the
provisions in his will are to be governed
by the law of California, in accordance
with which a testator has the right to
dispose of his property in the way he
desires, because the right of absolute
dominion over his property is sacred and
inviolable (In re McDaniel's Estate, 77
Cal. Appl. 2d 877, 176 P. 2d 952, and In
re Kaufman, 117 Cal. 286, 49 Pac. 192,
cited in page 179, Record on Appeal).
Oppositor Maria Helen Christensen,
through counsel, filed various motions for
reconsideration, but these were denied.
Hence, this appeal.
The most important assignments of error
are as follows:
I
THE LOWER COURT ERRED IN IGNORING
THE DECISION OF THE HONORABLE
SUPREME COURT THAT HELEN IS THE
ACKNOWLEDGED NATURAL CHILD OF
EDWARD
E.
CHRISTENSEN
AND,
CONSEQUENTLY, IN DEPRIVING HER OF
HER JUST SHARE IN THE INHERITANCE.
II
THE LOWER COURT ERRED IN ENTIRELY
IGNORING
AND/OR
FAILING
TO
RECOGNIZE THE EXISTENCE OF SEVERAL

FACTORS,
ELEMENTS
CIRCUMSTANCES CALLING FOR
APPLICATION OF INTERNAL LAW.

AND
THE

III
THE LOWER COURT ERRED IN FAILING TO
RECOGNIZE
THAT
UNDER
INTERNATIONAL
LAW,
PARTICULARLY
UNDER THE RENVOI DOCTRINE, THE
INTRINSIC
VALIDITY
OF
THE
TESTAMENTARY DISPOSITION OF THE
DISTRIBUTION OF THE ESTATE OF THE
DECEASED EDWARD E. CHRISTENSEN
SHOULD BE GOVERNED BY THE LAWS OF
THE PHILIPPINES.
IV
THE LOWER COURT ERRED IN NOT
DECLARING THAT THE SCHEDULE OF
DISTRIBUTION
SUBMITTED
BY
THE
EXECUTOR IS CONTRARY TO THE
PHILIPPINE LAWS.
V
THE LOWER COURT ERRED IN NOT
DECLARING THAT UNDER THE PHILIPPINE
LAWS HELEN CHRISTENSEN GARCIA IS
ENTITLED TO ONE-HALF (1/2) OF THE
ESTATE IN FULL OWNERSHIP.
There is no question that Edward E.
Christensen was a citizen of the United
States and of the State of California at
the time of his death. But there is also no
question that at the time of his death he
was domiciled in the Philippines, as
witness the following facts admitted by
the executor himself in appellee's brief:
In the proceedings for admission of the
will to probate, the facts of record show
that the deceased Edward E. Christensen
was born on November 29, 1875 in New
York City, N.Y., U.S.A.; his first arrival in
the Philippines, as an appointed school
teacher, was on July 1, 1901, on board
the U.S. Army Transport "Sheridan" with
Port of Embarkation as the City of San

Francisco, in the State of California,


U.S.A. He stayed in the Philippines until
1904.
In December, 1904, Mr. Christensen
returned to the United States and stayed
there for the following nine years until
1913, during which time he resided in,
and was teaching school in Sacramento,
California.
Mr. Christensen's next arrival in the
Philippines was in July of the year 1913.
However, in 1928, he again departed the
Philippines for the United States and
came back here the following year, 1929.
Some nine years later, in 1938, he again
returned to his own country, and came
back to the Philippines the following
year, 1939.
Wherefore, the parties respectfully pray
that the foregoing stipulation of facts be
admitted and approved by this Honorable
Court, without prejudice to the parties
adducing other evidence to prove their
case not covered by this stipulation of
facts. 1wph1.t
Being
an
American
citizen,
Mr.
Christensen was
interned
by
the
Japanese
Military
Forces
in
the
Philippines during World War II. Upon
liberation, in April 1945, he left for the
United States but returned to the
Philippines in December, 1945. Appellees
Collective Exhibits "6", CFI Davao, Sp.
Proc. 622, as Exhibits "AA", "BB" and
"CC-Daney"; Exhs. "MM", "MM-l", "MM-2Daney" and p. 473, t.s.n., July 21, 1953.)
In April, 1951, Edward E. Christensen
returned once more to California shortly
after the making of his last will and
testament (now in question herein) which
he executed at his lawyers' offices in
Manila on March 5, 1951. He died at the
St. Luke's Hospital in the City of Manila
on April 30, 1953. (pp. 2-3)

In arriving at the conclusion that the


domicile of the deceased is the
Philippines, we are persuaded by the fact
that he was born in New York, migrated
to California and resided there for nine
years, and since he came to the
Philippines in 1913 he returned to
California very rarely and only for short
visits
(perhaps
to
relatives),
and
considering that he appears never to
have owned or acquired a home or
properties in that state, which would
indicate that he would ultimately
abandon the Philippines and make home
in the State of California.
Sec. 16. Residence is a term used with
many shades of meaning from mere
temporary
presence
to
the
most
permanent abode. Generally, however, it
is used to denote something more than
mere physical presence. (Goodrich on
Conflict of Laws, p. 29)
As to his citizenship, however, We find
that the citizenship that he acquired in
California
when
he
resided
in
Sacramento, California from 1904 to
1913, was never lost by his stay in the
Philippines, for the latter was a territory
of the United States (not a state) until
1946 and the deceased appears to have
considered himself as a citizen of
California by the fact that when he
executed his will in 1951 he declared that
he was a citizen of that State; so that he
appears never to have intended to
abandon his California citizenship by
acquiring another. This conclusion is in
accordance with the following principle
expounded by Goodrich in his Conflict of
Laws.
The terms "'residence" and "domicile"
might well be taken to mean the same
thing, a place of permanent abode. But
domicile, as has been shown, has
acquired a technical meaning. Thus one
may be domiciled in a place where he
has never been. And he may reside in a
place where he has no domicile. The man

with two homes, between which he


divides his time, certainly resides in each
one, while living in it. But if he went on
business which would require his
presence for several weeks or months,
he might properly be said to have
sufficient connection with the place to be
called a resident. It is clear, however,
that, if he treated his settlement as
continuing only for the particular
business in hand, not giving up his
former "home," he could not be a
domiciled New Yorker. Acquisition of a
domicile of choice requires the exercise
of intention as well as physical presence.
"Residence
simply
requires
bodily
presence of an inhabitant in a given
place, while domicile requires bodily
presence in that place and also an
intention to make it one's domicile."
Residence, however, is a term used with
many shades of meaning, from the
merest temporary presence to the most
permanent abode, and it is not safe to
insist that any one use et the only proper
one. (Goodrich, p. 29)
The law that governs the validity of his
testamentary dispositions is defined in
Article 16 of the Civil Code of the
Philippines, which is as follows:
ART. 16. Real property as well as personal
property is subject to the law of the
country where it is situated.
However, intestate and testamentary
successions, both with respect to the
order of succession and to the amount of
successional rights and to the intrinsic
validity of testamentary provisions, shall
be regulated by the national law of the
person whose succession is under
consideration, whatever may be the
nature of the property and regardless of
the country where said property may be
found.
The application of this article in the case
at bar requires the determination of the

meaning of the term "national law" is


used therein.
There is no single American law
governing the validity of testamentary
provisions in the United States, each
state of the Union having its own private
law applicable to its citizens only and in
force only within the state. The "national
law" indicated in Article 16 of the Civil
Code above quoted can not, therefore,
possibly mean or apply to any general
American law. So it can refer to no other
than the private law of the State of
California.
The next question is: What is the law in
California governing the disposition of
personal property? The decision of the
court below, sustains the contention of
the executor-appellee that under the
California Probate Code, a testator may
dispose of his property by will in the form
and manner he desires, citing the case of
Estate of McDaniel, 77 Cal. Appl. 2d 877,
176 P. 2d 952. But appellant invokes the
provisions of Article 946 of the Civil Code
of California, which is as follows:
If there is no law to the contrary, in the
place where personal property is
situated, it is deemed to follow the
person of its owner, and is governed by
the law of his domicile.
The existence of this provision is alleged
in appellant's opposition and is not
denied. We have checked it in the
California Civil Code and it is there.
Appellee, on the other hand, relies on the
case cited in the decision and testified to
by a witness. (Only the case of Kaufman
is correctly cited.) It is argued on
executor's behalf that as the deceased
Christensen was a citizen of the State of
California, the internal law thereof, which
is that given in the abovecited case,
should govern the determination of the
validity of the testamentary provisions of
Christensen's will, such law being in force
in the State of California of which

Christensen was a citizen. Appellant, on


the other hand, insists that Article 946
should be applicable, and in accordance
therewith and following the doctrine of
the renvoi, the question of the validity of
the testamentary provision in question
should be referred back to the law of the
decedent's domicile, which is the
Philippines.
The theory of doctrine of renvoi has been
defined by various authors, thus:
The problem has been stated in this way:
"When the Conflict of Laws rule of the
forum refers a jural matter to a foreign
law for decision, is the reference to the
purely internal rules of law of the foreign
system; i.e., to the totality of the foreign
law minus its Conflict of Laws rules?"
On logic, the solution is not an easy one.
The Michigan court chose to accept the
renvoi, that is, applied the Conflict of
Laws rule of Illinois which referred the
matter back to Michigan law. But once
having determined the the Conflict of
Laws principle is the rule looked to, it is
difficult to see why the reference back
should not have been to Michigan
Conflict of Laws. This would have
resulted in the "endless chain of
references" which has so often been
criticized be legal writers. The opponents
of the renvoi would have looked merely
to the internal law of Illinois, thus
rejecting the renvoi or the reference
back. Yet there seems no compelling
logical reason why the original reference
should be the internal law rather than to
the Conflict of Laws rule. It is true that
such a solution avoids going on a merrygo-round, but those who have accepted
the renvoi theory avoid this inextricabilis
circulas by getting off at the second
reference and at that point applying
internal law. Perhaps the opponents of
the renvoi are a bit more consistent for
they look always to internal law as the
rule of reference.

Strangely enough, both the advocates for


and the objectors to the renvoi plead that
greater uniformity will result from
adoption of their respective views. And
still more strange is the fact that the only
way to achieve uniformity in this choiceof-law problem is if in the dispute the two
states whose laws form the legal basis of
the litigation disagree as to whether the
renvoi should be accepted. If both reject,
or both accept the doctrine, the result of
the litigation will vary with the choice of
the forum. In the case stated above, had
the Michigan court rejected the renvoi,
judgment would have been against the
woman; if the suit had been brought in
the Illinois courts, and they too rejected
the renvoi, judgment would be for the
woman. The same result would happen,
though the courts would switch with
respect to which would hold liability, if
both courts accepted the renvoi.
The Restatement accepts the renvoi
theory in two instances: where the title to
land is in question, and where the validity
of a decree of divorce is challenged. In
these cases the Conflict of Laws rule of
the situs of the land, or the domicile of
the parties in the divorce case, is applied
by the forum, but any further reference
goes only to the internal law. Thus, a
person's title to land, recognized by the
situs, will be recognized by every court;
and every divorce, valid by the domicile
of the parties, will be valid everywhere.
(Goodrich, Conflict of Laws, Sec. 7, pp.
13-14.)
X, a citizen of Massachusetts, dies
intestate, domiciled in France, leaving
movable property in Massachusetts,
England, and France. The question arises
as to how this property is to be
distributed among X's next of kin.
Assume (1) that this question arises in a
Massachusetts court. There the rule of
the conflict of laws as to intestate
succession to movables calls for an
application of the law of the deceased's

last domicile. Since by hypothesis X's last


domicile was France, the natural thing for
the Massachusetts court to do would be
to turn to French statute of distributions,
or whatever corresponds thereto in
French law, and decree a distribution
accordingly. An examination of French
law, however, would show that if a
French court were called upon to
determine how this property should be
distributed, it would refer the distribution
to the national law of the deceased, thus
applying the Massachusetts statute of
distributions. So on the surface of things
the Massachusetts court has open to it
alternative course of action: (a) either to
apply the French law is to intestate
succession, or (b) to resolve itself into a
French
court
and
apply
the
Massachusetts statute of distributions, on
the assumption that this is what a French
court would do. If it accepts the so-called
renvoi doctrine, it will follow the latter
course, thus applying its own law.
This is one type of renvoi. A jural matter
is presented which the conflict-of-laws
rule of the forum refers to a foreign law,
the conflict-of-laws rule of which, in turn,
refers the matter back again to the law of
the forum. This is renvoi in the narrower
sense. The German term for this judicial
process is 'Ruckverweisung.'" (Harvard
Law Review, Vol. 31, pp. 523-571.)
After a decision has been arrived at that
a foreign law is to be resorted to as
governing a particular case, the further
question may arise: Are the rules as to
the conflict of laws contained in such
foreign law also to be resorted to? This is
a question which, while it has been
considered by the courts in but a few
instances, has been the subject of
frequent discussion by textwriters and
essayists; and the doctrine involved has
been descriptively designated by them
as the "Renvoyer" to send back, or the
"Ruchversweisung",
or
the
"Weiterverweisung", since an affirmative
answer to the question postulated and

the operation of the adoption of the


foreign law in toto would in many cases
result in returning the main controversy
to be decided according to the law of the
forum. ... (16 C.J.S. 872.)
Another theory, known as the "doctrine
of renvoi", has been advanced. The
theory of the doctrine of renvoi is that
the court of the forum, in determining
the question before it, must take into
account the whole law of the other
jurisdiction, but also its rules as to
conflict of laws, and then apply the law to
the actual question which the rules of the
other jurisdiction prescribe. This may be
the law of the forum. The doctrine of the
renvoi has generally been repudiated by
the American authorities. (2 Am. Jur. 296)
The scope of the theory of renvoi has
also been defined and the reasons for its
application in a country explained by
Prof. Lorenzen in an article in the Yale
Law Journal, Vol. 27, 1917-1918, pp. 529531. The pertinent parts of the article are
quoted herein below:
The recognition of the renvoi theory
implies that the rules of the conflict of
laws
are
to
be
understood
as
incorporating not only the ordinary or
internal law of the foreign state or
country, but its rules of the conflict of
laws as well. According to this theory 'the
law of a country' means the whole of its
law.
xxx

xxx

xxx

Von Bar presented his views at the


meeting of the Institute of International
Law, at Neuchatel, in 1900, in the form of
the following theses:
(1) Every court shall observe the law of
its country as regards the application of
foreign laws.

(2) Provided that no express provision to


the contrary exists, the court shall
respect:

law that the domiciliary law should


govern in most matters or rights which
follow the person of the owner.

(a) The provisions of a foreign law which


disclaims the right to bind its nationals
abroad as regards their personal statute,
and desires that said personal statute
shall be determined by the law of the
domicile, or even by the law of the place
where the act in question occurred.

When a man dies leaving personal


property in one or more states, and
leaves a will directing the manner of
distribution of the property, the law of
the state where he was domiciled at the
time of his death will be looked to in
deciding legal questions about the will,
almost as completely as the law of situs
is consulted in questions about the
devise of land. It is logical that, since the
domiciliary rules control devolution of the
personal estate in case of intestate
succession, the same rules should
determine the validity of an attempted
testamentary dispostion of the property.
Here, also, it is not that the domiciliary
has effect beyond the borders of the
domiciliary state. The rules of the
domicile are recognized as controlling by
the Conflict of Laws rules at the situs
property, and the reason for the
recognition as in the case of intestate
succession, is the general convenience of
the doctrine. The New York court has said
on the point: 'The general principle that a
dispostiton of a personal property, valid
at the domicile of the owner, is valid
anywhere, is one of the universal
application. It had its origin in that
international comity which was one of
the first fruits of civilization, and it this
age, when business intercourse and the
process of accumulating property take
but little notice of boundary lines, the
practical wisdom and justice of the rule is
more apparent than ever. (Goodrich,
Conflict of Laws, Sec. 164, pp. 442-443.)

(b) The decision of two or more foreign


systems of law, provided it be certain
that one of them is necessarily
competent, which agree in attributing the
determination of a question to the same
system of law.
xxx

xxx

xxx

If, for example, the English law directs its


judge to distribute the personal estate of
an Englishman who has died domiciled in
Belgium in accordance with the law of his
domicile, he must first inquire whether
the law of Belgium would distribute
personal
property
upon
death
in
accordance with the law of domicile, and
if he finds that the Belgian law would
make the distribution in accordance with
the law of nationality that is the
English law he must accept this
reference back to his own law.
We note that Article 946 of the California
Civil Code is its conflict of laws rule, while
the rule applied in In re Kaufman, Supra,
its internal law. If the law on succession
and the conflict of laws rules of California
are to be enforced jointly, each in its own
intended and appropriate sphere, the
principle cited In re Kaufman should
apply to citizens living in the State, but
Article 946 should apply to such of its
citizens as are not domiciled in California
but in other jurisdictions. The rule laid
down of resorting to the law of the
domicile in the determination of matters
with foreign element involved is in accord
with the general principle of American

Appellees argue that what Article 16 of


the Civil Code of the Philippines pointed
out as the national law is the internal law
of California. But as above explained the
laws of California have prescribed two
sets of laws for its citizens, one for
residents therein and another for those
domiciled in other jurisdictions. Reason
demands that We should enforce the

California internal law prescribed for its


citizens residing therein, and enforce the
conflict of laws rules for the citizens
domiciled abroad. If we must enforce the
law of California as in comity we are
bound to go, as so declared in Article 16
of our Civil Code, then we must enforce
the law of California in accordance with
the express mandate thereof and as
above explained, i.e., apply the internal
law for residents therein, and its conflictof-laws rule for those domiciled abroad.
It is argued on appellees' behalf that the
clause "if there is no law to the contrary
in the place where the property is
situated" in Sec. 946 of the California
Civil Code refers to Article 16 of the Civil
Code of the Philippines and that the law
to the contrary in the Philippines is the
provision in said Article 16 that the
national law of the deceased should
govern. This contention can not be
sustained. As explained in the various
authorities cited above the national law
mentioned in Article 16 of our Civil Code
is the law on conflict of laws in the
California Civil Code, i.e., Article 946,
which authorizes the reference or return
of the question to the law of the
testator's domicile. The conflict of laws
rule in California, Article 946, Civil Code,
precisely refers back the case, when a
decedent is not domiciled in California, to
the law of his domicile, the Philippines in
the case at bar. The court of the domicile
can not and should not refer the case
back to California; such action would
leave
the
issue
incapable
of
determination because the case will then
be like a football, tossed back and forth
between the two states, between the
country of which the decedent was a
citizen and the country of his domicile.
The Philippine court must apply its own
law as directed in the conflict of laws rule
of the state of the decedent, if the
question has to be decided, especially as
the application of the internal law of
California provides no legitime for
children while the Philippine law, Arts.

887(4) and 894, Civil Code of the


Philippines, makes natural children
legally acknowledged forced heirs of the
parent recognizing them.
The Philippine cases (In re Estate of
Johnson, 39 Phil. 156; Riera vs. Palmaroli,
40 Phil. 105; Miciano vs. Brimo, 50 Phil.
867; Babcock Templeton vs. Rider
Babcock, 52 Phil. 130; and Gibbs vs.
Government, 59 Phil. 293.) cited by
appellees to support the decision can not
possibly apply in the case at bar, for two
important reasons, i.e., the subject in
each case does not appear to be a citizen
of a state in the United States but with
domicile in the Philippines, and it does
not appear in each case that there exists
in the state of which the subject is a
citizen, a law similar to or identical with
Art. 946 of the California Civil Code.
We therefore find that as the domicile of
the deceased Christensen, a citizen of
California, is the Philippines, the validity
of the provisions of his will depriving his
acknowledged
natural
child,
the
appellant, should be governed by the
Philippine Law, the domicile, pursuant to
Art. 946 of the Civil Code of California,
not by the internal law of California..
WHEREFORE, the decision appealed from
is hereby reversed and the case returned
to the lower court with instructions that
the partition be made as the Philippine
law on succession provides. Judgment
reversed, with costs against appellees.

appointment as administratrix of the


estate of the deceased testatrix.
FIRST DIVISION
G.R. No. L-54919 May 30, 1984
POLLY CAYETANO, petitioner,
vs.
HON. TOMAS T. LEONIDAS, in his capacity
as the Presiding Judge of Branch XXXVIII,
Court of First Instance of Manila and
NENITA CAMPOS PAGUIA, respondents.
Ermelo P. Guzman for petitioner.
Armando Z.
respondent.

Gonzales

for

private

GUTIERREZ, JR., J.:


This is a petition for review on certiorari,
seeking to annul the order of the
respondent judge of the Court of First
Instance of Manila, Branch XXXVIII, which
admitted to and allowed the probate of
the last will and testament of Adoracion
C.
Campos,
after
an
ex-parte
presentation of evidence by herein
private respondent.
On January 31, 1977, Adoracion C.
Campos died, leaving her father,
petitioner Hermogenes Campos and her
sisters, private respondent Nenita C.
Paguia, Remedios C. Lopez and Marieta
C. Medina as the surviving heirs. As
Hermogenes Campos was the only
compulsory heir, he executed an Affidavit
of Adjudication under Rule 74, Section I
of the Rules of Court whereby he
adjudicated unto himself the ownership
of the entire estate of the deceased
Adoracion Campos.
Eleven months after, on November 25,
1977, Nenita C. Paguia filed a petition for
the reprobate of a will of the deceased,
Adoracion Campos, which was allegedly
executed in the United States and for her

In her petition, Nenita alleged that the


testatrix was an American citizen at the
time of her death and was a permanent
resident
of
4633
Ditman
Street,
Philadelphia, Pennsylvania, U.S.A.; that
the testatrix died in Manila on January
31, 1977 while temporarily residing with
her sister at 2167 Leveriza, Malate,
Manila; that during her lifetime, the
testatrix made her last wig and
testament on July 10, 1975, according to
the laws of Pennsylvania, U.S.A.,
nominating Wilfredo Barzaga of New
Jersey as executor; that after the
testatrix death, her last will and
testament was presented, probated,
allowed, and registered with the Registry
of Wins at the County of Philadelphia,
U.S.A., that Clement L. McLaughlin, the
administrator who was appointed after
Dr. Barzaga had declined and waived his
appointment as executor in favor of the
former, is also a resident of Philadelphia,
U.S.A., and that therefore, there is an
urgent need for the appointment of an
administratrix
to
administer
and
eventually distribute the properties of the
estate located in the Philippines.
On January 11, 1978, an opposition to the
reprobate of the will was filed by herein
petitioner alleging among other things,
that he has every reason to believe that
the will in question is a forgery; that the
intrinsic provisions of the will are null and
void; and that even if pertinent American
laws on intrinsic provisions are invoked,
the same could not apply inasmuch as
they would work injustice and injury to
him.
On December 1, 1978, however, the
petitioner through his counsel, Atty.
Franco Loyola, filed a Motion to Dismiss
Opposition (With Waiver of Rights or
Interests) stating that he "has been able
to verify the veracity thereof (of the will)
and now confirms the same to be truly

the probated will of his daughter


Adoracion."
Hence,
an
ex-parte
presentation
of
evidence
for
the
reprobate of the questioned will was
made.
On January 10, 1979, the respondent
judge issued an order, to wit:
At the hearing, it has been satisfactorily
established that Adoracion C. Campos, in
her lifetime, was a citizen of the United
States of America with a permanent
residence at 4633 Ditman Street,
Philadelphia, PA 19124, (Exhibit D) that
when alive, Adoracion C. Campos
executed a Last Will and Testament in the
county of Philadelphia, Pennsylvania,
U.S.A., according to the laws thereat
(Exhibits E-3 to E-3-b) that while in
temporary sojourn in the Philippines,
Adoracion C. Campos died in the City of
Manila (Exhibit C) leaving property both
in the Philippines and in the United
States of America; that the Last Will and
Testament of the late Adoracion C.
Campos was admitted and granted
probate by the Orphan's Court Division of
the Court of Common Pleas, the probate
court
of
the
Commonwealth
of
Pennsylvania, County of Philadelphia,
U.S.A., and letters of administration were
issued in favor of Clement J. McLaughlin
all in accordance with the laws of the
said foreign country on procedure and
allowance of wills (Exhibits E to E-10);
and that the petitioner is not suffering
from any disqualification which would
render her unfit as administratrix of the
estate in the Philippines of the late
Adoracion C. Campos.
WHEREFORE, the Last Will and Testament
of the late Adoracion C. Campos is
hereby admitted to and allowed probate
in the Philippines, and Nenita Campos
Paguia
is
hereby
appointed
Administratrix of the estate of said
decedent; let Letters of Administration
with the Will annexed issue in favor of
said Administratrix upon her filing of a

bond in the amount of P5,000.00


conditioned under the provisions of
Section I, Rule 81 of the Rules of Court.
Another manifestation was filed by the
petitioner on April 14, 1979, confirming
the withdrawal of his opposition,
acknowledging the same to be his
voluntary act and deed.
On May 25, 1979, Hermogenes Campos
filed a petition for relief, praying that the
order allowing the will be set aside on the
ground that the withdrawal of his
opposition to the same was secured
through fraudulent means. According to
him, the "Motion to Dismiss Opposition"
was inserted among the papers which he
signed in connection with two Deeds of
Conditional Sales which he executed with
the Construction and Development
Corporation of the Philippines (CDCP). He
also alleged that the lawyer who filed the
withdrawal of the opposition was not his
counsel-of-record
in
the
special
proceedings case.
The petition for relief was set for hearing
but the petitioner failed to appear. He
made several motions for postponement
until the hearing was set on May 29,
1980.
On May 18, 1980, petitioner filed another
motion entitled "Motion to Vacate and/or
Set Aside the Order of January 10, 1979,
and/or dismiss the case for lack of
jurisdiction. In this motion, the notice of
hearing provided:
Please include this motion in your
calendar for hearing on May 29, 1980 at
8:30 in the morning for submission for
reconsideration and resolution of the
Honorable Court. Until this Motion is
resolved, may I also request for the
future setting of the case for hearing on
the Oppositor's motion to set aside
previously filed.

The hearing of May 29, 1980 was re-set


by the court for June 19, 1980. When the
case was called for hearing on this date,
the counsel for petitioner tried to argue
his motion to vacate instead of adducing
evidence in support of the petition for
relief. Thus, the respondent judge issued
an order dismissing the petition for relief
for failure to present evidence in support
thereof. Petitioner filed a motion for
reconsideration but the same was
denied. In the same order, respondent
judge also denied the motion to vacate
for lack of merit. Hence, this petition.
Meanwhile, on June 6,1982, petitioner
Hermogenes Campos died and left a will,
which, incidentally has been questioned
by the respondent, his children and
forced heirs as, on its face, patently null
and void, and a fabrication, appointing
Polly Cayetano as the executrix of his last
will and testament. Cayetano, therefore,
filed a motion to substitute herself as
petitioner in the instant case which was
granted by the court on September 13,
1982.
A motion to dismiss the petition on the
ground that the rights of the petitioner
Hermogenes Campos merged upon his
death with the rights of the respondent
and her sisters, only remaining children
and forced heirs was denied on
September 12, 1983.
Petitioner Cayetano persists with the
allegations that the respondent judge
acted without or in excess of his
jurisdiction when:
1)
He ruled the petitioner lost his
standing in court deprived the Right to
Notice (sic) upon the filing of the Motion
to Dismiss opposition with waiver of
rights or interests against the estate of
deceased Adoracion C. Campos, thus,
paving the way for the hearing ex-parte
of the petition for the probate of
decedent will.

2)
He ruled that petitioner can waive,
renounce or repudiate (not made in a
public or authenticated instrument), or
by way of a petition presented to the
court but by way of a motion presented
prior to an order for the distribution of
the estate-the law especially providing
that repudiation of an inheritance must
be presented, within 30 days after it has
issued an order for the distribution of the
estate in accordance with the rules of
Court.
3)
He ruled that the right of a forced
heir to his legitime can be divested by a
decree admitting a will to probate in
which no provision is made for the forced
heir in complete disregard of Law of
Succession
4)
He denied petitioner's petition for
Relief on the ground that no evidence
was adduced to support the Petition for
Relief when no Notice nor hearing was
set to afford petitioner to prove the merit
of his petition a denial of the due
process and a grave abuse of discretion
amounting to lack of jurisdiction.
5)
He acquired no jurisdiction over the
testate case, the fact that the Testator at
the time of death was a usual resident of
Dasmarias, Cavite, consequently Cavite
Court of First Instance has exclusive
jurisdiction over the case (De Borja vs.
Tan, G.R. No. L-7792, July 1955).
The first two issues raised by the
petitioner are anchored on the allegation
that the respondent judge acted with
grave abuse of discretion when he
allowed the withdrawal of the petitioner's
opposition to the reprobate of the will.
We find no grave abuse of discretion on
the part of the respondent judge. No
proof was adduced to support petitioner's
contention that the motion to withdraw
was secured through fraudulent means
and that Atty. Franco Loyola was not his
counsel of record. The records show that

after the firing of the contested motion,


the petitioner at a later date, filed a
manifestation wherein he confirmed that
the Motion to Dismiss Opposition was his
voluntary act and deed. Moreover, at the
time
the
motion
was
filed,
the
petitioner's former counsel, Atty. Jose P.
Lagrosa had long withdrawn from the
case and had been substituted by Atty.
Franco Loyola who in turn filed the
motion. The present petitioner cannot,
therefore, maintain that the old man's
attorney of record was Atty. Lagrosa at
the time of filing the motion. Since the
withdrawal was in order, the respondent
judge acted correctly in hearing the
probate of the will ex-parte, there being
no other opposition to the same.
The third issue raised deals with the
validity of the provisions of the will. As a
general
rule, the
probate
court's
authority is limited only to the extrinsic
validity of the will, the due execution
thereof, the testatrix's testamentary
capacity and the compliance with the
requisites or solemnities prescribed by
law. The intrinsic validity of the will
normally comes only after the court has
declared that the will has been duly
authenticated. However, where practical
considerations demand that the intrinsic
validity of the will be passed upon, even
before it is probated, the court should
meet the issue. (Maninang vs. Court of
Appeals, 114 SCRA 478).
In the case at bar, the petitioner
maintains that since the respondent
judge
allowed
the
reprobate
of
Adoracion's will, Hermogenes C. Campos
was divested of his legitime which was
reserved by the law for him.
This contention is without merit.
Although on its face, the will appeared to
have preterited the petitioner and thus,
the respondent judge should have denied
its reprobate outright, the private
respondents have sufficiently established

that Adoracion was, at the time of her


death, an American citizen and a
permanent resident of Philadelphia,
Pennsylvania, U.S.A. Therefore, under
Article 16 par. (2) and 1039 of the Civil
Code which respectively provide:
Art. 16 par. (2).
xxx

xxx

xxx

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.
Art. 1039.
Capacity to succeed is governed by the
law of the nation of the decedent.
the law which governs Adoracion
Campo's will is the law of Pennsylvania,
U.S.A., which is the national law of the
decedent. Although the parties admit
that the Pennsylvania law does not
provide for legitimes and that all the
estate may be given away by the
testatrix to a complete stranger, the
petitioner argues that such law should
not apply because it would be contrary to
the sound and established public policy
and would run counter to the specific
provisions of Philippine Law.
It is a settled rule that as regards the
intrinsic validity of the provisions of the
will, as provided for by Article 16(2) and
1039 of the Civil Code, the national law
of the decedent must apply. This was
squarely applied in the case of Bellis v.
Bellis (20 SCRA 358) wherein we ruled:

It is therefore evident that whatever


public policy or good customs may be
involved in our system of legitimes,
Congress has not intended to extend the
same to the succession of foreign
nationals. For it has specifically chosen to
leave, inter alia, the amount of
successional rights, to the decedent's
national law. Specific provisions must
prevail over general ones.
xxx

xxx

xxx

The parties admit that the decedent,


Amos G. Bellis, was a citizen of the State
of Texas, U.S.A., and under the law of
Texas, there are no forced heirs or
legitimes. Accordingly, since the intrinsic
validity of the provision of the will and
the amount of successional rights are to
be determined under Texas law, the
Philippine Law on legitimes cannot be
applied to the testacy of Amos G. Bellis.
As regards the alleged absence of notice
of hearing for the petition for relief, the
records wig bear the fact that what was
repeatedly scheduled for hearing on
separate dates until June 19, 1980 was
the petitioner's petition for relief and not
his motion to vacate the order of January
10, 1979. There is no reason why the
petitioner should have been led to
believe otherwise. The court even
admonished the petitioner's failing to
adduce evidence when his petition for
relief was repeatedly set for hearing.
There was no denial of due process. The
fact that he requested "for the future
setting of the case for hearing . . ." did
not mean that at the next hearing, the
motion to vacate would be heard and
given preference in lieu of the petition for
relief. Furthermore, such request should
be embodied in a motion and not in a
mere notice of hearing.
Finally, we find the contention of the
petition as to the issue of jurisdiction
utterly devoid of merit. Under Rule 73,

Section 1, of the Rules of Court, it is


provided that:
SECTION 1. Where estate of deceased
persons settled. If the decedent is an
inhabitant of the Philippines at the time
of his death, whether a citizen or an
alien, his will shall be proved, or letters of
administration granted, and his estate
settled, in the Court of First Instance in
the province in which he resided at the
time of his death, and if he is an
inhabitant of a foreign country, the Court
of First Instance of any province in which
he had estate. The court first taking
cognizance of the settlement of the
estate of a decedent, shall exercise
jurisdiction to the exclusion of all other
courts. The jurisdiction assumed by a
court, so far as it depends on the place of
residence of the decedent, or of the
location of his estate, shall not be
contested in a suit or proceeding, except
in an appeal from that court, in the
original case, or when the want of
jurisdiction appears on the record.
Therefore, the settlement of the estate of
Adoracion Campos was correctly filed
with the Court of First Instance of Manila
where she had an estate since it was
alleged and proven that Adoracion at the
time of her death was a citizen and
permanent resident of Pennsylvania,
United States of America and not a
"usual resident of Cavite" as alleged by
the petitioner. Moreover, petitioner is
now estopped from questioning the
jurisdiction of the probate court in the
petition for relief. It is a settled rule that a
party cannot invoke the jurisdiction of a
court to secure affirmative relief, against
his opponent and after failing to obtain
such relief, repudiate or question that
same jurisdiction. (See Saulog Transit,
Inc. vs. Hon. Manuel Lazaro, et al., G. R.
No. 63 284, April 4, 1984).
WHEREFORE, the petition for certiorari
and prohibition is hereby dismissed for
lack of merit.

SO ORDERED.

EN BANC
G.R. Nos. L-27860
March 29, 1974

and

L-27896

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
1974

29,

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,
administratorappellant,
vs.

LORENZO
CARLES,
JOSE
PABLICO,
ALFREDO
CATEDRAL,
SALVADOR
GUZMAN, BELCESAR CAUSING, FLORENIA
BARRIDO, PURIFICACION CORONADO,
GRACIANO LUCERO, ARITEO THOMAS
JAMIR, MELQUIADES BATISANAN, PEPITO
IYULORES,
ESPERIDION
PARTISALA,
WINIFREDO ESPADA, ROSARIO ALINGASA,
ADELFA
PREMAYLON,
SANTIAGO
PACAONSIS, and AVELINA A. MAGNO, the
last as Administratrix in Sp. Proc. No.
1307, appellees, WESTERN INSTITUTE OF
TECHNOLOGY, INC., movant-appellee.
San Juan, Africa, Gonzales and San
Agustin for Philippine Commercial and
Industrial Bank.
Manglapus Law Office, Antonio Law Office
and Rizal R. Quimpo for private
respondents and appellees Avelina A.
Magno, etc., et al.

BARREDO, J.:p
Certiorari
and
prohibition
with
preliminary injunction; certiorari to
"declare all acts of the respondent court
in the Testate Estate of Linnie Jane
Hodges (Sp. Proc. No. 1307 of the Court
of First Instance of Iloilo) subsequent to
the order of December 14, 1957 as null
and void for having been issued without
jurisdiction"; prohibition to enjoin the
respondent
court
from
allowing,
tolerating,
sanctioning,
or
abetting
private respondent Avelina A. Magno to
perform or do any acts of administration,
such as those enumerated in the
petition, and from exercising any
authority
or
power
as
Regular
Administratrix of above-named Testate
Estate, by entertaining manifestations,
motion and pleadings filed by her and
acting on them, and also to enjoin said
court
from
allowing
said
private
respondent to interfere, meddle or take
part in any manner in the administration
of the Testate Estate of Charles Newton

Hodges (Sp. Proc. No. 1672 of the same


court and branch); with prayer for
preliminary injunction, which was issued
by this Court on August 8, 1967 upon a
bond of P5,000; the petition being
particularly directed against the orders of
the respondent court of October 12, 1966
denying petitioner's motion of April 22,
1966 and its order of July 18, 1967
denying the motion for reconsideration of
said order.
Related to and involving basically the
same main issue as the foregoing
petition, thirty-three (33) appeals from
different orders of the same respondent
court approving or otherwise sanctioning
the acts of administration of the
respondent Magno on behalf of the
testate Estate of Mrs. Hodges.
THE FACTS
On May 23, 1957, Linnie Jane Hodges
died in Iloilo City leaving a will executed
on November 22, 1952 pertinently
providing as follows:
FIRST:
I direct that all my just debts
and funeral expenses be first paid out of
my estate.
SECOND: I give, devise and bequeath
all of the rest, residue and remainder of
my estate, both personal and real,
wherever situated, or located, to my
beloved
husband,
Charles
Newton
Hodges, to have and to hold unto him,
my said husband, during his natural
lifetime.
THIRD:
I desire, direct and provide
that my husband, Charles Newton
Hodges, shall have the right to manage,
control, use and enjoy said estate during
his lifetime, and he is hereby given the
right to make any changes in the
physical properties of said estate, by sale
or any part thereof which he may think
best, and the purchase of any other or
additional property as he may think best;

to execute conveyances with or without


general or special warranty, conveying in
fee simple or for any other term or time,
any property which he may deem proper
to dispose of; to lease any of the real
property for oil, gas and/or other
minerals, and all such deeds or leases
shall pass the absolute fee simple title to
the interest so conveyed in such property
as he may elect to sell. All rents,
emoluments and income from said estate
shall belong to him, and he is further
authorized to use any part of the
principal of said estate as he may need
or desire. It is provided herein, however,
that he shall not sell or otherwise dispose
of any of the improved property now
owned by us located at, in or near the
City of Lubbock, Texas, but he shall have
the full right to lease, manage and enjoy
the same during his lifetime, above
provided. He shall have the right to
subdivide any farm land and sell lots
therein. and may sell unimproved town
lots.

be executor of this, my last will and


testament, and direct that no bond or
other security be required of him as such
executor.

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:

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

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

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:

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.

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:

4. That deceased Linnie Jane Hodges


died
leaving
no
descendants
or
ascendants, except brothers and sisters
and herein petitioner as executor
surviving
spouse,
to
inherit
the
properties of the decedent.

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.

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.

Comes the Executor in the above-entitled


proceedings,
thru
his
undersigned
attorney, to the Hon. Court, most
respectfully states:

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

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.

(Annex "I", Petition.)

Iloilo City. December 14, 1957.

The respondent court approved this


statement of account on April 21, 1959 in
its order worded thus:

(Annex "H", Petition.)


On April 14, 1959, in submitting his first
statement of account as Executor for
approval, Hodges alleged:
Pursuant to the provisions of the Rules of
Court, herein executor of the deceased,
renders the following account of his
administration covering the period from
January 1, 1958 to December 31, 1958,
which account may be found in detail in
the individual income tax return filed for
the estate of deceased Linnie Jane
Hodges, to wit:

Upon petition of Atty. Gellada, in


representation of the Executor, the
statement of net worth of the estate of
Linnie Jane Hodges, assets and liabilities,
income and expenses as shown in the
individual income tax return for the
estate of the deceased and marked as
Annex "A" is approved.
SO ORDERED.
City of Iloilo April 21, 1959.
(Annex "J", Petition.)

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.

His accounts for the periods January 1,


1959 to December 31, 1959 and January
1, 1960 to December 31, 1960 were
submitted likewise accompanied by
allegations identical mutatis mutandis to
those of April 14, 1959, quoted above;
and the respective orders approving the
same, dated July 30, 1960 and May 2,
1961, were substantially identical to the
above-quoted order of April 21, 1959. In
connection with the statements of
account just mentioned, the following
assertions related thereto made by
respondent-appellee Magno in her brief
do not appear from all indications
discernible in the record to be disputable:
Under date of April 14, 1959, C.N.
Hodges filed his first "Account by the
Executor" of the estate of Linnie Jane
Hodges. In the "Statement of Networth of
Mr. C.N. Hodges and the Estate of Linnie
Jane Hodges" as of December 31, 1958
annexed thereto, C.N. Hodges reported
that the combined conjugal estate
earned a net income of P328,402.62,
divided evenly between him and the
estate of Linnie Jane Hodges. Pursuant to
this, he filed an "individual income tax
return" for calendar year 1958 on the

estate of Linnie Jane Hodges reporting,


under oath, the said estate as having
earned income of P164,201.31, exactly
one-half of the net income of his
combined personal assets and that of the
estate of Linnie Jane Hodges. (p. 91,
Appellee's Brief.)
xxx

xxx

xxx

Under date of July 21, 1960, C.N. Hodges


filed his second "Annual Statement of
Account by the Executor" of the estate of
Linnie Jane Hodges. In the "Statement of
Networth of Mr. C.N. Hodges and the
Estate of Linnie Jane Hodges" as of
December 31, 1959 annexed thereto,
C.N. Hodges reported that the combined
conjugal estate earned a net income of
P270,623.32, divided evenly between
him and the estate of Linnie Jane Hodges.
Pursuant to this, he filed an "individual
income tax return" for calendar year
1959 on the estate of Linnie Jane Hodges
reporting, under oath, the said estate as
having earned income of P135,311.66,
exactly one-half of the net income of his
combined personal assets and that of the
estate of Linnie Jane Hodges. (pp. 91-92.
Appellee's Brief.)
xxx

xxx

xxx

Under date of April 20, 1961, C.N.


Hodges filed his third "Annual Statement
of Account by the Executor for the Year
1960" of the estate of Linnie Jane
Hodges. In the "Statement of Net Worth
of Mr. C.N. Hodges and the Estate of
Linnie Jane Hodges" as of December 31,
1960 annexed thereto, C.N. Hodges
reported that the combined conjugal
estate earned a net income of
P314,857.94, divided evenly between
him and the estate of Linnie Jane Hodges.
Pursuant to this, he filed an "individual
income tax return" for calendar year
1960 on the estate of Linnie Jane Hodges
reporting, under oath, the said estate as
having earned income of P157,428.97,
exactly one-half of the net income of his

combined personal assets and that of the


estate of Linnie Jane Hodges. (Pp. 92-93,
Appellee's Brief.)
Likewise the following:
In the petition for probate that he
(Hodges) filed, he listed the seven
brothers and sisters of Linnie Jane as her
"heirs" (see p. 2, Green ROA). The order
of the court admitting the will to probate
unfortunately omitted one of the heirs,
Roy Higdon (see p. 14, Green ROA).
Immediately, C.N. Hodges filed a verified
motion to have Roy Higdon's name
included as an heir, stating that he
wanted to straighten the records "in
order the heirs of deceased Roy Higdon
may not think or believe they were
omitted, and that they were really and
are interested in the estate of deceased
Linnie Jane Hodges. .
As an executor, he was bound to file tax
returns
for
the
estate
he
was
administering under American law. He
did file such as estate tax return on
August 8, 1958. In Schedule "M" of such
return, he answered "Yes" to the question
as to whether he was contemplating
"renouncing the will". On the question as
to what property interests passed to him
as the surviving spouse, he answered:
"None,
except
for
purposes
of
administering the Estate, paying debts,
taxes and other legal charges. It is the
intention of the surviving husband of
deceased to distribute the remaining
property and interests of the deceased in
their Community estate to the devisees
and legatees named in the will when the
debts, liabilities, taxes and expenses of
administration are finally determined and
paid."
Again, on August 9, 1962, barely four
months before his death, he executed an
"affidavit" wherein he ratified and
confirmed all that he stated in Schedule
"M" of his estate tax returns as to his

having renounced what was given him by


his wife's will. 1
As appointed executor, C.N. Hodges filed
an "Inventory" dated May 12, 1958. He
listed all the assets of his conjugal
partnership with Linnie Jane Hodges on a
separate balance sheet and then stated
expressly that her estate which has come
into his possession as executor was "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
wellqualified 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 Exparte Motion filed by counsel for the
Executor dated December 25, 1962,
which the Court finds meritorious, Miss
AVELINA A. MAGNO, is hereby appointed
Administratrix of the estate of Linnie Jane
Hodges and as Special Administratrix of
the estate of Charles Newton Hodges, in
the latter case, because the last will of
said Charles Newton Hodges is still kept
in his vault or iron safe and that the real
and personal properties of both spouses
may be lost, damaged or go to waste,
unless a Special Administratrix is
appointed.
Miss Avelina A. Magno is required to file
bond in the sum of FIVE THOUSAND
PESOS (P5,000.00), and after having
done so, let letters of Administration be
issued to her." (Annex "P", Petition.)
On December 29, 1962, however, upon
urgent ex-parte petition of respondent
Magno herself, thru Atty. Gellada, Harold,
R. Davies, "a representative of the heirs
of deceased Charles Newton Hodges
(who had) arrived from the United States
of America to help in the administration
of the estate of said deceased" was
appointed as Co-Special Administrator of
the estate of Hodges, (pp. 29-33, Yellow Record on Appeal) only to be replaced as
such co-special administrator on January
22, 1963 by Joe Hodges, who, according
to the motion of the same attorney, is
"the nephew of the deceased (who had)
arrived from the United States with
instructions from the other heirs of the
deceased to administer the properties or

estate of Charles Newton Hodges in the


Philippines, (Pp. 47-50, id.)
Meanwhile, under date of January 9,
1963, the same Atty. Gellada filed in
Special Proceedings 1672 a petition for
the probate of the will of Hodges, 2 with
a prayer for the issuance of letters of
administration to the same Joe Hodges,
albeit the motion was followed on
February 22, 1963 by a separate one
asking that Atty. Fernando Mirasol be
appointed as his co-administrator. On the
same date this latter motion was filed,
the court issued the corresponding order
of probate and letters of administration
to Joe Hodges and Atty. Mirasol, as
prayed for.
At this juncture, again, it may also be
explained that just as, in her will, Mrs.
Hodges bequeathed her whole estate to
her husband "to have and to hold unto
him, my said husband, during his natural
lifetime", she, at the same time or in like
manner, provided that "at the death of
my said husband I give devise and
bequeath all of the rest, residue and
remainder of my estate, both real and
personal, wherever situated or located,
to be equally divided among my brothers
and sisters, share and share alike ".
Accordingly, it became incumbent upon
Hodges, as executor of his wife's will, to
duly liquidate the conjugal partnership,
half of which constituted her estate, in
order that upon the eventuality of his
death, "the rest, residue and remainder"
thereof could be determined and
correspondingly distributed or divided
among her brothers and sisters. And it
was
precisely
because
no
such
liquidation was done, furthermore, there
is the issue of whether the distribution of
her estate should be governed by the
laws of the Philippines or those of Texas,
of which State she was a national, and,
what is more, as already stated, Hodges
made official and sworn statements or
manifestations indicating that as far as
he was concerned no "property interests

passed to him as surviving spouse


"except for purposes of administering the
estate, paying debts, taxes and other
legal charges" and it was the intention of
the surviving husband of the deceased to
distribute the remaining property and
interests of the deceased in their
Community Estate to the devisees and
legatees named in the will when the
debts, liabilities, taxes and expenses of
administration are finally determined and
paid",
that
the
incidents
and
controversies
now
before
Us
for
resolution arose. As may be observed,
the situation that ensued upon the death
of Hodges became rather unusual and so,
quite understandably, the lower court's
actuations presently under review are
apparently wanting in consistency and
seemingly lack proper orientation.
Thus, We cannot discern clearly from the
record before Us the precise perspective
from which the trial court proceeded in
issuing its questioned orders. And,
regretably, none of the lengthy briefs
submitted by the parties is of valuable
assistance in clearing up the matter.
To begin with, We gather from the two
records on appeal filed by petitioner, as
appellant in the appealed cases, one with
green cover and the other with a yellow
cover, that at the outset, a sort of modus
operandi had been agreed upon by the
parties under which the respective
administrators of the two estates were
supposed to act conjointly, but since no
copy of the said agreement can be found
in the record before Us, We have no way
of knowing when exactly such agreement
was entered into and under what specific
terms. And while reference is made to
said modus operandi in the order of
September 11, 1964, on pages 205-206
of the Green Record on Appeal, reading
thus:
The present incident is to hear the side of
administratrix, Miss Avelina A. Magno, in
answer to the charges contained in the

motion filed by Atty. Cesar Tirol on


September 3, 1964. In answer to the said
charges, Miss Avelina A. Magno, through
her counsel, Atty. Rizal Quimpo, filed a
written manifestation.
After reading the manifestation here of
Atty. Quimpo, for and in behalf of the
administratrix, Miss Avelina A. Magno,
the Court finds that everything that
happened before September 3, 1964,
which was resolved on September 8,
1964, to the satisfaction of parties, was
simply due to a misunderstanding
between the representative of the
Philippine Commercial and Industrial
Bank and Miss Magno and in order to
restore
the
harmonious
relations
between the parties, the Court ordered
the parties to remain in status quo as to
their modus operandi before September
1, 1964, until after the Court can have a
meeting with all the parties and their
counsels on October 3, as formerly
agreed upon between counsels, Attys.
Ozaeta, Gibbs and Ozaeta, Attys. Tirol
and Tirol and Atty. Rizal Quimpo.
In the meantime, the prayers of Atty.
Quimpo as stated in his manifestation
shall not be resolved by this Court until
October 3, 1964.
SO ORDERED.
there is nothing in the record indicating
whatever happened to it afterwards,
except that again, reference thereto was
made in the appealed order of October
27, 1965, on pages 292-295 of the Green
Record on Appeal, as follows:
On record is an urgent motion to allow
PCIB to open all doors and locks in the
Hodges Office at 206-208 Guanco Street,
Iloilo City, to take immediate and
exclusive possession thereof and to place
its own locks and keys for security
purposes of the PCIB dated October 27,
1965 thru Atty. Cesar Tirol. It is alleged in
said urgent motion that Administratrix

Magno of the testate estate of Linnie Jane


Hodges refused to open the Hodges
Office at 206-208 Guanco Street, Iloilo
City where PCIB holds office and
therefore PCIB is suffering great moral
damage and prejudice as a result of said
act. It is prayed that an order be issued
authorizing it (PCIB) to open all doors and
locks in the said office, to take immediate
and exclusive possession thereof and
place thereon its own locks and keys for
security purposes; instructing the clerk of
court or any available deputy to witness
and supervise the opening of all doors
and locks and taking possession of the
PCIB.
A written opposition has been filed by
Administratrix Magno of even date (Oct.
27) thru counsel Rizal Quimpo stating
therein that she was compelled to close
the office for the reason that the PCIB
failed to comply with the order of this
Court signed by Judge Anacleto I.
Bellosillo dated September 11, 1964 to
the effect that both estates should
remain in status quo to their modus
operandi as of September 1, 1964.
To arrive at a happy solution of the
dispute and in order not to interrupt the
operation of the office of both estates,
the Court aside from the reasons stated
in the urgent motion and opposition
heard the verbal arguments of Atty.
Cesar Tirol for the PCIB and Atty. Rizal
Quimpo for Administratix Magno.
After due consideration, the Court hereby
orders Magno to open all doors and locks
in the Hodges Office at 206-208 Guanco
Street, Iloilo City in the presence of the
PCIB or its duly authorized representative
and deputy clerk of court Albis of this
branch not later than 7:30 tomorrow
morning October 28, 1965 in order that
the office of said estates could operate
for business.

Pursuant to the order of this Court thru


Judge Bellosillo dated September 11,
1964, it is hereby ordered:
(a)
That all cash collections should be
deposited in the joint account of the
estates of Linnie Jane Hodges and
estates of C.N. Hodges;
(b)
That whatever cash collections that
had been deposited in the account of
either of the estates should be withdrawn
and since then deposited in the joint
account of the estate of Linnie Jane
Hodges and the estate of C.N. Hodges;
(c)
That the PCIB should countersign
the check in the amount of P250 in favor
of Administratrix Avelina A. Magno as her
compensation as administratrix of the
Linnie Jane Hodges estate chargeable to
the testate estate of Linnie Jane Hodges
only;
(d)
That
Administratrix
Magno
is
hereby directed to allow the PCIB to
inspect whatever records, documents
and papers she may have in her
possession in the same manner that
Administrator PCIB is also directed to
allow Administratrix Magno to inspect
whatever records, documents and papers
it may have in its possession;
(e)
That the accountant of the estate
of Linnie Jane Hodges shall have access
to all records of the transactions of both
estates for the protection of the estate of
Linnie Jane Hodges; and in like manner
the accountant or any authorized
representative of the estate of C.N.
Hodges shall have access to the records
of transactions of the Linnie Jane Hodges
estate for the protection of the estate of
C.N. Hodges.
Once the estates' office shall have been
opened by Administratrix Magno in the
presence of the PCIB or its duly
authorized representative and deputy
clerk Albis or his duly authorized

representative, both estates or any of the


estates should not close it without
previous consent and authority from this
court.
SO ORDERED.
As may be noted, in this order, the
respondent court required that all
collections from the properties in the
name of Hodges should be deposited in a
joint account of the two estates, which
indicates that seemingly the so-called
modus operandi was no longer operative,
but again there is nothing to show when
this situation started.
Likewise, in paragraph 3 of the
petitioner's motion of September 14,
1964, on pages 188-201 of the Green
Record on Appeal, (also found on pp. 8391 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 coadministrators of the estate of C.N.
Hodges, Avelina A. Magno acting as the
administratrix of the estate of Linnie Jane
Hodges and Messrs. William Brown and
Ardell Young acting for all of the Higdon
family who claim to be the sole
beneficiaries of the estate of Linnie Jane
Hodges and various legal counsel
representing the aforementioned parties
entered into an amicable agreement,
which was approved by this Honorable
Court, wherein the parties thereto agreed
that certain sums of money were to be
paid in settlement of different claims
against the two estates and that the
assets (to the extent they existed) of
both estates would be administered
jointly by the PCIB as administrator of the
estate of C.N. Hodges and Avelina A.
Magno as administratrix of the estate of
Linnie Jane Hodges, subject, however, to
the aforesaid October 5, 1963 Motion,
namely, the PCIB's claim to exclusive
possession and ownership of one

hundred percent (100%) (or, in the


alternative, seventy-five percent (75%) of
all assets owned by C.N. Hodges or Linnie
Jane Hodges situated in the Philippines.
On February 1, 1964 (pp. 934-935, CFI
Rec., S.P. No. 1672) this Honorable Court
amended its order of January 24, 1964
but in no way changed its recognition of
the afore-described basic demand by the
PCIB as administrator of the estate of
C.N. Hodges to one hundred percent
(100%) of the assets claimed by both
estates.
but no copy of the mentioned agreement
of joint administration of the two estates
exists in the record, and so, We are not
informed as to what exactly are the
terms of the same which could be
relevant in the resolution of the issues
herein.
On the other hand, the appealed order of
November 3, 1965, on pages 313-320 of
the Green Record on Appeal, authorized
payment by respondent Magno of, inter
alia, her own fees as administratrix, the
attorney's fees of her lawyers, etc., as
follows:
Administratrix Magno thru Attys. Raul S.
Manglapus and Rizal. R. Quimpo filed a
Manifestation and Urgent Motion dated
June 10, 1964 asking for the approval of
the Agreement dated June 6, 1964 which
Agreement is for the purpose of retaining
their services to protect and defend the
interest of the said Administratrix in
these proceedings and the same has
been signed by and bears the express
conformity of the attorney-in-fact of the
late Linnie Jane Hodges, Mr. James L.
Sullivan. It is further prayed that the
Administratrix of the Testate Estate of
Linnie Jane Hodges be directed to pay the
retailers fee of said lawyers, said fees
made chargeable as expenses for the
administration of the estate of Linnie
Jane Hodges (pp. 1641-1642, Vol. V, Sp.
1307).

An opposition has been filed by the


Administrator PCIB thru Atty. Herminio
Ozaeta dated July 11, 1964, on the
ground that payment of the retainers fee
of Attys. Manglapus and Quimpo as
prayed for in said Manifestation and
Urgent Motion is prejudicial to the 100%
claim of the estate of C. N. Hodges;
employment of Attys. Manglapus and
Quimpo
is
premature
and/or
unnecessary;
Attys.
Quimpo
and
Manglapus are representing conflicting
interests and the estate of Linnie Jane
Hodges should be closed and terminated
(pp. 1679-1684, Vol, V, Sp. 1307).
Atty. Leon P. Gellada filed a memorandum
dated July 28, 1964 asking that the
Manifestation and Urgent Motion filed by
Attys. Manglapus and Quimpo be denied
because no evidence has been presented
in support thereof. Atty. Manglapus filed a
reply to the opposition of counsel for the
Administrator of the C. N. Hodges estate
wherein it is claimed that expenses of
administration
include
reasonable
counsel or attorney's fees for services to
the executor or administrator. As a
matter of fact the fee agreement dated
February 27, 1964 between the PCIB and
the law firm of Ozaeta, Gibbs & Ozaeta
as its counsel (Pp. 1280-1284, Vol. V, Sp.
1307) which stipulates the fees for said
law firm has been approved by the Court
in its order dated March 31, 1964. If
payment of the fees of the lawyers for
the administratrix of the estate of Linnie
Jane Hodges will cause prejudice to the
estate of C. N. Hodges, in like manner the
very agreement which provides for the
payment of attorney's fees to the counsel
for the PCIB will also be prejudicial to the
estate of Linnie Jane Hodges (pp. 18011814, Vol. V, Sp. 1307).
Atty. Herminio Ozaeta filed a rejoinder
dated August 10, 1964 to the reply to the
opposition to the Manifestation and
Urgent Motion alleging principally that
the estates of Linnie Jane Hodges and C.
N. Hodges are not similarly situated for

the reason that C. N. Hodges is an heir of


Linnie Jane Hodges whereas the latter is
not an heir of the former for the reason
that Linnie Jane Hodges predeceased C.
N. Hodges (pp. 1839-1848, Vol. V, Sp.
1307); that Attys. Manglapus and Quimpo
formally entered their appearance in
behalf of Administratrix of the estate of
Linnie Jane Hodges on June 10, 1964 (pp.
1639-1640, Vol. V, Sp. 1307).
Atty. Manglapus filed a manifestation
dated December 18, 1964 stating therein
that Judge Bellosillo issued an order
requiring
the
parties
to
submit
memorandum in support of their
respective contentions. It is prayed in
this manifestation that the Manifestation
and Urgent Motion dated June 10, 1964
be resolved (pp. 6435-6439, Vol. VII, Sp.
1307).
Atty. Roman Mabanta, Jr. for the PCIB filed
a counter- manifestation dated January 5,
1965 asking that after the consideration
by the court of all allegations and
arguments and pleadings of the PCIB in
connection
therewith
(1)
said
manifestation and urgent motion of
Attys. Manglapus and Quimpo be denied
(pp. 6442-6453, Vol. VII, Sp. 1307). Judge
Querubin issued an order dated January
4, 1965 approving the motion dated June
10, 1964 of the attorneys for the
administratrix of the estate of Linnie Jane
Hodges and agreement annexed to said
motion. The said order further states:
"The Administratrix of the estate of
Linnie Jane Hodges is authorized to issue
or sign whatever check or checks may be
necessary for the above purpose and the
administrator of the estate of C. N.
Hodges is ordered to countersign the
same. (pp. 6518-6523, Vol VII, Sp. 1307).
Atty. Roman Mabanta, Jr. for the PCIB filed
a manifestation and motion dated
January 13, 1965 asking that the order of
January 4, 1965 which was issued by
Judge Querubin be declared null and void
and to enjoin the clerk of court and the

administratrix and administrator in these


special proceedings from all proceedings
and action to enforce or comply with the
provision of the aforesaid order of
January 4, 1965. In support of said
manifestation and motion it is alleged
that the order of January 4, 1965 is null
and void because the said order was
never delivered to the deputy clerk Albis
of Branch V (the sala of Judge Querubin)
and the alleged order was found in the
drawer of the late Judge Querubin in his
office when said drawer was opened on
January 13, 1965 after the death of Judge
Querubin by Perfecto Querubin, Jr., the
son of the judge and in the presence of
Executive Judge Rovira and deputy clerk
Albis (Sec. 1, Rule 36, New Civil Code)
(Pp. 6600-6606, Vol. VIII, Sp. 1307).
Atty. Roman Mabanta, Jr. for the PCIB filed
a motion for reconsideration dated
February 23, 1965 asking that the order
dated January 4, 1964 be reversed on the
ground that:
1.
Attorneys retained must render
services to the estate not to the personal
heir;
2.
If services are rendered to both,
fees should be pro-rated between them;
3.
Attorneys retained should not
represent conflicting interests; to the
prejudice of the other heirs not
represented by said attorneys;
4.
Fees must be commensurate to the
actual services rendered to the estate;
5.
There must be assets in the estate
to pay for said fees (Pp. 6625-6636, Vol.
VIII, Sp. 1307).
Atty. Quimpo for Administratrix Magno of
the estate of Linnie Jane Hodges filed a
motion to submit dated July 15, 1965
asking that the manifestation and urgent
motion dated June 10, 1964 filed by
Attys. Manglapus and Quimpo and other

incidents directly appertaining thereto be


considered submitted for consideration
and approval (pp. 6759-6765, Vol. VIII,
Sp. 1307).

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.

Considering the arguments and reasons


in support to the pleadings of both the
Administratrix and the PCIB, and of Atty.
Gellada, hereinbefore mentioned, the
Court believes that the order of January
4, 1965 is null and void for the reason
that the said order has not been filed
with deputy clerk Albis of this court
(Branch V) during the lifetime of Judge
Querubin who signed the said order.
However, the said manifestation and
urgent motion dated June 10, 1964 is
being treated and considered in this
instant order. It is worthy to note that in
the motion dated January 24, 1964 (Pp.
1149- 1163, Vol. V, Sp. 1307) which has
been filed by Atty. Gellada and his
associates and Atty. Gibbs and other
lawyers in addition to the stipulated fees
for actual services rendered. However,
the fee agreement dated February 27,
1964, between the Administrator of the
estate of C. N. Hodges and Atty. Gibbs
which provides for retainer fee of P4,000
monthly in addition to specific fees for
actual appearances, reimbursement for
expenditures and contingent fees has
also been approved by the Court and
said lawyers have already been paid. (pp.
1273-1279, Vol. V, Sp. Proc. 1307 pp.
1372-1373, Vol. V, Sp. Proc. 1307).
WHEREFORE, the order dated January 4,
1965 is hereby declared null and void.
The manifestation and motion dated June
10, 1964 which was filed by the
attorneys for the administratrix of the
testate estate of Linnie Jane Hodges is
granted and the agreement annexed
thereto is hereby approved.
The administratrix of the estate of Linnie
Jane Hodges is hereby directed to be
needed to implement the approval of the
agreement annexed to the motion and

thereby implying somehow that the court


assumed the existence of independent
but simultaneous administrations.
Be that as it may, again, it appears that
on August 6, 1965, the court, acting on a
motion of petitioner for the approval of
deeds of sale executed by it as
administrator of the estate of Hodges,
issued the following order, also on appeal
herein:
Acting upon the motion for approval of
deeds of sale for registered land of the
PCIB, Administrator of the Testate Estate
of C. N. Hodges in Sp. Proc. 1672 (Vol. VII,
pp. 2244-2245), dated July 16, 1965, filed
by Atty. Cesar T. Tirol in representation of
the law firms of Ozaeta, Gibbs and
Ozaeta and Tirol and Tirol and the
opposition thereto of Atty. Rizal R.
Quimpo (Vol. VIII, pp. 6811-6813) dated
July 22, 1965 and considering the
allegations and reasons therein stated,
the court believes that the deeds of sale
should be signed jointly by the PCIB,
Administrator of the Testate Estate of C.
N. Hodges and Avelina A. Magno,
Administratrix of the Testate Estate of
Linnie Jane Hodges and to this effect the
PCIB should take the necessary steps so
that Administratrix Avelina A. Magno
could sign the deeds of sale.
SO ORDERED. (p. 248, Green Record on
Appeal.)
Notably this order required that even the
deeds executed by petitioner, as
administrator of the Estate of Hodges,
involving properties registered in his
name,
should
be
co-signed
by
respondent Magno. 3 And this was not an
isolated instance.

In her brief as appellee, respondent


Magno states:
After the lower court had authorized
appellee Avelina A. Magno to execute
final deeds of sale pursuant to contracts
to sell executed by C. N. Hodges on
February 20, 1963 (pp. 45-46, Green
ROA), motions for the approval of final
deeds of sale (signed by appellee Avelina
A. Magno and the administrator of the
estate of C. N. Hodges, first Joe Hodges,
then Atty. Fernando Mirasol and later the
appellant) were approved by the lower
court upon petition of appellee Magno's
counsel, Atty. Leon P. Gellada, on the
basis of section 8 of Rule 89 of the
Revised Rules of Court. Subsequently,
the appellant, after it had taken over the
bulk of the assets of the two estates,
started presenting these motions itself.
The first such attempt was a "Motion for
Approval of Deeds of Sale for Registered
Land and Cancellations of Mortgages"
dated July 21, 1964 filed by Atty. Cesar T.
Tirol, counsel for the appellant, thereto
annexing two (2) final deeds of sale and
two (2) cancellations of mortgages
signed by appellee Avelina A. Magno and
D. R. Paulino, Assistant Vice-President
and Manager of the appellant (CFI
Record, Sp. Proc. No. 1307, Vol. V, pp.
1694-1701). This motion was approved
by the lower court on July 27, 1964. It
was followed by another motion dated
August 4, 1964 for the approval of one
final deed of sale again signed by
appellee Avelina A. Magno and D. R.
Paulino (CFI Record, Sp. Proc. No. 1307.
Vol. V, pp. 1825-1828), which was again
approved by the lower court on August 7,
1964. The gates having been opened, a
flood ensued: the appellant subsequently
filed similar motions for the approval of a
multitude of deeds of sales and
cancellations of mortgages signed by
both the appellee Avelina A. Magno and
the appellant.
A random check of the records of Special
Proceeding No. 1307 alone will show Atty.

Cesar T. Tirol as having presented for


court approval deeds of sale of real
properties signed by both appellee
Avelina A. Magno and D. R. Paulino in the
following numbers: (a) motion dated
September 21, 1964 6 deeds of sale;
(b) motion dated November 4, 1964 1
deed of sale; (c) motion dated December
1, 1964 4 deeds of sale; (d) motion
dated February 3, 1965 8 deeds of
sale; (f) motion dated May 7, 1965 9
deeds of sale. In view of the very
extensive landholdings of the Hodges
spouses and the many motions filed
concerning deeds of sale of real
properties executed by C. N. Hodges the
lower court has had to constitute special
separate
expedientes
in
Special
Proceedings Nos. 1307 and 1672 to
include mere motions for the approval of
deeds of sale of the conjugal properties
of the Hodges spouses.
As an example, from among the very
many, under date of February 3, 1965,
Atty. Cesar T. Tirol, as counsel for the
appellant, filed "Motion for Approval of
Deeds of Sale for Registered Land and
Cancellations of Mortgages" (CFI Record,
Sp. Proc. No. 1307, Vol. VIII, pp. 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 their debts secured by
chattel mortgages in favor of the late C.
N. Hodges, and are now entitled to
release therefrom;
"3.
There
are
attached
hereto
documents executed jointly by the
Administratrix in Sp. Proc. No. 1307 and
the Administrator in Sp. Proc. No. 1672,
consisting of deeds of sale in favor

Fernando Cano, Bacolod City, Occ.


Negros
Fe Magbanua, Iloilo City
Policarpio M. Pareno, La Paz, Iloilo City
Rosario T. Libre, Jaro, Iloilo City
Federico B. Torres, Iloilo City
Reynaldo T. Lataquin, La Paz, Iloilo City
Anatolio T. Viray, Iloilo City
Benjamin Rolando, Jaro, Iloilo City
and cancellations of mortgages in favor
of
Pablo Manzano, Oton, Iloilo
Ricardo M. Diana, Dao, San Jose, Antique
Simplicio Tingson, Iloilo City
Amado Magbanua, Pototan, Iloilo
Roselia M. Baes, Bolo, Roxas City
William Bayani, Rizal Estanzuela, Iloilo
City
Elpidio Villarete, Molo, Iloilo City
Norma T. Ruiz, Jaro, Iloilo City

appellee Western Institute of Technology


(successor
of
Panay
Educational
Institutions, Inc.), one of the parties with
whom Hodges had contracts that are in
question in the appeals herein, to pay
petitioner, as Administrator of the estate
of Hodges and/or respondent Magno, as
Administrator of the estate of Mrs.
Hodges, thus:
Considering that in both cases there is as
yet no judicial declaration of heirs nor
distribution of properties to whomsoever
are entitled thereto, the Court believes
that payment to both the administrator
of the testate estate of C. N. Hodges and
the administratrix of the testate estate of
Linnie Jane Hodges or to either one of the
two estates is proper and legal.
WHEREFORE, movant Ricardo T. Salas
can pay to both estates or either of them.
SO ORDERED.

"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

(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. 139140, 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. 167168, 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. 168169, 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. 184185, 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. 211212, 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. 212213, 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. 137138, 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. 138139, id., approving the deed of sale
executed by respondent Magno in favor
of appellee Jose Pablico on March 7,
1966, pursuant to a "contract to sell"
signed by Hodges on March 7, 1950,
after the death of his wife, which contract
petitioner claims it had cancelled on June
29, 1960, for failure of appellee Pablico to
pay the installments due on time.
11. Order of December 2, 1966, on pp.
303-304, id., insofar as it approved the
deed of sale executed by respondent
Magno in favor of appellee Pepito
Iyulores on September 6, 1966, pursuant
to a "contract to sell" signed by Hodges
on February 5, 1951, before the death of
his wife.
12. Order of January 3, 1967, on pp.
335-336, id., approving three deeds of
sale executed by respondent Magno, one
in favor of appellees Santiago Pacaonsis
and two in favor of appellee Adelfa
Premaylon on December 5, 1966 and
November
3,
1966,
respectively,
pursuant to separate "promises to sell"
signed respectively by Hodges on May
26, 1955 and January 30, 1954, before
the death of his wife, and October 31,
1959, after her death.
In like manner, there were also instances
when respondent court approved deeds
of sale executed by petitioner alone and
without the concurrence of respondent
Magno, and such approvals have not
been the subject of any appeal. No less

than petitioner points this out on pages


149-150 of its brief as appellant thus:
The points of fact and law pertaining to
the two abovecited assignments of error
have already been discussed previously.
In the first abovecited error, the order
alluded to was general, and as already
explained before, it was, as admitted by
the lower court itself, superseded by the
particular orders approving specific final
deeds of sale executed by the appellee,
Avelina A. Magno, which are subject of
this appeal, as well as the particular
orders approving specific final deeds of
sale executed by the appellant, Philippine
Commercial and Industrial Bank, which
were never appealed by the appellee,
Avelina A. Magno, nor by any party for
that matter, and which are now therefore
final.
Now, simultaneously with the foregoing
incidents, others of more fundamental
and
all
embracing
significance
developed. On October 5, 1963, over the
signature of Atty. Allison J. Gibbs in
representation of the law firm of Ozaeta,
Gibbs & Ozaeta, as counsel for the coadministrators 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
Hodges died in Iloilo City.

Linnie

Jane

(2)
On June 28, 1957 this Honorable
Court admitted to probate the Last Will
and Testament of the deceased Linnie
Jane Hodges executed November 22,
1952 and appointed C. N. Hodges as
Executor of the estate of Linnie Jane
Hodges (pp. 24-25, Rec. Sp. Proc. 1307).
(3)
On July 1, 1957 this Honorable
Court issued Letters Testamentary to C.
N. Hodges in the Estate of Linnie Jane
Hodges (p. 30, Rec. Sp. Proc. 1307).
(4)
On December 14, 1957 this
Honorable Court, on the basis of the
following allegations in a Motion dated
December 11, 1957 filed by Leon P.
Gellada as attorney for the executor C. N.
Hodges:
"That herein Executor, (is) not only part
owner of the properties left as conjugal,
but also, the successor to all the
properties left by the deceased Linnie
Jane Hodges."
(p. 44, Rec. Sp. Proc. 1307; emphasis
supplied.)
issued the following order:
"As prayed for by Attorney Gellada,
counsel for the Executory, for the
reasons stated in his motion dated
December 11, 1957 which the court
considers well taken, all the sales,
conveyances, leases and mortgages of
all properties left by the deceased Linnie
Jane Hodges are hereby APPROVED. The
said executor is further authorized to
execute subsequent sales, conveyances,
leases and mortgages of the properties
left by the said deceased Linnie Jane
Hodges in consonance with the wishes
contained in the last will and testament
of the latter."
(p. 46, Rec. Sp. Proc. 1307; emphasis
supplied.)

(5)
On April 21, 1959 this Honorable
Court approved the inventory and
accounting submitted by C. N. Hodges
through his counsel Leon P. Gellada on
April 14, 1959 wherein he alleged among
other things
"That no person interested in the
Philippines of the time and place of
examining the herein account, be given
notice, as herein executor is the only
devisee or legatee of the deceased, in
accordance with the last will and
testament already probated by the
Honorable Court."
(pp. 77-78, Rec. Sp. Proc. 1307; emphasis
supplied.).
(6)
On July 30, 1960 this Honorable
Court approved the "Annual Statement of
Account" submitted by C. N. Hodges
through his counsel Leon P. Gellada on
July 21, 1960 wherein he alleged among
other things:
"That no person interested in the
Philippines of the time and place of
examining the herein account, be given
notice as herein executor is the only
devisee or legatee of the deceased Linnie
Jane Hodges, in accordance with the last
will and testament of the deceased,
already probated by this Honorable
Court."
(pp. 81-82. Rec. Sp. Proc. 1307; emphasis
supplied.)
(7)
On May 2, 1961 this Honorable
court approved the "Annual Statement of
Account By The Executor for the Year
1960" submitted through Leon P. Gellada
on April 20, 1961 wherein he alleged:
That no person interested in the
Philippines be given notice, of the time
and place of examining the herein
account, as herein Executor is the only
devisee or legatee of the deceased Linnie
Jane Hodges, in accordance with the last

will and testament of the deceased,


already probated by this Honorable
Court.
(pp. 90-91. Rec. Sp. Proc. 1307; emphasis
supplied.)
(8)
On December
Hodges died.

25,

1962,

C.N.

(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."

(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).

(p. 102, Rec. Sp. Proc. 1307)

[Par 1 (c), Reply to Motion For Removal of


Joe Hodges]

(11) On January 22, 1963 this Honorable


Court on petition of Leon P. Gellada of
January 21, 1963 issued Letters of
Administration to:

(13) On September l6, 1963 Leon P.


Gellada, acting as attorney for Avelina A.
Magno as Administratrix of the estate of
Linnie Jane Hodges, alleges:

3. That since January, 1963, both


estates of Linnie Jane Hodges and
Charles Newton Hodges have been
receiving in full, payments for those
"contracts to sell" entered into by C. N.
Hodges during his lifetime, and the
purchasers have been demanding the
execution of definite deeds of sale in
their favor.
4. That hereto attached are thirteen
(13) copies deeds of sale executed by the
Administratrix
and
by
the
coadministrator (Fernando P. Mirasol) of the
estate of Linnie Jane Hodges and Charles
Newton
Hodges
respectively,
in
compliance
with
the
terms
and
conditions of the respective "contracts to
sell" executed by the parties thereto."
(14) The properties involved in the
aforesaid motion of September 16, 1963
are all registered in the name of the
deceased C. N. Hodges.
(15) Avelina A. Magno, it is alleged on
information
and belief,
has been
advertising in the newspaper in Iloilo
thusly:
For Sale
Testate Estate of Linnie Jane Hodges and
Charles Newton Hodges.
All Real Estate or Personal Property will
be sold on First Come First Served Basis.
Avelina A. Magno
Administratrix
(16) Avelina A. Magno, it is alleged on
information and belief, has paid and still
is paying sums of money to sundry
persons.
(17) Joe
Hodges
through
the
undersigned attorneys manifested during
the hearings before this Honorable Court
on September 5 and 6, 1963 that the
estate of C. N. Hodges was claiming all of

the assets belonging to the deceased


spouses Linnie Jane Hodges and C. N.
Hodges situated in Philippines because of
the aforesaid election by C. N. Hodges
wherein he claimed and took possession
as sole owner of all of said assets during
the administration of the estate of Linnie
Jane Hodges on the ground that he was
the sole devisee and legatee under her
Last Will and Testament.
(18) Avelina A. Magno has submitted no
inventory
and
accounting
of
her
administration as Administratrix of the
estate of Linnie Jane Hodges and Special
Administratrix of the estate of C. N.
Hodges. However, from manifestations
made by Avelina A. Magno and her legal
counsel, Leon P. Gellada, there is no
question she will claim that at least fifty
per cent (50%) of the conjugal assets of
the deceased spouses and the rents,
emoluments and income therefrom
belong to the Higdon family who are
named in paragraphs Fourth and Fifth of
the Will of Linnie Jane Hodges (p. 5, Rec.
Sp. Proc. 1307).
WHEREFORE,
premises
considered,
movant respectfully prays that this
Honorable Court, after due hearing,
order:
(1)
Avelina A. Magno to submit an
inventory and accounting of all of the
funds, properties and assets of any
character belonging to the deceased
Linnie Jane Hodges and C. N. Hodges
which have come into her possession,
with full details of what she has done
with them;
(2)
Avelina A. Magno to turn over and
deliver to the Administrator of the estate
of C. N. Hodges all of the funds,
properties and assets of any character
remaining in her possession;
(3)
Pending this Honorable Court's
adjudication of the aforesaid issues,
Avelina A. Magno to stop, unless she first

secures the conformity of Joe Hodges (or


his duly authorized representative, such
as the undersigned attorneys) as the Coadministrator 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 coadministrators 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 coadministrators of the estate of C. N.
Hodges, Avelina A. Magno acting as the
administratrix of the estate of Linnie Jane
Hodges, and Messrs. William Brown and
Ardel Young Acting for all of the Higdon
family who claim to be the sole
beneficiaries of the estate of Linnie Jane
Hodges and various legal counsel
representing the aforenamed parties
entered into an amicable agreement,
which was approved by this Honorable
Court, wherein the parties thereto agreed
that certain sums of money were to be
paid in settlement of different claims
against the two estates and that the
assets (to the extent they existed)of both
estates would be administrated jointly by
the PCIB as administrator of the estate of
C. N. Hodges and Avelina A. Magno as
administratrix of the estate of Linnie Jane

Hodges, subject, however, to the


aforesaid October 5, 1963 Motion,
namely, the PCIB's claim to exclusive
possession and ownership of onehundred percent (10017,) (or, in the
alternative, seventy-five percent [75%] of
all assets owned by C. N. Hodges or
Linnie Jane Hodges situated in the
Philippines. On February 1, 1964 (pp.
934-935, CFI Rec., S. P. No. 1672) this
Honorable Court amended its order of
January 24, 1964 but in no way changes
its recognition of the aforedescribed
basic
demand
by
the
PCIB
as
administrator of the estate of C. N.
Hodges to one hundred percent (100%)
of the assets claimed by both estates.
4.
On February 15, 1964 the PCIB filed
a "Motion to Resolve" the aforesaid
Motion of October 5, 1963. This
Honorable Court set for hearing on June
11, 1964 the Motion of October 5, 1963.
5.
On June 11, 1964, because the
undersigned Allison J. Gibbs was absent
in the United States, this Honorable Court
ordered the indefinite postponement of
the hearing of the Motion of October 5,
1963.
6.
Since
its
appointment
as
administrator of the estate of C. N.
Hodges the PCIB has not been able to
properly carry out its duties and
obligations as administrator of the estate
of C. N. Hodges because of the following
acts, among others, of Avelina A. Magno
and those who claim to act for her as
administratrix of the estate of Linnie Jane
Hodges:
(a)
Avelina A. Magno illegally acts as if
she is in exclusive control of all of the
assets in the Philippines of both estates
including those claimed by the estate of
C. N. Hodges as evidenced in part by her
locking the premises at 206-208 Guanco
Street, Iloilo City on August 31, 1964 and
refusing to reopen same until ordered to

do so by this Honorable
September 7, 1964.

Court

on

(b)
Avelina A. Magno illegally acts as
though she alone may decide how the
assets of the estate of C.N. Hodges
should be administered, who the PCIB
shall employ and how much they may be
paid as evidenced in party by her refusal
to sign checks issued by the PCIB
payable to the undersigned counsel
pursuant
to
their
fee
agreement
approved by this Honorable Court in its
order dated March 31, 1964.
(c)
Avelina A. Magno illegally gives
access to and turns over possession of
the records and assets of the estate of
C.N. Hodges to the attorney-in-fact of the
Higdon Family, Mr. James L. Sullivan, as
evidenced in part by the cashing of his
personal checks.
(d)
Avelina A. Magno illegally refuses
to execute checks prepared by the PCIB
drawn to pay expenses of the estate of C.
N. Hodges as evidenced in part by the
check drawn to reimburse the PCIB's
advance of P48,445.50 to pay the 1964
income taxes reported due and payable
by the estate of C.N. Hodges.
7.
Under and pursuant to the orders
of this Honorable Court, particularly
those of January 24 and February 1,
1964, and the mandate contained in its
Letters of Administration issued on
January 24, 1964 to the PCIB, it has
"full authority to take possession of all
the property of the deceased C. N.
Hodges
"and to perform all other acts necessary
for the preservation of said property." (p.
914, CFI Rec., S.P. No. 1672.)
8.
As administrator of the estate of C.
N. Hodges, the PCIB claims the right to
the immediate exclusive possession and
control of all of the properties, accounts

receivables, court cases, bank accounts


and
other
assets,
including
the
documentary records evidencing same,
which existed in the Philippines on the
date of C. N. Hodges' death, December
25, 1962, and were in his possession and
registered in his name alone. The PCIB
knows of no assets in the Philippines
registered in the name of Linnie Jane
Hodges, the estate of Linnie Jane Hodges,
or, C. N. Hodges, Executor of the Estate
of Linnie Jane Hodges on December 25,
1962. All of the assets of which the PCIB
has knowledge are either registered in
the name of C. N. Hodges, alone or were
derived therefrom since his death on
December 25, 1962.
9.
The
PCIB
as
the
current
administrator of the estate of C. N.
Hodges, deceased, succeeded to all of
the rights of the previously duly
appointed administrators of the estate of
C. N. Hodges, to wit:
(a)
On December 25, 1962, date of C.
N. Hodges' death, this Honorable Court
appointed Miss Avelina A. Magno
simultaneously as:
(i)
Administratrix of the estate of
Linnie Jane Hodges (p. 102, CFI Rec., S.P.
No. 1307) to replace the deceased C. N.
Hodges who on May 28, 1957 was
appointed Special Administrator (p. 13.
CFI Rec. S.P. No. 1307) and on July 1,
1957 Executor of the estate of Linnie
Jane Hodges (p. 30, CFI Rec., S. P. No.
1307).
(ii)
Special Administratrix of the estate
of C. N. Hodges (p. 102, CFI Rec., S.P. No.
1307).
(b)
On December 29, 1962 this
Honorable Court appointed Harold K.
Davies as co-special administrator of the
estate of C.N. Hodges along with Avelina
A. Magno (pp. 108-111, CFI Rec., S. P. No.
1307).

(c)
On January 22, 1963, with the
conformity of Avelina A. Magno, Harold K.
Davies resigned in favor of Joe Hodges
(pp. 35-36, CFI Rec., S.P. No. 1672) who
thereupon was appointed on January 22,
1963 by this Honorable Court as special
co-administrator of the estate of C.N.
Hodges (pp. 38-40 & 43, CFI Rec. S.P. No.
1672) along with Miss Magno who at that
time was still acting as special coadministratrix 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 or its
face the:
(i)
Conformity of Avelina A. Magno
acting as "Administratrix of the Estate of
Linnie
Jane
Hodges
and
Special
Administratrix of the Estate of C. N.
Hodges";

"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.

(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. 9901000, 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 coadministrator 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

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 CoAdministratrix of the estate of C. N.
Hodges or the possession of Joe Hodges
or
Fernando
P.
Mirasol
as
coadministrators 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.

(1)
Set the Motion of October 5, 1963
for hearing at the earliest possible date
with notice to all interested parties;

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.

(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;

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:

(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;

(4)
Pending this Honorable Court's
adjudication of the aforesaid issues,
order Avelina A. Magno and her
representatives to stop interferring with
the administration of the estate of C. N.
Hodges by the PCIB and its duly
authorized representatives;
(5)
Enjoin Avelina A. Magno from
working in the premises at 206-208
Guanco Street, Iloilo City as an employee
of the estate of C. N. Hodges and
approve her dismissal as such by the
PCIB effective August 31, 1964;
(6)
Enjoin James L. Sullivan, Attorneys
Manglapus and Quimpo and others
allegedly representing Miss Magno from
entering the premises at 206-208 Guanco
Street, Iloilo City or any other properties
of C. N. Hodges without the express
permission of the PCIB;
(7)
Order such other relief as this
Honorable Court finds just and equitable
in the premises. (Annex "U" Petition.)

On January 8, 1965, petitioner also filed a


motion for "Official Declaration of Heirs of
Linnie Jane Hodges Estate" alleging:
COMES NOW Philippine Commercial and
Industrial Bank (hereinafter referred to as
PCIB), as administrator of the estate of
the late C. N. Hodges, through the
undersigned counsel, and to this
Honorable Court respectfully alleges that:
1.
During their marriage, spouses
Charles Newton Hodges and Linnie Jane
Hodges, American citizens originally from
the State of Texas, U.S.A., acquired and
accumulated considerable assets and
properties in the Philippines and in the
States of Texas and Oklahoma, United
States of America. All said properties
constituted their conjugal estate.
2.
Although Texas was the domicile of
origin of the Hodges spouses, this
Honorable Court, in its orders dated
March 31 and December 12, 1964 (CFI
Record, Sp. Proc. No. 1307, pp. ----; Sp.
Proc. No. 1672, p. ----), conclusively found
and categorically ruled that said spouses
had lived and worked for more than 50
years in Iloilo City and had, therefore,
acquired a domicile of choice in said city,
which they retained until the time of their
respective deaths.
3.
On November 22, 1952, Linnie Jane
Hodges executed in the City of Iloilo her
Last Will and Testament, a copy of which
is hereto attached as Annex "A". The
bequests in said will pertinent to the
present issue are the second, third, and
fourth provisions, which we quote in full
hereunder.
SECOND: I give, devise and bequeath
all of the rest, residue and remainder of
my estate, both personal and real,
wherever situated, or located, to my
husband, Charles Newton Hodges, to
have and to hold unto him, my said
husband during his natural lifetime.

THIRD:
I desire, direct and provide
that my husband, Charles Newton
Hodges, shall have the right to manage,
control, use and enjoy said estate during
his lifetime, and he is hereby given the
right to make any changes in the
physical properties of said estate by sale
of any part thereof which he think best,
and the purchase of any other or
additional property as he may think best;
to execute conveyances with or without
general or special warranty, conveying in
fee simple or for any other term or time,
any property which he may deem proper
to dispose of; to lease any of the real
property for oil, gas and/or other
minerals, and all such deeds or leases
shall pass the absolute fee simple title to
the interest so conveyed in such property
as he may elect to sell. All rents,
emoluments and income from said estate
shall belong to him, and he is further
authorized to use any part of the
principal of said estate as he may need
or desire. It is provided herein, however,
that he shall not sell or otherwise dispose
of any of the improved property now
owned by us located at, in or near the
City of Lubbock, Texas, but he shall have
the full right to lease, manage and enjoy
the same during his lifetime, as above
provided. He shall have the right to subdivide any farmland and sell lots therein,
and may sell unimproved town lots.
FOURTH:
At the death of my said
husband, Charles Newton Hodges, I give,
devise and bequeath all of the rest,
residue and remainder of my estate both
real and personal, wherever situated or
located, to be equally divided among my
brothers and sisters, share and share
alike, namely:
"Esta Higdon, Emma Howell, Leonard
Higdon, Roy Higdon, Sadie Rascoe, Era
Boman and Nimray Higdon."
4.
On November 14, 1953, C. N.
Hodges executed in the City of Iloilo his
Last Will and Testament, a copy of which

is hereto attached as Annex "B ". In said


Will, C. N. Hodges designated his wife,
Linnie Jane Hodges, as his beneficiary
using the identical language she used in
the second and third provisos of her Will,
supra.
5.
On May 23, 1957 Linnie Jane
Hodges died in Iloilo City, predeceasing
her husband by more than five (5) years.
At the time of her death, she had no
forced or compulsory heir, except her
husband, C. N. Hodges. She was survived
also by various brothers and sisters
mentioned in her Will (supra), which, for
convenience, we shall refer to as the
HIGDONS.
6.
On June 28, 1957, this Honorable
Court admitted to probate the Last Will
and Testament of the deceased Linnie
Jane Hodges (Annex "A"), and appointed
C. N. Hodges as executor of her estate
without bond. (CFI Record, Sp. Proc. No.
1307, pp. 24-25). On July 1, 1957, this
Honorable
Court
issued
letters
testamentary to C. N. Hodges in the
estate of Linnie Jane Hodges. (CFI Record,
Sp. Proc. No. 1307, p. 30.)
7.
The Will of Linnie Jane Hodges, with
respect to the order of succession, the
amount of successional rights, and the
intrinsic of its testamentary provisions,
should be governed by Philippine laws
because:
(a)
The testatrix, Linnie Jane Hodges,
intended Philippine laws to govern her
Will;
(b)
Article 16 of the Civil Code provides
that "the national law of the person
whose succession is under consideration,
whatever may be the nature of the
property and regardless of the country
wherein said property may be found",
shall prevail. However, the Conflict of
Law of Texas, which is the "national law"
of the testatrix, Linnie Jane Hodges,
provide
that
the
domiciliary
law

(Philippine law see paragraph 2, supra)


should
govern
the
testamentary
dispositions and successional rights over
movables (personal properties), and the
law of the situs of the property (also
Philippine law as to properties located in
the Philippines) with regards immovable
(real properties). Thus applying the
"Renvoi Doctrine", as approved and
applied by our Supreme Court in the case
of "In The Matter Of The Testate Estate of
Eduard E. Christensen", G.R. No.
L-16749, promulgated January 31, 1963,
Philippine law should apply to the Will of
Linnie
Jane
Hodges
and
to
the
successional rights to her estate insofar
as her movable and immovable assets in
the Philippines are concerned. We shall
not, at this stage, discuss what law
should govern the assets of Linnie Jane
Hodges located in Oklahoma and Texas,
because the only assets in issue in this
motion are those within the jurisdiction of
this motion Court in the two abovecaptioned 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 onehalf (1/2) portion of the conjugal estate
pertaining to C. N. Hodges. Clearly,
therefore, the estate of Linnie Jane
Hodges, capable of inheritance by her
heirs, consisted exclusively of no more
than one-half (1/2) of the conjugal estate,
computed as of the time of her death on
May 23, 1957.
10. Articles 900, 995 and 1001 of the
New Civil Code provide that the surviving
spouse of a deceased leaving no
ascendants or descendants is entitled, as
a matter of right and by way of
irrevocable legitime, to at least one-half
(1/2) of the estate of the deceased, and
no testamentary disposition by the
deceased can legally and validly affect
this right of the surviving spouse. In fact,
her husband is entitled to said one-half
(1/2) portion of her estate by way of
legitime. (Article 886, Civil Code.) Clearly,
therefore, immediately upon the death of
Linnie Jane Hodges, C. N. Hodges was the
owner of at least three-fourths (3/4) or
seventy-five (75%) percent of all of the
conjugal assets of the spouses, (1/2 or
50% by way of conjugal partnership
share and 1/4 or 25% by way of
inheritance and legitime) plus all "rents,
emoluments and income" accruing to
said conjugal estate from the moment of
Linnie
Jane
Hodges'
death
(see
paragraph 9, supra).
11. The late Linnie Jane Hodges
designated her husband C.N. Hodges as
her sole and exclusive heir with full
authority to do what he pleased, as
exclusive heir and owner of all the assets
constituting her estate, except only with
regards certain properties "owned by us,

located at, in or near the City of Lubbock,


Texas". Thus, even without relying on our
laws of succession and legitime, which
we have cited above, C. N. Hodges, by
specific testamentary designation of his
wife, was entitled to the entirely to his
wife's estate in the Philippines.
12. Article 777 of the New Civil Code
provides that "the rights of the successor
are transmitted from the death of the
decedent". Thus, title to the estate of
Linnie Jane Hodges was transmitted to C.
N. Hodges immediately upon her death
on May 23, 1957. For the convenience of
this Honorable Court, we attached hereto
as Annex "C" a graph of how the conjugal
estate of the spouses Hodges should be
divided in accordance with Philippine law
and the Will of Linnie Jane Hodges.
13. In his capacity as sole heir and
successor to the estate of Linnie Jane
Hodges as above-stated, C. N. Hodges,
shortly after the death of Linnie Jane
Hodges, appropriated to himself the
entirety of her estate. He operated all the
assets, engaged in business and
performed all acts in connection with the
entirety of the conjugal estate, in his own
name alone, just as he had been
operating, engaging and doing while the
late Linnie Jane Hodges was still alive.
Upon his death on December 25, 1962,
therefore, all said conjugal assets were in
his sole possession and control, and
registered in his name alone, not as
executor, but as exclusive owner of all
said assets.
14. All these acts of C. N. Hodges were
authorized and sanctioned expressly and
impliedly by various orders of this
Honorable Court, as follows:
(a)
In an Order dated May 27, 1957,
this Honorable Court ruled that C. N.
Hodges "is allowed or authorized to
continue the business in which he was
engaged, and to perform acts which he
had been doing while the deceased was

living." (CFI Record, Sp. Proc. No. 1307, p.


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

accordance with the last will and


testament already probated by the
Honorable Court." (CFI Record, Sp. Proc.
No. 1307, pp. 77-78; emphasis supplied.)
(d)
On July 20, 1960, this Honorable
Court approved the verified "Annual
Statement of Account" submitted by C.
N. Hodges through his counsel Leon P.
Gellada on July 21, 1960 wherein he
alleged, among other things.
"That no person interested in the
Philippines of the time and place of
examining the herein account, be given
notice as herein executor is the only
devisee or legatee of the deceased Linnie
Jane Hodges, in accordance with the last
will and testament ofthe deceased,
already probated by this Honorable
Court." (CFI Record, Sp. Proc. No. 1307,
pp. 81-82; emphasis supplied.)
(e)
On May 2, 1961, this Honorable
Court approved the verified "Annual
Statement of Account By The Executor
For the Year 1960" submitted through
Leon P. Gellada on April 20, 1961 wherein
he alleged:
"That no person interested in the
Philippines be given notice, ofthe time
and place of examining the herein
account, as herein executor is the only
devisee or legatee of the deceased Linnie
Jane Hodges, in accordance with the last
will and testament ofthe deceased,
already probated by this Honorable
Court." (CFI Record, Sp. Proc. No. 1307,
pp. 90-91; emphasis supplied.)
15. Since C. N. Hodges was the sole
and exclusive heir of Linnie Jane Hodges,
not only by law, but in accordance with
the dispositions of her will, there was, in
fact, no need to liquidate the conjugal
estate of the spouses. The entirely of
said conjugal estate pertained to him
exclusively, therefore this Honorable
Court sanctioned and authorized, as
above-stated, C. N. Hodges to manage,

operate and control all the conjugal


assets as owner.
16. By expressly authorizing C. N.
Hodges to act as he did in connection
with the estate of his wife, this Honorable
Court has (1) declared C. N. Hodges as
the sole heir of the estate of Linnie Jane
Hodges, and (2) delivered and distributed
her estate to C. N. Hodges as sole heir in
accordance
with
the
terms
and
conditions of her Will. Thus, although the
"estate of Linnie Jane Hodges" still exists
as a legal and juridical personality, it had
no assets or properties located in the
Philippines registered in its name
whatsoever at the time of the death of C.
N. Hodges on December 25, 1962.
17. The Will of Linnie Jane Hodges
(Annex "A"), fourth paragraph, provides
as follows:
"At the death of my said husband,
Charles Newton Hodges, I give, devise
and bequeath all of the rest, residue and
remainder of my estate both real and
personal, wherever situated or located,
to be equally divided among my brothers
and sisters, share and share alike,
namely:
"Esta Higdon, Emma Howell, Leonard
Higdon, Roy Higdon, Sadie Rascoe, Era
Boman and Nimray Higdon."
Because of the facts hereinabove set out
there is no "rest, residue and remainder",
at least to the extent of the Philippine
assets, which remains to vest in the
HIGDONS, assuming this proviso in Linnie
Jane Hodges' Will is valid and binding
against the estate of C. N. Hodges.
18. Any claims by the HIGDONS under
the above-quoted provision of Linnie Jane
Hodges' Will is without merit because
said provision is void and invalid at least
as to the Philippine assets. It should not,
in anyway, affect the rights of the estate
of C. N. Hodges or his heirs to the

properties, which C. N. Hodges acquired


by way of inheritance from his wife Linnie
Jane Hodges upon her death.
(a)
In spite of the above-mentioned
provision in the Will of Linnie Jane
Hodges, C. N. Hodges acquired, not
merely a usufructuary right, but absolute
title and ownership to her estate. In a
recent case involving a very similar
testamentary provision, the Supreme
Court held that the heir first designated
acquired full ownership of the property
bequeathed by the will, not mere
usufructuary
rights.
(Consolacion
Florentino de Crisologo, et al., vs. Manuel
Singson, G. R. No. L-13876, February 28,
1962.)
(b)
Article 864, 872 and 886 of the
New Civil Code clearly provide that no
charge,
condition
or
substitution
whatsoever upon the legitime can be
imposed by a testator. Thus, under the
provisions of Articles 900, 995 and 1001
of the New Civil Code, the legitime of a
surviving spouse is 1/2 of the estate of
the deceased spouse. Consequently, the
above-mentioned provision in the Will of
Linnie Jane Hodges is clearly invalid
insofar as the legitime of C. N. Hodges
was concerned, which consisted of 1/2 of
the 1/2 portion of the conjugal estate, or
1/4 of the entire conjugal estate of the
deceased.
(c)
There are generally only two kinds
of
substitution
provided
for
and
authorized by our Civil Code (Articles
857-870), namely, (1) simple or common
substitution, sometimes referred to as
vulgar substitution (Article 859), and (2)
fideicommissary
substitution
(Article
863). All other substitutions are merely
variations of these. The substitution
provided for by paragraph four of the Will
of
Linnie
Jane
Hodges
is
not
fideicommissary substitution, because
there is clearly no obligation on the part
of C. N. Hodges as the first heir
designated, to preserve the properties for

the
substitute
heirs.
(Consolacion
Florentino de Crisologo et al. vs. Manuel
Singson, G. R. No.
L-13876.) At most, it is a vulgar or simple
substitution. However, in order that a
vulgar or simple substitution can be
valid, three alternative conditions must
be present, namely, that the first
designated heir (1) should die before the
testator; or (2) should not wish to accept
the inheritance; or (3) should be
incapacitated to do so. None of these
conditions apply to C. N. Hodges, and,
therefore, the substitution provided for
by the above-quoted provision of the Will
is not authorized by the Code, and,
therefore,
it
is
void.
Manresa,
commenting
on
these
kisses
of
substitution, meaningfully stated that: "...
cuando el testador instituyeun primer
heredero, y por fallecimiento de este
nombra otro u otros, ha de entenderse
que estas segundas designaciones solo
han de llegar a tener efectividad en el
caso de que el primer instituido muera
antes que el testador, fuera o no esta su
verdadera intencion. ...". (6 Manresa, 7 a
ed., pag. 175.) In other words, when
another heir is designated to inherit upon
the death of a first heir, the second
designation can have effect only in case
the first instituted heir dies before the
testator, whether or not that was the true
intention of said testator. Since C. N.
Hodges did not die before Linnie Jane
Hodges, the provision for substitution
contained in Linnie Jane Hodges' Willis
void.

assets constituted his estate. Therefore

(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.

3.
That all "rents, emoluments and
income" of the conjugal estate accruing
after Linnie Jane Hodges' death pertains
to C. N. Hodges;

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

(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;

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"
abovementioned, now constitutes the estate of
C. N. Hodges, capable of distribution to
his heirs upon termination of Special
Proceedings No. 1672;

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;

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

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);

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);

5.
That the required notice to
creditors and to all others who may have
any claims against the decedent, Linnie
Jane Hodges has already been printed,
published and posted (Sp. Proc. No.
1307, Folio I. pp. 34-40) and the
reglamentary period for filing such claims
has long ago lapsed and expired without
any claims having been asserted against
the estate of Linnie Jane Hodges,
approved
by
the
Administrator/Administratrix of the said
estate, nor ratified by this Honorable
Court;
6.
That the last will and testament of
Linnie Jane Hodges already admitted to
probate contains an institution of heirs in
the following words:
"SECOND: I give, devise and bequeath
all of the rest, residue and remainder of
my estate, both personal and real,
wherever situated or located, to my
beloved
husband,
Charles
Newton
Hodges to have and to hold unto him, my
said husband, during his natural lifetime.
THIRD:
I desire, direct and provide
that my husband, Charles Newton
Hodges, shall have the right to manage,
control, use and enjoy said estate during
his lifetime, and, he is hereby given the
right to make any changes in the
physical properties of said estate, by sale
of any part thereof which he may think
best, and the purchase of any other or
additional property as he may think best;

to execute conveyances with or without


general or special warranty, conveying in
fee simple or for any other term or time,
any property which he may deem proper
to dispose of; to lease any of the real
property for oil, gas and/or other
minerals, and all such deeds or leases
shall pass the absolute fee simple title to
the interest so conveyed in such property
as he elect to sell. All rents, emoluments
and income from said estate shall belong
to him, and he is further authorized to
use any part of the principal of said
estate as he may need or desire. It is
provided herein, however, that he shall
not sell or otherwise dispose of any of
the improved property now owned by us
located at, in or near the City of Lubbock
Texas, but he shall have the full right to
lease, manage and enjoy the same
during his lifetime, above provided. He
shall have the right to subdivide any farm
land and sell lots therein, and may sell
unimproved town lots.
FOURTH:
At the death of my said
husband, Charles Newton Hodges, I give,
devise and bequeath all of the rest,
residue and remainder of my estate, both
real and personal, wherever situated or
located, to be equally divided among my
brothers and sisters, share and share
alike, namely:
Esta Higdon, Emma Howell, Leonard
Higdon, Roy Higdon, Sadie Rascoe, Era
Boman and Nimroy Higdon.
FIFTH: In case of the death of any of my
brothers and/or sisters named in item
Fourth, above, prior to the death of my
husband, Charles Newton Hodges, then it
is my will and bequest that the heirs of
such deceased brother or sister shall take
jointly the share which would have gone
to such brother or sister had she or he
survived."
7.
That under the provisions of the
last will and testament already abovequoted, 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;

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;

13. That, on the other hand, the onehalf 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;

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.

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

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;

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:

b.
Determining the exact value of the
estate of Linnie Jane Hodges in
accordance with the system enunciated
in paragraph 14 of this motion;
c.
After such determination ordering
its segregation from the combined
conjugal estate and its delivery to the
Administratrix of the estate of Linnie Jane
Hodges for distribution to the heirs to
whom
they
properly
belong
and
appertain.
(Green Record on Appeal, pp. 382-391)
whereupon, instead of further pressing
on its motion of January 8, 1965
aforequoted, as it had been doing before,
petitioner withdrew the said motion and
in addition to opposing the above motion
of respondent Magno, filed a motion on
April 22, 1966 alleging in part that:
1.
That it has received from the
counsel for the administratrix of the
supposed estate of Linnie Jane Hodges a
notice to set her "Motion for Official
Declaration of Heirs of the Estate of
Linnie Jane Hodges";
2.
That before the aforesaid motion
could be heard, there are matters
pending before this Honorable Court,
such as:
a.
The examination already ordered
by this Honorable Court of documents
relating to the allegation of Avelina
Magno that Charles Newton Hodges
"through ... written declarations and
sworn public statements, renounced,
disclaimed and repudiated life-estate and
usufruct over the estate of Linnie Jane
Hodges';
b.
That "Urgent Motion for An
Accounting and Delivery to the Estate of
C. N. Hodges of All the Assets of the
Conjugal Partnership of the Deceased
Linnie Jane Hodges and C. N. Hodges
Existing as of May 23, 1957 Plus All the

Rents,
Emoluments
Therefrom";
c.
Various motions
aforesaid motion;

and
to

Income

resolve

the

d.
Manifestation of September 14,
1964, detailing acts of interference of
Avelina Magno under color of title as
administratrix of the Estate of Linnie Jane
Hodges;
which are all prejudicial, and which
involve no issues of fact, all facts
involved therein being matters of record,
and therefore require only the resolution
of questions of law;
3.
That whatever claims any alleged
heirs or other persons may have could be
very easily threshed out in the Testate
Estate of Charles Newton Hodges;
4.
That the maintenance of two
separate estate proceedings and two
administrators only results in confusion
and is unduly burdensome upon the
Testate Estate of Charles Newton Hodges,
particularly because the bond filed by
Avelina Magno is grossly insufficient to
answer for the funds and property which
she has inofficiously collected and held,
as well as those which she continues to
inofficiously collect and hold;
5.
That it is a matter of record that
such state of affairs affects and
inconveniences not only the estate but
also third-parties dealing with it;" (Annex
"V", Petition.)
and then, after further reminding the
court, by quoting them, of the relevant
allegations of its earlier motion of
September 14, 1964, Annex U, prayed
that:
1.
Immediately order Avelina Magno
to account for and deliver to the
administrator of the Estate of C. N.
Hodges all the assets of the conjugal

partnership of the deceased Linnie Jane


Hodges and C. N. Hodges, plus all the
rents,
emoluments
and
income
therefrom;
2.
Pending the consideration of this
motion, immediately order Avelina Magno
to turn over all her collections to the
administrator Philippine Commercial &
Industrial Bank;
3.
Declare the Testate Estate of Linnie
Jane Hodges (Sp. Proc. No. 1307) closed;
4.
Defer
the
hearing
and
consideration
of
the
motion
for
declaration of heirs in the Testate Estate
of Linnie Jane Hodges until the matters
hereinabove set forth are resolved.
(Prayer, Annex "V" of Petition.)
On October 12, 1966, as already
indicated at the outset of this opinion,
the
respondent
court
denied
the
foregoing motion, holding thus:
ORDER
On record is a motion (Vol. X, Sp. 1672,
pp. 4379-4390) dated April 22, 1966 of
administrator PCIB praying that (1)
Immediately order Avelina Magno to
account
for
and
deliver
to
the
administrator of the estate of C. N.
Hodges all assets of the conjugal
partnership of the deceased Linnie Jane
Hodges and C. N. Hodges, plus all the
rents,
emoluments
and
income
therefrom; (2) Pending the consideration
of this motion, immediately order Avelina
Magno to turn over all her collections to
the administrator PCIB; (3) Declare the
Testate Estate of Linnie Jane Hodges (Sp.
Proc. No. 1307) closed; and (4) Defer the
hearing and consideration of the motion
for declaration of heirs in the Testate
Estate of Linnie Jane Hodges until the
matters hereinabove set forth are
resolved.

This motion is predicated on the fact that


there are matters pending before this
court such as (a) the examination already
ordered by this Honorable Court of
documents relating to the allegation of
Avelina Magno that Charles Newton
Hodges thru written declaration and
sworn public statements renounced,
disclaimed and repudiated his life-estate
and usufruct over the estate of Linnie
Jane Hodges (b) the urgent motion for
accounting and delivery to the estate of
C. N. Hodges of all the assets of the
conjugal partnership of the deceased
Linnie Jane Hodges and C. N. Hodges
existing as of May 23, 1957 plus all the
rents,
emoluments
and
income
therefrom; (c) various motions to resolve
the
aforesaid
motion;
and
(d)
manifestation of September 14, 1964,
detailing acts of interference of Avelina
Magno
under
color
of
title
as
administratrix of the estate of Linnie Jane
Hodges.
These matters, according to the instant
motion, are all pre-judicial involving no
issues of facts and only require the
resolution of question of law; that in the
motion of October 5, 1963 it is alleged
that in a motion dated December 11,
1957 filed by Atty. Leon Gellada as
attorney for the executor C. N. Hodges,
the said executor C. N. Hodges is not
only part owner of the properties left as
conjugal but also the successor to all the
properties left by the deceased Linnie
Jane Hodges.
Said motion of December 11, 1957 was
approved by the Court in consonance
with the wishes contained in the last will
and testament of Linnie Jane Hodges.
That on April 21, 1959 this Court
approved the inventory and accounting
submitted by C. N. Hodges thru counsel
Atty. Leon Gellada in a motion filed on
April 14, 1959 stating therein that
executor C. N. Hodges is the only devisee
or legatee of Linnie Jane Hodges in

accordance with the last will and


testament already probated by the Court.
That on July 13, 1960 the Court approved
the annual statement of accounts
submitted by the executor C. N. Hodges
thru his counsel Atty. Gellada on July 21,
1960 wherein it is stated that the
executor, C. N. Hodges is the only
devisee or legatee of the deceased Linnie
Jane Hodges; that on May 2, 1961 the
Court approved the annual statement of
accounts submitted by executor, C. N.
Hodges for the year 1960 which was
submitted by Atty. Gellada on April 20,
1961 wherein it is stated that executor
Hodges is the only devisee or legatee of
the deceased Linnie Jane Hodges;
That during the hearing on September 5
and 6, 1963 the estate of C. N. Hodges
claimed all the assets belonging to the
deceased spouses Linnie Jane Hodges
and C. N. Hodges situated in the
Philippines; that administratrix Magno
has executed illegal acts to the prejudice
of the testate estate of C. N. Hodges.
An opposition (Sp. 1672, Vol. X, pp. 44154421)
dated
April
27,
1966
of
administratrix Magno has been filed
asking that the motion be denied for lack
of merit and that the motion for the
official declaration of heirs of the estate
of Linnie Jane Hodges be set for
presentation and reception of evidence.
It is alleged in the aforesaid opposition
that the examination of documents which
are in the possession of administratrix
Magno can be made prior to the hearing
of the motion for the official declaration
of heirs of the estate of Linnie Jane
Hodges, during said hearing.
That the matters raised in the PCIB's
motion of October 5, 1963 (as well as the
other motion) dated September 14, 1964
have been consolidated for the purpose
of presentation and reception of evidence
with the hearing on the determination of

the heirs of the estate of Linnie Jane


Hodges. It is further alleged in the
opposition that the motion for the official
declaration of heirs of the estate of Linnie
Jane Hodges is the one that constitutes a
prejudicial question to the motions dated
October 5 and September 14, 1964
because if said motion is found
meritorious and granted by the Court,
the PCIB's motions of October 5, 1963
and September 14, 1964 will become
moot and academic since they are
premised on the assumption and claim
that the only heir of Linnie Jane Hodges
was C. N. Hodges.
That the PCIB and counsel are estopped
from
further
questioning
the
determination of heirs in the estate of
Linnie Jane Hodges at this stage since it
was PCIB as early as January 8, 1965
which filed a motion for official
declaration of heirs of Linnie Jane Hodges
that the claim of any heirs of Linnie Jane
Hodges can be determined only in the
administration proceedings over the
estate of Linnie Jane Hodges and not that
of C. N. Hodges, since the heirs of Linnie
Jane Hodges are claiming her estate and
not the estate of C. N. Hodges.
A reply (Sp. 1672, Vol. X, pp. 4436-4444)
dated May 11, 1966 of the PCIB has been
filed alleging that the motion dated April
22, 1966 of the PCIB is not to seek
deferment
of
the
hearing
and
consideration of the motion for official
declaration of heirs of Linnie Jane Hodges
but to declare the testate estate of Linnie
Jane
Hodges
closed
and
for
administratrix Magno to account for and
deliver to the PCIB all assets of the
conjugal partnership of the deceased
spouses which has come to her
possession plus all rents and income.
A rejoinder (Sp. 1672, Vol. X, pp. 44584462) of administratrix Magno dated May
19, 1966 has been filed alleging that the
motion dated December 11, 1957 only
sought the approval of all conveyances

made by C. N. Hodges and requested the


Court authority for all subsequent
conveyances that will be executed by C.
N. Hodges; that the order dated
December 14, 1957 only approved the
conveyances made by C. N. Hodges; that
C. N. Hodges represented by counsel
never made any claim in the estate of
Linnie Jane Hodges and never filed a
motion to declare himself as the heir of
the said Linnie Jane Hodges despite the
lapse of more than five (5) years after
the death of Linnie Jane Hodges; that it is
further alleged in the rejoinder that there
can be no order of adjudication of the
estate unless there has been a prior
express declaration of heirs and so far no
declaration of heirs in the estate of Linnie
Jane Hodges (Sp. 1307) has been made.
Considering
the
allegations
and
arguments in the motion and of the PCIB
as well as those in the opposition and
rejoinder of administratrix Magno, the
Court finds the opposition and rejoinder
to be well taken for the reason that so far
there has been no official declaration of
heirs in the testate estate of Linnie Jane
Hodges and therefore no disposition of
her estate.
WHEREFORE, the motion of the PCIB
dated April 22, 1966 is hereby DENIED.
(Annex "W", Petition)
In its motion dated November 24, 1966
for the reconsideration of this order,
petitioner alleged inter alia that:
It cannot be over-stressed that the
motion of December 11, 1957 was based
on the fact that:
a.
Under the last will and testament
of the deceased, Linnie Jane Hodges, the
late Charles Newton Hodges was the sole
heir instituted insofar as her properties in
the Philippines are concerned;
b.
Said last will and testament vested
upon the said late Charles Newton

Hodges rights over said properties which,


in sum, spell ownership, absolute and in
fee simple;
c.
Said late Charles Newton Hodges
was, therefore, "not only part owner of
the properties left as conjugal, but also,
the successor to all the properties left by
the deceased Linnie Jane Hodges.
Likewise, it cannot be over-stressed that
the aforesaid motion was granted by this
Honorable Court "for the reasons stated"
therein.
Again, the motion of December 11, 1957
prayed that not only "all the sales,
conveyances, leases, and mortgages
executed by" the late Charles Newton
Hodges, but also all "the subsequent
sales,
conveyances,
leases,
and
mortgages
..."
be
approved
and
authorized. This Honorable Court, in its
order of December 14, 1957, "for the
reasons stated" in the aforesaid motion,
granted the same, and not only approved
all the sales, conveyances, leases and
mortgages of all properties left by the
deceased Linnie Jane Hodges executed
by the late Charles Newton Hodges, but
also authorized "all subsequent sales,
conveyances, leases and mortgages of
the properties left by the said deceased
Linnie Jane Hodges. (Annex "X", Petition)
and reiterated its fundamental pose that
the Testate Estate of Linnie Jane Hodges
had already been factually, although not
legally, closed with the virtual declaration
of Hodges and adjudication to him, as
sole universal heir of all the properties of
the estate of his wife, in the order of
December 14, 1957, Annex G. Still
unpersuaded,
on
July
18,
1967,
respondent court denied said motion for
reconsideration and held that "the court
believes that there is no justification why
the order of October 12, 1966 should be
considered or modified", and, on July 19,
1967, the motion of respondent Magno
"for official declaration of heirs of the

estate of Linnie Jane Hodges", already


referred to above, was set for hearing.
In
consequence
of
all
these
developments, the present petition was
filed on August 1, 1967 (albeit petitioner
had to pay another docketing fee on
August 9, 1967, since the orders in
question were issued in two separate
testate estate proceedings, Nos. 1307
and 1672, in the court below).
Together with such petition, there are
now pending before Us for resolution
herein, appeals from the following:
1.
The order of December 19, 1964
authorizing payment by respondent
Magno of overtime pay, (pp. 221, Green
Record on Appeal) together with the
subsequent orders of January 9, 1965,
(pp. 231-232, id.) October 27, 1965, (pp.
227, id.) and February 15, 1966 (pp. 455456, id.) repeatedly denying motions for
reconsideration thereof.
2.
The order of August 6, 1965 (pp.
248, id.) requiring that deeds executed
by petitioner to be co-signed by
respondent Magno, as well as the order
of October 27, 1965 (pp. 276-277)
denying reconsideration.
3.
The order of October 27, 1965 (pp.
292-295, id.) enjoining the deposit of all
collections in a joint account and the
same order of February 15, 1966
mentioned in No. 1 above which included
the denial of the reconsideration of this
order of October 27, 1965.
4.
The order of November 3, 1965
(pp. 313-320, id.) directing the payment
of attorney's fees, fees of the respondent
administratrix, etc. and the order of
February
16,
1966
denying
reconsideration thereof.
5.
The order of November 23, 1965
(pp. 334-335, id.) allowing appellee
Western Institute of Technology to make

payments to either one or both of the


administrators of the two estates as well
as the order of March 7, 1966 (p. 462,
id.) denying reconsideration.
6.
The various orders hereinabove
earlier enumerated approving deeds of
sale executed by respondent Magno in
favor of appellees Carles, Catedral,
Pablito, Guzman, Coronado, Barrido,
Causing, Javier, Lucero and Batisanan,
(see pp. 35 to 37 of this opinion),
together with the two separate orders
both dated December 2, 1966 (pp. 306308, 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

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.

The assignments of error read thus:


XVI to XVIII
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.

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

XIII to XV
THE LOWER COURT ERRED IN APPROVING
THE FINAL DEEDS OF SALE IN FAVOR OF
THE APPELLEES ADELFA PREMAYLON (LOT

THE LOWER COURT ERRED IN APPROVING


THE FINAL DEED OF SALE EXECUTED IN
FAVOR OF THE APPELLEES, LORENZO
CARLES,
JOSE
PABLICO,
ALFREDO

CATEDRAL AND SALVADOR S. GUZMAN


PURSUANT TO CONTRACTS TO SPELL
WHICH
WERE
CANCELLED
AND
RESCINDED.

BARRIDO
CORONADO.

XXX to XXXIV

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.

THE
LOWER
COURT
ERRED
IN
DETERMINING
THE
RIGHTS
OF
OWNERSHIP OVER REAL PROPERTY OF
THE LORENZO CARLES, JOSE PABLICO,
ALFREDO CATEDRAL AND SALVADOR S.
GUZMAN, WHILE ACTING AS A PROBATE
COURT.
XXXV to XXXVI
THE LOWER COURT ERRED IN APPROVING
THE FINAL DEEDS OF SALE IN FAVOR OF
THE APPELLEES, FLORENIA BARRIDO AND
PURIFICACION CORONADO, EXECUTED BY
THE APPELLEE, AVELINA A. MAGNO,
COVERING PARCELS OF LAND OWNED BY
THE DECEASED, CHARLES NEWTON
HODGES, AND THE CONTRACTS TO SELL
COVERING WHICH WERE EXECUTED BY
HIM DURING HIS LIFETIME.

AND

PURIFICACION

XLI to XLIII

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.

XXXVII to XXXVIII
XLVII to XLIX
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

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.

SERVED
UPON
THE
APPELLANT,
PHILIPPINE COMMERCIAL & INDUSTRIAL
BANK.
LXIII

LI
THE LOWER COURT ERRED IN APPROVING
THE DEEDS OF SALE IN FAVOR OF THE
APPELLEE,
BELCESAR
CAUSING,
ALTHOUGH HE WAS IN ARREARS IN THE
PAYMENTS AGREED UPON IN THE
ORIGINAL CONTRACT TO SELL WHICH HE
EXECUTED
WITH
THE
DECEASED,
CHARLES NEWTON HODGES, IN THE
AMOUNT OF P2,337.50.
LII
THE LOWER COURT ERRED IN APPROVING
THE DEED OF SALE IN FAVOR OF THE
APPELLEE,
BELCESAR
CAUSING,
ALTHOUGH
THE
SAME
WAS
NOT
EXECUTED IN ACCORDANCE WITH THE
RULES OF COURT.
LIII to LXI
THE LOWER COURT ERRED IN ORDERING
THE
APPELLANT,
PHILIPPINE
COMMERCIAL AND INDUSTRIAL BANK TO
SURRENDER THE OWNER'S DUPLICATE
CERTIFICATES OF TITLE OVER THE
RESPECTIVE LOTS COVERED BY THE
DEEDS OF SALE EXECUTED BY THE
APPELLEE, AVELINA A. MAGNO, IN FAVOR
OF THE OTHER APPELLEES, JOSE
PABLICO,
ALFREDO
CATEDRAL,
SALVADOR
S.
GUZMAN,
FLRENIA
BARRIDO, PURIFICACION CORONADO,
BELCESAR CAUSING, ARITEO THOMAS
JAMIR,
MAXIMA
BATISANAN
AND
GRACIANO L. LUCERO.

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.

LXII

LXVII

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

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.

APPOINTED
ESTATE.

ADMINISTRATOR

OF

HIS

LXXIII
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.

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

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.

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

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.

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.

LXXII
LXXVII
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

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
CERTIORARI AND
PROHIBITION CASES

IN

THE

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 thirtythree appeals of PCIB. Considering,
however, that these appeals revolve
around practically the same main issues
and that it is admitted that some of them
have been timely taken, and, moreover,
their final results hereinbelow to be
stated and explained make it of no
consequence whether or not the orders
concerned have become final by the
lapsing of the respective periods to
appeal them, We do not deem it
necessary to pass upon the timeliness of
any of said appeals.
II
The Propriety Here of Certiorari and
Prohibition instead of Appeal
The other preliminary point of the same
respondent is alleged impropriety of the
special civil action of certiorari and
prohibition in view of the existence of the
remedy of appeal which it claims is
proven by the very appeals now before
Us. Such contention fails to take into
account that there is a common thread
among the basic issues involved in all

these thirty-three appeals which, unless


resolved in one single proceeding, will
inevitably cause the proliferation of more
or less similar or closely related incidents
and consequent eventual appeals. If for
this consideration alone, and without
taking
account
anymore
of
the
unnecessary additional effort, expense
and time which would be involved in as
many individual appeals as the number
of such incidents, it is logical and proper
to hold, as We do hold, that the remedy
of appeal is not adequate in the present
cases. In determining whether or not a
special civil action of certiorari or
prohibition may be resorted to in lieu of
appeal, in instances wherein lack or
excess of jurisdiction or grave abuse of
discretion is alleged, it is not enough that
the remedy of appeal exists or is
possible. It is indispensable that taking
all the relevant circumstances of the
given case, appeal would better serve
the interests of justice. Obviously, the
longer delay, augmented expense and
trouble and unnecessary repetition of the
same work attendant to the present
multiple appeals, which, after all, deal
with practically the same basic issues
that can be more expeditiously resolved
or determined in a single special civil
action, make the remedies of certiorari
and prohibition, pursued by petitioner,
preferable, for purposes of resolving the
common basic issues raised in all of
them, despite the conceded availability
of appeal. Besides, the settling of such
common fundamental issues would
naturally minimize the areas of conflict
between the parties and render more
simple
the
determination
of
the
secondary issues in each of them.
Accordingly,
respondent
Magno's
objection to the present remedy of
certiorari and prohibition must be
overruled.
We come now to the errors assigned by
petitioner-appellant,
Philippine
Commercial & Industrial Bank, (PCIB, for

short) in the petition as well as in its


main brief as appellant.
III
On Whether or Not There is Still Any Part
of the Testate
Estate Mrs. Hodges that may be
Adjudicated to her brothers
and sisters as her estate, of which
respondent Magno is the
unquestioned Administratrix in special
Proceedings 1307.
In the petition, it is the position of PCIB
that the respondent court exceeded its
jurisdiction or gravely abused its
discretion in further recognizing after
December 14, 1957 the existence of the
Testate Estate of Linnie Jane Hodges and
in
sanctioning
purported
acts
of
administration therein of respondent
Magno. Main ground for such posture is
that by the aforequoted order of
respondent court of said date, Hodges
was already allowed to assert and
exercise all his rights as universal heir of
his wife pursuant to the provisions of her
will, quoted earlier, hence, nothing else
remains
to
be
done
in
Special
Proceedings 1307 except to formally
close it. In other words, the contention of
PCIB is that in view of said order, nothing
more than a formal declaration of Hodges
as sole and exclusive heir of his wife and
the
consequent
formal
unqualified
adjudication to him of all her estate
remain to be done to completely close
Special
Proceedings
1307,
hence
respondent Magno should be considered
as having ceased to be Administratrix of
the Testate Estate of Mrs. Hodges since
then.
After carefully going over the record, We
feel constrained to hold that such pose is
patently untenable from whatever angle
it is examined.
To start with, We cannot find anywhere in
respondent Order of December 14, 1957

the sense being read into it by PCIB. The


tenor of said order bears no suggestion
at all to such effect. The declaration of
heirs and distribution by the probate
court of the estate of a decedent is its
most important function, and this Court
is not disposed to encourage judges of
probate proceedings to be less than
definite, plain and specific in making
orders in such regard, if for no other
reason than that all parties concerned,
like the heirs, the creditors, and most of
all the government, the devisees and
legatees, should know with certainty
what are and when their respective rights
and obligations ensuing from the
inheritance or in relation thereto would
begin or cease, as the case may be,
thereby avoiding precisely the legal
complications and consequent litigations
similar to those that have developed
unnecessarily in the present cases. While
it is true that in instances wherein all the
parties interested in the estate of a
deceased person have already actually
distributed among themselves their
respective
shares
therein
to
the
satisfaction of everyone concerned and
no rights of creditors or third parties are
adversely affected, it would naturally be
almost ministerial for the court to issue
the final order of declaration and
distribution, still it is inconceivable that
the special proceeding instituted for the
purpose may be considered terminated,
the respective rights of all the parties
concerned be deemed definitely settled,
and the executor or administrator thereof
be regarded as automatically discharged
and relieved already of all functions and
responsibilities without the corresponding
definite orders of the probate court to
such effect.
Indeed, the law on the matter is specific,
categorical and unequivocal. Section 1 of
Rule 90 provides:
SECTION 1. When order for distribution of
residue made. When the debts, funeral
charges, and expenses of administration,

the allowance to the widow and


inheritance tax, if any, chargeable to the
estate in accordance with law have been
paid, the court, on the application of the
executor or administrator, or of a person
interested in the estate, and after
hearing upon notice, shall assign the
residue of the estate to the persons
entitled to the same, naming them and
the proportions, or parts, to which each is
entitled, and such persons may demand
and recover their respective shares from
the executor or administrator, or any
other person having the same in his
possession. If there is a controversy
before the court as to who are the lawful
heirs of the deceased person or as to the
distributive shares to which each person
is entitled under the law, the controversy
shall be heard and decided as in ordinary
cases.
No distribution shall be allowed until the
payment of the obligations above
mentioned has been made or provided
for, unless the distributees, or any of
them give a bond, in a sum to be fixed by
the court, conditioned for the payment of
said obligations within such time as the
court directs.
These provisions cannot mean anything
less than that in order that a proceeding
for the settlement of the estate of a
deceased may be deemed ready for final
closure, (1) there should have been
issued already an order of distribution or
assignment of the estate of the decedent
among or to those entitled thereto by will
or by law, but (2) such order shall not be
issued until after it is shown that the
"debts, funeral expenses, expenses of
administration, allowances, taxes, etc.
chargeable to the estate" have been
paid, which is but logical and proper. (3)
Besides, such an order is usually issued
upon proper and specific application for
the purpose of the interested party or
parties, and not of the court.

... it is only after, and not before, the


payment of all debts, funeral charges,
expenses of administration, allowance to
the widow, and inheritance tax shall have
been effected that the court should make
a declaration of heirs or of such persons
as are entitled by law to the residue.
(Moran, Comments on the Rules of Court,
2nd ed., Vol. II, p. 397, citing Capistrano
vs. Nadurata, 49 Phil., 726; Lopez vs.
Lopez, 37 Off. Gaz., 3091.) (JIMOGA-ON v.
BELMONTE, 84 Phil. 545, 548) (p. 86,
Appellee's Brief)
xxx

xxx

xxx

Under Section 753 of the Code of Civil


Procedure, (corresponding to Section 1,
Rule 90) what brings an intestate (or
testate) proceeding to a close is the
order of distribution directing delivery of
the residue to the persons entitled
thereto after paying the indebtedness, if
any, left by the deceased. (Santiesteban
vs. Santiesteban, 68 Phil. 367, 370.)
In the cases at bar, We cannot discern
from the voluminous and varied facts,
pleadings and orders before Us that the
above indispensable prerequisites for the
declaration of heirs and the adjudication
of the estate of Mrs. Hodges had already
been complied with when the order of
December 14, 1957 was issued. As
already stated, We are not persuaded
that the proceedings leading to the
issuance of said order, constituting
barely of the motion of May 27, 1957,
Annex D of the petition, the order of even
date, Annex E, and the motion of
December 11, 1957, Annex H, all
aforequoted,
are
what
the
law
contemplates. We cannot see in the
order of December 14, 1957, so much
relied upon by the petitioner, anything
more than an explicit approval of "all the
sales,
conveyances,
leases
and
mortgages of all the properties left by the
deceased Linnie Jane Hodges executed
by the Executor Charles N. Hodges"
(after the death of his wife and prior to

the date of the motion), plus a general


advance authorization to enable said
"Executor to execute subsequent
sales,
conveyances,
leases
and
mortgages of the properties left the said
deceased
Linnie
Jane
Hodges
in
consonance with wishes conveyed in the
last will and testament of the latter",
which, certainly, cannot amount to the
order of adjudication of the estate of the
decedent to Hodges contemplated in the
law. In fact, the motion of December 11,
1957 on which the court predicated the
order in question did not pray for any
such adjudication at all. What is more,
although said motion did allege that
"herein Executor (Hodges) is not only
part owner of the properties left as
conjugal, but also, the successor to all
the properties left by the deceased Linnie
Jane Hodges", it significantly added that
"herein Executor, as Legatee (sic), has
the right to sell, convey, lease or dispose
of the properties in the Philippines
during his lifetime", thereby indicating
that what said motion contemplated was
nothing more than either the enjoyment
by Hodges of his rights under the
particular portion of the dispositions of
his wife's will which were to be operative
only during his lifetime or the use of his
own share of the conjugal estate,
pending
the
termination
of
the
proceedings.
In
other
words,
the
authority referred to in said motions and
orders is in the nature of that
contemplated either in Section 2 of Rule
109 which permits, in appropriate cases,
advance or partial implementation of the
terms of a duly probated will before final
adjudication or distribution when the
rights of third parties would not be
adversely affected thereby or in the
established practice of allowing the
surviving spouse to dispose of his own
share of he conjugal estate, pending its
final liquidation, when it appears that no
creditors of the conjugal partnership
would be prejudiced thereby, (see the
Revised Rules of Court by Francisco, Vol.
V-B, 1970 ed. p. 887) albeit, from the

tenor of said motions, We are more


inclined to believe that Hodges meant to
refer to the former. In any event, We are
fully
persuaded
that
the
quoted
allegations of said motions read together
cannot be construed as a repudiation of
the rights unequivocally established in
the will in favor of Mrs. Hodges' brothers
and sisters to whatever have not been
disposed of by him up to his death.
Indeed, nowhere in the record does it
appear that the trial court subsequently
acted upon the premise suggested by
petitioner. On the contrary, on November
23, 1965, when the court resolved the
motion of appellee Western Institute of
Technology by its order We have quoted
earlier, it categorically held that as of
said date, November 23, 1965, "in both
cases (Special Proceedings 1307 and
1672) there is as yet no judicial
declaration of heirs nor distribution of
properties to whomsoever are entitled
thereto." In this connection, it may be
stated further against petitioner, by way
of some kind of estoppel, that in its own
motion of January 8, 1965, already
quoted in full on pages 54-67 of this
decision, it prayed inter alia that the
court declare that "C. N. Hodges was the
sole and exclusive heir of the estate of
Linnie Jane Hodges", which it would not
have done if it were really convinced that
the order of December 14, 1957 was
already the order of adjudication and
distribution of her estate. That said
motion was later withdrawn when Magno
filed her own motion for determination
and
adjudication
of
what
should
correspond to the brothers and sisters of
Mrs. Hodges does not alter the
indubitable implication of the prayer of
the withdrawn motion.
It must be borne in mind that while it is
true that Mrs. Hodges bequeathed her
whole estate to her husband and gave
him what amounts to full powers of
dominion over the same during his
lifetime, she imposed at the same time

the condition that whatever should


remain thereof upon his death should go
to her brothers and sisters. In effect,
therefore, what was absolutely given to
Hodges was only so much of his wife's
estate as he might possibly dispose of
during
his
lifetime;
hence,
even
assuming that by the allegations in his
motion, he did intend to adjudicate the
whole estate to himself, as suggested by
petitioner, such unilateral act could not
have affected or diminished in any
degree or manner the right of his
brothers and sisters-in-law over what
would remain thereof upon his death, for
surely, no one can rightly contend that
the testamentary provision in question
allowed him to so adjudicate any part of
the estate to himself as to prejudice
them. In other words, irrespective of
whatever might have been Hodges'
intention in his motions, as Executor, of
May 27, 1957 and December 11, 1957,
the trial court's orders granting said
motions, even in the terms in which they
have been worded, could not have had
the
effect
of
an
absolute
and
unconditional adjudication unto Hodges
of the whole estate of his wife. None of
them could have deprived his brothers
and sisters-in-law of their rights under
said will. And it may be added here that
the fact that no one appeared to oppose
the motions in question may only be
attributed, firstly, to the failure of Hodges
to send notices to any of them, as
admitted in the motion itself, and,
secondly, to the fact that even if they
had been notified, they could not have
taken said motions to be for the final
distribution and adjudication of the
estate, but merely for him to be able,
pending such final distribution and
adjudication, to either exercise during his
lifetime rights of dominion over his wife's
estate in accordance with the bequest in
his favor, which, as already observed,
may be allowed under the broad terms of
Section 2 of Rule 109, or make use of his
own share of the conjugal estate. In any
event, We do not believe that the trial

court could have acted in the sense


pretended by petitioner, not only
because of the clear language of the will
but also because none of the interested
parties had been duly notified of the
motion and hearing thereof. Stated
differently, if the orders of May 27, 1957
and December 4, 1957 were really
intended to be read in the sense
contended by petitioner, We would have
no hesitancy in declaring them null and
void.
Petitioner cites the case of Austria vs.
Ventenilla, G. R. No. L-10018, September
19, 1956, (unreported but a partial digest
thereof appears in 99 Phil. 1069) in
support of its insistence that with the
orders of May 27 and December 14,
1957, the closure of Mrs. Hodges' estate
has become a mere formality, inasmuch
as said orders amounted to the order of
adjudication and distribution ordained by
Section 1 of Rule 90. But the parallel
attempted to be drawn between that
case and the present one does not hold.
There the trial court had in fact issued a
clear, distinct and express order of
adjudication and distribution more than
twenty years before the other heirs of
the deceased filed their motion asking
that the administratrix be removed, etc.
As quoted in that decision, the order of
the lower court in that respect read as
follows:
En
orden
a
la
mocion
de
la
administradora, el juzgado la encuentra
procedente bajo la condicion de que no
se hara entrega ni adjudicacion de los
bienes a los herederos antes de que
estos presten la fianza correspondiente y
de acuerdo con lo prescrito en el Art. 754
del Codigo de Procedimientos: pues, en
autos no aparece que hayan sido
nombrados comisionados de avaluo y
reclamaciones. Dicha fianza podra ser
por un valor igual al de los bienes que
correspondan a cada heredero segun el
testamento. Creo que no es obice para la
terminacion del expediente el hecho de

que la administradora no ha presentado


hasta ahora el inventario de los bienes;
pues, segun la ley, estan exentos de esta
formalidad os administradores que son
legatarios del residuo o remanente de los
bienes y hayan prestado fianza para
responder de las gestiones de su cargo, y
aparece en el testamento que la
administradora Alejandra Austria reune
dicha condicion.
POR TODO LO EXPUESTO, el juzgado
declara, 1.o: no haber lugar a la mocion
de Ramon Ventenilla y otros; 2.o, declara
asimismo que los unicos herederos del
finado Antonio Ventenilla son su esposa
Alejandra Austria, Maria Ventenilla,
hermana
del
testador,
y
Ramon
Ventenilla, Maria Ventenilla, Ramon
Soriano, Eulalio Soriano, Jose Soriano,
Gabriela Ventenilla, Lorenzo Ventenilla,
Felicitas Ventenilla, Eugenio Ventenilla y
Alejandra Ventenilla, en representacion
de los difuntos Juan, Tomas, Catalino y
Froilan,
hermanos
del
testador,
declarando, ademas que la heredera
Alejandra Austria tiene derecho al
remanente de todos los bienes dejados
por el finado, despues de deducir de ellos
la porcion que corresponde a cada uno
de sus coherederos, conforme esta
mandado en las clausulas 8.a, 9.a, 10.a,
11.a, 12.a y 13.a del testamento; 3.o, se
aprueba
el
pago
hecho
por
la
administradora de los gastos de la ultima
enfermedad y funerales del testador, de
la donacion hecha por el testador a favor
de la Escuela a Publica del Municipio de
Mangatarem, y de las misas en sufragio
del alma del finado; 4.o, que una vez
prestada la fianza mencionada al
principio de este auto, se haga la entrega
y adjudicacion de los bienes, conforme se
dispone en el testamento y se acaba de
declarar en este auto; 5.o, y, finalmente,
que verificada la adjudicacion, se dara
por
terminada
la
administracion,
revelandole toda responsabilidad a la
administradora, y cancelando su fianza.
ASI SE ORDENA.

Undoubtedly, after the issuance of an


order of such tenor, the closure of any
proceedings for the settlement of the
estate of a deceased person cannot be
but perfunctory.
In the case at bar, as already pointed out
above, the two orders relied upon by
petitioner do not appear ex-facie to be of
the same tenor and nature as the order
just quoted, and, what is more, the
circumstances attendant to its issuance
do not suggest that such was the
intention of the court, for nothing could
have been more violative of the will of
Mrs. Hodges.
Indeed, to infer from Hodges' said
motions and from his statements of
accounts for the years 1958, 1959 and
1960, A Annexes I, K and M, respectively,
wherein he repeatedly claimed that
"herein executor (being) the only devisee
or
legatee
of
the
deceased,
in
accordance with the last will and
testament already probated," there is "no
(other)
person
interested
in
the
Philippines of the time and place of
examining herein account to be given
notice", an intent to adjudicate unto
himself the whole of his wife's estate in
an absolute manner and without regard
to the contingent interests of her
brothers and sisters, is to impute bad
faith to him, an imputation which is not
legally permissible, much less warranted
by the facts of record herein. Hodges
knew or ought to have known that,
legally speaking, the terms of his wife's
will did not give him such a right.
Factually,
there
are
enough
circumstances extant in the records of
these cases indicating that he had no
such intention to ignore the rights of his
co-heirs. In his very motions in question,
Hodges alleged, thru counsel, that the
"deceased Linnie Jane Hodges died
leaving no descendants and ascendants,
except brothers and sisters and herein
petitioner, as surviving spouse, to inherit

the properties of the decedent", and


even promised that "proper accounting
will be had in all these transactions"
which he had submitted for approval and
authorization by the court, thereby
implying that he was aware of his
responsibilities vis-a-vis his co-heirs. As
alleged by respondent Magno in her brief
as appellee:
Under date of April 14, 1959, C. N.
Hodges filed his first "Account by the
Executor" of the estate of Linnie Jane
Hodges. In the "Statement of Networth of
Mr. C. N. Hodges and the Estate of Linnie
Jane Hodges" as of December 31, 1958
annexed thereto, C. N. Hodges reported
that the combined conjugal estate
earned a net income of P328,402.62,
divided evenly between him and the
estate of Linnie Jane Hodges. Pursuant to
this, he filed an "individual income tax
return" for calendar year 1958 on the
estate of Linnie Jane Hodges reporting,
under oath, the said estate as having
earned income of P164,201.31, exactly
one-half of the net income of his
combined personal assets and that of the
estate of Linnie Jane Hodges. (p. 91,
Appellee's Brief.)
Under date of July 21, 1960, C. N. Hodges
filed his second "Annual Statement of
Account by the Executor" of the estate of
Linnie Jane Hodges. In the "Statement of
Networth of Mr. C. N. Hodges and the
Estate of Linnie Jane Hodges" as of
December 31, 1959 annexed thereto, C.
N. Hodges reported that the combined
conjugal estate earned a net income of
P270,623.32, divided evenly between
him and the estate of Linnie Jane Hodges.
Pursuant to this, he filed an "individual
income tax return" for calendar year
1959 on the estate of Linnie Jane Hodges
reporting, under oath, the said estate as
having earned income of P135,311.66,
exactly one-half of the net income of his
combined personal assets and that of the
estate of Linnie Jane Hodges. (pp. 91-92,
id.)

Under date of April 20, 1961, C. N.


Hodges filed his third "Annual Statement
of Account by the Executor for the year
1960" of the estate of Linnie Jane
Hodges. In the "Statement of Net Worth
of Mr. C. N. Hodges and the Estate of
Linnie Jane Hodges" as of December 31,
1960 annexed thereto, C. N. Hodges
reported that the combined conjugal
estate earned a net income of
P314,857.94, divided of Linnie Jane
Hodges. Pursuant to this, he filed an
"individual evenly between him and the
estate income tax return" for calendar
year 1960 on the estate of Linnie Jane
Hodges reporting, under oath, the said
estate as having earned income of
P157,428.97, exactly one-half of the net
income of his combined personal assets
and that of the estate of Linnie Jane
Hodges. (pp. 92-93, id.)
In the petition for probate that he
(Hodges) filed, he listed the seven
brothers and sisters of Linnie Jane as her
"heirs" (see p. 2, Green ROA). The order
of the court admitting the will to probate
unfortunately omitted one of the heirs,
Roy Higdon (see p. 14, Green ROA).
Immediately, C. N. Hodges filed a verified
motion to have Roy Higdon's name
included as an heir, stating that he
wanted to straighten the records "in
order (that) the heirs of deceased Roy
Higdon may not think or believe they
were omitted, and that they were really
and are interested in the estate of
deceased Linnie Jane Hodges".
Thus, he recognized, if in his own way,
the separate identity of his wife's estate
from his own share of the conjugal
partnership up to the time of his death,
more than five years after that of his
wife. He never considered the whole
estate as a single one belonging
exclusively
to
himself.
The
only
conclusion one can gather from this is
that he could have been preparing the
basis for the eventual transmission of his

wife's estate, or, at least, so much


thereof as he would not have been able
to dispose of during his lifetime, to her
brothers and sisters in accordance with
her expressed desire, as intimated in his
tax return in the United States to be
more extensively referred to anon. And
assuming
that
he
did
pay
the
corresponding estate and inheritance
taxes in the Philippines on the basis of
his being sole heir, such payment is not
necessarily
inconsistent
with
his
recognition of the rights of his co-heirs.
Without purporting to rule definitely on
the matter in these proceedings, We
might say here that We are inclined to
the view that under the peculiar
provisions of his wife's will, and for
purposes of the applicable inheritance
tax laws, Hodges had to be considered as
her sole heir, pending the actual
transmission of the remaining portion of
her estate to her other heirs, upon the
eventuality of his death, and whatever
adjustment might be warranted should
there be any such remainder then is a
matter that could well be taken care of
by the internal revenue authorities in due
time.
It is to be noted that the lawyer, Atty.
Leon P. Gellada, who signed the motions
of May 27, 1957 and December 11, 1957
and the aforementioned statements of
account was the very same one who also
subsequently signed and filed the motion
of
December
26,
1962
for
the
appointment of respondent Magno as
"Administratrix of the Estate of Mrs.
Linnie Jane Hodges" wherein it was
alleged that "in accordance with the
provisions of the last will and testament
of Linnie Jane Hodges, whatever real
properties that may remain at the death
of her husband, Charles Newton Hodges,
the said properties shall be equally
divided among their heirs." And it
appearing that said attorney was Hodges'
lawyer as Executor of the estate of his
wife, it stands to reason that his
understanding of the situation, implicit in

his allegations just quoted, could


somehow be reflective of Hodges' own
understanding thereof.
As a matter of fact, the allegations in the
motion of the same Atty. Gellada dated
July 1, 1957, a "Request for Inclusion of
the Name of Roy Higdon in the Order of
the Court dated July 19, 1957, etc.",
reference to which is made in the above
quotation from respondent Magno's brief,
are over the oath of Hodges himself, who
verified the motion. Said allegations
read:
1. That the Hon. Court issued orders
dated June 29, 1957, ordering the
probate of the will.

documents, copies of which are annexed


to respondent Magno's answer, which
purportedly contain Hodges' own solemn
declarations recognizing the right of his
co-heirs, such as the alleged tax return
he filed with the United States Taxation
authorities, identified as Schedule M,
(Annex 4 of her answer) and his
supposed affidavit of renunciation, Annex
5. In said Schedule M, Hodges appears to
have answered the pertinent question
thus:
2a. Had the surviving spouse the right
to declare an election between (1) the
provisions made in his or her favor by the
will and (11) dower, curtesy or a
statutory interest? (X) Yes ( ) No

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.

2d. Does
the
surviving
spouse
contemplate renouncing the will and
electing to take dower, curtesy, or a
statutory interest? (X) Yes ( ) No

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)

and to have further stated under the


item, "Description of property interests
passing to surviving spouse" the
following:

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

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)

None,
except
for
purposes
of
administering the Estate, paying debts,
taxes and other legal charges. It is the
intention of the surviving husband of
deceased to distribute the remaining
property and interests of the deceased in
their Community Estate to the devisees
and legatees named in the will when the
debts, liabilities, taxes and expenses of
administration are finally determined and
paid. (Annex 4, Answer Record, p. 263)
In addition, in the supposed affidavit of
Hodges, Annex 5, it is stated:

I, C. N. Hodges, being duly sworn, on


oath affirm that at the time the United
States Estate Tax Return was filed in the
Estate of Linnie Jane Hodges on August 8,
1958, I renounced and disclaimed any
and all right to receive the rents,
emoluments and income from said
estate, as shown by the statement
contained in Schedule M at page 29 of
said return, a copy of which schedule is
attached to this affidavit and made a part
hereof.
The purpose of this affidavit is to ratify
and confirm, and I do hereby ratify and
confirm, the declaration made in
Schedule M of said return and hereby
formally disclaim and renounce any right
on my part to receive any of the said
rents, emoluments and income from the
estate of my deceased wife, Linnie Jane
Hodges. This affidavit is made to absolve
me or my estate from any liability for the
payment of income taxes on income
which has accrued to the estate of Linnie
Jane Hodges since the death of the said
Linnie Jane Hodges on May 23, 1957.
(Annex 5, Answer Record, p. 264)
Although it appears that said documents
were not duly presented as evidence in
the court below, and We cannot,
therefore, rely on them for the purpose of
the present proceedings, still, We cannot
close our eyes to their existence in the
record nor fail to note that their tenor
jibes with Our conclusion discussed
above from the circumstances related to
the orders of May 27 and December 14,
1957. 5 Somehow, these documents,
considering they are supposed to be
copies of their originals found in the
official files of the governments of the
United States and of the Philippines,
serve
to
lessen
any
possible
apprehension that Our conclusion from
the other evidence of Hodges' manifest
intent vis-a-vis the rights of his co-heirs is
without basis in fact.

Verily, with such eloquent manifestations


of his good intentions towards the other
heirs of his wife, We find it very hard to
believe that Hodges did ask the court
and that the latter agreed that he be
declared her sole heir and that her whole
estate be adjudicated to him without so
much as just annotating the contingent
interest of her brothers and sisters in
what would remain thereof upon his
demise. On the contrary, it seems to us
more factual and fairer to assume that
Hodges was well aware of his position as
executor of the will of his wife and, as
such, had in mind the following
admonition made by the Court in
Pamittan vs. Lasam, et al., 60 Phil., 908,
at pp. 913-914:
Upon the death of Bernarda in
September, 1908, said lands continued
to be conjugal property in the hands of
the defendant Lasam. It is provided in
article 1418 of the Civil Code that upon
the
dissolution
of
the
conjugal
partnership,
an
inventory
shall
immediately be made and this court in
construing this provision in connection
with section 685 of the Code of Civil
Procedure (prior to its amendment by Act
No. 3176 of November 24, 1924) has
repeatedly held that in the event of the
death of the wife, the law imposes upon
the husband the duty of liquidating the
affairs of the partnership without delay
(desde luego) (Alfonso vs. Natividad, 6
Phil., 240; Prado vs. Lagera, 7 Phil., 395;
De la Rama vs. De la Rama, 7 Phil., 745;
Enriquez vs. Victoria, 10 Phil., 10;
Amancio vs. Pardo, 13 Phil., 297; Rojas
vs. Singson Tongson, 17 Phil., 476;
Sochayseng vs. Trujillo, 31 Phil., 153;
Molera vs. Molera, 40 Phil., 566; Nable
Jose vs. Nable Jose, 41 Phil., 713.)
In the last mentioned case this court
quoted with approval the case of
Leatherwood vs. Arnold (66 Texas, 414,
416, 417), in which that court discussed
the powers of the surviving spouse in the
administration
of
the
community

property. Attention was called to the fact


that the surviving husband, in the
management of the conjugal property
after the death of the wife, was a trustee
of unique character who is liable for any
fraud committed by him with relation to
the property while he is charged with its
administration. In the liquidation of the
conjugal partnership, he had wide
powers (as the law stood prior to Act No.
3176) and the high degree of trust
reposed in him stands out more clearly in
view of the fact that he was the owner of
a half interest in his own right of the
conjugal estate which he was charged to
administer. He could therefore no more
acquire a title by prescription against
those for whom he was administering the
conjugal estate than could a guardian
against
his
ward
or
a
judicial
administrator against the heirs of estate.
Section 38 of Chapter III of the Code of
Civil
Procedure,
with
relation
to
prescription, provides that "this chapter
shall not apply ... in the case of a
continuing and subsisting trust." The
surviving husband in the administration
and liquidation of the conjugal estate
occupies the position of a trustee of the
highest order and is not permitted by the
law to hold that estate or any portion
thereof adversely to those for whose
benefit the law imposes upon him the
duty of administration and liquidation. No
liquidation was ever made by Lasam
hence, the conjugal property which came
into his possession on the death of his
wife in September, 1908, still remains
conjugal property, a continuing and
subsisting trust. He should have made a
liquidation immediately (desde luego).
He cannot now be permitted to take
advantage of his own wrong. One of the
conditions of title by prescription (section
41, Code of Civil Procedure) is possession
"under a claim of title exclusive of any
other right". For a trustee to make such a
claim would be a manifest fraud.
And knowing thus his responsibilities in
the premises, We are not convinced that

Hodges
arrogated
everything
unto
himself leaving nothing at all to be
inherited by his wife's brothers and
sisters.
PCIB insists, however, that to read the
orders of May 27 and December 14,
1957, not as adjudicatory, but merely as
approving past and authorizing future
dispositions made by Hodges in a
wholesale and general manner, would
necessarily render the said orders void
for being violative of the provisions of
Rule 89 governing the manner in which
such dispositions may be made and how
the authority therefor and approval
thereof by the probate court may be
secured. If We sustained such a view, the
result would only be that the said orders
should be declared ineffective either way
they are understood, considering We
have already seen it is legally impossible
to consider them as adjudicatory. As a
matter of fact, however, what surges
immediately to the surface, relative to
PCIB's observations based on Rule 89, is
that from such point of view, the
supposed irregularity would involve no
more
than
some
non-jurisdictional
technicalities of procedure, which have
for their evident fundamental purpose
the protection of parties interested in the
estate, such as the heirs, its creditors,
particularly the government on account
of the taxes due it; and since it is
apparent here that none of such parties
are objecting to said orders or would be
prejudiced by the unobservance by the
trial court of the procedure pointed out
by PCIB, We find no legal inconvenience
in nor impediment to Our giving sanction
to the blanket approval and authority
contained in said orders. This solution is
definitely preferable in law and in equity,
for to view said orders in the sense
suggested by PCIB would result in the
deprivation of substantive rights to the
brothers and sisters of Mrs. Hodges,
whereas reading them the other way will
not cause any prejudice to anyone, and,
withal, will give peace of mind and

stability of rights to the innocent parties


who relied on them in good faith, in the
light of the peculiar pertinent provisions
of the will of said decedent.
Now, the inventory submitted by Hodges
on May 12, 1958 referred to the estate of
his wife as consisting of "One-half of all
the items designated in the balance
sheet, copy of which is hereto attached
and marked as "Annex A"." Although,
regrettably, no copy of said Annex A
appears in the records before Us, We
take judicial notice, on the basis of the
undisputed facts in these cases, that the
same consists of considerable real and
other personal kinds of properties. And
since, according to her will, her husband
was to be the sole owner thereof during
his lifetime, with full power and authority
to dispose of any of them, provided that
should there be any remainder upon his
death, such remainder would go to her
brothers and sisters, and furthermore,
there is no pretension, much less any
proof that Hodges had in fact disposed of
all of them, and, on the contrary, the
indications are rather to the effect that
he had kept them more or less intact, it
cannot truthfully be said that, upon the
death of Hodges, there was no more
estate of Mrs. Hodges to speak of. It is
Our conclusion, therefore, that properties
do exist which constitute such estate,
hence Special Proceedings 1307 should
not yet be closed.
Neither is there basis for holding that
respondent Magno has ceased to be the
Administratrix in said proceeding. There
is no showing that she has ever been
legally removed as such, the attempt to
replace her with Mr. Benito Lopez without
authority from the Court having been
expressly held ineffective by Our
resolution of September 8, 1972.
Parenthetically, on this last point, PCIB
itself is very emphatic in stressing that it
is not questioning said respondent's
status as such administratrix. Indeed, it
is not clear that PCIB has any standing to

raise any objection thereto, considering it


is a complete stranger insofar as the
estate of Mrs. Hodges is concerned.
It is the contention of PCIB, however, that
as things actually stood at the time of
Hodges' death, their conjugal partnership
had not yet been liquidated and,
inasmuch as the properties composing
the same were thus commingled pro
indiviso
and,
consequently,
the
properties pertaining to the estate of
each of the spouses are not yet
identifiable, it is PCIB alone, as
administrator of the estate of Hodges,
who should administer everything, and
all that respondent Magno can do for the
time being is to wait until the properties
constituting the remaining estate of Mrs.
Hodges have been duly segregated and
delivered
to
her
for
her
own
administration. Seemingly, PCIB would
liken the Testate Estate of Linnie Jane
Hodges to a party having a claim of
ownership to some properties included in
the inventory of an administrator of the
estate of a decedent, (here that of
Hodges) and who normally has no right
to take part in the proceedings pending
the establishment of his right or title; for
which as a rule it is required that an
ordinary action should be filed, since the
probate court is without jurisdiction to
pass with finality on questions of title
between the estate of the deceased, on
the one hand, and a third party or even
an heir claiming adversely against the
estate, on the other.
We do not find such contention
sufficiently persuasive. As We see it, the
situation obtaining herein cannot be
compared with the claim of a third party
the basis of which is alien to the pending
probate proceedings. In the present
cases what gave rise to the claim of PCIB
of exclusive ownership by the estate of
Hodges over all the properties of the
Hodges spouses, including the share of
Mrs.
Hodges
in
the
community
properties, were the orders of the trial

court issued in the course of the very


settlement
proceedings
themselves,
more specifically, the orders of May 27
and December 14, 1957 so often
mentioned above. In other words, the
root of the issue of title between the
parties is something that the court itself
has done in the exercise of its probate
jurisdiction. And since in the ultimate
analysis, the question of whether or not
all the properties herein involved pertain
exclusively to the estate of Hodges
depends on the legal meaning and effect
of said orders, the claim that respondent
court has no jurisdiction to take
cognizance of and decide the said issue
is incorrect. If it was within the
competence of the court to issue the root
orders, why should it not be within its
authority
to
declare
their
true
significance and intent, to the end that
the parties may know whether or not the
estate of Mrs. Hodges had already been
adjudicated by the court, upon the
initiative of Hodges, in his favor, to the
exclusion of the other heirs of his wife
instituted in her will?
At this point, it bears emphasis again
that the main cause of all the present
problems confronting the courts and the
parties in these cases was the failure of
Hodges to secure, as executor of his
wife's estate, from May, 1957 up to the
time of his death in December, 1962, a
period of more than five years, the final
adjudication of her estate and the closure
of the proceedings. The record is bare of
any showing that he ever exerted any
effort towards the early settlement of
said estate. While, on the one hand,
there are enough indications, as already
discuss that he had intentions of leaving
intact her share of the conjugal
properties so that it may pass wholly to
his co-heirs upon his death, pursuant to
her will, on the other hand, by not
terminating the proceedings, his interests
in his own half of the conjugal properties
remained commingled pro-indiviso with
those of his co-heirs in the other half.

Obviously, such a situation could not be


conducive to ready ascertainment of the
portion of the inheritance that should
appertain to his co-heirs upon his death.
Having these considerations in mind, it
would be giving a premium for such
procrastination and rather unfair to his
co-heirs, if the administrator of his estate
were to be given exclusive administration
of all the properties in question, which
would necessarily include the function of
promptly
liquidating
the
conjugal
partnership, thereby identifying and
segregating without unnecessary loss of
time
which
properties
should
be
considered as constituting the estate of
Mrs. Hodges, the remainder of which her
brothers and sisters are supposed to
inherit equally among themselves.
To be sure, an administrator is not
supposed to represent the interests of
any particular party and his acts are
deemed to be objectively for the
protection of the rights of everybody
concerned with the estate of the
decedent, and from this point of view, it
maybe said that even if PCIB were to act
alone, there should be no fear of undue
disadvantage to anyone. On the other
hand, however, it is evidently implicit in
section 6 of Rule 78 fixing the priority
among those to whom letters of
administration should be granted that
the criterion in the selection of the
administrator is not his impartiality alone
but, more importantly, the extent of his
interest in the estate, so much so that
the one assumed to have greater interest
is preferred to another who has less.
Taking both of these considerations into
account, inasmuch as, according to
Hodges' own inventory submitted by him
as Executor of the estate of his wife,
practically all their properties were
conjugal which means that the spouses
have equal shares therein, it is but logical
that both estates should be administered
jointly by representatives of both,
pending their segregation from each
other. Particularly is such an arrangement

warranted because the actuations so far


of PCIB evince a determined, albeit
groundless, intent to exclude the other
heirs of Mrs. Hodges from their
inheritance. Besides, to allow PCIB, the
administrator of his estate, to perform
now what Hodges was duty bound to do
as executor is to violate the spirit, if not
the letter, of Section 2 of Rule 78 which
expressly provides that "The executor of
an executor shall not, as such, administer
the estate of the first testator." It goes
without saying that this provision refers
also to the administrator of an executor
like PCIB here.
We are not unmindful of the fact that
under Section 2 of Rule 73, "When the
marriage is dissolved by the death of the
husband or wife, the community property
shall be inventoried, administered, and
liquidated, and the debts thereof paid, in
the testate or intestate proceedings of
the deceased spouse. If both spouses
have died, the conjugal partnership shall
be liquidated in the testate or intestate
proceedings of either." Indeed, it is true
that the last sentence of this provision
allows
or
permits
the
conjugal
partnership of spouses who are both
deceased to be settled or liquidated in
the testate or intestate proceedings of
either, but precisely because said
sentence allows or permits that the
liquidation be made in either proceeding,
it is a matter of sound judicial discretion
in which one it should be made. After all,
the former rule referring to the
administrator of the husband's estate in
respect to such liquidation was done
away with by Act 3176, the pertinent
provisions of which are now embodied in
the rule just cited.
Thus, it can be seen that at the time of
the death of Hodges, there was already
the
pending
judicial
settlement
proceeding of the estate of Mrs. Hodges,
and, more importantly, that the former
was the executor of the latter's will who
had, as such, failed for more than five

years to see to it that the same was


terminated earliest, which was not
difficult to do, since from ought that
appears in the record, there were no
serious obstacles on the way, the estate
not being indebted and there being no
immediate heirs other than Hodges
himself. Such dilatory or indifferent
attitude could only spell possible
prejudice of his co-heirs, whose rights to
inheritance depend entirely on the
existence of any remainder of Mrs.
Hodges' share in the community
properties, and who are now faced with
the pose of PCIB that there is no such
remainder. Had Hodges secured as early
as possible the settlement of his wife's
estate, this problem would not arisen. All
things considered, We are fully convinced
that the interests of justice will be better
served by not permitting or allowing PCIB
or any administrator of the estate of
Hodges exclusive administration of all
the properties in question. We are of the
considered opinion and so hold that what
would be just and proper is for both
administrators of the two estates to act
conjointly until after said estates have
been segregated from each other.
At this juncture, it may be stated that we
are not overlooking the fact that it is
PCIB's contention that, viewed as a
substitution, the testamentary disposition
in favor of Mrs. Hodges' brothers and
sisters may not be given effect. To a
certain extent, this contention is correct.
Indeed, legally speaking, Mrs. Hodges'
will provides neither for a simple or
vulgar substitution under Article 859 of
the Civil Code nor for a fideicommissary
substitution under Article 863 thereof.
There is no vulgar substitution therein
because there is no provision for either
(1) predecease of the testator by the
designated heir or (2) refusal or (3)
incapacity of the latter to accept the
inheritance, as required by Article 859;
and neither is there a fideicommissary
substitution
therein
because
no
obligation is imposed thereby upon

Hodges to preserve the estate or any


part thereof for anyone else. But from
these premises, it is not correct to jump
to the conclusion, as PCIB does, that the
testamentary dispositions in question are
therefore inoperative and invalid.
The error in PCIB's position lies simply in
the fact that it views the said disposition
exclusively in the light of substitutions
covered by the Civil Code section on that
subject, (Section 3, Chapter 2, Title IV,
Book III) when it is obvious that
substitution occurs only when another
heir is appointed in a will "so that he may
enter into inheritance in default of the
heir originally instituted," (Article 857,
id.) and, in the present case, no such
possible default is contemplated. The
brothers and sisters of Mrs. Hodges are
not substitutes for Hodges because,
under her will, they are not to inherit
what Hodges cannot, would not or may
not inherit, but what he would not
dispose of from his inheritance; rather,
therefore, they are also heirs instituted
simultaneously with Hodges, subject,
however, to certain conditions, partially
resolutory insofar as Hodges was
concerned
and
correspondingly
suspensive with reference to his brothers
and
sisters-in-law.
It
is
partially
resolutory, since it bequeaths unto
Hodges the whole of her estate to be
owned and enjoyed by him as universal
and sole heir with absolute dominion
over 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
legitime of Hodges as the surviving
spouse, consisting of one-half of the
estate, considering that Mrs. Hodges had
no
surviving
ascendants
nor
descendants. (Arts. 872, 900, and 904,
New Civil Code.)
But relative precisely to the question of
how much of Mrs. Hodges' share of the
conjugal partnership properties may be
considered as her estate, the parties are
in disagreement as to how Article 16 of
the Civil 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 aboveindicated, the question of what are the
laws of Texas governing the matters
herein issue is, in the first instance, one
of fact, not of law. Elementary is the rule
that foreign laws may not be taken
judicial notice of and have to be proven
like any other fact in dispute between the
parties in any proceeding, with the rare
exception in instances when the said
laws are already within the actual
knowledge of the court, such as when
they are well and generally known or
they have been actually ruled upon in

other cases before it and none of the


parties
concerned
do
not
claim
otherwise. (5 Moran, Comments on the
Rules of Court, p. 41, 1970 ed.) In
Fluemer vs. Hix, 54 Phil. 610, it was held:
It is the theory of the petitioner that the
alleged will was executed in Elkins West
Virginia, on November 3, 1925, by Hix
who had his residence in that jurisdiction,
and that the laws of West Virginia govern.
To this end, there was submitted a copy
of section 3868 of Acts 1882, c. 84 as
found in West Virginia Code, Annotated,
by Hogg Charles E., vol. 2, 1914, p. 1960,
and as certified to by the Director of the
National Library. But this was far from a
compliance with the law. The laws of a
foreign
jurisdiction
do
not
prove
themselves in our courts. The courts of
the Philippine Islands are not authorized
to take judicial notice of the laws of the
various States of the American Union.
Such laws must be proved as facts. (In re
Estate of Johnson [1918], 39 Phil., 156.)
Here the requirements of the law were
not met. There was no showing that the
book from which an extract was taken
was printed or published under the
authority of the State of West Virginia, as
provided in section 300 of the Code of
Civil Procedure. Nor was the extract from
the law attested by the certificate of the
officer having charge of the original,
under the seal of the State of West
Virginia, as provided in section 301 of the
Code of Civil Procedure. No evidence was
introduced to show that the extract from
the laws of West Virginia was in force at
the time the alleged will was executed."
No evidence of the nature thus
suggested by the Court may be found in
the records of the cases at bar. Quite to
the contrary, the parties herein have
presented opposing versions in their
respective pleadings and memoranda
regarding the matter. And even if We
took into account that in Aznar vs.
Garcia, the Court did make reference to
certain provisions regarding succession

in the laws of Texas, the disparity in the


material dates of that case and the
present ones would not permit Us to
indulge in the hazardous conjecture that
said provisions have not been amended
or changed in the meantime.
On the other hand, in In re Estate of
Johnson, 39 Phil. 156, We held:
Upon the other point as to whether the
will was executed in conformity with the
statutes of the State of Illinois we note
that it does not affirmatively appear from
the transcription of the testimony
adduced in the trial court that any
witness was examined with reference to
the law of Illinois on the subject of the
execution of will. The trial judge no doubt
was satisfied that the will was properly
executed by examining section 1874 of
the Revised Statutes of Illinois, as
exhibited in volume 3 of Starr & Curtis's
Annotated Illinois Statutes, 2nd ed., p.
426; and he may have assumed that he
could take judicial notice of the laws of
Illinois under section 275 of the Code of
Civil Procedure. If so, he was in our
opinion mistaken. That section authorizes
the courts here to take judicial notice,
among other things, of the acts of the
legislative department of the United
States. These words clearly have
reference to Acts of the Congress of the
United States; and we would hesitate to
hold that our courts can, under this
provision, take judicial notice of the
multifarious laws of the various American
States. Nor do we think that any such
authority can be derived from the
broader language, used in the same
section, where it is said that our courts
may take judicial notice of matters of
public knowledge "similar" to those
therein enumerated. The proper rule we
think is to require proof of the statutes of
the States of the American Union
whenever
their
provisions
are
determinative of the issues in any action
litigated in the Philippine courts.

Nevertheless, even supposing that the


trial court may have erred in taking
judicial notice of the law of Illinois on the
point in question, such error is not now
available to the petitioner, first, because
the petition does not state any fact from
which it would appear that the law of
Illinois is different from what the court
found, and, secondly, because the
assignment of error and argument for the
appellant in this court raises no question
based on such supposed error. Though
the trial court may have acted upon pure
conjecture as to the law prevailing in the
State of Illinois, its judgment could not be
set aside, even upon application made
within six months under section 113 of
the Code of Civil Procedure, unless it
should be made to appear affirmatively
that the conjecture was wrong. The
petitioner, it is true, states in general
terms that the will in question is invalid
and inadequate to pass real and personal
property in the State of Illinois, but this is
merely a conclusion of law. The affidavits
by which the petition is accompanied
contain no reference to the subject, and
we are cited to no authority in the
appellant's brief which might tend to
raise a doubt as to the correctness of the
conclusion of the trial court. It is very
clear, therefore, that this point cannot be
urged as of serious moment.
It is implicit in the above ruling that
when, with respect to certain aspects of
the foreign laws concerned, the parties in
a given case do not have any controversy
or are more or less in agreement, the
Court may take it for granted for the
purposes of the particular case before it
that the said laws are as such virtual
agreement indicates, without the need of
requiring the presentation of what
otherwise would be the competent
evidence on the point. Thus, in the
instant cases wherein it results from the
respective contentions of both parties
that even if the pertinent laws of Texas
were known and to be applied, the
amount of the inheritance pertaining to

the heirs of Mrs. Hodges is as We have


fixed above, the absence of evidence to
the effect that, actually and in fact, under
said laws, it could be otherwise is of no
longer of any consequence, unless the
purpose is to show that it could be more.
In other words, since PCIB, the petitionerappellant,
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.

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.

As recited above, there is no question


that the deceased, Linnie Jane Hodges,
was an American citizen. There is also no
question that she was a national of the
State of Texas, U.S.A. Again, there is
likewise no question that she had her
domicile of choice in the City of Iloilo,
Philippines, as this has already been
pronounced by the above-cited orders of
the lower court, pronouncements which
are by now res adjudicata (par. [a], See.
49, Rule 39, Rules of Court; In re Estate
of Johnson, 39 Phil. 156).

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.

Article 16 of the Civil Code provides:

The subject of successional rights.

"Real property as well as personal


property is subject to the law of the
country where it is situated.

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.

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 ...".

Again,
Philippine
law,
or
more
specifically, Article 900 of the Civil Code
provides:
If the only survivor is the widow or
widower, she or he shall be entitled to
one-half of the hereditary estate of the
deceased spouse, and the testator may
freely dispose of the other half.

If the marriage between the surviving


spouse and the testator was solemnized
in articulo mortis, and the testator died
within three months from the time of the
marriage, the legitime of the surviving
spouse as the sole heir shall be one-third
of the hereditary estate, except when
they have been living as husband and
wife for more than five years. In the
latter case, the legitime of the surviving
spouse shall be that specified in the
preceding paragraph.
This legitime of the surviving spouse
cannot be burdened by a fideicommisary
substitution (Art. 864, Civil code), nor by
any charge, condition, or substitution
(Art, 872, Civil code). It is clear,
therefore, that in addition to one-half of
the conjugal partnership property as his
own conjugal share, Charles Newton
Hodges was also immediately entitled to
one-half of the half conjugal share of the
deceased, Linnie Jane Hodges, or onefourth of the entire conjugal property, as
his legitime.
One-fourth of the conjugal
therefore remains at issue.

property

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. 2223, 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. 2529, petition). He in fact assumed such
ownership and such was the status of the
properties as of the time of his death (pp.
29-34, petition).
Of similar tenor are the allegations of
PCIB in some of its pleadings quoted in
the earlier part of this option.
On her part, it is respondent-appellee
Magno's posture that under the laws of
Texas, there is no system of legitime,
hence the estate of Mrs. Hodges should
be one-half of all the conjugal properties.
It is thus unquestionable that as far as
PCIB is concerned, the application to
these cases of Article 16 of the Civil Code
in relation to the corresponding laws of
Texas would result in that the Philippine
laws on succession should control. On
that basis, as We have already explained
above, the estate of Mrs. Hodges is the
remainder of one-fourth of the conjugal

partnership properties, considering that


We have found that there is no legal
impediment to the kind of disposition
ordered by Mrs. Hodges in her will in
favor of her brothers and sisters and,
further, that the contention of PCIB that
the same constitutes an inoperative
testamentary substitution is untenable.
As will be recalled, PCIB's position that
there is no such estate of Mrs. Hodges is
predicated
exclusively
on
two
propositions, namely: (1) that the
provision in question in Mrs. Hodges'
testament
violates
the
rules
on
substitution of heirs under the Civil Code
and (2) that, in any event, by the orders
of the trial court of May 27, and
December 14, 1957, the trial court had
already
finally
and
irrevocably
adjudicated to her husband the whole
free portion of her estate to the exclusion
of her brothers and sisters, both of which
poses, We have overruled. Nowhere in its
pleadings, briefs and memoranda does
PCIB maintain that the application of the
laws of Texas would result in the other
heirs of Mrs. Hodges not inheriting
anything under her will. And since PCIB's
representations in regard to the laws of
Texas virtually constitute admissions of
fact which the other parties and the
Court are being made to rely and act
upon, PCIB is "not permitted to contradict
them or subsequently take a position
contradictory to or inconsistent with
them." (5 Moran, id, p. 65, citing
Cunanan vs. Amparo, 80 Phil. 227; Sta.
Ana vs. Maliwat, L-23023, Aug. 31, 1968,
24 SCRA 1018).
Accordingly, the only question that
remains to be settled in the further
proceedings hereby ordered to be held in
the court below is how much more than
as fixed above is the estate of Mrs.
Hodges, and this would depend on (1)
whether or not the applicable laws of
Texas do provide in effect for more, such
as, when there is no legitime provided
therein, and (2) whether or not Hodges

has validly waived his whole inheritance


from Mrs. Hodges.
In the course of the deliberations, it was
brought out by some members of the
Court that to avoid or, at least, minimize
further protracted legal controversies
between the respective heirs of the
Hodges spouses, it is imperative to
elucidate on the possible consequences
of dispositions made by Hodges after the
death of his wife from the mass of the
unpartitioned
estates
without
any
express indication in the pertinent
documents as to whether his intention is
to dispose of part of his inheritance from
his wife or part of his own share of the
conjugal estate as well as of those made
by PCIB after the death of Hodges. After
a long discussion, the consensus arrived
at was as follows: (1) any such
dispositions made gratuitously in favor of
third
parties,
whether
these
be
individuals, corporations or foundations,
shall be considered as intended to be of
properties constituting part of Hodges'
inheritance from his wife, it appearing
from the tenor of his motions of May 27
and December 11, 1957 that in asking
for general authority to make sales or
other disposals of properties under the
jurisdiction of the court, which include his
own share of the conjugal estate, he was
not invoking particularly his right over his
own share, but rather his right to dispose
of any part of his inheritance pursuant to
the will of his wife; (2) as regards sales,
exchanges
or
other
remunerative
transfers, the proceeds of such sales or
the properties taken in by virtue of such
exchanges, shall be considered as merely
the products of "physical changes" of the
properties of her estate which the will
expressly authorizes Hodges to make,
provided that whatever of said products
should remain with the estate at the time
of the death of Hodges should go to her
brothers and sisters; (3) the dispositions
made by PCIB after the death of Hodges
must naturally be deemed as covering
only the properties belonging to his

estate considering that being only the


administrator of the estate of Hodges,
PCIB could not have disposed of
properties belonging to the estate of his
wife. Neither could such dispositions be
considered
as
involving
conjugal
properties, for the simple reason that the
conjugal
partnership
automatically
ceased when Mrs. Hodges died, and by
the peculiar provision of her will, under
discussion, the remainder of her share
descended also automatically upon the
death of Hodges to her brothers and
sisters, thus outside of the scope of
PCIB's administration. Accordingly, these
construction of the will of Mrs. Hodges
should be adhered to by the trial court in
its final order of adjudication and
distribution and/or partition of the two
estates in question.
THE APPEALS
A cursory examination of the seventyeight assignments of error in appellant
PCIB's brief would readily reveal that all
of them are predicated mainly on the
contention that inasmuch as Hodges had
already adjudicated unto himself all the
properties constituting his wife's share of
the conjugal partnership, allegedly with
the sanction of the trial court per its
order of December 14, 1957, there has
been, since said date, no longer any
estate of Mrs. Hodges of which appellee
Magno could be administratrix, hence the
various assailed orders sanctioning her
actuations as such are not in accordance
with law. Such being the case, with the
foregoing resolution holding such posture
to be untenable in fact and in law and
that it is in the best interest of justice
that for the time being the two estates
should be administered conjointly by the
respective administrators of the two
estates, it should follow that said
assignments of error have lost their
fundamental reasons for being. There are
certain
matters,
however,
relating
peculiarly to the respective orders in
question, if commonly among some of

them, which need further clarification.


For instance, some of them authorized
respondent Magno to act alone or
without concurrence of PCIB. And with
respect to many of said orders, PCIB
further claims that either the matters
involved were not properly within the
probate jurisdiction of the trial court or
that the procedure followed was not in
accordance with the rules. Hence, the
necessity of dealing separately with the
merits of each of the appeals.
Indeed, inasmuch as the said two estates
have until now remained commingled
pro-indiviso, due to the failure of Hodges
and the lower court to liquidate the
conjugal
partnership,
to
recognize
appellee Magno as Administratrix of the
Testate Estate of Mrs. Hodges which is
still unsegregated from that of Hodges is
not to say, without any qualification, that
she was therefore authorized to do and
perform all her acts complained of in
these appeals, sanctioned though they
might have been by the trial court. As a
matter of fact, it is such commingling
pro-indiviso of the two estates that
should deprive appellee of freedom to
act
independently
from
PCIB,
as
administrator of the estate of Hodges,
just as, for the same reason, the latter
should not have authority to act
independently from her. And considering
that the lower court failed to adhere
consistently to this basic point of view,
by allowing the two administrators to act
independently of each other, in the
various instances already noted in the
narration of facts above, the Court has to
look into the attendant circumstances of
each of the appealed orders to be able to
determine whether any of them has to be
set aside or they may all be legally
maintained notwithstanding the failure of
the court a quo to observe the pertinent
procedural technicalities, to the end only
that graver injury to the substantive
rights of the parties concerned and
unnecessary
and
undesirable
proliferation of incidents in the subject

proceedings may be forestalled. In other


words, We have to determine, whether or
not, in the light of the unusual
circumstances extant in the record, there
is need to be more pragmatic and to
adopt a rather unorthodox approach, so
as to cause the least disturbance in
rights already being exercised by
numerous innocent third parties, even if
to do so may not appear to be strictly in
accordance with the letter of the
applicable purely adjective rules.
Incidentally, it may be mentioned, at this
point, that it was principally on account
of the confusion that might result later
from PCIB's continuing to administer all
the
community
properties,
notwithstanding the certainty of the
existence of the separate estate of Mrs.
Hodges, and to enable both estates to
function in the meantime with a relative
degree of regularity, that the Court
ordered in the resolution of September 8,
1972 the modification of the injunction
issued pursuant to the resolutions of
August 8, October 4 and December 6,
1967, by virtue of which respondent
Magno was completely barred from any
participation in the administration of the
properties herein involved. In the
September 8 resolution, We ordered that,
pending
this
decision,
Special
Proceedings 1307 and 1672 should
proceed jointly and that the respective
administrators therein "act conjointly
none of them to act singly and
independently of each other for any
purpose." Upon mature deliberation, We
felt that to allow PCIB to continue
managing or administering all the said
properties to the exclusion of the
administratrix of Mrs. Hodges' estate
might place the heirs of Hodges at an
unduly advantageous position which
could result in considerable, if not
irreparable, damage or injury to the other
parties concerned. It is indeed to be
regretted that apparently, up to this
date, more than a year after said
resolution, the same has not been given

due regard, as may be gleaned from the


fact that recently, respondent Magno has
filed in these proceedings a motion to
declare PCIB in contempt for alleged
failure
to
abide
therewith,
notwithstanding
that
its
repeated
motions for reconsideration thereof have
all been denied soon after they were
filed. 9
Going back to the appeals, it is perhaps
best to begin first with what appears to
Our mind to be the simplest, and then
proceed to the more complicated ones in
that order, without regard to the
numerical sequence of the assignments
of error in appellant's brief or to the order
of the discussion thereof by counsel.
Assignments of error numbers
LXXII, LXXVII and LXXVIII.
These assignments of error relate to (1)
the order of the trial court of August 6,
1965 providing that "the deeds of sale
(therein referred to involving properties
in the name of Hodges) should be signed
jointly by the PCIB, as Administrator of
Testate Estate of C.N. Hodges, and
Avelina A. Magno, as Administratrix of
the Testate Estate of Linnie Jane Hodges,
and to this effect, the PCIB should take
the
necessary
steps
so
that
Administratrix Avelina A. Magno could
sign the deeds of sale," (p. 248, Green
Rec. on Appeal) (2) the order of October
27, 1965 denying the motion for
reconsideration of the foregoing order,
(pp. 276-277, id.) (3) the other order also
dated October 27, 1965 enjoining inter
alia, that "(a) all cash collections should
be deposited in the joint account of the
estate of Linnie Jane Hodges and estate
of C. N. Hodges, (b) that whatever cash
collections (that) had been deposited in
the account of either of the estates
should be withdrawn and since then (sic)
deposited in the joint account of the
estate of Linnie Jane Hodges and the
estate of C. N. Hodges; ... (d) (that)
Administratrix Magno allow the PCIB to

inspect whatever records, documents


and papers she may have in her
possession, in the same manner that
Administrator PCIB is also directed to
allow Administratrix Magno to inspect
whatever records, documents and papers
it may have in its possession" and "(e)
that the accountant of the estate of
Linnie Jane Hodges shall have access to
all records of the transactions of both
estates for the protection of the estate of
Linnie Jane Hodges; and in like manner,
the accountant or any authorized
representative of the estate of C. N.
Hodges shall have access to the records
of transactions of the Linnie Jane Hodges
estate for the protection of the estate of
C. N. Hodges", (pp. 292-295, id.) and (4)
the order of February 15, 1966, denying,
among
others,
the
motion
for
reconsideration of the order of October
27, 1965 last referred to. (pp. 455-456,
id.)
As may be readily seen, the thrust of all
these four impugned orders is in line with
the Court's above-mentioned resolution
of September 8, 1972 modifying the
injunction previously issued on August 8,
1967, and, more importantly, with what
We have said the trial court should have
always done pending the liquidation of
the conjugal partnership of the Hodges
spouses. In fact, as already stated, that is
the arrangement We are ordering, by this
decision,
to
be
followed.
Stated
differently, since the questioned orders
provide for joint action by the two
administrators, and that is precisely what
We are holding out to have been done
and should be done until the two estates
are separated from each other, the said
orders must be affirmed. Accordingly the
foregoing assignments of error must be,
as they are hereby overruled.
Assignments of error Numbers LXVIII
to LXXI and LXXIII to LXXVI.
The orders complained of under these
assignments of error commonly deal with

expenditures made by appellee Magno,


as Administratrix of the Estate of Mrs.
Hodges,
in
connection
with
her
administration
thereof,
albeit
additionally,
assignments
of
error
Numbers LXIX to LXXI put into question
the payment of attorneys fees provided
for in the contract for the purpose, as
constituting,
in
effect,
premature
advances to the heirs of Mrs. Hodges.
More specifically, assignment Number
LXXIII refers to reimbursement of
overtime pay paid to six employees of
the court and three other persons for
services in copying the court records to
enable the lawyers of the administration
to be fully informed of all the incidents in
the proceedings. The reimbursement was
approved as proper legal expenses of
administration per the order of December
19, 1964, (pp. 221-222, id.) and repeated
motions for reconsideration thereof were
denied by the orders of January 9, 1965,
(pp. 231-232, id.) October 27, 1965, (p.
277, id.) and February 15, 1966. (pp.
455-456, id.) On the other hand,
Assignments Numbers LXVIII to LXXI,
LXXIV and LXXV question the trial court's
order of November 3, 1965 approving the
agreement of June 6, 1964 between
Administratrix Magno and James L.
Sullivan, attorney-in-fact of the heirs of
Mrs. Hodges, as Parties of the First Part,
and Attorneys Raul Manglapus and Rizal
R. Quimpo, as Parties of the Second Part,
regarding attorneys fees for said counsel
who had agreed "to prosecute and
defend their interests (of the Parties of
the First Part) in certain cases now
pending litigation in the Court of First
Instance of Iloilo , more specifically in
Special Proceedings 1307 and 1672 "
(pp.
126-129,
id.)
and
directing
Administratrix Magno "to issue and sign
whatever check or checks maybe needed
to implement the approval of the
agreement annexed to the motion" as
well as the "administrator of the estate of
C. N. Hodges to countersign the said
check or checks as the case maybe." (pp.

313-320, id.), reconsideration of which


order of approval was denied in the order
of February 16, 1966, (p. 456, id.)
Assignment Number LXXVI imputes error
to the lower court's order of October 27,
1965, already referred to above, insofar
as it orders that "PCIB should counter
sign the check in the amount of P250 in
favor of Administratrix Avelina A. Magno
as her compensation as administratrix of
Linnie Jane Hodges estate chargeable to
the Testate Estate of Linnie Jane Hodges
only." (p. 294, id.)
Main contention again of appellant PCIB
in regard to these eight assigned errors is
that there is no such estate as the estate
of Mrs. Hodges for which the questioned
expenditures were made, hence what
were
authorized
were
in
effect
expenditures from the estate of Hodges.
As We have already demonstrated in Our
resolution above of the petition for
certiorari and prohibition, this posture is
incorrect. Indeed, in whichever way the
remaining issues between the parties in
these cases are ultimately resolved, 10
the final result will surely be that there
are properties constituting the estate of
Mrs. Hodges of which Magno is the
current
administratrix.
It
follows,
therefore, that said appellee had the
right, as such administratrix, to hire the
persons whom she paid overtime pay
and to be paid for her own services as
administratrix. That she has not yet
collected and is not collecting amounts
as substantial as that paid to or due
appellant PCIB is to her credit.
Of course, she is also entitled to the
services of counsel and to that end had
the authority to enter into contracts for
attorney's fees in the manner she had
done in the agreement of June 6, 1964.
And as regards to the reasonableness of
the amount therein stipulated, We see no
reason to disturb the discretion exercised
by the probate court in determining the
same.
We
have
gone
over
the
agreement, and considering the obvious

size of the estate in question and the


nature of the issues between the parties
as well as the professional standing of
counsel, We cannot say that the fees
agreed upon require the exercise by the
Court of its inherent power to reduce it.
PCIB
insists,
however,
that
said
agreement of June 6, 1964 is not for legal
services to the estate but to the heirs of
Mrs. Hodges, or, at most, to both of
them, and such being the case, any
payment under it, insofar as counsels'
services would redound to the benefit of
the heirs, would be in the nature of
advances to such heirs and a premature
distribution of the estate. Again, We hold
that such posture cannot prevail.
Upon the premise We have found
plausible that there is an existing estate
of Mrs. Hodges, it results that juridically
and factually the interests involved in her
estate are distinct and different from
those involved in her estate of Hodges
and vice versa. Insofar as the matters
related exclusively to the estate of Mrs.
Hodges, PCIB, as administrator of the
estate of Hodges, is a complete stranger
and it is without personality to question
the actuations of the administratrix
thereof regarding matters not affecting
the
estate
of
Hodges.
Actually,
considering the obviously considerable
size of the estate of Mrs. Hodges, We see
no possible cause for apprehension that
when the two estates are segregated
from each other, the amount of
attorney's
fees
stipulated
in
the
agreement in question will prejudice any
portion that would correspond to Hodges'
estate.
And as regards the other heirs of Mrs.
Hodges who ought to be the ones who
should have a say on the attorney's fees
and other expenses of administration
assailed by PCIB, suffice it to say that
they appear to have been duly
represented in the agreement itself by
their attorney-in-fact, James L. Sullivan

and have not otherwise interposed any


objection to any of the expenses incurred
by Magno questioned by PCIB in these
appeals. As a matter of fact, as ordered
by the trial court, all the expenses in
question, including the attorney's fees,
may be paid without awaiting the
determination and segregation of the
estate of Mrs. Hodges.
Withal, the weightiest consideration in
connection
with
the
point
under
discussion is that at this stage of the
controversy among the parties herein,
the vital issue refers to the existence or
non-existence of the estate of Mrs.
Hodges. In this respect, the interest of
respondent Magno, as the appointed
administratrix of the said estate, is to
maintain that it exists, which is naturally
common
and
identical
with
and
inseparable from the interest of the
brothers and sisters of Mrs. Hodges.
Thus, it should not be wondered why
both Magno and these heirs have
seemingly agreed to retain but one
counsel. In fact, such an arrangement
should
be
more
convenient
and
economical to both. The possibility of
conflict of interest between Magno and
the heirs of Mrs. Hodges would be, at this
stage, quite remote and, in any event,
rather insubstantial. Besides, should any
substantial conflict of interest between
them arise in the future, the same would
be a matter that the probate court can
very well take care of in the course of the
independent proceedings in Case No.
1307 after the corresponding segregation
of the two subject estates. We cannot
perceive any cogent reason why, at this
stage, the estate and the heirs of Mrs.
Hodges cannot be represented by a
common counsel.
Now, as to whether or not the portion of
the fees in question that should
correspond to the heirs constitutes
premature partial distribution of the
estate of Mrs. Hodges is also a matter in
which neither PCIB nor the heirs of

Hodges have any interest. In any event,


since, as far as the records show, the
estate has no creditors and the
corresponding estate and inheritance
taxes, except those of the brothers and
sisters of Mrs. Hodges, have already
been paid, 11 no prejudice can caused to
anyone by the comparatively small
amount of attorney's fees in question.
And in this connection, it may be added
that, although strictly speaking, the
attorney's fees of the counsel of an
administrator is in the first instance his
personal
responsibility,
reimbursable
later on by the estate, in the final
analysis, when, as in the situation on
hand, the attorney-in-fact of the heirs has
given his conformity thereto, it would be
idle effort to inquire whether or not the
sanction given to said fees by the
probate court is proper.
For the foregoing reasons, Assignments
of Error LXVIII to LXXI and LXXIII to LXXVI
should be as they are hereby overruled.
Assignments of error I to IV,
XIII to XV, XXII to XXV, XXXV
to XXX VI, XLI to XLIII and L.
These assignments of error deal with the
approval by the trial court of various
deeds of sale of real properties registered
in the name of Hodges but executed by
appellee Magno, as Administratrix of the
Estate of Mrs. Hodges, purportedly in
implementation
of
corresponding
supposed written "Contracts to Sell"
previously executed by Hodges during
the interim between May 23, 1957, when
his wife died, and December 25, 1962,
the day he died. As stated on pp. 118120 of appellant's main brief, "These are:
the, contract to sell between the
deceased, Charles Newton Hodges, and
the appellee, Pepito G. Iyulores executed
on February 5, 1961; the contract to sell
between the deceased, Charles Newton
Hodges, and the appellant Esperidion
Partisala, executed on April 20, 1960; the
contract to sell between the deceased,

Charles Newton Hodges, and the


appellee, Winifredo C. Espada, executed
on April 18, 1960; the contract to sell
between the deceased, Charles Newton
Hodges, and the appellee, Rosario
Alingasa, executed on August 25, 1958;
the contract to sell between the
deceased, Charles Newton Hodges, and
the appellee, Lorenzo Carles, executed
on June 17, 1958; the contract to sell
between the deceased, Charles Newton
Hodges, and the appellee, Salvador S.
Guzman, executed on September 13,
1960; the contract to sell between the
deceased, Charles Newton Hodges, and
the appellee, Florenia Barrido, executed
on February 21, 1958; the contract to sell
between the deceased, Charles Newton
Hodges, and the appellee, Purificacion
Coronado, executed on August 14, 1961;
the contract to sell between the
deceased, Charles Newton Hodges, and
the appellee, Graciano Lucero, executed
on November 27, 1961; the contract to
sell between the deceased, Charles
Newton Hodges, and the appellee, Ariteo
Thomas Jamir, executed on May 26,
1961; the contract to sell between the
deceased, Charles Newton Hodges, and
the appellee, Melquiades Batisanan,
executed on June 9, 1959; the contract to
sell between the deceased, Charles
Newton Hodges, and the appellee,
Belcezar Causing, executed on February
10, 1959 and the contract to sell
between the deceased, Charles Newton
Hodges, and the appellee, Adelfa
Premaylon, executed on October 31,
1959, re Title No. 13815."
Relative to these sales, it is the position
of appellant PCIB that, inasmuch as
pursuant to the will of Mrs. Hodges, her
husband was to have dominion over all
her estate during his lifetime, it was as
absolute owner of the properties
respectively covered by said sales that
he
executed
the
aforementioned
contracts to sell, and consequently, upon
his death, the implementation of said
contracts may be undertaken only by the

administrator of his estate and not by the


administratrix of the estate of Mrs.
Hodges. Basically, the same theory is
invoked with particular reference to five
other sales, in which the respective
"contracts to sell" in favor of these
appellees were executed by Hodges
before the death of his wife, namely,
those in favor of appellee Santiago
Pacaonsis, Alfredo Catedral, Jose Pablico,
Western Institute of Technology and
Adelfa Premaylon.
Anent those deeds of sale based on
promises or contracts to sell executed by
Hodges after the death of his wife, those
enumerated in the quotation in the
immediately preceding paragraph, it is
quite obvious that PCIB's contention
cannot
be
sustained.
As
already
explained earlier, 1 1* all proceeds of
remunerative transfers or dispositions
made by Hodges after the death of his
wife should be deemed as continuing to
be parts of her estate and, therefore,
subject to the terms of her will in favor of
her brothers and sisters, in the sense
that should there be no showing that
such proceeds, whether in cash or
property
have
been
subsequently
conveyed or assigned subsequently by
Hodges to any third party by acts inter
vivos with the result that they could not
thereby belong to him anymore at the
time of his death, they automatically
became part of the inheritance of said
brothers and sisters. The deeds here in
question involve transactions which are
exactly of this nature. Consequently, the
payments made by the appellees should
be considered as payments to the estate
of Mrs. Hodges which is to be distributed
and
partitioned
among
her
heirs
specified in the will.
The five deeds of sale predicated on
contracts to sell executed Hodges during
the lifetime of his wife, present a
different situation. At first blush, it would
appear that as to them, PCIB's position
has
some
degree
of
plausibility.

Considering, however, that the adoption


of PCIB's theory would necessarily have
tremendous repercussions and would
bring about considerable disturbance of
property rights that have somehow
accrued already in favor of innocent third
parties, the five purchasers aforenamed,
the Court is inclined to take a pragmatic
and practical view of the legal situation
involving them by overlooking the
possible technicalities in the way, the
non-observance of which would not, after
all, detract materially from what should
substantially correspond to each and all
of the parties concerned.
To start with, these contracts can hardly
be ignored. Bona fide third parties are
involved; as much as possible, they
should not be made to suffer any
prejudice
on
account
of
judicial
controversies not of their own making.
What is more, the transactions they rely
on were submitted by them to the
probate court for approval, and from
already known and recorded actuations
of said court then, they had reason to
believe that it had authority to act on
their motions, since appellee Magno had,
from time to time prior to their
transactions with her, been allowed to
act in her capacity as administratrix of
one of the subject estates either alone or
conjointly with PCIB. All the sales in
question were executed by Magno in
1966 already, but before that, the court
had previously authorized or otherwise
sanctioned expressly many of her act as
administratrix involving expenditures
from the estate made by her either
conjointly with or independently from
PCIB, as Administrator of the Estate of
Hodges. Thus, it may be said that said
buyers-appellees
merely
followed
precedents in previous orders of the
court. Accordingly, unless the impugned
orders approving those sales indubitably
suffer from some clearly fatal infirmity
the Court would rather affirm them.

It is quite apparent from the record that


the properties covered by said sales are
equivalent only to a fraction of what
should constitute the estate of Mrs.
Hodges, even if it is assumed that the
same would finally be held to be only
one-fourth of the conjugal properties of
the spouses as of the time of her death
or, to be more exact, one-half of her
estate as per the inventory submitted by
Hodges as executor, on May 12, 1958. In
none of its numerous, varied and
voluminous pleadings, motions and
manifestations has PCIB claimed any
possibility otherwise. Such being the
case, to avoid any conflict with the heirs
of Hodges, the said properties covered by
the questioned deeds of sale executed by
appellee Magno may be treated as
among those corresponding to the estate
of Mrs. Hodges, which would have been
actually
under
her
control
and
administration had Hodges complied with
his duty to liquidate the conjugal
partnership. Viewing the situation in that
manner, the only ones who could stand
to be prejudiced by the appealed orders
referred to in the assignment of errors
under discussion and who could,
therefore, have the requisite interest to
question them would be only the heirs of
Mrs. Hodges, definitely not PCIB.
It is of no moment in what capacity
Hodges made the "contracts to sell' after
the death of his wife. Even if he had
acted as executor of the will of his wife,
he did not have to submit those
contracts to the court nor follow the
provisions of the rules, (Sections 2, 4, 5,
6, 8 and 9 of Rule 89 quoted by appellant
on pp. 125 to 127 of its brief) for the
simple reason that by the very orders,
much relied upon by appellant for other
purposes, of May 27, 1957 and
December 14, 1957, Hodges was
"allowed or authorized" by the trial court
"to continue the business in which he
was engaged and to perform acts which
he had been doing while the deceased
was living", (Order of May 27) which

according to the motion on which the


court acted was "of buying and selling
personal and real properties", and "to
execute subsequent sales, conveyances,
leases and mortgages of the properties
left by the said deceased Linnie Jane
Hodges in consonance with the wishes
conveyed in the last will and testament
of the latter." (Order of December 14) In
other words, if Hodges acted then as
executor, it can be said that he had
authority to do so by virtue of these
blanket orders, and PCIB does not
question the legality of such grant of
authority; on the contrary, it is relying on
the terms of the order itself for its main
contention in these cases. On the other
hand, if, as PCIB contends, he acted as
heir-adjudicatee, the authority given to
him by the aforementioned orders would
still suffice.
As can be seen, therefore, it is of no
moment whether the "contracts to sell"
upon which the deeds in question were
based were executed by Hodges before
or after the death of his wife. In a word,
We hold, for the reasons already stated,
that the properties covered by the deeds
being assailed pertain or should be
deemed as pertaining to the estate of
Mrs. Hodges; hence, any supposed
irregularity attending the actuations of
the trial court may be invoked only by
her heirs, not by PCIB, and since the said
heirs are not objecting, and the defects
pointed
out
not
being
strictly
jurisdictional in nature, all things
considered, particularly the unnecessary
disturbance of rights already created in
favor of innocent third parties, it is best
that the impugned orders are not
disturbed.
In view of these considerations, We do
not
find
sufficient
merit
in
the
assignments of error under discussion.
Assignments of error V to VIII,
XVI to XVIII, XXVI to XXIX, XXXVII
to XXXVIII, XLIV to XLVI and LI.

All these assignments of error commonly


deal with alleged non-fulfillment by the
respective vendees, appellees herein, of
the terms and conditions embodied in
the deeds of sale referred to in the
assignments of error just discussed. It is
claimed that some of them never made
full payments in accordance with the
respective contracts to sell, while in the
cases of the others, like Lorenzo Carles,
Jose Pablico, Alfredo Catedral and
Salvador S. Guzman, the contracts with
them had already been unilaterally
cancelled by PCIB pursuant to automatic
rescission clauses contained in them, in
view of the failure of said buyers to pay
arrearages long overdue. But PCIB's
posture is again premised on its
assumption that the properties covered
by the deeds in question could not
pertain to the estate of Mrs. Hodges. We
have already held above that, it being
evident that a considerable portion of the
conjugal properties, much more than the
properties covered by said deeds, would
inevitably constitute the estate of Mrs.
Hodges, to avoid unnecessary legal
complications, it can be assumed that
said properties form part of such estate.
From this point of view, it is apparent
again that the questions, whether or not
it was proper for appellee Magno to have
disregarded the cancellations made by
PCIB, thereby reviving the rights of the
respective
buyers-appellees,
and,
whether or not the rules governing new
dispositions of properties of the estate
were strictly followed, may not be raised
by PCIB but only by the heirs of Mrs.
Hodges as the persons designated to
inherit the same, or perhaps the
government because of the still unpaid
inheritance taxes. But, again, since there
is no pretense that any objections were
raised by said parties or that they would
necessarily
be
prejudiced,
the
contentions of PCIB under the instant
assignments of error hardly merit any
consideration.

Assignments of error IX to XII, XIX


to XXI, XXX to XXIV, XXXIX to XL,
XLVII to XLIX, LII and LIII to LXI.
PCIB raises under these assignments of
error two issues which according to it are
fundamental, namely: (1) that in
approving the deeds executed by Magno
pursuant to contracts to sell already
cancelled by it in the performance of its
functions as administrator of the estate
of Hodges, the trial court deprived the
said estate of the right to invoke such
cancellations it (PCIB) had made and (2)
that in so acting, the court "arrogated
unto itself, while acting as a probate
court, the power to determine the
contending claims of third parties against
the estate of Hodges over real property,"
since it has in effect determined whether
or not all the terms and conditions of the
respective contracts to sell executed by
Hodges in favor of the buyers-appellees
concerned were complied with by the
latter. What is worse, in the view of PCIB,
is that the court has taken the word of
the appellee Magno, "a total stranger to
his estate as determinative of the issue".
Actually, contrary to the stand of PCIB, it
is this last point regarding appellee
Magno's having agreed to ignore the
cancellations made by PCIB and allowed
the buyers-appellees to consummate the
sales in their favor that is decisive. Since
We have already held that the properties
covered by the contracts in question
should be deemed to be portions of the
estate of Mrs. Hodges and not that of
Hodges, it is PCIB that is a complete
stranger in these incidents. Considering,
therefore, that the estate of Mrs. Hodges
and her heirs who are the real parties in
interest having the right to oppose the
consummation of the impugned sales are
not objecting, and that they are the ones
who are precisely urging that said sales
be sanctioned, the assignments of error
under discussion have no basis and must
accordingly be as they are hereby
overruled.

With particular reference to assignments


LIII to LXI, assailing the orders of the trial
court requiring PCIB to surrender the
respective owner's duplicate certificates
of title over the properties covered by the
sales in question and otherwise directing
the Register of Deeds of Iloilo to cancel
said certificates and to issue new transfer
certificates of title in favor of the buyersappellees, 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 propriety of not
disturbing the lower court's orders
sanctioning the sales questioned in all
these appeal s by PCIB, that it is only
when one of the parties to a contract to
convey property executed by a deceased
person raises substantial objections to its
being implemented by the executor or
administrator of the decedent's estate
that Section 8 of Rule 89 may not apply
and, consequently, the matter has, to be
taken up in a separate action outside of
the probate court; but where, as in the
cases of the sales herein involved, the
interested parties are in agreement that
the conveyance be made, it is properly
within the jurisdiction of the probate
court to give its sanction thereto
pursuant to the provisions of the rule just
mentioned. And with respect to the
supposed automatic rescission clauses
contained in the contracts to sell
executed by Hodges in favor of herein
appellees, the effect of said clauses
depend on the true nature of the said
contracts, despite the nomenclature
appearing
therein,
which
is
not
controlling, for if they amount to actual
contracts of sale instead of being mere
unilateral accepted "promises to sell",
(Art. 1479, Civil Code of the Philippines,
2nd
paragraph)
the
pactum
commissorium
or
the
automatic
rescission provision would not operate,
as a matter of public policy, unless there
has been a previous notarial or judicial
demand by the seller (10 Manresa 263,
2nd ed.) neither of which have been

shown to have been made in connection


with the transactions herein involved.
Consequently, We find no merit in the
assignments of error
Number LXII to LXVII.
SUMMARY
Considering the fact that this decision is
unusually extensive and that the issues
herein taken up and resolved are rather
numerous
and
varied,
what
with
appellant
making
seventy-eight
assignments of error affecting no less
than thirty separate orders of the court a
quo, if only to facilitate proper
understanding of the import and extent
of our rulings herein contained, it is
perhaps
desirable
that
a
brief
restatement of the whole situation be
made together with our conclusions in
regard to its various factual and legal
aspects. .
The instant cases refer to the estate left
by the late Charles Newton Hodges as
well as that of his wife, Linnie Jane
Hodges, who predeceased him by about
five years and a half. In their respective
wills which were executed on different
occasions, each one of them provided
mutually as follows: "I give, devise and
bequeath all of the rest, residue and
remainder
(after
funeral
and
administration expenses, taxes and
debts) of my estate, both real and
personal, wherever situated or located,
to my beloved (spouse) to have and to
hold unto (him/her) during (his/her)
natural lifetime", subject to the condition
that upon the death of whoever of them
survived the other, the remainder of
what he or she would inherit from the
other
is
"give(n),
devise(d)
and
bequeath(ed)" to the brothers and sisters
of the latter.
Mrs. Hodges died first, on May 23, 1957.
Four days later, on May 27, Hodges was
appointed special administrator of her

estate, and in a separate order of the


same date, he was "allowed or
authorized to continue the business in
which he was engaged, (buying and
selling personal and real properties) and
to perform acts which he had been doing
while
the
deceased
was
living."
Subsequently, on December 14, 1957,
after Mrs. Hodges' will had been probated
and Hodges had been appointed and had
qualified as Executor thereof, upon his
motion in which he asserted that he was
"not only part owner of the properties left
as conjugal, but also, the successor to all
the properties left by the deceased Linnie
Jane Hodges", the trial court ordered that
"for the reasons stated in his motion
dated December 11, 1957, which the
Court considers well taken, ... all the
sales,
conveyances,
leases
and
mortgages of all properties left by the
deceased Linnie Jane Hodges executed
by the Executor, Charles Newton Hodges
are hereby APPROVED. The said Executor
is
further
authorized
to
execute
subsequent sales, conveyances, leases
and mortgages of the properties left by
the said deceased Linnie Jane Hodges in
consonance with the wishes contained in
the last will and testament of the latter."
Annually thereafter, Hodges submitted to
the court the corresponding statements
of account of his administration, with the
particularity that in all his motions, he
always made it point to urge the that "no
person interested in the Philippines of the
time and place of examining the herein
accounts be given notice as herein
executor is the only devisee or legatee of
the deceased in accordance with the last
will and testament already probated by
the Honorable Court." All said accounts
approved as prayed for.
Nothing else appears to have been done
either by the court a quo or Hodges until
December 25, 1962. Importantly to be
the provision in the will of Mrs. Hodges
that her share of the conjugal partnership
was to be inherited by her husband "to

have and to hold unto him, my said


husband, during his natural lifetime" and
that "at the death of my said husband, I
give, devise and bequeath all the rest,
residue and remainder of my estate, both
real and personal, wherever situated or
located, to be equally divided among my
brothers and sisters, share and share
alike", which provision naturally made it
imperative that the conjugal partnership
be promptly liquidated, in order that the
"rest, residue and remainder" of his
wife's share thereof, as of the time of
Hodges' own death, may be readily
known and identified, no such liquidation
was ever undertaken. The record gives
no indication of the reason for such
omission, although relatedly, it appears
therein:
1.
That in his annual statement
submitted to the court of the net worth of
C. N. Hodges and the Estate of Linnie
Jane Hodges, Hodges repeatedly and
consistently reported the combined
income of the conjugal partnership and
then merely divided the same equally
between himself and the estate of the
deceased wife, and, more importantly, he
also, as consistently, filed corresponding
separate income tax returns for each
calendar year for each resulting half of
such combined income, thus reporting
that the estate of Mrs. Hodges had its
own income distinct from his own.
2.
That when the court a quo
happened to inadvertently omit in its
order probating the will of Mrs. Hodges,
the name of one of her brothers, Roy
Higdon then already deceased, Hodges
lost no time in asking for the proper
correction "in order that the heirs of
deceased Roy Higdon may not think or
believe they were omitted, and that they
were really interested in the estate of the
deceased Linnie Jane Hodges".
3.
That in his aforementioned motion
of December 11, 1957, he expressly
stated that "deceased Linnie Jane Hodges

died
leaving
no
descendants
or
ascendants except brothers and sisters
and herein petitioner as the surviving
spouse, to inherit the properties of the
decedent", thereby indicating that he
was not excluding his wife's brothers and
sisters from the inheritance.
4.
That
Hodges
allegedly
made
statements and manifestations to the
United States inheritance tax authorities
indicating that he had renounced his
inheritance from his wife in favor of her
other heirs, which attitude he is
supposed to have reiterated or ratified in
an alleged affidavit subscribed and sworn
to here in the Philippines and in which he
even purportedly stated that his reason
for so disclaiming and renouncing his
rights under his wife's will was to
"absolve (him) or (his) estate from any
liability for the payment of income taxes
on income which has accrued to the
estate of Linnie Jane Hodges", his wife,
since her death.
On said date, December 25, 1962,
Hodges died. The very next day, upon
motion of herein respondent and
appellee, Avelina A. Magno, she was
appointed by the trial court as
Administratrix of the Testate Estate of
Linnie
Jane
Hodges,
in
Special
Proceedings No. 1307 and as Special
Administratrix of the estate of Charles
Newton Hodges, "in the latter case,
because the last will of said Charles
Newton Hodges is still kept in his vault or
iron safe and that the real and personal
properties of both spouses may be lost,
damaged or go to waste, unless Special
Administratrix is appointed," (Order of
December 26, 1962, p. 27, Yellow R. on
A.) although, soon enough, on December
29, 1962, a certain Harold K. Davies was
appointed
as
her
Co-Special
Administrator,
and
when
Special
Proceedings No. 1672, Testate Estate of
Charles Newton Hodges, was opened, Joe
Hodges, as next of kin of the deceased,
was in due time appointed as Co-

Administrator of said estate together with


Atty. Fernando P. Mirasol, to replace
Magno and Davies, only to be in turn
replaced eventually by petitioner PCIB
alone.
At the outset, the two probate
proceedings appear to have been
proceeding
jointly,
with
each
administrator acting together with the
other, under a sort of modus operandi.
PCIB used to secure at the beginning the
conformity to and signature of Magno in
transactions it wanted to enter into and
submitted the same to the court for
approval as their joint acts. So did Magno
do
likewise.
Somehow,
however,
differences seem to have arisen, for
which reason, each of them began acting
later on separately and independently of
each other, with apparent sanction of the
trial court. Thus, PCIB had its own
lawyers whom it contracted and paid
handsomely, conducted the business of
the estate independently of Magno and
otherwise acted as if all the properties
appearing in the name of Charles Newton
Hodges belonged solely and only to his
estate, to the exclusion of the brothers
and sisters of Mrs. Hodges, without
considering whether or not in fact any of
said properties corresponded to the
portion of the conjugal partnership
pertaining to the estate of Mrs. Hodges.
On the other hand, Magno made her own
expenditures, hired her own lawyers, on
the premise that there is such an estate
of Mrs. Hodges, and dealth with some of
the properties, appearing in the name of
Hodges, on the assumption that they
actually correspond to the estate of Mrs.
Hodges. All of these independent and
separate
actuations
of
the
two
administrators were invariably approved
by the trial court upon submission.
Eventually, the differences reached a
point wherein Magno, who was more
cognizant than anyone else about the ins
and outs of the businesses and
properties of the deceased spouses
because of her long and intimate

association with them, made it difficult


for PCIB to perform normally its functions
as administrator separately from her.
Thus, legal complications arose and the
present judicial controversies came
about.
Predicating its position on the tenor of
the orders of May 27 and December 14,
1957 as well as the approval by the court
a quo of the annual statements of
account of Hodges, PCIB holds to the
view that the estate of Mrs. Hodges has
already been in effect closed with the
virtual adjudication in the mentioned
orders of her whole estate to Hodges,
and that, therefore, Magno had already
ceased since then to have any estate to
administer and the brothers and sisters
of Mrs. Hodges have no interests
whatsoever in the estate left by Hodges.
Mainly upon such theory, PCIB has come
to this Court with a petition for certiorari
and prohibition praying that the lower
court's
orders
allowing
respondent
Magno
to
continue
acting
as
administratrix of the estate of Mrs.
Hodges in Special Proceedings 1307 in
the manner she has been doing, as
detailed earlier above, be set aside.
Additionally, PCIB maintains that the
provision in Mrs. Hodges' will instituting
her brothers and sisters in the manner
therein specified is in the nature of a
testamentary substitution, but inasmuch
as the purported substitution is not, in its
view, in accordance with the pertinent
provisions of the Civil Code, it is
ineffective and may not be enforced. It is
further contended that, in any event,
inasmuch as the Hodges spouses were
both residents of the Philippines,
following the decision of this Court in
Aznar vs. Garcia, or the case of
Christensen, 7 SCRA 95, the estate left
by Mrs. Hodges could not be more than
one-half of her share of the conjugal
partnership, notwithstanding the fact
that she was citizen of Texas, U.S.A., in
accordance with Article 16 in relation to
Articles 900 and 872 of the Civil Code.

Initially,
We issued a preliminary
injunction against Magno and allowed
PCIB to act alone.
At the same time PCIB has appealed
several separate orders of the trial court
approving individual acts of appellee
Magno in her capacity as administratrix
of the estate of Mrs. Hodges, such as,
hiring of lawyers for specified fees and
incurring expenses of administration for
different purposes and executing deeds
of sale in favor of her co-appellees
covering properties which are still
registered in the name of Hodges,
purportedly pursuant to corresponding
"contracts to sell" executed by Hodges.
The said orders are being questioned on
jurisdictional and procedural grounds
directly or indirectly predicated on the
principal theory of appellant that all the
properties of the two estates belong
already to the estate of Hodges
exclusively.
On the other hand, respondent-appellee
Magno denies that the trial court's orders
of May 27 and December 14, 1957 were
meant to be finally adjudicatory of the
hereditary rights of Hodges and contends
that they were no more than the court's
general sanction of past and future acts
of Hodges as executor of the will of his
wife in due course of administration. As
to the point regarding substitution, her
position is that what was given by Mrs.
Hodges to her husband under the
provision in question was a lifetime
usufruct of her share of the conjugal
partnership, with the naked ownership
passing directly to her brothers and
sisters. Anent the application of Article
16 of the Civil Code, she claims that the
applicable law to the will of Mrs. Hodges
is that of Texas under which, she alleges,
there is no system of legitime, hence, the
estate of Mrs. Hodges cannot be less
than her share or one-half of the conjugal
partnership properties. She further
maintains that, in any event, Hodges had
as a matter of fact and of law renounced

his inheritance from his wife and,


therefore, her whole estate passed
directly to her brothers and sisters
effective at the latest upon the death of
Hodges.
In this decision, for the reasons discussed
above, and upon the issues just
summarized,
We
overrule
PCIB's
contention that the orders of May 27,
1957 and December 14, 1957 amount to
an adjudication to Hodges of the estate
of his wife, and We recognize the present
existence of the estate of Mrs. Hodges,
as consisting of properties, which, while
registered in that name of Hodges, do
actually correspond to the remainder of
the share of Mrs. Hodges in the conjugal
partnership, it appearing that pursuant to
the pertinent provisions of her will, any
portion of said share still existing and
undisposed of by her husband at the
time of his death should go to her
brothers and sisters share and share
alike. Factually, We find that the proven
circumstances relevant to the said orders
do not warrant the conclusion that the
court intended to make thereby such
alleged final adjudication. Legally, We
hold that the tenor of said orders furnish
no basis for such a conclusion, and what
is more, at the time said orders were
issued, the proceedings had not yet
reached the point when a final
distribution and adjudication could be
made. Moreover, the interested parties
were not duly notified that such
disposition of the estate would be done.
At best, therefore, said orders merely
allowed Hodges to dispose of portions of
his inheritance in advance of final
adjudication, which is implicitly permitted
under Section 2 of Rule 109, there being
no possible prejudice to third parties,
inasmuch as Mrs. Hodges had no
creditors and all pertinent taxes have
been paid.
More specifically, We hold that, on the
basis of circumstances presently extant
in the record, and on the assumption that

Hodges' purported renunciation should


not be upheld, the estate of Mrs. Hodges
inherited by her brothers and sisters
consists of one-fourth of the community
estate of the spouses at the time of her
death, minus whatever Hodges had
gratuitously disposed of therefrom during
the period from, May 23, 1957, when she
died, to December 25, 1962, when he
died provided, that with regard to
remunerative dispositions made by him
during the same period, the proceeds
thereof, whether in cash or property,
should be deemed as continuing to be
part of his wife's estate, unless it can be
shown that he had subsequently
disposed of them gratuitously.
At this juncture, it may be reiterated that
the question of what are the pertinent
laws of Texas and what would be the
estate of Mrs. Hodges under them is
basically one of fact, and considering the
respective positions of the parties in
regard to said factual issue, it can
already be deemed as settled for the
purposes of these cases that, indeed, the
free portion of said estate that could
possibly descend to her brothers and
sisters by virtue of her will may not be
less than one-fourth of the conjugal
estate, it appearing that the difference in
the stands of the parties has reference
solely to the legitime of Hodges, PCIB
being of the view that under the laws of
Texas, there is such a legitime of onefourth 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-inlaw, which manner of institution is not
prohibited by law.
We also hold, however, that the estate of
Mrs. Hodges inherited by her brothers
and sisters could be more than just
stated, but this would depend on (1)
whether upon the proper application of
the principle of renvoi in relation to
Article 16 of the Civil Code and the
pertinent laws of Texas, it will appear that
Hodges had no legitime as contended by
Magno, and (2) whether or not it can be
held that Hodges had legally and
effectively renounced his inheritance
from his wife. Under the circumstances
presently obtaining and in the state of
the record of these cases, as of now, the
Court is not in a position to make a final
ruling, whether of fact or of law, on any
of these two issues, and We, therefore,

reserve
said
issues
for
further
proceedings and resolution in the first
instance by the court a quo, as
hereinabove indicated. We reiterate,
however, that pending such further
proceedings, as matters stand at this
stage, Our considered opinion is that it is
beyond cavil that since, under the terms
of the will of Mrs. Hodges, her husband
could
not
have
anyway
legally
adjudicated or caused to be adjudicated
to himself her whole share of their
conjugal partnership, albeit he could
have disposed any part thereof during his
lifetime, the resulting estate of Mrs.
Hodges, of which Magno is the
uncontested administratrix, cannot be
less than one-fourth of the conjugal
partnership properties, as of the time of
her death, minus what, as explained
earlier, have been gratuitously disposed
of therefrom, by Hodges in favor of third
persons since then, for even if it were
assumed that, as contended by PCIB,
under Article 16 of the Civil Code and
applying renvoi the laws of the
Philippines are the ones ultimately
applicable, such one-fourth share would
be her free disposable portion, taking
into account already the legitime of her
husband under Article 900 of the Civil
Code.
The foregoing considerations leave the
Court with no alternative than to
conclude that in predicating its orders on
the assumption, albeit unexpressed
therein, that there is an estate of Mrs.
Hodges to be distributed among her
brothers and sisters and that respondent
Magno is the legal administratrix thereof,
the trial court acted correctly and within
its jurisdiction. Accordingly, the petition
for certiorari and prohibition has to be
denied. The Court feels however, that
pending the liquidation of the conjugal
partnership and the determination of the
specific
properties
constituting
her
estate, the two administrators should act
conjointly as ordered in the Court's
resolution of September 8, 1972 and as

further clarified in the dispositive portion


of its decision.
Anent the appeals from the orders of the
lower court sanctioning payment by
appellee Magno, as administratrix, of
expenses
of
administration
and
attorney's fees, it is obvious that, with
Our holding that there is such an estate
of Mrs. Hodges, and for the reasons
stated in the body of this opinion, the
said orders should be affirmed. This We
do on the assumption We find justified by
the evidence of record, and seemingly
agreed to by appellant PCIB, that the size
and value of the properties that should
correspond to the estate of Mrs. Hodges
far exceed the total of the attorney's fees
and administration expenses in question.
With respect to the appeals from the
orders approving transactions made by
appellee
Magno,
as
administratrix,
covering properties registered in the
name of Hodges, the details of which are
related earlier above, a distinction must
be made between those predicated on
contracts to sell executed by Hodges
before the death of his wife, on the one
hand, and those premised on contracts to
sell entered into by him after her death.
As regards the latter, We hold that
inasmuch as the payments made by
appellees constitute proceeds of sales of
properties belonging to the estate of Mrs.
Hodges, as may be implied from the
tenor of the motions of May 27 and
December 14, 1957, said payments
continue to pertain to said estate,
pursuant to her intent obviously reflected
in the relevant provisions of her will, on
the assumption that the size and value of
the properties to correspond to the
estate of Mrs. Hodges would exceed the
total value of all the properties covered
by the impugned deeds of sale, for which
reason, said properties may be deemed
as pertaining to the estate of Mrs.
Hodges. And there being no showing that
thus viewing the situation, there would
be prejudice to anyone, including the

government, the Court also holds that,


disregarding procedural technicalities in
favor of a pragmatic and practical
approach as discussed above, the
assailed orders should be affirmed. Being
a stranger to the estate of Mrs. Hodges,
PCIB has no personality to raise the
procedural and jurisdictional issues
raised by it. And inasmuch as it does not
appear that any of the other heirs of Mrs.
Hodges or the government has objected
to any of the orders under appeal, even
as to these parties, there exists no
reason for said orders to be set aside.
DISPOSITIVE PART
IN VIEW OF ALL THE FOREGOING
PREMISES, judgment is hereby rendered
DISMISSING the petition in G. R. Nos. L27860 and L-27896, and AFFIRMING, in
G. R. Nos. L-27936-37 and the other
thirty-one numbers hereunder ordered to
be added after payment of the
corresponding docket fees, all the orders
of
the trial court
under
appeal
enumerated in detail on pages 35 to 37
and 80 to 82 of this decision; the
existence of the Testate Estate of Linnie
Jane Hodges, with respondent-appellee
Avelina A. Magno, as administratrix
thereof is recognized, and it is declared
that, until final judgment is ultimately
rendered regarding (1) the manner of
applying Article 16 of the Civil Code of
the Philippines to the situation obtaining
in these cases and (2) the factual and
legal issue of whether or not Charles
Newton Hodges had effectively and
legally renounced his inheritance under
the will of Linnie Jane Hodges, the said
estate consists of one-fourth of the
community properties of the said
spouses, as of the time of the death of
the wife on May 23, 1957, minus
whatever the husband had already
gratuitously disposed of in favor of third
persons from said date until his death,
provided, first, that with respect to
remunerative dispositions, the proceeds
thereof shall continue to be part of the

wife's
estate,
unless
subsequently
disposed of gratuitously to third parties
by the husband, and second, that should
the purported renunciation be declared
legally
effective,
no
deductions
whatsoever are to be made from said
estate; in consequence, the preliminary
injunction of August 8, 1967, as amended
on October 4 and December 6, 1967, is
lifted, and the resolution of September 8,
1972, directing that petitioner-appellant
PCIB, as Administrator of the Testate
Estate of Charles Newton Hodges, in
Special
Proceedings
1672,
and
respondent-appellee Avelina A. Magno,
as Administratrix of the Testate Estate of
Linnie
Jane
Hodges,
in
Special
Proceedings 1307, should act thenceforth
always conjointly, never independently
from each other, as such administrators,
is reiterated, and the same is made part
of this judgment and shall continue in
force, pending the liquidation of the
conjugal partnership of the deceased
spouses and the determination and
segregation from each other of their
respective estates, provided, that upon
the finality of this judgment, the trial
court should immediately proceed to the
partition of the presently combined
estates of the spouses, to the end that
the one-half share thereof of Mrs. Hodges
may be properly and clearly identified;
thereafter, the trial court should forthwith
segregate the remainder of the onefourth 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, thirtyone 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,
Fernandez, JJ., concur.

Esguerra

and

Makasiar, Antonio, Muoz Palma and


Aquino, JJ., concur in the result.

EN BANC
[G.R. No. 119064. August 22, 2000]

NENG
KAGUI
KADIGUIA
MALANG,
petitioner, vs. HON. COROCOY MOSON,
Presiding Judge of 5th Sharia District
Court, Cotabato City, HADJI MOHAMMAD
ULYSSIS
MALANG,
HADJI
ISMAEL
MALINDATU MALANG, FATIMA MALANG,
DATULNA MALANG, LAWANBAI MALANG,
JUBAIDA KADO MALANG, NAYO OMAL
MALANG and MABAY GANAP MALANG,
respondents.
DECISION
GONZAGA-REYES, J.:
Presented for resolution in this special
civil action of certiorari is the issue of
whether or not the regime of conjugal
partnership of gains governed the
property relationship of two Muslims who
contracted
marriage
prior
to
the
effectivity of the Code of Muslim Personal
Laws of the Philippines (hereafter, P.D.
1083 or Muslim Code). The question is
raised in connection with the settlement
of the estate of the deceased husband.

Abdula and Hadji Mabai stayed in that


place to farm while Hadji Abdula engaged
in the business of buying and selling of
rice, corn and other agricultural products.
Not long after, Hadji Abdula married
three other Muslim women named Saaga,
Mayumbai and Sabai but he eventually
divorced them.
Hadji Abdula then migrated to Tambunan
where, in 1972, he married petitioner
Neng Kagui Kadiguia Malang, his fourth
wife, excluding the wives he had
divorced. They established residence in
Cotabato City but they were childless. For
a living, they relied on farming and on
the business of buying and selling of
agricultural
products.
Hadji
Abdula
acquired vast tracts of land in Sousa and
Talumanis, Cotabato City, some of which
were cultivated by tenants. He deposited
money in such banks as United Coconut
Planters Bank, Metrobank and Philippine
Commercial and Industrial Bank.

Hadji
Abdula
Malang,
a
Muslim,
contracted
marriage
with
Aida
(Kenanday) Limba. They begot three sons
named Hadji Mohammad Ulyssis, Hadji
Ismael Malindatu and Datulna, and a
daughter named Lawanbai. Hadji Abdula
Malang was engaged in farming, tilling
the land that was Aidas dowry (mahr or
majar). Thereafter, he bought a parcel of
land in Sousa, Cotabato. Hadji Abdula
and Aida already had two children when
he married for the second time another
Muslim
named
Jubaida
Kado
in
Kalumamis, Talayan, Maguindanao. No
child was born out of Hadji Abdulas
second marriage. When Aida, the first
wife, was pregnant with their fourth child,
Hadji Abdula divorced her.

On December 18, 1993, while he was


living with petitioner in Cotabato City,
Hadji Abdula died without leaving a will.
On January 21, 1994, petitioner filed with
the Sharia District Court in Cotabato City
a petition for the settlement of his estate
with
a
prayer
that
letters
of
administration be issued in the name of
her niece, Tarhata Lauban.

In 1965, Hadji Abdula married another


Muslim, Nayo H. Omar but they were
childless.
Thereafter,
Hadji
Abdula
contracted marriage with Hadji Mabai
(Mabay) H. Adziz in Kalumamis, Talayan,
Maguindanao and soon they had a
daughter named Fatima (Kueng). Hadji

On February 7, 1994, the Sharia District


Court ordered the publication of the
petition.[1] After such publication[2] or
on March 16, 1994, Hadji Mohammad
Ulyssis Malang (Hadji Mohammad, for
brevity), the eldest son of Hadji Abdula,
filed his opposition to the petition. He

Petitioner claimed in that petition that


she was the wife of Hadji Abdula; that his
other legal heirs are his three children
named Teng Abdula, Keto Abdula and
Kueng Malang, and that he left seven (7)
parcels of land, five (5) of which are titled
in Hadji Abdulas name married to Neng P.
Malang, and a pick-up jeepney.

alleged among other matters that his


fathers surviving heirs are as follows: (a)
Jubaida Malang, surviving spouse; (b)
Nayo Malang, surviving spouse; (c)
Mabay Malang, surviving spouse; (d)
petitioner
Neng
Malang,
surviving
spouse; (e) oppositor Hadji Mohammad
Ulyssis Malang who is also known as Teng
Abdula, son; (f) Hadji Ismael Malindatu
Malang, also known as Keto Abdula, son,
(g) Fatima Malang, also known as Kueng
Malang, daughter; (h) Datulna Malang,
son, and (i) Lawanbai Malang, daughter.
Oppositor Hadji Mohammad Ulyssis
Malang alleged that since he and his
brother, Hadji Ismael Malindatu Malang,
had helped their father in his business,
then they were more competent to be
administrators of his estate.[3]
On March 30, 1994, Jubaida Malang,
Ismael Malindatu Malang, Nayo Malang,
Fatima Malang, Mabay Malang, Datulna
Malang and Lawanbai Malang filed an
opposition to the petition, adopting as
their own the written opposition of Hadji
Mohammad.[4]
On April 7, 1994, the Sharia District Court
issued an Order appointing Hadji
Mohammad administrator of his fathers
properties outside Cotabato City. The
same order named petitioner and Hadji
Ismael Malindatu Malang as joint
administrators of the estate in Cotabato
City. Each administrator was required to
post a bond in the amount of
P100,000.00.[5] On April 13, 1994,
letters of administration were issued to
Hadji Mohammad after he had posted the
required bond. He took his oath on the
same day.[6] The following day, Hadji
Ismael and petitioner likewise filed their
respective bonds and hence, they were
allowed
to
take
their
oath
as
administrators.[7]
On April 25, 1994 and May 3, 1994,
petitioner filed two motions informing the
court that Hadji Abdula had outstanding
deposits with nine (9) major banks.[8]

Petitioner prayed that the managers of


each of those banks be ordered to submit
a bank statement of the outstanding
deposit of Hadji Abdula.[9] The Sharia
District Court having granted the
motions,[10] Assistant Vice President
Rockman O. Sampuha of United Coconut
Planters Bank informed the court that as
of April 24, 1994, the outstanding deposit
of Hadji Abdula amounted to one million
five hundred twenty thousand four
hundred pesos and forty-eight centavos
(P1,520,400.48).[11] The Senior Manager
of the Cotabato branch of Metrobank also
certified that as of December 18, 1993,
Hadji Abdula Malang or Malindatu Malang
had on savings deposit the balance of
three hundred seventy-eight thousand
four hundred ninety-three pesos and
32/100 centavos (P378,493.32).[12] PCIB
likewise issued a certification that Hadji
Abdula had a balance of eight hundred
fifty pesos (P850.00) in his current
account as of August 11, 1994.[13]
During the pendency of the case,
petitioner suffered a congestive heart
failure that required immediate medical
treatment. On May 5, 1994, she filed a
motion praying that on account of her
ailment, she be allowed to withdraw from
UCPB the amount of three hundred
thousand pesos (P300,000.00) that shall
constitute her advance share in the
estate of Hadji Abdula.[14] After due
hearing, the Sharia District Court allowed
petitioner to withdraw the sum of two
hundred
fifty
thousand
pesos
(P250,000.00).[15]
On May 12, 1994, the Sharia District
Court required petitioner and Hadji
Ismael as joint administrators to submit
an inventory and appraisal of all
properties of Hadji Abdula.[16] In
compliance therewith, Hadji Ismael
submitted an inventory showing that in
Cotabato City, Hadji Abdula had seven
(7) residential lots with assessed value
ranging from P5,020.00 to P25,800.00,
an agricultural land with assessed value

of
P860.00,
three
(3)
one-storey
residential buildings, and one (1) twostorey residential building.[17] All these
properties were declared for taxation
purposes in Hadji Abdulas name.
For her part, petitioner submitted an
inventory showing that Hadji Abdula
married to Neng Malang had seven (7)
residential lots with a total assessed
value of P243,840.00 in Cotabato City, an
Isuzu
pick-up
jeepney
valued
at
P30,000.00 and bank deposits.[18]
In the Memorandum that she filed with
the Sharia District Court, petitioner
asserted that all the properties located in
Cotabato City, including the vehicle and
bank deposits, were conjugal properties
in accordance with Article 160 of the Civil
Code and Article 116 of the Family Code
while properties located outside of
Cotabato City were exclusive properties
of the decedent.[19]
On the other hand, the oppositors
contended in their own Memorandum
that all the properties left by Hadji
Abdula were his exclusive properties for
various reasons. First, Hadji Abdula had
no conjugal partnership with petitioner
because his having contracted eight (8)
marriages with different Muslim women
was in violation of the Civil Code that
provided for a monogamous marriage; a
conjugal partnership presupposes a valid
civil marriage, not a bigamous marriage
or a common-law relationship. Second,
the decedent adopted a complete
separation of property regime in his
marital relations; while his wives Jubaida
Kado, Nayo Hadji Omal and Mabay Ganap
Hadji Adzis contributed to the decedents
properties, there is no evidence that
petitioner had contributed funds for the
acquisition of such properties. Third, the
presumption that properties acquired
during the marriage are conjugal
properties is inapplicable because at the
time he acquired the properties, the
decedent was married to four (4) women.

Fourth, the properties are not conjugal in


nature notwithstanding that some of
these properties were titled in the name
of the decedent married to Neng Malang
because
such
description
is
not
conclusive of the conjugal nature of the
property. Furthermore, because petitioner
admitted in her verified petition that the
properties belonged to the estate of
decedent, she was estopped from
claiming, after formal offer of evidence,
that the properties were conjugal in
nature just because some of the
properties were titled in Hadji Abdulas
name married to Neng Malang. Fifth, if it
is true that the properties were conjugal
properties, then these should have been
registered in the names of both
petitioner and the decedent.[20]
In its Order of September 26, 1994, the
Sharia District Court presided by Judge
Corocoy D. Moson held that there was no
conjugal partnership of gains between
petitioner and the decedent primarily
because the latter married eight times.
The Civil Code provision on conjugal
partnership cannot be applied if there is
more than one wife because conjugal
partnership presupposes a valid civil
marriage, not a plural marriage or a
common-law relationship. The court
further found that the decedent was the
chief, if not the sole, breadwinner of his
families and that petitioner did not
contribute to the properties unlike the
other wives named Jubaida, Nayo and
Mabay. The description married to Neng
Malang in the titles to the real properties
is no more than that -- the description of
the relationship between petitioner and
the decedent. Such description is
insufficient to prove that the properties
belong to the conjugal partnership of
gains. The court stated:
In the instant case, decedent had four (4)
wives at the time he acquired the
properties in question. To sustain the
contention of the petitioner that the
properties are her conjugal property with

the decedent is doing violence to the


provisions of the Civil Code. Be it noted
that at the time of the marriage of the
petitioner with the decedent, there were
already three (3) existing marriages.
Assuming for the moment that petitioner
and the decedent had agreed that the
property regime between them will be
governed by the regime of conjugal
partnership property, that agreement is
null and void for it is against the law,
public policy, public order, good moral(s)
and customs.
Under Islamic law, the regime of property
relationship is complete separation of
property, in the absence of any
stipulation to the contrary in the
marriage settlements or any other
contract (Article 38, P.D. 1083). There
being no evidence of such contrary
stipulation or contract, this Court
concludes as it had begun, that the
properties in question, both real and
personal, are not conjugal, but rather,
exclusive property of the decedent.[21]
Thus, the Sharia District Court held that
the Islamic law should be applied in the
distribution of the estate of Hadji Abdula
and accordingly disposed of the case as
follows:
WHEREFORE, premises considered, the
Court orders the following:
1) That the estate shall pay the
corresponding estate tax, reimburse the
funeral expenses in the amount of
P50,000.00, and the judicial expenses in
the amount of P2,040.80;
2) That the net estate, consisting of real
and personal properties, located in
Talayan, Maguindanao and in Cotabato
City, is hereby ordered to be distributed
and adjudicated as follows:
a)
Jubaida
Kado
Malang
------------------------- 2/64 of the estate

b) Nayo Omar Malang ------------------------2/64 - do c) Mabai Aziz Malang ------------------------2/64 - do d)


Neng
Kagui
Kadiguia
------------------- 2/64 - do -

Malang

e)
Mohammad
Ulyssis
Malang-------------------------14/64 - do f)
Ismael
Malindatu
Malang---------------------------14/64 - do g) Datulna
14/64 - do -

Malang

-------------------------

h) Lawanbai Malang ------------------------7/64 - do i)


Fatima
(Kueng)
------------------------- 7/64 - do -

Malang

Total------------------------ 64/64
3) That the amount of P250,000.00 given
to Neng Kagui Kadiguia Malang by way of
advance be charged against her share
and if her share is not sufficient, to return
the excess; and
4) That the heirs are hereby ordered to
submit to this court their Project of
Partition for approval, not later than three
(3) months from receipt of this order.
SO ORDERED.
On October 4, 1994, petitioner filed a
motion for the reconsideration of that
Order. The oppositors objected to that
motion. On January 10, 1995, the Sharia
District Court denied petitioners motion
for
reconsideration.[22]
Unsatisfied,
petitioner filed a notice of appeal.[23]
However, on January 19, 1995, she filed a
manifestation withdrawing the notice of
appeal on the strength of the following
provisions of P.D. No. 1083:

Art. 145. Finality of Decisions The


decisions of the Sharia District Courts
whether on appeal from the Sharia
Circuit Court or not shall be final. Nothing
herein contained shall affect the original
and appellate jurisdiction of the Supreme
Court as provided in the Constitution.
Petitioner accordingly informed the court
that she would be filing an original action
of certiorari with the Supreme Court.[24]
On March 1, 1995, petitioner filed the
instant petition for certiorari with
preliminary injunction and/or restraining
order. She contends that the Sharia
District Court gravely erred in: (a) ruling
that when she married Hadji Abdula
Malang, the latter had three existing
marriages with Jubaida Kado Malang,
Nayo Omar Malang and Mabay Ganap
Malang and therefore the properties
acquired during her marriage could not
be considered conjugal, and (b) holding
that said properties are not conjugal
because under Islamic Law, the regime of
relationship is complete separation of
property, in the absence of stipulation to
the contrary in the marriage settlement
or any other contract.[25]
As petitioner sees it, the law applicable
on issues of marriage and property
regime is the New Civil Code, under
which all property of the marriage is
presumed to belong to the conjugal
partnership.
The
Sharia
Court,
meanwhile, viewed the Civil Code
provisions on conjugal partnership as
incompatible with plural marriage, which
is permitted under Muslim law, and held
the applicable property regime to be
complete separation of property under
P.D. 1083.
Owing to the complexity of the issue
presented, and the fact that the case is
one of first impression --- this is a
singular situation where the issue on
what law governs the property regime of
a Muslim marriage celebrated prior to the

passage of the Muslim Code has been


elevated from a Sharia court for the
Courts resolution --- the Court decided to
solicit the opinions of two amici curiae,
Justice Ricardo C. Puno[26] and former
Congressman Michael O. Mastura[27].
The Court extends its warmest thanks to
the amici curiae for their valuable inputs
in their written memoranda[28] and in
the hearing of June 27, 2000.
Resolution of the instant case is made
more difficult by the fact that very few of
the pertinent dates of birth, death,
marriage and divorce are established by
the record. This is because, traditionally,
Muslims do not register acts, events or
judicial decrees affecting civil status.[29]
It also explains why the evidence in the
instant case consisted substantially of
oral testimonies.
What is not disputed is that: Hadji Abdula
contracted a total of eight marriages,
counting the three which terminated in
divorce; all eight marriages were
celebrated during the effectivity of the
Civil Code and before the enactment of
the Muslim Code; Hadji Abdula divorced
four wives --- namely, Aida, Saaga,
Mayumbai and Sabai --- all divorces of
which took place before the enactment of
the Muslim Code; and, Hadji Abdula died
on December 18, 1993, after the Muslim
Code and Family Code took effect,
survived by four wives (Jubaida, Nayo,
Mabay and Neng) and five children, four
of whom he begot with Aida and one with
Mabay. It is also clear that the following
laws were in force, at some point or
other, during the marriages of Hadji
Abdula: the Civil Code, which took effect
on August 30, 1950; Republic Act No. 394
(R.A. 394), authorizing Muslim divorces,
which was effective from June 18, 1949
to June 13, 1969; the Muslim Code, which
took effect February 4, 1977; and the
Family Code, effective August 3, 1988.
Proceeding upon the foregoing, the Court
has concluded that the record of the case

is simply inadequate for purposes of


arriving at a fair and complete resolution
of the petition. To our mind, any attempt
at this point to dispense with the basic
issue given the scantiness of the
evidence before us could result in grave
injustice to the parties in this case, as
well as cast profound implications on
Muslim families similarly or analogously
situated to the parties herein. Justice and
accountability dictate a remand; trial
must reopen in order to supply the
factual
gaps
or,
in
Congressman
Masturas words, missing links, that would
be the bases for judgment and
accordingly, allow respondent court to
resolve the instant case. In ordering thus,
however, we take it as an imperative on
our part to set out certain guidelines in
the interpretation and application of
pertinent laws to facilitate the task of
respondent court.
It will also be recalled that the main issue
presented by the petition --- concerning
the property regime applicable to two
Muslims married prior to the effectivity of
the Muslim Code --- was interposed in
relation to the settlement of the estate of
the deceased husband. Settlement of
estates of Muslims whose civil acts
predate the enactment of the Muslim
Code may easily result in the application
of the Civil Code and other personal laws,
thus convincing the Court that it is but
propitious to go beyond the issue
squarely presented and identify such
collateral issues as are required to be
resolved in a settlement of estate case.
As amicus curiae Congressman Mastura
puts it, the Court does not often come by
a case as the one herein, and
jurisprudence will be greatly enriched by
a discussion of the watershed of
collateral issues that this case presents.
[30]
The Court has identified the following
collateral issues, which we hereby
present in question form: (1) What law
governs the validity of a Muslim marriage

celebrated under Muslim rites before the


effectivity of the Muslim Code? (2) Are
multiple marriages celebrated before the
effectivity of the Muslim Code valid? (3)
How do the Courts pronouncements in
People vs. Subano, 73 Phil. 692 (1942),
and People vs. Dumpo, 62 Phil. 246
(1935),
affect
Muslim
marriages
celebrated before the effectivity of the
Muslim Code? (4) What laws govern the
property relationship of Muslim multiple
marriages celebrated before the Muslim
Code? (5) What law governs the
succession to the estate of a Muslim who
died after the Muslim Code and the
Family Code took effect? (6) What laws
apply to the dissolution of property
regimes in the cases of multiple
marriages entered into before the Muslim
Code but dissolved (by the husbands
death) after the effectivity of the Muslim
Code? and (7) Are Muslim divorces
effected before the enactment of the
Muslim Code valid?
The succeeding guidelines, which derive
mainly from the Compliance of amicus
curiae Justice Puno, are hereby laid down
by the Court for the reference of
respondent court, and for the direction of
the bench and bar:
First
Collateral
Issue:
The
Law(s)
Governing Validity of Muslim Marriages
Celebrated Before the Muslim Code
The time frame in which all eight
marriages
of
Hadji
Abdula
were
celebrated was during the effectivity of
the Civil Code which, accordingly,
governs the marriages. Article 78 of the
Civil Code[31] recognized the right of
Muslims
to
contract
marriage
in
accordance with their customs and rites,
by providing that --Marriages between Mohammedans or
pagans who live in the non-Christian
provinces
may
be
performed
in
accordance with their customs, rites or
practices. No marriage license or formal

requisites shall be necessary. Nor shall


the persons solemnizing these marriages
be obliged to comply with article 92.
However, thirty years after the approval
of this Code, all marriages performed
between Muslims or other non-Christians
shall be solemnized in accordance with
the provisions of this Code. But the
President of the Philippines, upon
recommendation of the Commissioner of
National Integration, may at any time
before the expiration of said period, by
proclamation,
make
any
of
said
provisions applicable to the Muslims and
non-Christian inhabitants of any of the
non-Christian provinces.
Notably, before the expiration of the
thirty-year period after which Muslims are
enjoined to solemnize their marriages in
accordance with the Civil Code, P.D. 1083
or the Muslim Code was passed into law.
The enactment of the Muslim Code on
February 4, 1977 rendered nugatory the
second paragraph of Article 78 of the
Civil Code which provides that marriages
between Muslims thirty years after the
approval of the Civil Code shall be
solemnized in accordance with said Code.
Second and Third Collateral Issues: The
Validity of Muslim Multiple Marriages
Celebrated Before the Muslim Code; The
Effect of People vs. Subano and People
vs. Dumpo
Prior to the enactment of P.D. 1083, there
was no law in this jurisdiction which
sanctioned multiple marriages.[32] It is
also not to be disputed that the only law
in force governing marriage relations
between Muslims and non-Muslims alike
was the Civil Code of 1950.
The Muslim Code, which is the first
comprehensive codification[33] of Muslim
personal laws,[34] also provides in
respect of acts that transpired prior to its
enactment:

Art. 186. Effect of code on past acts. --(1) Acts executed prior to the effectivity
of this Code shall be governed by the
laws in force at the time of their
execution, and nothing herein except as
otherwise specifically provided, shall
affect their validity or legality or operate
to extinguish any right acquired or
liability incurred thereby.
The foregoing provisions are consistent
with the principle that all laws operate
prospectively,
unless
the
contrary
appears or is clearly, plainly and
unequivocably expressed or necessarily
implied;[35] accordingly, every case of
doubt will be resolved against the
retroactive opertion of laws.[36] Article
186 aforecited enunciates the general
rule of the Muslim Code to have its
provisions applied prospectively, and
implicitly upholds the force and effect of
a pre-existing body of law, specifically,
the Civil Code --- in respect of civil acts
that took place before the Muslim Codes
enactment.
Admittedly, an apparent antagonism
arises when we consider that what the
provisions of the Civil Code contemplate
and nurture is a monogamous marriage.
Bigamous or polygamous marriages are
considered void and inexistent from the
time of their performance.[37] The Family
Code which superseded the Civil Code
provisions on marriage emphasizes that
a subsequent marriage celebrated before
the
registration
of
the
judgment
declaring a prior marriage void shall
likewise be void.[38] These provisions
illustrate that the marital relation
perceived by the Civil Code is one that is
monogamous, and that subsequent
marriages entered into by a person with
others while the first one is subsisting is
by no means countenanced.
Thus, when the validity of Muslim plural
marriages
celebrated
before
the
enactment of the Muslim Code was
touched upon in two criminal cases, the

Court applied the perspective in the Civil


Code that only one valid marriage can
exist at any given time.

Fourth Collateral Issue: Law(s) Governing


Property Relations of Muslim Marriages
Celebrated Before the Muslim Code

In People vs. Subano, supra, the Court


convicted the accused of homicide, not
parricide, since ---

This is the main issue presented by the


instant petition. In keeping with our
holding that the validity of the marriages
in the instant case is determined by the
Civil Code, we hold that it is the same
Code that determines and governs the
property relations of the marriages in this
case, for the reason that at the time of
the celebration of the marriages in
question the Civil Code was the only law
on marriage relations, including property
relations between spouses, whether
Muslim or non-Muslim. Inasmuch as the
Family
Code
makes
substantial
amendments to the Civil Code provisions
on property relations, some of its
provisions are also material, particularly
to property acquired from and after
August 3, 1988.

(f)rom the testimony of Ebol Subano,


father of the deceased, it appears that
the defendant has three wives and that
the deceased was the last in point of
time. Although the practice of polygamy
is approved by custom among these nonChristians, polygamy, however, is not
sanctioned by the Marriage Law[39],
which merely recognizes tribal marriage
rituals. The deceased, under our law, is
not thus the lawful wife of the defendant
and this precludes conviction for the
crime of parricide.
In People vs. Dumpo, supra, Mora Dumpo
was prosecuted for bigamy when, legally
married to Moro Hassan, she allegedly
contracted a second marriage with Moro
Sabdapal. The Court acquitted her on the
ground that it was not duly proved that
the alleged second marriage had all the
essential requisites to make it valid were
it not for the subsistence of the first
marriage. As it appears that the consent
of the brides father is an indispensable
requisite to the validity of a Muslim
marriage, and as Mora Dumpos father
categorically affirmed that he did not
give his consent to her union with Moro
Sabdapal, the Court held that such union
could not be a marriage otherwise valid
were it not for the existence of the first
one, and resolved to acquit her of the
charge of bigamy.
The ruling in Dumpo indicates that, had it
been proven as a fact that the second
marriage contained all the essential
requisites to make it valid, a conviction
for bigamy would have prospered. [40]

Which law would govern depends upon:


(1) when the marriages took place; (2)
whether the parties lived together as
husband and wife; and (3) when and how
the subject properties were acquired.
Following are the pertinent provisions of
the Civil Code:
Art. 119. The future spouses may in the
marriage
settlements
agree
upon
absolute or relative community of
property, or upon complete separation of
property, or upon any other regime. In
the absence of marriage settlements, or
when the same are void, the system of
relative
community
or
conjugal
partnership of gains as established in this
Code shall govern the property relations
between husband and wife.
Art. 135. All property brought by the wife
to the marriage, as well as all property
she acquires during the marriage, in
accordance
with
article
148,
is
paraphernal.

Art. 136. The wife retains the ownership


of the paraphernal property.
Art. 142. By means of the conjugal
partnership of gains the husband and
wife place in a common fund the fruits of
their separate property and the income
from their work or industry, and divide
equally, upon the dissolution of the
marriage or of the partnership, the net
gains
or
benefits
obtained
indiscriminately by either spouse during
the marriage.
Art. 143. All property of the conjugal
partnership of gains is owned in common
by the husband and wife.
The Civil Code also provides in Article
144:
When a man and a woman live together
as husband and wife, but they are not
married, or their marriage is void from
the beginning, the property acquired by
either or both of them through their work
or industry or their wages and salaries
shall be governed by the rules on coownership.
In a long line of cases, this Court has
interpreted the co-ownership provided in
Article 144 of the Civil Code to require
that the man and woman living together
as husband and wife without the benefit
of marriage or under a void marriage
must not in any way be incapacitated to
marry.[41] Situating these rulings to the
instant case, therefore, the co-ownership
contemplated in Article 144 of the Civil
Code cannot apply to Hadji Abdulas
marriages celebrated subsequent to a
valid and legally existing marriage, since
from the point of view of the Civil Code
Hadji Abdula is not capacitated to marry.
However, the wives in such marriages
are not precluded from proving that
property
acquired
during
their
cohabitation with Hadji Abdula is their
exclusive
property,
respectively.[42]
Absent such proof, however, the

presumption is that property acquired


during the subsistence of a valid
marriage --- and in the Civil Code, there
can only be one validly existing marriage
at any given time --- is conjugal property
of such subsisting marriage. [43]
With the effectivity of the Family Code on
August 3, 1988, the following provisions
of the said Code are pertinent:
Art. 147. When a man and a woman who
are capacitated to marry each other live
exclusively with each other as husband
and wife without the benefit of marriage
or under a void marriage, their wages
and salaries shall be owned by them in
equal shares and the property acquired
by both of them through their work or
industry shall be governed by the rules
on co-ownership.
In the absence of proof to the contrary,
properties acquired while they lived
together shall be presumed to have been
obtained by their joint efforts, work or
industry, and shall be owned by them in
equal shares. For purposes of this Article,
a party who did not participate in the
acquisition of the other party of any
property shall be deemed to have
contributed jointly in the acquisition
thereof if the formers efforts consisted in
the care and maintenance of the family
and of the household.
Neither party can encumber or dispose
by acts inter vivos of his or her share in
the
property
acquired
during
cohabitation and owned in common,
without the consent of the other, until
after the termination of the cohabitation.
When only one of the parties to a void
marriage is in good faith, the share of the
party in bad faith in the co-ownership
shall be forfeited in favor of their
common children. In case of default or of
waiver by any or all of the common
children or their descendants, each
vacant share shall belong to the

respective surviving descendants. In the


absence of descendants, such share shall
belong to the innocent party. In all cases,
the forfeiture shall take place upon
termination of the cohabitation.
Art. 148. In cases of cohabitation not
falling under the preceding Article, only
the properties acquired by both of the
parties
through
their
actual joint
contribution of money, property, or
industry shall be owned by them in
common in proportion to their respective
contributions. In the absence of proof to
the contrary, their contributions and
corresponding shares are presumed to be
equal. The same rule and presumption
shall apply to joint deposits of money and
evidences of credit.
If one of the parties is validly married to
another, his or her share in the coownership shall accrue to the absolute
community or conjugal partnership
existing in such valid marriage. If the
party who acted in bad faith is not validly
married to another, his or her share shall
be forfeited in the manner provided in
the last paragraph of the preceding
Article.
The foregoing rules on forfeiture shall
likewise apply even if both parties are in
bad faith.
It will be noted that while the Civil Code
merely requires that the parties live
together as husband and wife the Family
Code in Article 147 specifies that they
live exclusively with each other as
husband and wife. Also, in contrast to
Article 144 of the Civil Code as
interpreted by jurisprudence, Article 148
of the Family Code allows for coownership in cases of cohabitation
where, for instance, one party has a preexisting valid marriage, provided that the
parties
prove
their
actual
joint
contribution of money, property, or
industry and only to the extent of their
proportionate
interest
therein.
The

rulings in Juaniza vs. Jose, 89 SCRA 306,


Camporodendo vs. Garcia, 102 Phil.
1055, and related cases are embodied in
the second paragraph of Article 148,
which declares that the share of the
party validly married to another shall
accrue to the property regime of such
existing marriage.
Fifth and Sixth Collateral Issues: Law(s)
on Succession and Dissolution of Property
Regimes
Hadji Abdula died intestate on December
16, 1993. Thus, it is the Muslim Code
which should determine the identification
of the heirs in the order of intestate
succession and the respective shares of
the heirs.
Meanwhile, the status and capacity to
succeed on the part of the individual
parties who entered into each and every
marriage ceremony will depend upon the
law in force at the time of the
performance of the marriage rite.
The status and capacity to succeed of the
children will depend upon the law in force
at the time of conception or birth of the
child. If the child was conceived or born
during the period covered by the
governance of the Civil Code, the Civil
Code provisions on the determination of
the legitimacy or illegitimacy of the child
would appear to be in point. Thus, the
Civil Code provides:
Art. 255. Children born after one hundred
and eighty days following the celebration
of the marriage, and before three
hundred days following its dissolution or
the separation of the spouses shall be
presumed to be legitimate.
Against this presumption no evidence
shall be admitted other than that of the
physical impossibility of the husbands
having access to his wife within the first
one hundred and twenty days of the

three hundred which preceded the birth


of the child.
This physical
caused:

impossibility

may

be

(1) By the impotence of the husband;


(2) By the fact that the husband and wife
were living separately, in such a way that
access was not possible;
(3) By the serious illness of the husband.
Art. 256. The child shall be presumed
legitimate, although the mother may
have declared against its legitimacy or
may have been sentenced as an
adulteress.
If the child was conceived or born during
the period covered by the governance of
the Muslim Code, i.e., from February 4,
1977 up to the death of Hadji Abdula on
December 18, 1993, the Muslim Code
determines the legitimacy or illegitimacy
of the child. Under the Muslim Code:
Art. 58. Legitimacy, how established. --Legitimacy of filiation is established by
the evidence of valid marriage between
the father and the mother at the time of
the conception of the child.
Art. 59. Legitimate children. --(1) Children conceived in lawful wedlock
shall be presumed to be legitimate.
Whoever claims illegitimacy of or
impugns such filiation must prove his
allegation.
(2) Children born after six months
following the consummation of marriage
or within two years after the dissolution
of the marriage shall be presumed to be
legitimate. Against this presumption no
evidence shall be admitted other than
that of physical impossibility of access
between the parents at or about the time
of the conception of the child.

Art. 60. Children of subsequent marriage.


--- Should the marriage be dissolved and
the wife contracts another marriage after
the expiration of her idda, the child born
within six months from the dissolution of
the prior marriage shall be presumed to
have been conceived during the former
marriage, and if born thereafter, during
the latter.
Art. 61. Pregnancy after dissolution. --- If,
after the dissolution of marriage, the wife
believes that she is pregnant by her
former husband, she shall, within thirty
days from the time she became aware of
her pregnancy, notify the former
husband or his heirs of that fact. The
husband or his heirs may ask the court to
take measures to prevent a simulation of
birth.
Upon determination of status and
capacity to succeed based on the
foregoing provisions, the provisions on
legal succession in the Muslim Code will
apply. Under Article 110 of the said Code,
the sharers to an inheritance include:
(a) The husband, the wife;
(b) The father, the mother,
grandfather, the grandmother;

the

(c) The daughter and the sons daughter


in the direct line;
(d) The full sister, the consanguine sister,
the uterine sister and the uterine brother.
When the wife survives with a legitimate
child or a child of the decedents son, she
is entitled to one-eighth of the hereditary
estate; in the absence of such
descendants, she shall inherit one-fourth
of the estate.[44] The respective shares
of the other sharers, as set out in Article
110 abovecited, are provided for in
Articles 113 to 122 of P.D. 1083.

Seventh Collateral Issue: Muslim Divorces


Before the Effectivity of the Muslim Code

by proof or presumption depending upon


the time frame and the applicable law.

R.A. 394 authorized absolute divorce


among Muslims residing in non-Christian
provinces, in accordance with Muslim
custom, for a period of 20 years from
June 18, 1949 (the date of approval of
R.A. 394) to June 13, 1969.[45] Thus, a
Muslim divorce under R.A. 394 is valid if
it took place from June 18, 1949 to June
13, 1969.

3. What properties constituted the estate


of Hadji Abdula at the time of his death
on December 18, 1993? The estate of
Hadji Abdula consists of the following:

From the seven collateral issues that we


discussed, we identify four corollary
issues as to further situate the points of
controversy in the instant case for the
guidance of the lower court. Thus:
1. Which of the several marriages was
validly and legally existing at the time of
the opening of the succession of Hadji
Abdula when he died in 1993? The validly
and legally existing marriage would be
that marriage which was celebrated at a
time when there was no other subsisting
marriage standing undissolved by a valid
divorce or by death. This is because all of
the marriages were celebrated during the
governance of the Civil Code, under the
rules of which only one marriage can
exist at any given time.
Whether or not the marriage was validly
dissolved by a Muslim divorce depends
upon the time frame and the applicable
law. A Muslim divorce under R.A. No. 394
is valid if it took place from June 18, 1949
to June 13, 1969, and void if it took place
from June 14, 1969. [46]
2. There being a dispute between the
petitioner and the oppositors as regards
the heirship of the children begotten
from different marriages, who among the
surviving children are legitimate and who
are illegitimate? The children conceived
and born of a validly existing marriage as
determined by the first corollary issue
are legitimate. The fact and time of
conception or birth may be determined

a. Properties acquired during the


existence of a valid marriage as
determined by the first corollary issue
are conjugal properties and should be
liquidated and divided between the
spouses under the Muslim Code, this
being the law in force at the time of Hadji
Abdulas death.
b.
Properties
acquired
under
the
conditions prescribed in Article 144 of the
Civil Code during the period August 30,
1950 to August 2, 1988 are conjugal
properties and should be liquidated and
divided between the spouses under the
Muslim Code. However, the wives other
than the lawful wife as determined under
the first corollary issue may submit their
respective evidence to prove that any of
such property is theirs exclusively.
c.
Properties
acquired
under
the
conditions set out in Articles 147 and 148
of the Family Code during the period from
and after August 3, 1988 are governed
by the rules on co-ownership.
d. Properties acquired under conditions
not covered by the preceding paragraphs
and obtained from the exclusive efforts
or assets of Hadji Abdula are his
exclusive properties.
4. Who are the legal heirs of Hadji
Abdula, and what are their shares in
intestacy? The following are Hadji
Abdulas legal heirs: (a) the lawful wife, as
determined under the first corollary
issue, and (2) the children, as determined
under the second corollary issue. The
Muslim Code, which was already in force
at the time of Hadji Abdulas death, will

govern the determination


respective shares.

of

their

As we have indicated early on, the


evidence in this case is inadequate to
resolve in its entirety the main, collateral
and corollary issues herein presented and
a remand to the lower court is in order.
Accordingly, evidence should be received
to supply the following proofs: (1) the
exact dates of the marriages performed
in accordance with Muslim rites or
practices; (2) the exact dates of the
dissolutions of the marriages terminated
by death or by divorce in accordance
with Muslim rites and practices, thus
indicating which marriage resulted in a
conjugal partnership under the criteria
prescribed by the first, second, and third
collateral issues and the first corollary
issue; (3) the exact periods of actual
cohabitation (common life under a
common roof) of each of the marriages
during which time the parties lived
together; (4) the identification of specific
properties acquired during each of the
periods of cohabitation referred to in
paragraph 3 above, and the manner and
source of acquisition, indicating joint or
individual effort, thus showing the asset
as owned separately, conjugally or in coownership; and (5) the identities of the
children (legitimate or illegitimate)
begotten from the several unions, the
dates of their respective conceptions or
births in relation to paragraphs 1 and 2
above, thereby indicating their status as
lawful heirs.
Amicus curiae Congressman Mastura
agrees that since the marriage of
petitioner to decedent took place in 1972
the Civil Code is the law applicable on
the issue of marriage settlement, [47]
but espouses that customs or established
practices among Muslims in Mindanao
must also be applied with the force of law
to the instant case.[48] Congressman
Masturas
disquisition
has
proven
extremely helpful in impressing upon us
the background in which Islamic law and

the Muslim Code need to be interpreted,


particularly the interconnectedness of
law and religion for Muslims[49] and the
impracticability of a strict application of
the Civil Code to plural marriages
recognized
under
Muslim
law.[50]
Regrettably, the Court is duty-bound to
resolve the instant case applying such
laws and rights as are in existence at the
time the pertinent civil acts took place.
Corollarily, we are unable to supplant
governing law with customs, albeit how
widely observed. In the same manner,
we cannot supply a perceived hiatus in
P.D. 1083 concerning the distribution of
property between divorced spouses upon
one of the spouses death.51
WHEREFORE,
the
decision
dated
September 26, 1994 of the Fifth Sharia
District Court of Cotabato City in Special
Proceeding No. 94-40 is SET ASIDE, and
the instant petition is REMANDED for the
reception of additional evidence and the
resolution of the issues of the case based
on the guidelines set out in this Decision.
SO ORDERED.

FIRST DIVISION
G.R. No. 124371
2000

November 23,

PAULA T. LLORENTE, petitioner,


vs.
COURT OF APPEALS and ALICIA
LLORENTE, respondents.
DECISION
PARDO, J.:
The Case
The case raises a conflict of laws issue.

F.

What is before us is an appeal from the


decision of the Court of Appeals1
modifying that of the Regional Trial Court,
Camarines Sur, Branch 35, Iriga City2
declaring respondent Alicia F. Llorente
(herinafter referred to as "Alicia"), as coowners of whatever property she and the
deceased
Lorenzo
N.
Llorente
(hereinafter referred to as "Lorenzo")
may have acquired during the twentyfive (25) years that they lived together as
husband and wife.
The Facts
The deceased Lorenzo N. Llorente was an
enlisted serviceman of the United States
Navy from March 10, 1927 to September
30, 1957.3
On February 22, 1937, Lorenzo and
petitioner Paula Llorente (hereinafter
referred to as "Paula") were married
before a parish priest, Roman Catholic
Church, in Nabua, Camarines Sur.4
Before the outbreak of the Pacific War,
Lorenzo departed for the United States
and Paula stayed in the conjugal home in
barrio Antipolo, Nabua, Camarines Sur.5
On November 30, 1943, Lorenzo was
admitted to United States citizenship and
Certificate of Naturalization No. 5579816
was issued in his favor by the United
States District Court, Southern District of
New York.6
Upon the liberation of the Philippines by
the American Forces in 1945, Lorenzo
was granted an accrued leave by the U.
S. Navy, to visit his wife and he visited
the Philippines.7 He discovered that his
wife Paula was pregnant and was "living
in" and having an adulterous relationship
with his brother, Ceferino Llorente.8
On December 4, 1945, Paula gave birth
to a boy registered in the Office of the
Registrar
of
Nabua
as
"Crisologo
Llorente," with the certificate stating that

the child was not legitimate and the line


for the fathers name was left blank.9
Lorenzo refused to forgive Paula and live
with her. In fact, on February 2, 1946, the
couple drew a written agreement to the
effect that (1) all the family allowances
allotted by the United States Navy as
part of Lorenzos salary and all other
obligations for Paulas daily maintenance
and support would be suspended; (2)
they would dissolve their marital union in
accordance with judicial proceedings; (3)
they would make a separate agreement
regarding
their
conjugal
property
acquired during their marital life; and (4)
Lorenzo would not prosecute Paula for
her adulterous act since she voluntarily
admitted her fault and agreed to
separate from Lorenzo peacefully. The
agreement was signed by both Lorenzo
and Paula and was witnessed by Paulas
father and stepmother. The agreement
was notarized by Notary Public Pedro
Osabel.10
Lorenzo returned to the United States
and on November 16, 1951 filed for
divorce with the Superior Court of the
State of California in and for the County
of San Diego. Paula was represented by
counsel,
John
Riley,
and
actively
participated in the proceedings. On
November 27, 1951, the Superior Court
of the State of California, for the County
of San Diego found all factual allegations
to be true and issued an interlocutory
judgment of divorce.11
On December 4, 1952,
decree became final.12

the

divorce

In the meantime, Lorenzo returned to the


Philippines.
On January 16, 1958, Lorenzo married
Alicia F. Llorente in Manila.13 Apparently,
Alicia had no knowledge of the first
marriage even if they resided in the
same town as Paula, who did not oppose
the marriage or cohabitation.14

From 1958 to 1985, Lorenzo and Alicia


lived together as husband and wife.15
Their twenty-five (25) year union
produced three children, Raul, Luz and
Beverly, all surnamed Llorente.16

"(4) That their respective shares in the


above-mentioned properties, whether
real or personal properties, shall not be
disposed of, ceded, sold and conveyed to
any other persons, but could only be
sold, ceded, conveyed and disposed of
by and among themselves;

On March 13, 1981, Lorenzo executed a


Last Will and Testament. The will was
notarized by Notary Public Salvador M.
Occiano, duly signed by Lorenzo with
attesting witnesses Francisco Hugo,
Francisco Neibres and Tito Trajano. In the
will, Lorenzo bequeathed all his property
to Alicia and their three children, to wit:

"(5) I designate my wife ALICIA R.


FORTUNO to be the sole executor of this
my Last Will and Testament, and in her
default or incapacity of the latter to act,
any of my children in the order of age, if
of age;

"(1) I give and bequeath to my wife


ALICIA R. FORTUNO exclusively my
residential house and lot, located at San
Francisco,
Nabua,
Camarines
Sur,
Philippines, including ALL the personal
properties and other movables or
belongings that may be found or existing
therein;
"(2) I give and bequeath exclusively to
my wife Alicia R. Fortuno and to my
children, Raul F. Llorente, Luz F. Llorente
and Beverly F. Llorente, in equal shares,
all my real properties whatsoever and
wheresoever located, specifically my real
properties located at Barangay AroAldao, Nabua, Camarines Sur; Barangay
Paloyon,
Nabua,
Camarines
Sur;
Barangay Baras, Sitio Puga, Nabua,
Camarines Sur; and Barangay Paloyon,
Sitio Nalilidong, Nabua, Camarines Sur;
"(3) I likewise give and bequeath
exclusively unto my wife Alicia R. Fortuno
and unto my children, Raul F. Llorente,
Luz F. Llorente and Beverly F. Llorente, in
equal shares, my real properties located
in Quezon City Philippines, and covered
by Transfer Certificate of Title No.
188652; and my lands in Antipolo, Rizal,
Philippines,
covered
by
Transfer
Certificate of Title Nos. 124196 and
165188, both of the Registry of Deeds of
the province of Rizal, Philippines;

"(6) I hereby direct that the executor


named herein or her lawful substitute
should served (sic) without bond;
"(7) I hereby revoke any and all my other
wills,
codicils,
or
testamentary
dispositions heretofore executed, signed,
or published, by me;
"(8) It is my final wish and desire that if I
die, no relatives of mine in any degree in
the Llorentes Side should ever bother
and disturb in any manner whatsoever
my wife Alicia R. Fortunato and my
children with respect to any real or
personal
properties
I
gave
and
bequeathed respectively to each one of
them by virtue of this Last Will and
Testament."17
On December 14, 1983, Lorenzo filed
with the Regional Trial Court, Iriga,
Camarines Sur, a petition for the probate
and allowance of his last will and
testament wherein Lorenzo moved that
Alicia be appointed Special Administratrix
of his estate.18
On January 18, 1984, the trial court
denied the motion for the reason that the
testator Lorenzo was still alive.19
On January 24, 1984, finding that the will
was duly executed, the trial court
admitted the will to probate.20

On June 11, 1985, before the proceedings


could be terminated, Lorenzo died.21
On September 4, 1985, Paula filed with
the same court a petition22 for letters of
administration over Lorenzos estate in
her favor. Paula contended (1) that she
was Lorenzos surviving spouse, (2) that
the various property were acquired
during their marriage, (3) that Lorenzos
will disposed of all his property in favor of
Alicia and her children, encroaching on
her legitime and 1/2 share in the conjugal
property.23
On December 13, 1985, Alicia filed in the
testate proceeding (Sp. Proc. No. IR-755),
a petition for the issuance of letters
testamentary.24
On
October
14,
1985,
without
terminating the testate proceedings, the
trial court gave due course to Paulas
petition in Sp. Proc. No. IR-888.25
On November 6, 13 and 20, 1985, the
order was published in the newspaper
"Bicol Star".26
On May 18, 1987, the Regional Trial Court
issued a joint decision, thus:
"Wherefore, considering that this court
has so found that the divorce decree
granted to the late Lorenzo Llorente is
void and inapplicable in the Philippines,
therefore the marriage he contracted
with Alicia Fortunato on January 16, 1958
at Manila is likewise void. This being so
the petition of Alicia F. Llorente for the
issuance of letters testamentary is
denied. Likewise, she is not entitled to
receive any share from the estate even if
the will especially said so her relationship
with Lorenzo having gained the status of
paramour which is under Art. 739 (1).
"On the other hand, the court finds the
petition of Paula Titular Llorente,
meritorious, and so declares the intrinsic
disposition of the will of Lorenzo Llorente

dated March 13, 1981 as void and


declares her entitled as conjugal partner
and entitled to one-half of their conjugal
properties, and as primary compulsory
heir, Paula T. Llorente is also entitled to
one-third of the estate and then one-third
should go to the illegitimate children,
Raul, Luz and Beverly, all surname (sic)
Llorente, for them to partition in equal
shares and also entitled to the remaining
free portion in equal shares.
"Petitioner, Paula Llorente is appointed
legal administrator of the estate of the
deceased, Lorenzo Llorente. As such let
the
corresponding
letters
of
administration issue in her favor upon
her filing a bond in the amount (sic) of
P100,000.00 conditioned for her to make
a return to the court within three (3)
months a true and complete inventory of
all goods, chattels, rights, and credits,
and estate which shall at any time come
to her possession or to the possession of
any other person for her, and from the
proceeds to pay and discharge all debts,
legacies and charges on the same, or
such dividends thereon as shall be
decreed or required by this court; to
render a true and just account of her
administration to the court within one (1)
year, and at any other time when
required by the court and to perform all
orders of this court by her to be
performed.
"On the other matters prayed for in
respective petitions for want of evidence
could not be granted.
"SO ORDERED."27
In time, Alicia filed with the trial court a
motion for reconsideration of the
aforequoted decision.28
On September 14, 1987, the trial court
denied Alicias motion for reconsideration
but modified its earlier decision, stating
that Raul and Luz Llorente are not
children "legitimate or otherwise" of

Lorenzo since they were not legally


adopted by him.29 Amending its decision
of May 18, 1987, the trial court declared
Beverly Llorente as the only illegitimate
child of Lorenzo, entitling her to one-third
(1/3) of the estate and one-third (1/3) of
the free portion of the estate.30

The fact that the late Lorenzo N. Llorente


became an American citizen long before
and at the time of: (1) his divorce from
Paula; (2) marriage to Alicia; (3)
execution of his will; and (4) death, is
duly
established,
admitted
and
undisputed.

On September 28, 1987, respondent


appealed to the Court of Appeals.31

Thus, as a rule, issues arising from these


incidents are necessarily governed by
foreign law.

On July 31, 1995, the Court of Appeals


promulgated its decision, affirming with
modification the decision of the trial
court in this wise:
"WHEREFORE, the decision appealed
from is hereby AFFIRMED with the
MODIFICATION that Alicia is declared as
co-owner of whatever properties she and
the deceased may have acquired during
the
twenty-five
(25)
years
of
cohabitation.
"SO ORDERED."32
On August 25, 1995, petitioner filed with
the Court of Appeals a motion for
reconsideration of the decision.33
On March 21, 1996, the Court of
Appeals,34 denied the motion for lack of
merit.
Hence, this petition.35
The Issue
Stripping the petition of its legalese and
sorting through the various arguments
raised,36 the issue is simple. Who are
entitled to inherit from the late Lorenzo
N. Llorente?
We do not agree with the decision of the
Court of Appeals. We remand the case to
the trial court for ruling on the intrinsic
validity of the will of the deceased.
The Applicable Law

The Civil Code clearly provides:


"Art. 15. Laws relating to family rights
and duties, or to the status, condition
and legal capacity of persons are binding
upon citizens of the Philippines, even
though living abroad.
"Art. 16. Real property as well as
personal property is subject to the law of
the country where it is situated.
"However, intestate and testamentary
succession, 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." (emphasis ours)
True, foreign laws do not prove
themselves in our jurisdiction and our
courts are not authorized to take judicial
notice of them. Like any other fact, they
must be alleged and proved.37
While the substance of the foreign law
was pleaded, the Court of Appeals did
not admit the foreign law. The Court of
Appeals and the trial court called to the
fore the renvoi doctrine, where the case
was "referred back" to the law of the
decedents domicile, in this case,
Philippine law.

We note that while the trial court stated


that the law of New York was not
sufficiently proven, in the same breath it
made the categorical, albeit equally
unproven statement that "American law
follows the domiciliary theory hence,
Philippine law applies when determining
the validity of Lorenzos will.38
First, there is no such thing as one
American law.1wph!1 The "national law"
indicated in Article 16 of the Civil Code
cannot possibly apply to general
American law. There is no such law
governing the validity of testamentary
provisions in the United States. Each
State of the union has its own law
applicable to its citizens and in force only
within the State. It can therefore refer to
no other than the law of the State of
which the decedent was a resident.39
Second, there is no showing that the
application of the renvoi doctrine is
called for or required by New York State
law.
The trial court held that the will was
intrinsically invalid since it contained
dispositions in favor of Alice, who in the
trial courts opinion was a mere
paramour. The trial court threw the will
out, leaving Alice, and her two children,
Raul and Luz, with nothing.
The Court of Appeals also disregarded
the will. It declared Alice entitled to one
half (1/2) of whatever property she and
Lorenzo
acquired
during
their
cohabitation, applying Article 144 of the
Civil Code of the Philippines.
The hasty application of Philippine law
and the complete disregard of the will,
already probated as duly executed in
accordance with the formalities of
Philippine law, is fatal, especially in light
of the factual and legal circumstances
here obtaining.
Validity of the Foreign Divorce

In Van Dorn v. Romillo, Jr.40 we held that


owing to the nationality principle
embodied in Article 15 of the Civil Code,
only Philippine nationals are covered by
the policy against absolute divorces, the
same being considered contrary to our
concept of public policy and morality. In
the same case, the Court ruled that
aliens may obtain divorces abroad,
provided they are valid according to their
national law.
Citing this landmark case, the Court held
in Quita v. Court of Appeals,41 that once
proven that respondent was no longer a
Filipino citizen when he obtained the
divorce from petitioner, the ruling in Van
Dorn would become applicable and
petitioner could "very well lose her right
to inherit" from him.
In
Pilapil
v.
Ibay-Somera,42
we
recognized the divorce obtained by the
respondent in his country, the Federal
Republic of Germany. There, we stated
that divorce and its legal effects may be
recognized in the Philippines insofar as
respondent is concerned in view of the
nationality principle in our civil law on the
status of persons.
For failing to apply these doctrines, the
decision of the Court of Appeals must be
reversed.43 We hold that the divorce
obtained by Lorenzo H. Llorente from his
first wife Paula was valid and recognized
in this jurisdiction as a matter of comity.
Now, the effects of this divorce (as to the
succession to the estate of the decedent)
are matters best left to the determination
of the trial court.
Validity of the Will
The Civil Code provides:
"Art. 17. The forms and solemnities of
contracts, wills, and other public
instruments shall be governed by the
laws of the country in which they are
executed.

"When the acts referred to are executed


before the diplomatic or consular officials
of the Republic of the Philippines in a
foreign
country,
the
solemnities
established by Philippine laws shall be
observed
in
their
execution."
(underscoring ours)
The clear intent of Lorenzo to bequeath
his property to his second wife and
children by her is glaringly shown in the
will he executed. We do not wish to
frustrate his wishes, since he was a
foreigner, not covered by our laws on
"family rights and duties, status,
condition and legal capacity."44

of the State of California in and for the


County of San Diego, made final on
December 4, 1952.
Further, the Court REMANDS the cases to
the court of origin for determination of
the intrinsic validity of Lorenzo N.
Llorentes will and determination of the
parties successional rights allowing proof
of foreign law with instructions that the
trial court shall proceed with all
deliberate dispatch to settle the estate of
the deceased within the framework of
the Rules of Court.
No costs.
SO ORDERED.

Whether the will is intrinsically valid and


who shall inherit from Lorenzo are issues
best proved by foreign law which must
be pleaded and proved. Whether the will
was executed in accordance with the
formalities required is answered by
referring to Philippine law. In fact, the will
was duly probated.
As a guide however, the trial court should
note that whatever public policy or good
customs may be involved in our system
of legitimes, Congress did not intend to
extend the same to the succession of
foreign nationals. Congress specifically
left the amount of successional rights to
the decedent's national law.45
Having thus ruled, we find it unnecessary
to pass upon the other issues raised.
The Fallo
WHEREFORE, the petition is GRANTED.
The decision of the Court of Appeals in
CA-G. R. SP No. 17446 promulgated on
July 31, 1995 is SET ASIDE.
In lieu thereof, the Court REVERSES the
decision of the Regional Trial Court and
RECOGNIZES as VALID the decree of
divorce granted in favor of the deceased
Lorenzo N. Llorente by the Superior Court

EN BANC
G.R. Nos. L-3087 and L-3088
31, 1954

July

In re: Testate Estate of the deceased


JOSE B. SUNTAY. SILVINO SUNTAY,
petitioner-appellant,
vs.
In re: Intestate Estate of the deceased
JOSE B. SUNTAY,
FEDERICO C. SUNTAY, administratorappellee.
Claro M. Recto for appellant.
Sison and Aruego for appellee.
PADILLA, J.:
This is an appeal from a decree of the
Court of First Instance of Bulacan
disallowing
the
alleged
will
and
testament executed in Manila on
November 1929, and the alleged last will
and testament executed in Kulangsu,
Amoy, China, on 4 January 1931, by Jose
B. Suntay. The value of the estate left by
the deceased is more than P50,000.
On 14 May 1934 Jose B. Suntay, a Filipino
citizen and resident of the Philippines,
died in the city of Amoy, Fookien
province, Republic of China, leaving real
and personal properties in the Philippines
and a house in Amoy, Fookien province,
China, and children by the first marriage
had with the late Manuela T. Cruz
namely, Apolonio, Concepcion, Angel,
Manuel, Federico, Ana, Aurora, Emiliano,
and Jose, Jr. and a child named Silvino by
the second marriage had with Maria
Natividad Lim Billian who survived him.
Intestate proceedings were instituted in
the Court of First Instance of Bulacan
(special proceedings No. 4892) and after
hearing letters of administration were
issued to Apolonio Suntay. After the

latter's death Federico C. Suntay was


appointed administrator of the estate. On
15 October 1934 the surviving widow
filed a petition in the Court of First
Instance of Bulacan for the probate of a
last will and testament claimed to have
been executed and signed in the
Philippines on November 1929 by the
late Jose B. Suntay. This petition was
denied because of the loss of said will
after the filing of the petition and before
the hearing thereof and of the
insufficiency of the evidence to establish
the loss of the said will. An appeal was
taken from said order denying the
probate of the will and this Court held the
evidence before the probate court
sufficient to prove the loss of the will and
remanded the case to the Court of First
Instance of Bulacan for the further
proceedings (63 Phil., 793). In spite of
the fact that a commission from the
probate court was issued on 24 April
1937 for the taking of the deposition of
Go Toh, an attesting witness to the will,
on 7 February 1938 the probate court
denied a motion for continuance of the
hearing sent by cablegram from China by
the surviving widow and dismissed the
petition. In the meantime the Pacific War
supervened. After liberation, claiming
that he had found among the files,
records and documents of his late father
a will and testament in Chinese
characters executed and signed by the
deceased on 4 January 1931 and that the
same was filed, recorded and probated in
the Amoy district court, Province of
Fookien, China, Silvino Suntay filed a
petition in the intestate proceedings
praying for the probate of the will
executed in the Philippines on November
1929 (Exhibit B) or of the will executed in
Amoy, Fookien, China, on 4 January 1931
(Exhibit N).
There is no merit in the contention that
the petitioner Silvino Suntay and his
mother Maria Natividad Lim Billian are
estopped from asking for the probate of
the lost will or of the foreign will because

of the transfer or assignment of their


share right, title and interest in the
estate of the late Jose B. Suntay to Jose
G. Gutierrez and the spouses Ricardo
Gutierrez and Victoria Goo and the
subsequent assignment thereof by the
assignees to Francisco Pascual and by
the latter to Federico C. Suntay, for the
validity and legality of such assignments
cannot
be threshed out
in
this
proceedings which is concerned only with
the probate of the will and testament
executed in the Philippines on November
1929 or of the foreign will allegedly
executed in Amoy on 4 January 1931 and
claimed to have been probated in the
municipal district court of Amoy, Fookien
province, Republic of China.
As to prescription, the dismissal of the
petition for probate of the will on 7
February 1938 was no bar to the filing of
this petition on 18 June 1947, or before
the expiration of ten years.
As to the lost will, section 6, Rule 77,
provides:
No will shall be proved as a lost or
destroyed will unless the execution and
validity of the same be established, and
the will is proved to have been in
existence at the time of the death of the
testator, or is shown to have been
fraudulently or accidentally destroyed in
the lifetime of the testator without his
knowledge, nor unless its provisions are
clearly and distinctly proved by at least
two credible witnesses. When a lost will
is proved, the provisions thereof must be
distinctly stated and certified by the
judge, under the seal of the court, and
the certificate must be filed and recorded
as other wills are filed and recorded.
The witnesses who testified to the
provisions of the lost will are Go Toh, an
attesting witness, Anastacio Teodoro and
Ana Suntay. Manuel Lopez, who was an
attesting witness to the lost will, was
dead at the time of the hearing of this

alternative petition. In his deposition Go


Toh testifies that he was one of the
witnesses to the lost will consisting of
twenty-three sheets signed by Jose B.
Suntay at the bottom of the will and each
and every page thereof in the presence
of Alberto Barretto, Manuel Lopez and
himself and underneath the testator's
signature the attesting witnesses signed
and each of them signed the attestation
clause and each and every page of the
will in the presence of the testator and of
the other witnesses (answers to the 31st,
41st, 42nd, 49th, 50th, 55th and 63rd
interrogatories, Exhibit D-1), but did not
take part in the drafting thereof (answer
to the 11th interrogatory, Id.); that he
knew the contents of the will written in
Spanish although he knew very little of
that language (answers to the 22nd and
23rd interrogatories and to X-2 crossinterrogatory, Id.) and all he knows about
the contends of the lost will was revealed
to him by Jose B. Suntay at the time it
was executed (answers to the 25th
interrogatory and to X-4 and X-8 crossinterrogatories, Id.); that Jose B. Suntay
told him that the contents thereof are the
same as those of the draft (Exhibit B)
(answers to the 33rd interrogatory and to
X-8 cross-interrogatory, Id.) which he saw
in the office of Alberto Barretto in
November 1929 when the will was signed
(answers to the 69th, 72nd, and 74th
interrogatories, Id); that Alberto Barretto
handed the draft and said to Jose B.
Suntay: "You had better see if you want
any correction" (answers to the 81st,
82nd and 83rd interrogatories, Id.); that
"after checking Jose B. Suntay put the
"Exhibit B" in his pocket and had the
original signed and executed" (answers
to the 91st interrogatory, and to X-18
cross-interrogatory, Id.); that Mrs. Suntay
had the draft of the will (Exhibit B)
translated into Chinese and he read the
translation
(answers
to
the
67th
interrogatory, Id.); that he did not read
the will and did not compare it (check it
up) with the draft (Exhibit B) (answers to
X-6 and X-20 cross-interrogatories, Id.).

Ana Suntay testifies that sometime in


September 1934 in the house of her
brother Apolonio Suntay she learned that
her father left a will "because of the
arrival of my brother Manuel Suntay, who
was bringing along with him certain
document and he told us or he was
telling us that it was the will of our father
Jose B. Suntay which was taken from Go
Toh. ..." (p. 524, t. s. n., hearing of 24
February 1948); that she saw her brother
Apolonio Suntay read the document in
her presence and of Manuel and learned
of the adjudication made in the will by
her father of his estate, to wit: one-third
to his children, one-third to Silvino and
his mother and the other third to Silvino,
Apolonio, Concepcion and Jose, Jr. (pp.
526-8, 530-1, 542, t. s. n. Id.); that "after
Apolonio read that portion, then he
turned over the document to Manuel, and
he went away," (p. 528, t. s. n., Id.). On
cross-examination, she testifies that she
read the part of the will on adjudication
to know what was the share of each heir
(pp. 530, 544, t. s. n., Id.) and on redirect
she testifies that she saw the signature
of her father, Go Toh, Manuel Lopez and
Alberto Barretto (p. 546, t. s. n., Id.).
Anastacio Teodoro testifies that one day
in November 1934 (p. 273, t. s. n.,
hearing of 19 January 1948), before the
last postponement of the hearing
granted by the Court, Go Toh arrived at
his law office in the De los Reyes Building
and left an envelope wrapped in red
handkerchief [Exhibit C] (p. 32, t. s. n.,
hearing of 13 October 1947); that he
checked up the signatures on the
envelope Exhibit A with those on the will
placed in the envelope (p. 33, t. s. n.,
Id.); that the will was exactly the same as
the draft Exhibit B (pp. 32, 47, 50, t. s. n.,
Id.).
If the will was snatched after the delivery
thereof by Go Toh to Anastacio Teodoro
And returned by the latter to the former
because they could not agree on the

amount of fees, the former coming to the


latter's office straight from the boat (p.
315, t. s. n., hearing of 19 January 1948)
that brought him to the Philippines from
Amoy, and that delivery took place in
November 1934 (p. 273, t. s. n., Id.), then
the testimony of Ana Suntay that she
saw and heard her brother Apolonio
Suntay read the will sometime in
September 1934 (p. 524, t. s. n., hearing
of 24 February 1948), must not be true.
Although Ana Suntay would be a good
witness because she was testifying
against her own interest, still the fact
remains that she did not read the whole
will but only the adjudication (pp. 526-8,
530-1, 542, t. s. n., Id.) and saw only the
signature, of her father and of the
witnesses Go Toh, Manuel Lopez and
Alberto Barretto (p. 546, t. s. n., Id.). But
her testimony on cross-examination that
she read the part of the will on
adjudication is inconsistent with her
testimony in chief that after Apolonio had
read that part of the will he turned over
or handed the document to Manuel who
went away (p. 528, t. s. n., Id.).
If it is true that Go Toh saw the draft
Exhibit B in the office of Alberto Barretto
in November 1929 when the will was
signed, then the part of his testimony
that Alberto Barretto handed the draft to
Jose B. Suntay to whom he said: "You had
better see if you want any correction"
and that "after checking Jose B. Suntay
put the "Exhibit B" in his pocket and had
the original signed and executed" cannot
be true, for it was not the time for
correcting the draft of the will, because it
must have been corrected before and all
corrections and additions written in lead
pencil must have been inserted and
copied in the final draft of the will which
was signed on that occasion. The
bringing in for the draft (Exhibit B) on
that occasion is just to fit it within the
framework of the appellant's theory. At
any rate, all of Go Toh's testimony by
deposition on the provisions of the

alleged lost will is hearsay, because he


came to know or he learned to them from
information given him by Jose B. Suntay
and from reading the translation of the
draft (Exhibit B) into Chinese.
Much stress is laid upon the testimony of
Federico C. Suntay who testifies that he
read the supposed will or the alleged will
of his father and that the share of the
surviving widow, according to the will, is
two-thirds of the estate (p. 229, t. s. n.,
hearing of 24 October 1947). But this
witness
testified
to
oppose
the
appointment of a co-administrator of the
estate, for the reason that he had
acquired the interest of the surviving
widow not only in the estate of her
deceased husband but also in the
conjugal property (pp. 148, 205, 228,
229, 231, t. s. n., Id.) Whether he read
the original will or just the copy thereof
(Exhibit B) is not clear. For him the
important point was that he had acquired
all the share, participation and interest of
the surviving widow and of the only child
by the second marriage in the estate of
his deceased father. Be that as it may,
his testimony that under the will the
surviving widow would take two-thirds of
the estate of the late Jose B. Suntay is at
variance with Exhibit B and the testimony
of Anastacio Teodoro. According to the
latter, the third for strict legitime is for
the ten children; the third for betterment
is for Silvino, Apolonio, Concepcion and
Jose Jr.; and the third for free disposal is
for the surviving widow and her child
Silvino.
Hence, granting that there was a will duly
executed by Jose B. Suntay placed in the
envelope (Exhibit A) and that it was in
existence at the time of, and not revoked
before, his death, still the testimony of
Anastacio Teodoro alone falls short of the
legal requirement that the provisions of
the lost will must be "clearly and
distinctly proved by at least two credible
witnesses." Credible witnesses mean
competent witnesses and those who

testify to facts from or upon hearsay are


neither
competent
nor
credible
witnesses.
On the other hand, Alberto Barretto
testifies that in the early part of 1929 he
prepared or drew up two mills for Jose B.
Suntay at the latter's request, the rough
draft of the first will was in his own
handwriting, given to Manuel Lopez for
the final draft or typing and returned to
him; that after checking up the final with
the rough draft he tore it and returned
the final draft to Manuel Lopez; that this
draft was in favor of all the children and
the widow (pp. 392-4, 449, t. s. n.,
hearing of 21 February 1948); that two
months later Jose B. Suntay and Manuel
Lopez called on him and the former
asked him to draw up another will
favoring more his wife and child Silvino;
that he had the rough draft of the second
will typed (pp. 395, 449 t. s. n., Id.) and
gave it to Manuel Lopez (p. 396, t. s. n.,
Id.); that he did not sign as witness the
second will of Jose B. Suntay copied from
the typewritten draft [Exhibit B] (p. 420,
t. s. n., Id.); that the handwritten
insertions or additions in lead pencil to
Exhibit B are not his (pp. 415-7 435-6,
457, t. s. n., Id.); that the final draft of
the first will made up of four or five
pages (p. 400, t. s. n., Id.) was signed
and executed, two or three months after
Suntay and Lopez had called on him (pp.
397-8, 403, 449, t. s. n., Id.) in his office
at the Cebu Portland Cement in the China
Banking Building on Dasmarias street
by Jose B. Suntay, Manuel Lopez and a
Chinaman who had all come from
Hagonoy (p. 398, t. s. n., Id.); that on that
occasion they brought an envelope
(Exhibit A) where the following words
were written: "Testamento de Jose B.
Suntay" (pp. 399, 404, t. s. n., Id.); that
after the signing of the will it was placed
inside the envelope (Exhibit A) together
with an inventory of the properties of
Jose B. Suntay and the envelope was
sealed by the signatures of the testator
and the attesting witnesses (pp. 398,

401, 441, 443, 461, t. s. n., Id.); that he


again saw the envelope (Exhibit A) in his
house one Saturday in the later part of
August 1934, brought by Go Toh and it
was then in perfect condition (pp. 405-6,
411, 440-2, t. s. n., Id.); that on the
following Monday Go Toh went to his law
office bringing along with him the
envelope (Exhibit A) in the same
condition; that he told Go Toh that he
would charge P25,000 as fee for
probating the will (pp. 406, 440-2, Id.);
that Go Toh did not leave the envelope
(Exhibit A) either in his house or in his
law office (p. 407, t. s. n., Id.); that Go
Toh said he wanted to keep it and on no
occasion did Go Toh leave it to him (pp.
409, 410, t. s. n., Id.).
The testimony of Go Toh taken and heard
by Assistant Fiscal F. B. Albert in
connection with the complaint for estafa
filed against Manuel Suntay for the
alleged snatching of the envelope
(Exhibit A), corroborates the testimony of
Alberto Barretto to the effect that only
one will was signed by Jose B. Suntay at
his office in which he (Alberto Barretto),
Manuel Lopez and Go Toh took part as
attesting witnesses (p. 15, t. s. n., Exhibit
6). Go Toh testified before the same
assistant fiscal that he did not leave the
will in the hands of Anastacio Teodoro (p.
26, t. s. n., Exhibit 6). He said, quoting
his own words, "Because I can not give
him this envelope even though the
contract (on fees) was signed. I have to
bring that document to court or to
anywhere else myself." (p. 27, t. s. n.,
Exhibit 6).
As to the will claimed to have been
executed on 4 January 1931 in Amoy,
China, the law on the point in Rule 78.
Section 1 of the rule provides:
Wills proved and allowed in a foreign
country, according to the laws of such
country, may be allowed, filed, and
recorded by the proper Court of First
Instance in the Philippines.

Section 2 provides:
When a copy of such will and the
allowance thereof, duly authenticated, is
filed with a petition for allowance in the
Philippines, by the executor or other
person interested, in the court having
jurisdiction, such court shall fix a time
and place for the hearing, and cause
notice thereof to be given as in case of
an original will presented for allowance.
Section 3 provides:
If it appears at the hearing that the will
should be allowed in the Philippines, the
court shall so allow it, and a certificate of
its allowance, signed by the Judge, and
attested by the seal of the courts, to
which shall be attached a copy of the
will, shall be filed and recorded by the
clerk, and the will shall have the same
effect as if originally proved and allowed
in such court.
The fact that the municipal district court
of Amoy, China, is a probate court must
be proved. The law of China on procedure
in the probate or allowance of wills must
also be proved. The legal requirements
for the execution of a valid will in China
in 1931 should also be established by
competent evidence. There is no proof on
these points. The unverified answers to
the questions propounded by counsel for
the appellant to the Consul General of
the Republic of China set forth in Exhibits
R-1 and R-2, objected to by counsel for
the appellee, are inadmissible, because
apart from the fact that the office of
Consul General does not qualify and
make the person who holds it an expert
on the Chinese law on procedure in
probate matters, if the same be
admitted, the adverse party would be
deprived of his right to confront and
cross-examine the witness. Consuls are
appointed to attend to trade matters.
Moreover, it appears that all the
proceedings had in the municipal district

court of Amoy were for the purpose of


taking the testimony of two attesting
witnesses to the will and that the order of
the municipal district court of Amoy does
not purport to probate the will. In the
absence of proof that the municipal
district court of Amoy is a probate court
and on the Chinese law of procedure in
probate matters, it may be presumed
that the proceedings in the matter of
probating or allowing a will in the
Chinese courts are the a deposition or to
a perpetuation of testimony, and even if
it were so it does not measure same as
those provided for in our laws on the
subject. It is a proceedings in rem and for
the validity of such proceedings personal
notice or by publication or both to all
interested parties must be made. The
interested parties in the case were
known to reside in the Philippines. The
evidence shows that no such notice was
received by the interested parties
residing in the Philippines (pp. 474, 476,
481, 503-4, t. s. n., hearing of 24
February 1948). The proceedings had in
the municipal district court of Amoy,
China, may be likened toe or come up to
the standard of such proceedings in the
Philippines for lack of notice to all
interested parties and the proceedings
were held at the back of such interested
parties.
The order of the municipal district court
of Amoy, China, which reads as follows:
ORDER:
SEE BELOW
The above minutes were satisfactorily
confirmed by the interrogated parties,
who declare that there are no errors,
after said minutes were loudly read and
announced actually in the court.
Done and subscribed on the Nineteenth
day of the English month of the 35th year
of the Republic of China in the Civil

Section of the Municipal District Court of


Amoy, China.

FIRST DIVISION
G.R. No. 139868

HUANG KUANG CHENG


Clerk of Court

June 8, 2006

CHIANG TENG HWA


Judge

ALONZO Q. ANCHETA, Petitioner,


vs.
CANDELARIA
GUERSEY-DALAYGON,
Respondent.

(Exhibit N-13, p. 89 Folder of Exhibits.).

DECISION

does not purport to probate or allow the


will which was the subject of the
proceedings. In view thereof, the will and
the alleged probate thereof cannot be
said to have been done in accordance
with the accepted basic and fundamental
concepts and principles followed in the
probate
and
allowance
of
wills.
Consequently,
the
authenticated
transcript of proceedings held in the
municipal district court of Amoy, China,
cannot be deemed and accepted as
proceedings leading to the probate or
allowance of a will and, therefore, the will
referred to therein cannot be allowed,
filed and recorded by a competent court
of this country.

AUSTRIA-MARTINEZ, J.:

The decree appealed from is affirmed,


without pronouncement as to costs.
Pablo, Bengzon, A. Reyes, Labrador and
Concepcion, JJ., concur.

Spouses Audrey ONeill (Audrey) and W.


Richard
Guersey
(Richard)
were
American citizens who have resided in
the Philippines for 30 years. They have
an adopted daughter, Kyle Guersey Hill
(Kyle). On July 29, 1979, Audrey died,
leaving a will. In it, she bequeathed her
entire estate to Richard, who was also
designated as executor.1 The will was
admitted to probate before the Orphans
Court of Baltimore, Maryland, U.S.A,
which named James N. Phillips as
executor due to Richards renunciation of
his appointment.2 The court also named
Atty. Alonzo Q. Ancheta (petitioner) of the
Quasha Asperilla Ancheta Pena & Nolasco
Law Offices as ancillary administrator.3
In 1981, Richard married Candelaria
Guersey-Dalaygon
(respondent)
with
whom he has two children, namely,
Kimberly and Kevin.
On October 12, 1982, Audreys will was
also admitted to probate by the then
Court of First Instance of Rizal, Branch
25, Seventh Judicial District, Pasig, in
Special Proceeding No. 9625.4 As
administrator of Audreys estate in the
Philippines, petitioner filed an inventory
and appraisal of the following properties:
(1) Audreys conjugal share in real estate
with improvements located at 28 Pili
Avenue, Forbes Park, Makati, Metro
Manila, valued at P764,865.00 (Makati
property); (2) a current account in
Audreys name with a cash balance of
P12,417.97; and (3) 64,444 shares of

stock in A/G
P64,444.00.5

Interiors,

Inc.

worth

On July 20, 1984, Richard died, leaving a


will, wherein he bequeathed his entire
estate to respondent, save for his rights
and interests over the A/G Interiors, Inc.
shares, which he left to Kyle.6 The will
was also admitted to probate by the
Orphans Court of Ann Arundel, Maryland,
U.S.A, and James N. Phillips was likewise
appointed as executor, who in turn,
designated Atty. William Quasha or any
member of the Quasha Asperilla Ancheta
Pena & Nolasco Law Offices, as ancillary
administrator.
Richards will was then submitted for
probate before the Regional Trial Court of
Makati, Branch 138, docketed as Special
Proceeding No. M-888.7 Atty. Quasha was
appointed as ancillary administrator on
July 24, 1986.8
On October 19, 1987, petitioner filed in
Special Proceeding No. 9625, a motion to
declare Richard and Kyle as heirs of
Audrey.9 Petitioner also filed on October
23, 1987, a project of partition of
Audreys estate, with Richard being
apportioned the undivided interest in
the Makati property, 48.333 shares in A/G
Interiors, Inc., and P9,313.48 from the
Citibank current account; and Kyle, the
undivided interest in the Makati property,
16,111 shares in A/G Interiors, Inc., and
P3,104.49 in cash.10
The motion and project of partition was
granted and approved by the trial court
in its Order dated February 12, 1988.11
The trial court also issued an Order on
April 7, 1988, directing the Register of
Deeds of Makati to cancel TCT No. 69792
in the name of Richard and to issue a
new title in the joint names of the Estate
of W. Richard Guersey ( undivided
interest) and Kyle ( undivided interest);
directing the Secretary of A/G Interiors,
Inc. to transfer 48.333 shares to the
Estate of W. Richard Guersey and 16.111

shares to Kyle; and directing the Citibank


to release the amount of P12,417.97 to
the ancillary administrator for distribution
to the heirs.12
Consequently, the Register of Deeds of
Makati issued on June 23, 1988, TCT No.
155823 in the names of the Estate of W.
Richard Guersey and Kyle.13
Meanwhile, the ancillary administrator in
Special Proceeding No. M-888 also filed a
project of partition wherein 2/5 of
Richards undivided interest in the
Makati property was allocated to
respondent, while 3/5 thereof were
allocated to Richards three children. This
was opposed by respondent on the
ground that under the law of the State of
Maryland, "a legacy passes to the
legatee the entire interest of the testator
in the property subject of the legacy."14
Since Richard left his entire estate to
respondent, except for his rights and
interests over the A/G Interiors, Inc,
shares, then his entire undivided
interest in the Makati property should be
given to respondent.
The
trial
court
found
merit
in
respondents opposition, and in its Order
dated December 6, 1991, disapproved
the project of partition insofar as it
affects the Makati property. The trial
court also adjudicated Richards entire
undivided interest in the Makati property
to respondent.15
On October 20, 1993, respondent filed
with the Court of Appeals (CA) an
amended complaint for the annulment of
the trial courts Orders dated February
12, 1988 and April 7, 1988, issued in
Special
Proceeding
No.
9625.16
Respondent contended that petitioner
willfully breached his fiduciary duty when
he disregarded the laws of the State of
Maryland on the distribution of Audreys
estate in accordance with her will.
Respondent argued that since Audrey
devised her entire estate to Richard, then

the Makati property should be wholly


adjudicated to him, and not merely
thereof, and since Richard left his entire
estate, except for his rights and interests
over
the
A/G
Interiors,
Inc.,
to
respondent, then the entire Makati
property
should
now
pertain
to
respondent.
Petitioner filed his Answer denying
respondents
allegations.
Petitioner
contended that he acted in good faith in
submitting the project of partition before
the trial court in Special Proceeding No.
9625, as he had no knowledge of the
State of Marylands laws on testate and
intestate succession. Petitioner alleged
that he believed that it is to the "best
interests of the surviving children that
Philippine law be applied as they would
receive their just shares." Petitioner also
alleged that the orders sought to be
annulled are already final and executory,
and cannot be set aside.
On March 18, 1999, the CA rendered the
assailed Decision annulling the trial
courts Orders dated February 12, 1988
and April 7, 1988, in Special Proceeding
No. 9625.17 The dispositive portion of
the assailed Decision provides:
WHEREFORE, the assailed Orders of
February 12, 1998 and April 7, 1988 are
hereby ANNULLED and, in lieu thereof, a
new one is entered ordering:
(a) The adjudication of the entire estate
of Audrey ONeill Guersey in favor of the
estate of W. Richard Guersey; and
(b)
The
cancellation
of
Transfer
Certificate of Title No. 15583 of the
Makati City Registry and the issuance of
a new title in the name of the estate of
W. Richard Guersey.
SO ORDERED.18
Petitioner
filed
a
motion
for
reconsideration, but this was denied by

the CA per Resolution dated August 27,


1999.19
Hence, the herein petition for review on
certiorari under Rule 45 of the Rules of
Court alleging that the CA gravely erred
in not holding that:
A) THE ORDERS OF 12 FEBRUARY 1988
AND 07 APRIL 1988 IN SPECIAL
PROCEEDINGS NO. 9625 "IN THE MATTER
OF THE PETITION FOR PROBATE OF THE
WILL OF THE DECEASED AUDREY
GUERSEY,
ALONZO
Q.
ANCHETA,
ANCILLARY ADMINISTRATOR", ARE VALID
AND BINDING AND HAVE LONG BECOME
FINAL
AND
HAVE
BEEN
FULLY
IMPLEMENTED AND EXECUTED AND CAN
NO LONGER BE ANNULLED.
B) THE ANCILLARY ADMINISTRATOR
HAVING ACTED IN GOOD FAITH, DID NOT
COMMIT FRAUD, EITHER EXTRINSIC OR
INTRINSIC, IN THE PERFORMANCE OF HIS
DUTIES AS ANCILLARY ADMINISTRATOR
OF AUDREY ONEIL GUERSEYS ESTATE IN
THE PHILIPPINES, AND THAT NO FRAUD,
EITHER EXTRINSIC OR INTRINSIC, WAS
EMPLOYED BY [HIM] IN PROCURING SAID
ORDERS.20
Petitioner reiterates his arguments before
the CA that the Orders dated February
12, 1988 and April 7, 1988 can no longer
be annulled because it is a final
judgment, which is "conclusive upon the
administration as to all matters involved
in such judgment or order, and will
determine for all time and in all courts,
as far as the parties to the proceedings
are concerned, all matters therein
determined," and the same has already
been executed.21
Petitioner also contends that that he
acted in good faith in performing his
duties as an ancillary administrator. He
maintains that at the time of the filing of
the project of partition, he was not aware
of the relevant laws of the State of
Maryland, such that the partition was

made in accordance with Philippine laws.


Petitioner also imputes knowledge on the
part of respondent with regard to the
terms of Aubreys will, stating that as
early as 1984, he already apprised
respondent of the contents of the will
and how the estate will be divided.22
Respondent argues that petitioners
breach of his fiduciary duty as ancillary
administrator
of
Aubreys
estate
amounted to extrinsic fraud. According to
respondent, petitioner was duty-bound to
follow the express terms of Aubreys will,
and his denial of knowledge of the laws
of Maryland cannot stand because
petitioner is a senior partner in a
prestigious law firm and it was his duty to
know the relevant laws.
Respondent also states that she was not
able to file any opposition to the project
of partition because she was not a party
thereto and she learned of the provision
of Aubreys will bequeathing entirely her
estate to Richard only after Atty. Ancheta
filed a project of partition in Special
Proceeding No. M-888 for the settlement
of Richards estate.
A decree of distribution of the estate of a
deceased person vests the title to the
land of the estate in the distributees,
which, if erroneous may be corrected by
a timely appeal. Once it becomes final,
its binding effect is like any other
judgment
in
rem.23
However,
in
exceptional cases, a final decree of
distribution of the estate may be set
aside for lack of jurisdiction or fraud.24
Further, in Ramon v. Ortuzar,25 the Court
ruled that a party interested in a probate
proceeding may have a final liquidation
set aside when he is left out by reason of
circumstances beyond his control or
through mistake or inadvertence not
imputable to negligence.26
The petition for annulment was filed
before the CA on October 20, 1993,
before the issuance of the 1997 Rules of

Civil Procedure; hence, the applicable law


is Batas Pambansa Blg. 129 (B.P. 129) or
the Judiciary Reorganization Act of 1980.
An annulment of judgment filed under
B.P. 129 may be based on the ground
that a judgment is void for want of
jurisdiction or that the judgment was
obtained by extrinsic fraud.27 For fraud
to become a basis for annulment of
judgment, it has to be extrinsic or
actual,28 and must be brought within
four years from the discovery of the
fraud.29
In the present case, respondent alleged
extrinsic fraud as basis for the annulment
of the RTC Orders dated February 12,
1988 and April 7, 1988. The CA found
merit in respondents cause and found
that petitioners failure to follow the
terms of Audreys will, despite the latters
declaration of good faith, amounted to
extrinsic fraud. The CA ruled that under
Article 16 of the Civil Code, it is the
national law of the decedent that is
applicable, hence, petitioner should have
distributed Aubreys estate in accordance
with the terms of her will. The CA also
found that petitioner was prompted to
distribute Audreys estate in accordance
with Philippine laws in order to equally
benefit Audrey and Richard Guerseys
adopted daughter, Kyle Guersey Hill.
Petitioner contends that respondents
cause of action had already prescribed
because as early as 1984, respondent
was already well aware of the terms of
Audreys will,30 and the complaint was
filed only in 1993. Respondent, on the
other hand, justified her lack of
immediate action by saying that she had
no opportunity to question petitioners
acts since she was not a party to Special
Proceeding No. 9625, and it was only
after Atty. Ancheta filed the project of
partition in Special Proceeding No. M888, reducing her inheritance in the
estate of Richard that she was prompted
to seek another counsel to protect her
interest.31

It should be pointed out that the


prescriptive period for annulment of
judgment based on extrinsic fraud
commences to run from the discovery of
the
fraud
or
fraudulent
act/s.
Respondents knowledge of the terms of
Audreys will is immaterial in this case
since it is not the fraud complained of.
Rather, it is petitioners failure to
introduce in evidence the pertinent law
of the State of Maryland that is the
fraudulent act, or in this case, omission,
alleged to have been committed against
respondent, and therefore, the four-year
period should be counted from the time
of respondents discovery thereof.
Records bear the fact that the filing of
the project of partition of Richards
estate, the opposition thereto, and the
order of the trial court disallowing the
project of partition in Special Proceeding
No. M-888 were all done in 1991.32
Respondent cannot be faulted for letting
the assailed orders to lapse into finality
since it was only through Special
Proceeding No. M-888 that she came to
comprehend
the
ramifications
of
petitioners acts. Obviously, respondent
had no other recourse under the
circumstances but to file the annulment
case. Since the action for annulment was
filed in 1993, clearly, the same has not
yet prescribed.
Fraud takes on different shapes and
faces. In Cosmic Lumber Corporation v.
Court of Appeals,33 the Court stated that
"man in his ingenuity and fertile
imagination will always contrive new
schemes to fool the unwary."
There is extrinsic fraud within the
meaning of Sec. 9 par. (2), of B.P. Blg.
129, where it is one the effect of which
prevents a party from hearing a trial, or
real contest, or from presenting all of his
case to the court, or where it operates
upon matters, not pertaining to the
judgment itself, but to the manner in

which it was procured so that there is not


a fair submission of the controversy. In
other words, extrinsic fraud refers to any
fraudulent act of the prevailing party in
the litigation which is committed outside
of the trial of the case, whereby the
defeated party has been prevented from
exhibiting fully his side of the case by
fraud or deception practiced on him by
his opponent. Fraud is extrinsic where the
unsuccessful party has been prevented
from exhibiting fully his case, by fraud or
deception practiced on him by his
opponent, as by keeping him away from
court, a false promise of a compromise;
or where the defendant never had any
knowledge of the suit, being kept in
ignorance by the acts of the plaintiff; or
where an attorney fraudulently or
without authority connives at his defeat;
these and similar cases which show that
there has never been a real contest in
the trial or hearing of the case are
reasons for which a new suit may be
sustained to set aside and annul the
former judgment and open the case for a
new and fair hearing.34
The
overriding
consideration
when
extrinsic fraud is alleged is that the
fraudulent scheme of the prevailing
litigant prevented a party from having his
day in court.35
Petitioner is the ancillary administrator of
Audreys estate. As such, he occupies a
position of the highest trust and
confidence, and he is required to exercise
reasonable diligence and act in entire
good faith in the performance of that
trust. Although he is not a guarantor or
insurer of the safety of the estate nor is
he expected to be infallible, yet the same
degree of prudence, care and judgment
which a person of a fair average capacity
and
ability
exercises
in
similar
transactions of his own, serves as the
standard by which his conduct is to be
judged.36

Petitioners failure to proficiently manage


the distribution of Audreys estate
according to the terms of her will and as
dictated by the applicable law amounted
to extrinsic fraud. Hence the CA Decision
annulling the RTC Orders dated February
12, 1988 and April 7, 1988, must be
upheld.
It is undisputed that Audrey Guersey was
an American citizen domiciled in
Maryland, U.S.A. During the reprobate of
her will in Special Proceeding No. 9625, it
was shown, among others, that at the
time of Audreys death, she was residing
in the Philippines but is domiciled in
Maryland, U.S.A.; her Last Will and
Testament dated August 18, 1972 was
executed and probated before the
Orphans Court in Baltimore, Maryland,
U.S.A., which was duly authenticated and
certified by the Register of Wills of
Baltimore City and attested by the Chief
Judge of said court; the will was admitted
by the Orphans Court of Baltimore City
on September 7, 1979; and the will was
authenticated by the Secretary of State
of Maryland and the Vice Consul of the
Philippine Embassy.
Being a foreign national, the intrinsic
validity of Audreys will, especially with
regard as to who are her heirs, is
governed by her national law, i.e., the
law of the State of Maryland, as provided
in Article 16 of the Civil Code, to wit:
Art. 16. Real property as well as personal
property is subject to the law of the
country where it is situated.
However, intestate and testamentary
succession, 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. (Emphasis supplied)
Article 1039 of the Civil Code further
provides that "capacity to succeed is
governed by the law of the nation of the
decedent."
As a corollary rule, Section 4, Rule 77 of
the Rules of Court on Allowance of Will
Proved Outside the Philippines and
Administration of Estate Thereunder,
states:
SEC. 4. Estate, how administered.When
a will is thus allowed, the court shall
grant letters testamentary, or letters of
administration with the will annexed, and
such
letters
testamentary
or
of
administration, shall extend to all the
estate of the testator in the Philippines.
Such estate, after the payment of just
debts and expenses of administration,
shall be disposed of according to such
will, so far as such will may operate upon
it; and the residue, if any, shall be
disposed of as is provided by law in cases
of estates in the Philippines belonging to
persons who are inhabitants of another
state or country. (Emphasis supplied)
While foreign laws do not prove
themselves in our jurisdiction and our
courts are not authorized to take judicial
notice of them;37 however, petitioner, as
ancillary
administrator
of
Audreys
estate, was duty-bound to introduce in
evidence the pertinent law of the State of
Maryland.38
Petitioner admitted that he failed to
introduce in evidence the law of the
State of Maryland on Estates and Trusts,
and merely relied on the presumption
that such law is the same as the
Philippine law on wills and succession.
Thus, the trial court peremptorily applied
Philippine laws and totally disregarded
the terms of Audreys will. The obvious
result was that there was no fair
submission of the case before the trial

court or a judicious appreciation of the


evidence presented.
Petitioner insists that his application of
Philippine laws was made in good faith.
The Court cannot accept petitioners
protestation. How can petitioner honestly
presume that Philippine laws apply when
as early as the reprobate of Audreys will
before the trial court in 1982, it was
already brought to fore that Audrey was
a U.S. citizen, domiciled in the State of
Maryland. As asserted by respondent,
petitioner is a senior partner in a
prestigious law firm, with a "big legal
staff and a large library."39 He had all the
legal resources to determine the
applicable law. It was incumbent upon
him to exercise his functions as ancillary
administrator with reasonable diligence,
and to discharge the trust reposed on
him faithfully. Unfortunately, petitioner
failed to perform his fiduciary duties.
Moreover, whether his omission was
intentional or not, the fact remains that
the trial court failed to consider said law
when it issued the assailed RTC Orders
dated February 12, 1988 and April 7,
1988, declaring Richard and Kyle as
Audreys heirs, and distributing Audreys
estate according to the project of
partition submitted by petitioner. This
eventually prejudiced respondent and
deprived her of her full successional right
to the Makati property.
In GSIS v. Bengson Commercial Bldgs.,
Inc.,40 the Court held that when the rule
that the negligence or mistake of counsel
binds the client deserts its proper office
as an aid to justice and becomes a great
hindrance and chief enemy, its rigors
must be relaxed to admit exceptions
thereto and to prevent a miscarriage of
justice, and the court has the power to
except a particular case from the
operation of the rule whenever the
purposes of justice require it.

The CA aptly noted that petitioner was


remiss in his responsibilities as ancillary
administrator of Audreys estate. The CA
likewise observed that the distribution
made by petitioner was prompted by his
concern over Kyle, whom petitioner
believed should equally benefit from the
Makati property. The CA correctly stated,
which the Court adopts, thus:
In claiming good faith in the performance
of his duties and responsibilities,
defendant Alonzo H. Ancheta invokes the
principle which presumes the law of the
forum to be the same as the foreign law
(Beam vs. Yatco, 82 Phil. 30, 38) in the
absence of evidence adduced to prove
the latter law (Slade Perkins vs. Perkins,
57 Phil. 205, 210). In defending his
actions in the light of the foregoing
principle, however, it appears that the
defendant lost sight of the fact that his
primary
responsibility
as
ancillary
administrator was to distribute the
subject estate in accordance with the will
of Audrey ONeill Guersey. Considering
the principle established under Article 16
of the Civil Code of the Philippines, as
well as the citizenship and the avowed
domicile of the decedent, it goes without
saying that the defendant was also dutybound to prove the pertinent laws of
Maryland on the matter.
The record reveals, however, that no
clear effort was made to prove the
national law of Audrey ONeill Guersey
during the proceedings before the court a
quo. While there is claim of good faith in
distributing the subject estate in
accordance with the Philippine laws, the
defendant appears to put his actuations
in a different light as indicated in a
portion of his direct examination, to wit:
xxx
It would seem, therefore, that the
eventual distribution of the estate of
Audrey ONeill Guersey was prompted by
defendant Alonzo H. Anchetas concern

that the subject realty equally benefit the


plaintiffs
adopted
daughter
Kyle
Guersey.
Well-intentioned though it may be,
defendant Alonzo H. Anchetas action
appears to have breached his duties and
responsibilities as ancillary administrator
of the subject estate. While such breach
of duty admittedly cannot be considered
extrinsic
fraud
under
ordinary
circumstances, the fiduciary nature of the
said defendants position, as well as the
resultant frustration of the decedents
last
will,
combine
to
create
a
circumstance that is tantamount to
extrinsic fraud. Defendant Alonzo H.
Anchetas omission to prove the national
laws of the decedent and to follow the
latters last will, in sum, resulted in the
procurement of the subject orders
without a fair submission of the real
issues involved in the case.41 (Emphasis
supplied)
This is not a simple case of error of
judgment or grave abuse of discretion,
but a total disregard of the law as a
result of petitioners abject failure to
discharge his fiduciary duties. It does not
rest upon petitioners pleasure as to
which law should be made applicable
under the circumstances. His onus is
clear. Respondent was thus excluded
from enjoying full rights to the Makati
property through no fault or negligence
of her own, as petitioners omission was
beyond her control. She was in no
position to analyze the legal implications
of petitioners omission and it was
belatedly that she realized the adverse
consequence of the same. The end result
was a miscarriage of justice. In cases like
this, the courts have the legal and moral
duty to provide judicial aid to parties who
are deprived of their rights.42
The trial court in its Order dated
December 6, 1991 in Special Proceeding
No. M-888 noted the law of the State of

Maryland
follows:

on

Estates

and

Trusts,

as

Under Section 1-301, Title 3, Sub-Title 3


of the Annotated Code of the Public
General Laws of Maryland on Estates and
Trusts, "all property of a decedent shall
be subject to the estate of decedents
law, and upon his death shall pass
directly to the personal representative,
who shall hold the legal title for
administration and distribution," while
Section 4-408 expressly provides that
"unless a contrary intent is expressly
indicated in the will, a legacy passes to
the legatee the entire interest of the
testator in the property which is the
subject of the legacy". Section 7-101,
Title 7, Sub-Title 1, on the other hand,
declares that "a personal representative
is a fiduciary" and as such he is "under
the general duty to settle and distribute
the estate of the decedent in accordance
with the terms of the will and the estate
of decedents law as expeditiously and
with as little sacrifice of value as is
reasonable under the circumstances".43
In her will, Audrey devised to Richard her
entire estate, consisting of the following:
(1) Audreys conjugal share in the Makati
property; (2) the cash amount of
P12,417.97; and (3) 64,444 shares of
stock in A/G Interiors, Inc. worth
P64,444.00. All these properties passed
on to Richard upon Audreys death.
Meanwhile,
Richard,
in
his
will,
bequeathed
his
entire
estate
to
respondent, except for his rights and
interests over the A/G Interiors, Inc.
shares, which he left to Kyle. When
Richard subsequently died, the entire
Makati property should have then passed
on to respondent. This, of course,
assumes the proposition that the law of
the State of Maryland which allows "a
legacy to pass to the legatee the entire
estate of the testator in the property
which is the subject of the legacy," was
sufficiently proven in Special Proceeding
No. 9625. Nevertheless, the Court may

take judicial notice thereof in view of the


ruling in Bohanan v. Bohanan.44 Therein,
the Court took judicial notice of the law
of Nevada despite failure to prove the
same. The Court held, viz.:
We have, however, consulted the records
of the case in the court below and we
have found that during the hearing on
October 4, 1954 of the motion of
Magdalena C. Bohanan for withdrawal of
P20,000 as her share, the foreign law,
especially
Section
9905,
Compiled
Nevada
Laws,
was
introduced
in
evidence by appellants' (herein) counsel
as Exhibit "2" (See pp. 77-79, Vol. II, and
t.s.n. pp. 24-44, Records, Court of First
Instance). Again said law was presented
by the counsel for the executor and
admitted by the Court as Exhibit "B"
during the hearing of the case on January
23, 1950 before Judge Rafael Amparo
(see Records, Court of First Instance, Vol.
1).
In addition, the other appellants, children
of the testator, do not dispute the abovequoted provision of the laws of the State
of Nevada. Under all the above
circumstances, we are constrained to
hold that the pertinent law of Nevada,
especially Section 9905 of the Compiled
Nevada Laws of 1925, can be taken
judicial notice of by us, without proof of
such law having been offered at the
hearing of the project of partition.
In this case, given that the pertinent law
of the State of Maryland has been
brought to record before the CA, and the
trial court in Special Proceeding No. M888 appropriately took note of the same
in disapproving the proposed project of
partition of Richards estate, not to
mention that petitioner or any other
interested person for that matter, does
not dispute the existence or validity of
said law, then Audreys and Richards
estate should be distributed according to
their respective wills, and not according
to the project of partition submitted by

petitioner. Consequently, the entire


Makati property belongs to respondent.
Decades ago, Justice Moreland, in his
dissenting
opinion
in
Santos
v.
Manarang,45 wrote:
A will is the testator speaking after
death. Its provisions have substantially
the same force and effect in the probate
court as if the testator stood before the
court in full life making the declarations
by word of mouth as they appear in the
will. That was the special purpose of the
law in the creation of the instrument
known as the last will and testament.
Men wished to speak after they were
dead and the law, by the creation of that
instrument, permitted them to do so x x
x All doubts must be resolved in favor of
the testator's having meant just what he
said.
Honorable as it seems, petitioners
motive in equitably distributing Audreys
estate cannot prevail over Audreys and
Richards wishes. As stated in Bellis v.
Bellis:46
x x x whatever public policy or good
customs may be involved in our system
of legitimes, Congress has not intended
to extend the same to the succession of
foreign nationals. For it has specifically
chosen to leave, inter alia, the amount of
successional rights, to the decedent's
national Law. Specific provisions must
prevail over general ones.47
Before concluding, the Court notes the
fact that Audrey and Richard Guersey
were American citizens who owned real
property in the Philippines, although
records do not show when and how the
Guerseys acquired the Makati property.
Under Article XIII, Sections 1 and 4 of the
1935 Constitution, the privilege to
acquire and exploit lands of the public
domain, and other natural resources of
the Philippines, and to operate public

utilities, were reserved to Filipinos and


entities owned or controlled by them. In
Republic v. Quasha,48 the Court clarified
that the Parity Rights Amendment of
1946, which re-opened to American
citizens and business enterprises the
right in the acquisition of lands of the
public
domain,
the
disposition,
exploitation, development and utilization
of natural resources of the Philippines,
does not include the acquisition or
exploitation of private agricultural lands.
The prohibition against acquisition of
private lands by aliens was carried on to
the 1973 Constitution under Article XIV,
Section 14, with the exception of private
lands acquired by hereditary succession
and when the transfer was made to a
former natural-born citizen, as provided
in Section 15, Article XIV. As it now
stands, Article XII, Sections 7 and 8 of the
1986 Constitution explicitly prohibits nonFilipinos from acquiring or holding title to
private lands or to lands of the public
domain, except only by way of legal
succession or if the acquisition was made
by a former natural-born citizen.

Petitioner is ADMONISHED to be more


circumspect in the performance of his
duties as an official of the court.
No pronouncement as to costs.
SO ORDERED.

In any case, the Court has also ruled that


if land is invalidly transferred to an alien
who subsequently becomes a citizen or
transfers it to a citizen, the flaw in the
original transaction is considered cured
and the title of the transferee is rendered
valid.49