G.R. No.
L-4963 January 29, 1953 five parcels of land he was seized of at the time passed from the
MARIA USON, plaintiff-appellee,
vs.
MARIA DEL ROSARIO, CONCEPCION NEBREDA, CONRADO NEBREDA,
DOMINADOR NEBREDA, AND FAUSTINO NEBREDA, Jr., defendants-
appellants.
Priscilo Evangelista for appellee.
Brigido G. Estrada for appellant.
BAUTISTA ANGELO, J.:
This is an action for recovery of the ownership and possession of five (5)
parcels of land situated in the Municipality of Labrador, Province of
Pangasinan, filed by Maria Uson against Maria del Rosario and her four
children named Concepcion, Conrado, Dominador, and Faustino,
surnamed Nebreda, who are all of minor age, before the Court of First
Instance of Pangasinan.
Maria Uson was the lawful wife of Faustino Nebreda who upon his death
in 1945 left the lands involved in this litigation. Faustino Nebreda left no
other heir except his widow Maria Uson. However, plaintiff claims that
when Faustino Nebreda died in 1945, his common-law wife Maria del
Rosario took possession illegally of said lands thus depriving her of their
possession and enjoyment.
Defendants in their answer set up as special defense that on February
21, 1931, Maria Uson and her husband, the late Faustino Nebreda,
executed a public document whereby they agreed to separate as
husband and wife and, in consideration of their separation, Maria Uson
was given a parcel of land by way of alimony and in return she
renounced her right to inherit any other property that may be left by
her husband upon his death (Exhibit 1).
After trial, at which both parties presented their respective evidence,
the court rendered decision ordering the defendants to restore to the
plaintiff the ownership and possession of the lands in dispute without
special pronouncement as to costs. Defendants interposed the present
appeal.
There is no dispute that Maria Uson, plaintiff-appellee, is the lawful wife
of Faustino Nebreda, former owner of the five parcels of lands litigated
in the present case. There is likewise no dispute that Maria del Rosario,
one of the defendants-appellants, was merely a common-law wife of
the late Faustino Nebreda with whom she had four illegitimate children,
her now co-defendants. It likewise appears that Faustino Nebreda died
in 1945 much prior to the effectivity of the new Civil Code. With this
background, it is evident that when Faustino Nebreda died in 1945 the
moment of his death to his only heir, his widow Maria Uson (Article 657,
old Civil Code).As this Court aptly said, "The property belongs to the
heirs at the moment of the death of the ancestor as completely as if
the ancestor had executed and delivered to them a deed for the same
before his death" (Ilustre vs. Alaras Frondosa, 17 Phil., 321). From that
moment, therefore, the rights of inheritance of Maria Uson over the
lands in question became vested.
The claim of the defendants that Maria Uson had relinquished her right
over the lands in question because she expressly renounced to inherit
any future property that her husband may acquire and leave upon his
death in the deed of separation they had entered into on February 21,
1931, cannot be entertained for the simple reason that future
inheritance cannot be the subject of a contract nor can it be
renounced (1 Manresa, 123, sixth edition; Tolentino on Civil Code, p. 12;
Osorio vs. Osorio and Ynchausti Steamship Co., 41 Phil., 531).
But defendants contend that, while it is true that the four minor
defendants are illegitimate children of the late Faustino Nebreda and
under the old Civil Code are not entitled to any successional rights,
however, under the new Civil Code which became in force in June,
1950, they are given the status and rights of natural children and are
entitled to the successional rights which the law accords to the latter
(article 2264 and article 287, new Civil Code), and because these
successional rights were declared for the first time in the new code, they
shall be given retroactive effect even though the event which gave rise
to them may have occurred under the prior legislation (Article 2253,
new Civil Code).
There is no merit in this claim. Article 2253 above referred to provides
indeed that rights which are declared for the first time shall have
retroactive effect even though the event which gave rise to them may
have occurred under the former legislation, but this is so only when the
new rights do not prejudice any vested or acquired right of the same
origin. Thus, said article provides that "if a right should be declared for
the first time in this Code, it shall be effective at once, even though the
act or event which gives rise thereto may have been done or may have
occurred under the prior legislation, provided said new right does not
prejudice or impair any vested or acquired right, of the same origin." As
already stated in the early part of this decision, the right of ownership of
Maria Uson over the lands in question became vested in 1945 upon the
death of her late husband and this is so because of the imperative
provision of the law which commands that the rights to succession are
transmitted from the moment of death (Article 657, old Civil Code). The
new right recognized by the new Civil Code in favor of the illegitimate
children of the deceased cannot, therefore, be asserted to the
impairment of the vested right of Maria Uson over the lands in dispute.
As regards the claim that Maria Uson, while her deceased husband was
lying in state, in a gesture of pity or compassion, agreed to assign the
lands in question to the minor children for the reason that they were
acquired while the deceased was living with their mother and Maria
Uson wanted to assuage somewhat the wrong she has done to them,
this much can be said; apart from the fact that this claim is disputed,
we are of the opinion that said assignment, if any, partakes of the
nature of a donation of real property, inasmuch as it involves no
material consideration, and in order that it may be valid it shall be
made in a public document and must be accepted either in the same
document or in a separate one (Article 633, old Civil Code). Inasmuch
as this essential formality has not been followed, it results that the
alleged assignment or donation has no valid effect.

WHEREFORE, the decision appealed from is affirmed, without costs.

Paras, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes, Jugo

and Labrador, JJ., concur.
 Pelaez, Jalandoni & Jamir and David Gueverra for defendant-
appellant.
G.R. No. L-28040 August 18, 1972

TESTATE ESTATE OF JOSEFA TANGCO, JOSE DE BORJA, administrator-

appellee; JOSE DE BORJA, as administrator, CAYETANO DE BORJA, REYES, J.B.L., J.:p
MATILDE DE BORJA and CRISANTO DE BORJA (deceased) as Children of
Josefa Tangco, appellees, Of these cases, the first, numbered L-28040 is an appeal by Tasiana
vs. Ongsingco Vda. de de Borja, special administratrix of the testate estate
TASIANA VDA. DE DE BORJA, Special Administratrix of the Testate Estate of Francisco de Borja,1 from the approval of a compromise agreement
of Francisco de Borja, appellant. . by the Court of First Instance of Rizal, Branch I, in its Special Proceeding
No. R-7866, entitled, "Testate Estate of Josefa Tangco, Jose de Borja,
G.R. No L-28568 August 18, 1972 Administrator".

TESTATE ESTATE OF THE LATE FRANCISCO DE BORJA, TASIANA O. VDA. DE Case No. L-28568 is an appeal by administrator Jose Borja from the
DE BORJA, special Administratrix appellee, disapproval of the same compromise agreement by the Court of First
vs. Instance of Nueva Ecija, Branch II, in its Special Proceeding No. 832,
JOSE DE BORJA, oppositor-appellant. entitled, "Testate Estate of Francisco de Borja, Tasiana O. Vda. de de
Borja, Special Administratrix".
G.R. No. L-28611 August 18, 1972
And Case No. L-28611 is an appeal by administrator Jose de Borja from
TASIANA 0. VDA. DE BORJA, as Administratrix of the Testate Estate of the the decision of the Court of First Instance of Rizal, Branch X, in its Civil
late Francisco de Borja, plaintiff-appellee, Case No. 7452, declaring the Hacienda Jalajala Poblacion, which is the
vs. main object of the aforesaid compromise agreement, as the separate
JOSE DE BORJA, as Administrator of the Testate Estate of the late Josefa and exclusive property of the late Francisco de Borja and not a
Tangco, defendant-appellant. conjugal asset of the community with his first wife, Josefa Tangco, and
that said hacienda pertains exclusively to his testate estate, which is
under administrator in Special Proceeding No. 832 of the Court of First
L-28040 Instance of Nueva Ecija, Branch II.

Pelaez, Jalandoni & Jamir for administrator-appellee.
Quiogue & Quiogue for appellee Matilde de Borja.
Andres Matias for appellee Cayetano de Borja.
Sevilla & Aquino for appellant.
L-28568
Sevilla & Aquino for special administratrix-appellee.
It is uncontested that Francisco de Borja, upon the death of his wife
Josefa Tangco on 6 October 1940, filed a petition for the probate of her
will which was docketed as Special Proceeding No. R-7866 of the Court
of First Instance of Rizal, Branch I. The will was probated on 2 April 1941.
In 1946, Francisco de Borja was appointed executor and administrator:
in 1952, their son, Jose de Borja, was appointed co-administrator. When
Francisco died, on 14 April 1954, Jose became the sole administrator of
the testate estate of his mother, Josefa Tangco. While a widower
Francisco de Borja allegedly took unto himself a second wife, Tasiana
Ongsingco. Upon Francisco's death, Tasiana instituted testate
proceedings in the Court of First Instance of Nueva Ecija, where, in 1955,
she was appointed special administratrix. The validity of Tasiana's
marriage to Francisco was questioned in said proceeding.

Pelaez, Jalandoni & Jamir for oppositor-appellant.

The relationship between the children of the first marriage and Tasiana
Ongsingco has been plagued with several court suits and counter-suits;
L-28611 including the three cases at bar, some eighteen (18) cases remain
pending determination in the courts. The testate estate of Josefa
Sevilla & Aquino for plaintiff-appellee. Tangco alone has been unsettled for more than a quarter of a century.
In order to put an end to all these litigations, a compromise agreement
was entered into on 12 October 1963,2 by and between "[T]he heir and
son of Francisco de Borja by his first marriage, namely, Jose de Borja
personally and as administrator of the Testate Estate of Josefa Tangco,"
and "[T]he heir and surviving spouse of Francisco de Borja by his second
marriage, Tasiana Ongsingco Vda. de Borja, assisted by her lawyer,
Atty. Luis Panaguiton Jr." The terms and conditions of the compromise
agreement are as follows:
AGREEMENT
THIS AGREEMENT made and entered into by and
between
The heir and son of Francisco de Borja by his first
marriage, namely, Jose de Borja personally and as
administrator of the Testate Estate of Josefa Tangco,
AND
The heir and surviving spouse of Francisco de Borja by
his second marriage, Tasiana Ongsingco Vda. de
Borja, assisted by her lawyer, Atty. Luis Panaguiton Jr.
WITNESSETH
THAT it is the mutual desire of all the parties herein
terminate and settle, with finality, the various court
litigations, controversies, claims, counterclaims, etc.,
between them in connection with the administration,
settlement, partition, adjudication and distribution of
the assets as well as liabilities of the estates of
Francisco de Borja and Josefa Tangco, first spouse of
Francisco de Borja.
THAT with this end in view, the parties herein have
agreed voluntarily and without any reservations to
enter into and execute this agreement under the
following terms and conditions:
1. That the parties agree to sell the Poblacion portion
of the Jalajala properties situated in Jalajala, Rizal,
presently under administration in the Testate Estate of
Josefa Tangco (Sp. Proc. No. 7866, Rizal), more
specifically described as follows:
Linda al Norte con el Rio Puwang
que la separa de la jurisdiccion del
Municipio de Pililla de la Provincia
de Rizal, y con el pico del Monte
Zambrano; al Oeste con Laguna de
Bay; por el Sur con los herederos de
Marcelo de Borja; y por el Este con
los terrenos de la Familia Maronilla
with a segregated area of approximately 1,313
hectares at the amount of P0.30 per square meter.
2. That Jose de Borja agrees and obligates himself to
pay Tasiana Ongsingco Vda. de de Borja the total
amount of Eight Hundred Thousand Pesos (P800,000)
Philippine Currency, in cash, which represent P200,000
as his share in the payment and P600,000 as pro-rata
shares of the heirs Crisanto, Cayetano and Matilde, all
surnamed de Borja and this shall be considered as full
and complete payment and settlement of her
hereditary share in the estate of the late Francisco de
Borja as well as the estate of Josefa Tangco, Sp. Proc.
No. 832-Nueva Ecija and Sp. Proc. No. 7866-Rizal,
respectively, and to any properties bequeathed or
devised in her favor by the late Francisco de Borja by
Last Will and Testament or by Donation Inter Vivos or
Mortis Causa or purportedly conveyed to her for
consideration or otherwise. The funds for this payment
shall be taken from and shall depend upon the
receipt of full payment of the proceeds of the sale of
Jalajala, "Poblacion."
3. That Tasiana Ongsingco Vda. de de Borja hereby
assumes payment of that particular obligation
incurred by the late Francisco de Borja in favor of the
Rehabilitation Finance Corporation, now
Development Bank of the Philippines, amounting to
approximately P30,000.00 and also assumes payment
of her 1/5 share of the Estate and Inheritance taxes
on the Estate of the late Francisco de Borja or the sum
of P3,500.00, more or less, which shall be deducted by
the buyer of Jalajala, "Poblacion" from the payment
to be made to Tasiana Ongsingco Vda. de Borja
under paragraph 2 of this Agreement and paid
directly to the Development Bank of the Philippines
and the heirs-children of Francisco de Borja.
4. Thereafter, the buyer of Jalajala "Poblacion" is
hereby authorized to pay directly to Tasiana
Ongsingco Vda. de de Borja the balance of the
payment due her under paragraph 2 of this
Agreement (approximately P766,500.00) and issue in
the name of Tasiana Ongsingco Vda. de de Borja,
corresponding certified checks/treasury warrants,
who, in turn, will issue the corresponding receipt to
Jose de Borja.
5. In consideration of above payment to Tasiana
Ongsingco Vda. de de Borja, Jose de Borja personally
and as administrator of the Testate Estate of Josefa
Tangco, and Tasiana Ongsingco Vda. de de Borja, for
themselves and for their heirs, successors, executors,
administrators, and assigns, hereby forever mutually
renounce, withdraw, waive, remise, release and
discharge any and all manner of action or actions,
cause or causes of action, suits, debts, sum or sums of
money, accounts, damages, claims and demands
whatsoever, in law or in equity, which they ever had,
or now have or may have against each other, more
specifically Sp. Proceedings Nos. 7866 and 1955, CFI-
Rizal, and Sp. Proc. No. 832-Nueva Ecija, Civil Case
No. 3033, CFI Nueva Ecija and Civil Case No. 7452-CFI,
Rizal, as well as the case filed against Manuel Quijal
for perjury with the Provincial Fiscal of Rizal, the
intention being to completely, absolutely and finally
release each other, their heirs, successors, and
assigns, from any and all liability, arising wholly or
partially, directly or indirectly, from the administration,
settlement, and distribution of the assets as well as
liabilities of the estates of Francisco de Borja and
Josefa Tangco, first spouse of Francisco de Borja, and
lastly, Tasiana Ongsingco Vda. de de Borja expressly
and specifically renounce absolutely her rights as heir
over any hereditary share in the estate of Francisco
de Borja.
6. That Tasiana Ongsingco Vda. de de Borja, upon
receipt of the payment under paragraph 4 hereof,
shall deliver to the heir Jose de Borja all the papers,
titles and documents belonging to Francisco de Borja
which are in her possession and said heir Jose de Borja
shall issue in turn the corresponding receive thereof.
7. That this agreement shall take effect only upon the
fulfillment of the sale of the properties mentioned
under paragraph 1 of this agreement and upon
receipt of the total and full payment of the proceeds
of the sale of the Jalajala property "Poblacion",
otherwise, the non-fulfillment of the said sale will
render this instrument NULL AND VOID AND WITHOUT
EFFECT THEREAFTER.
IN WITNESS WHEREOF, the parties hereto have her
unto set their hands in the City of Manila, Philippines,
the 12th of October, 1963.
On 16 May 1966, Jose de Borja submitted for Court approval the
agreement of 12 October 1963 to the Court of First Instance of Rizal, in
Special Proceeding No. R-7866; and again, on 8 August 1966, to the
Court of First Instance of Nueva Ecija, in Special Proceeding No. 832.
Tasiana Ongsingco Vda. de de Borja opposed in both instances. The
Rizal court approved the compromise agreement, but the Nueva Ecija
court declared it void and unenforceable. Special administratrix
Tasiana Ongsingco Vda. de de Borja appealed the Rizal Court's order
of approval (now Supreme Court G.R. case No. L-28040), while
administrator Jose de Borja appealed the order of disapproval (G.R.
case No. L-28568) by the Court of First Instance of Nueva Ecija.
The genuineness and due execution of the compromised agreement
of 12 October 1963 is not disputed, but its validity is, nevertheless,
attacked by Tasiana Ongsingco on the ground that: (1) the heirs
cannot enter into such kind of agreement without first probating the will
of Francisco de Borja; (2) that the same involves a compromise on the
validity of the marriage between Francisco de Borja and Tasiana
Ongsingco; and (3) that even if it were valid, it has ceased to have
force and effect.
In assailing the validity of the agreement of 12 October 1963, Tasiana
Ongsingco and the Probate Court of Nueva Ecija rely on this Court's
decision in Guevara vs. Guevara. 74 Phil. 479, wherein the Court's
majority held the view that the presentation of a will for probate is
mandatory and that the settlement and distribution of an estate on the
basis of intestacy when the decedent left a will, is against the law and
public policy. It is likewise pointed out by appellant Tasiana Ongsingco
that Section 1 of Rule 74 of the Revised Rules explicitly conditions the
validity of an extrajudicial settlement of a decedent's estate by
agreement between heirs, upon the facts that "(if) the decedent left no
will and no debts, and the heirs are all of age, or the minors are
represented by their judicial and legal representatives ..." The will of
Francisco de Borja having been submitted to the Nueva Ecija Court
and still pending probate when the 1963 agreement was made, those
circumstances, it is argued, bar the validity of the agreement.
Upon the other hand, in claiming the validity of the compromise
agreement, Jose de Borja stresses that at the time it was entered into,
on 12 October 1963, the governing provision was Section 1, Rule 74 of
the original Rules of Court of 1940, which allowed the extrajudicial
settlement of the estate of a deceased person regardless of whether
he left a will or not. He also relies on the dissenting opinion of Justice
Moran, in Guevara vs. Guevara, 74 Phil. 479, wherein was expressed the
view that if the parties have already divided the estate in accordance
with a decedent's will, the probate of the will is a useless ceremony; and
if they have divided the estate in a different manner, the probate of the
will is worse than useless.
The doctrine of Guevara vs. Guevara, ante, is not applicable to the
case at bar. This is apparent from an examination of the terms of the
agreement between Jose de Borja and Tasiana Ongsingco. Paragraph
2 of said agreement specifically stipulates that the sum of P800,000
payable to Tasiana Ongsingco —
shall be considered as full — complete payment —
settlement of her hereditary share in the estate of the
late Francisco de Borja as well as the estate of Josefa
Tangco, ... and to any properties bequeathed or
devised in her favor by the late Francisco de Borja by
Last Will and Testament or by Donation Inter Vivos or
Mortis Causa or purportedly conveyed to her for
consideration or otherwise.
This provision evidences beyond doubt that the ruling in the Guevara
case is not applicable to the cases at bar. There was here no attempt
to settle or distribute the estate of Francisco de Borja among the heirs
thereto before the probate of his will. The clear object of the contract
was merely the conveyance by Tasiana Ongsingco of any and all her
individual share and interest, actual or eventual in the estate of
Francisco de Borja and Josefa Tangco. There is no stipulation as to any
other claimant, creditor or legatee. And as a hereditary share in a
decedent's estate is transmitted or vested immediately from the
moment of the death of such causante or predecessor in interest (Civil
Code of the Philippines, Art. 777)3 there is no legal bar to a successor
(with requisite contracting capacity) disposing of her or his hereditary
share immediately after such death, even if the actual extent of such
share is not determined until the subsequent liquidation of the
estate.4 Of course, the effect of such alienation is to be deemed limited
to what is ultimately adjudicated to the vendor heir. However, the
aleatory character of the contract does not affect the validity of the
transaction; neither does the coetaneous agreement that the
numerous litigations between the parties (the approving order of the
Rizal Court enumerates fourteen of them, Rec. App. pp. 79-82) are to
be considered settled and should be dismissed, although such
stipulation, as noted by the Rizal Court, gives the contract the character
of a compromise that the law favors, for obvious reasons, if only
because it serves to avoid a multiplicity of suits.
It is likewise worthy of note in this connection that as the surviving spouse
of Francisco de Borja, Tasiana Ongsingco was his compulsory heir under
article 995 et seq. of the present Civil Code. Wherefore, barring
unworthiness or valid disinheritance, her successional interest existed
independent of Francisco de Borja's last will and testament and would
exist even if such will were not probated at all. Thus, the prerequisite of
a previous probate of the will, as established in the Guevara and
analogous cases, can not apply to the case of Tasiana Ongsingco Vda.
de de Borja.
Since the compromise contract Annex A was entered into by and
between "Jose de Borja personally and as administrator of the Testate
Estate of Josefa Tangco" on the one hand, and on the other, "the heir
and surviving spouse of Francisco de Borja by his second marriage,
Tasiana Ongsingco Vda. de de Borja", it is clear that the transaction was
binding on both in their individual capacities, upon the perfection of
the contract, even without previous authority of the Court to enter into
the same. The only difference between an extrajudicial compromise
and one that is submitted and approved by the Court, is that the latter
can be enforced by execution proceedings. Art. 2037 of the Civil Code
is explicit on the point:
8. Art. 2037. A compromise has upon the parties the
effect and authority of res judicata; but there shall be
no execution except in compliance with a judicial
compromise.
It is argued by Tasiana Ongsingco that while the
agreement Annex A expressed no definite period for
its performance, the same was intended to have a
resolutory period of 60 days for its effectiveness. In
support of such contention, it is averred that such a
limit was expressly stipulated in an agreement in
similar terms entered into by said Ongsingco with the
brothers and sister of Jose de Borja, to wit, Crisanto,
Matilde and Cayetano, all surnamed de Borja,
except that the consideration was fixed at P600,000
(Opposition, Annex/Rec. of Appeal, L-28040, pp. 39-
46) and which contained the following clause:
III. That this agreement shall take effect only upon the
consummation of the sale of the property mentioned
herein and upon receipt of the total and full payment
of the proceeds of the sale by the herein owner heirs-
children of Francisco de Borja, namely, Crisanto,
Cayetano and Matilde, all surnamed de Borja;
Provided that if no sale of the said property
mentioned herein is consummated, or the non-
receipt of the purchase price thereof by the said
owners within the period of sixty (60) days from the
date hereof, this agreement will become null and
void and of no further effect.
Ongsingco's argument loses validity when it is considered that Jose de
Borja was not a party to this particular contract (Annex 1), and that the
same appears not to have been finalized, since it bears no date, the
day being left blank "this — day of October 1963"; and while signed by
the parties, it was not notarized, although plainly intended to be so
done, since it carries a proposed notarial ratification clause.
Furthermore, the compromise contract with Jose de Borja (Annex A),
provides in its par. 2 heretofore transcribed that of the total
consideration of P800, 000 to be paid to Ongsingco, P600,000 represent
the "prorata share of the heirs Crisanto, Cayetano and Matilde all
surnamed de Borja" which corresponds to the consideration of P600,000
recited in Annex 1, and that circumstance is proof that the duly
notarized contract entered into wit Jose de Borja under date 12
October 1963 (Annex A), was designed to absorb and supersede the
separate unformalize agreement with the other three Borja heirs.
Hence, the 60 days resolutory term in the contract with the latter (Annex
1) not being repeated in Annex A, can not apply to the formal
compromise with Jose de Borja. It is moreover manifest that the
stipulation that the sale of the Hacienda de Jalajala was to be made
within sixty days from the date of the agreement with Jose de Borja's
co-heirs (Annex 1) was plainly omitted in Annex A as improper and
ineffective, since the Hacienda de Jalajala (Poblacion) that was to be
sold to raise the P800,000 to be paid to Ongsingco for her share formed
part of the estate of Francisco de Borja and could not be sold until
authorized by the Probate Court. The Court of First Instance of Rizal so
understood it, and in approving the compromise it fixed a term of 120
days counted from the finality of the order now under appeal, for the
carrying out by the parties for the terms of the contract.
This brings us to the plea that the Court of First Instance of Rizal had no
jurisdiction to approve the compromise with Jose de Borja (Annex A)
because Tasiana Ongsingco was not an heir in the estate of Josefa
Tangco pending settlement in the Rizal Court, but she was an heir of
Francisco de Borja, whose estate was the object of Special Proceeding
No. 832 of the Court of First Instance of Nueva Ecija. This circumstance
is irrelevant, since what was sold by Tasiana Ongsingco was only her
eventual share in the estate of her late husband, not the estate itself;
and as already shown, that eventual share she owned from the time of
Francisco's death and the Court of Nueva Ecija could not bar her selling
it. As owner of her undivided hereditary share, Tasiana could dispose of
it in favor of whomsoever she chose. Such alienation is expressly
recognized and provided for by article 1088 of the present Civil Code:
Art. 1088. Should any of the heirs sell his hereditary
rights to a stranger before the partition, any or all of
the co-heirs may be subrogated to the rights of the
purchaser by reimbursing him for the price of the sale,
provided they do so within the period of one month
from the time they were notified in writing of the sale
of the vendor.
If a sale of a hereditary right can be made to a stranger, then a
fortiori sale thereof to a coheir could not be forbidden.
Tasiana Ongsingco further argues that her contract with Jose de Borja
(Annex "A") is void because it amounts to a compromise as to her status
and marriage with the late Francisco de Borja. The point is without merit,
for the very opening paragraph of the agreement with Jose de Borja
(Annex "A") describes her as "the heir and surviving spouse of Francisco
de Borja by his second marriage, Tasiana Ongsingco Vda. de de Borja",
which is in itself definite admission of her civil status. There is nothing in
the text of the agreement that would show that this recognition of
Ongsingco's status as the surviving spouse of Francisco de Borja was
only made in consideration of the cession of her hereditary rights.
It is finally charged by appellant Ongsingco, as well as by the Court of
First Instance of Nueva Ecija in its order of 21 September 1964, in Special
Proceedings No. 832 (Amended Record on Appeal in L-28568, page
157), that the compromise agreement of 13 October 1963 (Annex "A")
had been abandoned, as shown by the fact that, after its execution,
the Court of First Instance of Nueva Ecija, in its order of 21 September
1964, had declared that "no amicable settlement had been arrived at
by the parties", and that Jose de Borja himself, in a motion of 17 June
1964, had stated that the proposed amicable settlement "had failed to
materialize".
It is difficult to believe, however, that the amicable settlement referred
to in the order and motion above-mentioned was the compromise
agreement of 13 October 1963, which already had been formally
signed and executed by the parties and duly notarized. What the
record discloses is that some time after its formalization, Ongsingco had
unilaterally attempted to back out from the compromise agreement,
pleading various reasons restated in the opposition to the Court's
approval of Annex "A" (Record on Appeal, L-20840, page 23): that the
same was invalid because of the lapse of the allegedly intended
resolutory period of 60 days and because the contract was not
preceded by the probate of Francisco de Borja's will, as required by this
Court's Guevarra vs. Guevara ruling; that Annex "A" involved a
compromise affecting Ongsingco's status as wife and widow of
Francisco de Borja, etc., all of which objections have been already
discussed. It was natural that in view of the widow's attitude, Jose de
Borja should attempt to reach a new settlement or novatory agreement
before seeking judicial sanction and enforcement of Annex "A", since
the latter step might ultimately entail a longer delay in attaining final
remedy. That the attempt to reach another settlement failed is
apparent from the letter of Ongsingco's counsel to Jose de Borja
quoted in pages 35-36 of the brief for appellant Ongsingco in G.R. No.
28040; and it is more than probable that the order of 21 September 1964
and the motion of 17 June 1964 referred to the failure of the parties'
quest for a more satisfactory compromise. But the inability to reach a
novatory accord can not invalidate the original compromise (Annex
"A") and justifies the act of Jose de Borja in finally seeking a court order
for its approval and enforcement from the Court of First Instance of Rizal,
which, as heretofore described, decreed that the agreement be
ultimately performed within 120 days from the finality of the order, now
under appeal.
We conclude that in so doing, the Rizal court acted in accordance with
law, and, therefore, its order should be upheld, while the contrary
resolution of the Court of First Instance of Nueva Ecija should be, and is,
reversed.
In her brief, Tasiana Ongsingco also pleads that the time elapsed in the
appeal has affected her unfavorably, in that while the purchasing
power of the agreed price of P800,000 has diminished, the value of the
Jalajala property has increased. But the fact is that her delay in
receiving the payment of the agreed price for her hereditary interest
was primarily due to her attempts to nullify the agreement (Annex "A")
she had formally entered into with the advice of her counsel, Attorney
Panaguiton. And as to the devaluation de facto of our currency, what
We said in Dizon Rivera vs. Dizon, L-24561, 30 June 1970, 33 SCRA 554,
that "estates would never be settled if there were to be a revaluation
with every subsequent fluctuation in the values of currency and
properties of the estate", is particularly opposite in the present case.
Coming now to Case G.R. No. L-28611, the issue is whether the
Hacienda de Jalajala (Poblacion), concededly acquired by Francisco
de Borja during his marriage to his first wife, Josefa Tangco, is the
husband's private property (as contended by his second spouse,
Tasiana Ongsingco), or whether it forms part of the conjugal
(ganancial) partnership with Josefa Tangco. The Court of First Instance
of Rizal (Judge Herminio Mariano, presiding) declared that there was
adequate evidence to overcome the presumption in favor of its
conjugal character established by Article 160 of the Civil Code.
We are of the opinion that this question as between Tasiana Ongsingco
and Jose de Borja has become moot and academic, in view of the
conclusion reached by this Court in the two preceding cases (G.R. No.
L-28568), upholding as valid the cession of Tasiana Ongsingco's
eventual share in the estate of her late husband, Francisco de Borja, for
the sum of P800,000 with the accompanying reciprocal quit-claims
between the parties. But as the question may affect the rights of
possible creditors and legatees, its resolution is still imperative.
It is undisputed that the Hacienda Jalajala, of around 4,363 hectares,
had been originally acquired jointly by Francisco de Borja, Bernardo de
Borja and Marcelo de Borja and their title thereto was duly registered in
their names as co-owners in Land Registration Case No. 528 of the
province of Rizal, G.L.R.O. Rec. No. 26403 (De Barjo vs. Jugo, 54 Phil.
465). Subsequently, in 1931, the Hacienda was partitioned among the
co-owners: the Punta section went to Marcelo de Borja; the
Bagombong section to Bernardo de Borja, and the part in Jalajala
proper (Poblacion) corresponded to Francisco de Borja (V. De Borja vs.
De Borja 101 Phil. 911, 932).
The lot allotted to Francisco was described as —
Una Parcela de terreno en Poblacion, Jalajala: N.
Puang River; E. Hermogena Romero; S. Heirs of
Marcelo de Borja O. Laguna de Bay; containing an
area of 13,488,870 sq. m. more or less, assessed at
P297,410. (Record on Appeal, pages 7 and 105)
On 20 November 1962, Tasiana O. Vda. de Borja, as Administratrix of the
Testate Estate of Francisco de Borja, instituted a complaint in the Court
of First Instance of Rizal (Civil Case No. 7452) against Jose de Borja, in
his capacity as Administrator of Josefa Tangco (Francisco de Borja's first
wife), seeking to have the Hacienda above described declared
exclusive private property of Francisco, while in his answer defendant
(now appellant) Jose de Borja claimed that it was conjugal property of
his parents (Francisco de Borja and Josefa Tangco), conformably to the
presumption established by Article 160 of the Philippine Civil Code
(reproducing Article 1407 of the Civil Code of 1889), to the effect that:
Art. 160. All property of the marriage is presumed to
belong to the conjugal partnership, unless it be
proved that it pertains exclusively to the husband or
to the wife.
Defendant Jose de Borja further counterclaimed for damages,
compensatory, moral and exemplary, as well as for attorney's fees.
After trial, the Court of First Instance of Rizal, per Judge Herminio
Mariano, held that the plaintiff had adduced sufficient evidence to
rebut the presumption, and declared the Hacienda de Jalajala
(Poblacion) to be the exclusive private property of the late Francisco
de Borja, and his Administratrix, Tasiana Ongsingco Vda. de Borja, to be
entitled to its possession. Defendant Jose de Borja then appealed to this
Court.
The evidence reveals, and the appealed order admits, that the
character of the Hacienda in question as owned by the conjugal
partnership De Borja-Tangco was solemnly admitted by the late
Francisco de Borja no less than two times: first, in the Reamended
Inventory that, as executor of the estate of his deceased wife Josefa
Tangco, he filed in the Special Proceedings No. 7866 of the Court of First
Instance of Rizal on 23 July 1953 (Exhibit "2"); and again, in the
Reamended Accounting of the same date, also filed in the
proceedings aforesaid (Exhibit "7"). Similarly, the plaintiff Tasiana O. Vda.
de Borja, herself, as oppositor in the Estate of Josefa Tangco, submitted
therein an inventory dated 7 September 1954 (Exhibit "3") listing the
Jalajala property among the "Conjugal Properties of the Spouses
Francisco de Borja and Josefa Tangco". And once more, Tasiana
Ongsingco, as administratrix of the Estate of Francisco de Borja, in
Special Proceedings No. 832 of the Court of First Instance of Nueva
Ecija, submitted therein in December, 1955, an inventory wherein she
listed the Jalajala Hacienda under the heading "Conjugal Property of
the Deceased Spouses Francisco de Borja and Josefa Tangco, which
are in the possession of the Administrator of the Testate Estate of the
Deceased Josefa Tangco in Special Proceedings No. 7866 of the Court
of First Instance of Rizal" (Exhibit "4").
Notwithstanding the four statements aforesaid, and the fact that they
are plain admissions against interest made by both Francisco de Borja
and the Administratrix of his estate, in the course of judicial proceedings
in the Rizal and Nueva Ecija Courts, supporting the legal presumption in
favor of the conjugal community, the Court below declared that the
Hacienda de Jalajala (Poblacion) was not conjugal property, but the
private exclusive property of the late Francisco de Borja. It did so on the
strength of the following evidences: (a) the sworn statement by Francis
de Borja on 6 August 1951 (Exhibit "F") that —
He tomado possession del pedazo de terreno ya
delimitado (equivalente a 1/4 parte, 337 hectareas)
adjunto a mi terreno personal y exclusivo (Poblacion
de Jalajala, Rizal).
and (b) the testimony of Gregorio de Borja, son of Bernardo de Borja,
that the entire Hacienda had been bought at a foreclosure sale for
P40,100.00, of which amount P25,100 was contributed by Bernardo de
Borja and P15,000. by Marcelo de Borja; that upon receipt of a
subsequent demand from the provincial treasurer for realty taxes the
sum of P17,000, Marcelo told his brother Bernardo that Francisco (son of
Marcelo) wanted also to be a co-owner, and upon Bernardo's assent
to the proposal, Marcelo issue a check for P17,000.00 to pay the back
taxes and said that the amount would represent Francisco's
contribution in the purchase of the Hacienda. The witness further
testified that —
Marcelo de Borja said that that money was entrusted
to him by Francisco de Borja when he was still a
bachelor and which he derived from his business
transactions. (Hearing, 2 February 1965, t.s.n., pages
13-15) (Emphasis supplied)
The Court below, reasoning that not only Francisco's sworn statement
overweighed the admissions in the inventories relied upon by
defendant-appellant Jose de Borja since probate courts can not finally
determine questions of ownership of inventoried property, but that the
testimony of Gregorio de Borja showed that Francisco de Borja
acquired his share of the original Hacienda with his private funds, for
which reason that share can not be regarded as conjugal partnership
property, but as exclusive property of the buyer, pursuant to Article
1396(4) of Civil Code of 1889 and Article 148(4) of the Civil Code of the
Philippines.
The following shall be the exclusive property of each spouse:
xxx xxx xxx
(4) That which is purchased with exclusive money of
the wife or of the husband.
We find the conclusions of the lower court to be untenable. In the first
place, witness Gregorio de Borja's testimony as to the source of the
money paid by Francisco for his share was plain hearsay, hence
inadmissible and of no probative value, since he was merely repeating
what Marcelo de Borja had told him (Gregorio). There is no way of
ascertaining the truth of the statement, since both Marcelo and
Francisco de Borja were already dead when Gregorio testified. In
addition, the statement itself is improbable, since there was no need or
occasion for Marcelo de Borja to explain to Gregorio how and when
Francisco de Borja had earned the P17,000.00 entrusted to Marcelo. A
ring of artificiality is clearly discernible in this portion of Gregorio's
testimony.
As to Francisco de Borja's affidavit, Exhibit "F", the quoted portion
thereof (ante, page 14) does not clearly demonstrate that the "mi
terreno personal y exclusivo (Poblacion de Jalajala, Rizal) " refers
precisely to the Hacienda in question. The inventories (Exhibits 3 and 4)
disclose that there were two real properties in Jalajala owned by
Francisco de Borja, one of 72.038 sq. m., assessed at P44,600, and a
much bigger one of 1,357.260.70 sq. m., which is evidently the Hacienda
de Jalajala (Poblacion). To which of these lands did the affidavit of
Francisco de Borja (Exhibit "F") refer to? In addition, Francisco's
characterization of the land as "mi terreno personal y exclusivo" is plainly
self-serving, and not admissible in the absence of cross examination.
It may be true that the inventories relied upon by defendant-appellant
(Exhibits "2", "3", "4" and "7") are not conclusive on the conjugal
character of the property in question; but as already noted, they are
clear admissions against the pecuniary interest of the declarants,
Francisco de Borja and his executor-widow, Tasiana Ongsingco, and as
such of much greater probative weight than the self-serving statement
of Francisco (Exhibit "F"). Plainly, the legal presumption in favor of the
conjugal character of the Hacienda de Jalajala (Poblacion) now in
dispute has not been rebutted but actually confirmed by proof. Hence,
the appealed order should be reversed and the Hacienda de Jalajala
(Poblacion) declared property of the conjugal partnership of Francisco
de Borja and Josefa Tangco.
No error having been assigned against the ruling of the lower court that
claims for damages should be ventilated in the corresponding special
proceedings for the settlement of the estates of the deceased, the
same requires no pro announcement from this Court.

IN VIEW OF THE FOREGOING, the appealed order of the Court of First

Instance of Rizal in Case No. L-28040 is hereby affirmed; while those
involved in Cases Nos. L-28568 and L-28611 are reversed and set aside.
Costs against the appellant Tasiana Ongsingco Vda. de Borja in all
three (3) cases.

Concepcion, C.J., Makalintal, Zaldivar, Castro, Teehankee, Barredo,

Makasiar, Antonio and Esguerra, JJ., concur.

Fernando, J., took no part.

G.R. No. L-41715 June 18, 1976
ROSALIO BONILLA (a minor) SALVACION BONILLA (a minor) and
PONCIANO BONILLA (their father) who represents the
minors, petitioners,
vs.
LEON BARCENA, MAXIMA ARIAS BALLENA, ESPERANZA BARCENA,
MANUEL BARCENA, AGUSTINA NERI, widow of JULIAN TAMAYO and
HON. LEOPOLDO GIRONELLA of the Court of First Instance of
Abra, respondents.
Federico Paredes for petitioners.
Demetrio V. Pre for private respondents.
MARTIN, J:
This is a petition for review 1 of the Order of the Court of First Instance of
Abra in Civil Case No. 856, entitled Fortunata Barcena vs. Leon Barcena,
et al., denying the motions for reconsideration of its order dismissing the
complaint in the aforementioned case.
On March 31, 1975 Fortunata Barcena, mother of minors Rosalio Bonilla
and Salvacion Bonilla and wife of Ponciano Bonilla, instituted a civil
action in the Court of First Instance of Abra, to quiet title over certain
parcels of land located in Abra.
On May 9, 1975, defendants filed a written motion to dismiss the
complaint, but before the hearing of the motion to dismiss, the counsel
for the plaintiff moved to amend the complaint in order to include
certain allegations therein. The motion to amend the complaint was
granted and on July 17, 1975, plaintiffs filed their amended complaint.
On August 4, 1975, the defendants filed another motion to dismiss the
complaint on the ground that Fortunata Barcena is dead and,
therefore, has no legal capacity to sue. Said motion to dismiss was
heard on August 14, 1975. In said hearing, counsel for the plaintiff
confirmed the death of Fortunata Barcena, and asked for substitution
by her minor children and her husband, the petitioners herein; but the
court after the hearing immediately dismissed the case on the ground
that a dead person cannot be a real party in interest and has no legal
personality to sue.
On August 19, 1975, counsel for the plaintiff received a copy of the
order dismissing the complaint and on August 23, 1975, he moved to set
aside the order of the dismissal pursuant to Sections 16 and 17 of Rule 3
of the Rules of Court. 2
On August 28, 1975, the court denied the motion for reconsideration
filed by counsel for the plaintiff for lack of merit. On September 1, 1975,
counsel for deceased plaintiff filed a written manifestation praying that
the minors Rosalio Bonilla and Salvacion Bonilla be allowed to substitute
their deceased mother, but the court denied the counsel's prayer for
lack of merit. From the order, counsel for the deceased plaintiff filed a
second motion for reconsideration of the order dismissing the complaint
claiming that the same is in violation of Sections 16 and 17 of Rule 3 of
the Rules of Court but the same was denied.
Hence, this petition for review.
The Court reverses the respondent Court and sets aside its order
dismissing the complaint in Civil Case No. 856 and its orders denying the
motion for reconsideration of said order of dismissal. While it is true that
a person who is dead cannot sue in court, yet he can be substituted by
his heirs in pursuing the case up to its completion. The records of this
case show that the death of Fortunata Barcena took place on July 9,
1975 while the complaint was filed on March 31, 1975. This means that
when the complaint was filed on March 31, 1975, Fortunata Barcena
was still alive, and therefore, the court had acquired jurisdiction over
her person. If thereafter she died, the Rules of Court prescribes the
procedure whereby a party who died during the pendency of the
proceeding can be substituted. Under Section 16, Rule 3 of the Rules of
Court "whenever a party to a pending case dies ... it shall be the duty
of his attorney to inform the court promptly of such death ... and to give
the name and residence of his executor, administrator, guardian or
other legal representatives." This duty was complied with by the counsel
for the deceased plaintiff when he manifested before the respondent
Court that Fortunata Barcena died on July 9, 1975 and asked for the
proper substitution of parties in the case. The respondent Court,
however, instead of allowing the substitution, dismissed the complaint
on the ground that a dead person has no legal personality to sue. This
is a grave error. Article 777 of the Civil Code provides "that the rights to
the succession are transmitted from the moment of the death of the
decedent." From the moment of the death of the decedent, the heirs
become the absolute owners of his property, subject to the rights and
obligations of the decedent, and they cannot be deprived of their
rights thereto except by the methods provided for by law. 3 The
moment of death is the determining factor when the heirs acquire a
definite right to the inheritance whether such right be pure or
contingent. 4 The right of the heirs to the property of the deceased vests
in them even before judicial declaration of their being heirs in the
testate or intestate proceedings. 5 When Fortunata Barcena, therefore,
died her claim or right to the parcels of land in litigation in Civil Case No.
856, was not extinguished by her death but was transmitted to her heirs
upon her death. Her heirs have thus acquired interest in the properties
in litigation and became parties in interest in the case. There is, qualified person as guardian ad litem for them. Without
therefore, no reason for the respondent Court not to allow their pronouncement as to costs.
substitution as parties in interest for the deceased plaintiff.
SO ORDERED.
Under Section 17, Rule 3 of the Rules of Court "after a party dies and the
claim is not thereby extinguished, the court shall order, upon proper Teehankee (Chairman), Makasiar, Esguerra and Muñoz Palma, JJ.,
notice, the legal representative of the deceased to appear and be concur.
substituted for the deceased, within such time as may be granted ... ."
The question as to whether an action survives or not depends on the
nature of the action and the damage sued for. 6 In the causes of action Footnotes
which survive the wrong complained affects primarily and principally
property and property rights, the injuries to the person being merely
incidental, while in the causes of action which do not survive the injury
complained of is to the person, the property and rights of property
affected being incidental. 7 Following the foregoing criterion the claim
of the deceased plaintiff which is an action to quiet title over the
parcels of land in litigation affects primarily and principally property and
property rights and therefore is one that survives even after her death.
It is, therefore, the duty of the respondent Court to order the legal
representative of the deceased plaintiff to appear and to be
substituted for her. But what the respondent Court did, upon being
informed by the counsel for the deceased plaintiff that the latter was
dead, was to dismiss the complaint. This should not have been done for
under the same Section 17, Rule 3 of the Rules of Court, it is even the
duty of the court, if the legal representative fails to appear, to order the
opposing party to procure the appointment of a legal representative
of the deceased. In the instant case the respondent Court did not have
to bother ordering the opposing party to procure the appointment of a
legal representative of the deceased because her counsel has not only
asked that the minor children be substituted for her but also suggested
that their uncle be appointed as guardian ad litem for them because
their father is busy in Manila earning a living for the family. But the
respondent Court refused the request for substitution on the ground that
the children were still minors and cannot sue in court. This is another
grave error because the respondent Court ought to have known that
under the same Section 17, Rule 3 of the Rules of Court, the court is
directed to appoint a guardian ad litem for the minor heirs. Precisely in
the instant case, the counsel for the deceased plaintiff has suggested
to the respondent Court that the uncle of the minors be appointed to
act as guardian ad litem for them. Unquestionably, the respondent
Court has gravely abused its discretion in not complying with the clear
provision of the Rules of Court in dismissing the complaint of the plaintiff
in Civil Case No. 856 and refusing the substitution of parties in the case.

IN VIEW OF THE FOREGOING, the order of the respondent Court

dismissing the complaint in Civil Case No. 856 of the Court of First
Instance of Abra and the motions for reconsideration of the order of
dismissal of said complaint are set aside and the respondent Court is
hereby directed to allow the substitution of the minor children, who are
the petitioners therein for the deceased plaintiff and to appoint a
G.R. No. L-41171 July 23, 1987
INTESTATE ESTATE OF THE LATE VITO BORROMEO, PATROCINIO
BORROMEO-HERRERA, petitioner,
vs.
FORTUNATO BORROMEO and HON. FRANCISCO P. BURGOS, Judge of the
Court of First Instance of Cebu, Branch II, respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
No. L-55000 July 23, 1987
IN THE MATTER OF THE ESTATE OF VITO BORROMEO, DECEASED, PILAR N.
BORROMEO, MARIA B. PUTONG, FEDERICO V. BORROMEO, JOSE
BORROMEO, CONSUELO B. MORALES, AND CANUTO V. BORROMEO,
JR., heirs-appellants,
vs.
FORTUNATO BORROMEO, claimant-appellee.
x - - - - - - - - - - - - - - - - - - - - - - -x
No. L-62895 July 23, 1987
JOSE CUENCO BORROMEO, petitioner,
vs.
HONORABLE COURT OF APPEALS, HON. FRANCISCO P. BURGOS, As
presiding Judge of the (now) Regional Trial Court, Branch XV, Region
VII, RICARDO V. REYES, as Administrator of the Estate of Vito Borromeo
in Sp. Proc. No. 916-R, NUMERIANO G. ESTENZO and DOMINGO L.
ANTIGUA, respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
No. L-63818 July 23, 1987
DOMINGO ANTIGUA AND RICARDO V. REYES, as Administrator of the
Intestate Estate of VITO BORROMEO, Sp. Proceedings No. 916-R,
Regional Trial Court of Cebu, joined by HON. JUDGE FRANCISCO P.
BURGOS, as Presiding Judge of Branch XV of the Regional Trial Court of
Cebu, as a formal party, and ATTYS. FRANCIS M. ZOSA, GAUDIOSO RUIZ
and NUMERIANO ESTENZO, petitioners,
vs.
HONORABLE INTERMEDIATE APPELLATE COURT, JOSE CUENCO
BORROMEO, and PETRA O. BORROMEO, respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
No. L-65995 July 23, 1987
PETRA BORROMEO, VITALIANA BORROMEO, AMELINDA BORROMEO, and
JOSE CUENCO BORROMEO,petitioners,
vs.
HONORABLE FRANCISCO P. BURGOS, Presiding Judge of Branch XV,
Regional Trial Court of Cebu; RICARDO V. REYES, Administrator of the
Estate of VITO BORROMEO in Sp. Proc. No. 916-R; and DOMINGO L.
ANTIGUA, respondents.
GUTIERREZ, JR., J.:
These cases before us all stem from SP. PROC. NO. 916-R of the then
Court of First Instance of Cebu.
G.R. No. 41171
Vito Borromeo, a widower and permanent resident of Cebu City, died
on March 13, 1952, in Paranaque, Rizal at the age of 88 years, without
forced heirs but leaving extensive properties in the province of Cebu.
On April 19, 1952, Jose Junquera filed with the Court of First Instance of
Cebu a petition for the probate of a one page document as the last
will and testament left by the said deceased, devising all his properties
to Tomas, Fortunato and Amelia, all surnamed Borromeo, in equal and
undivided shares, and designating Junquera as executor thereof. The
case was docketed as Special Proceedings No. 916-R. The document,
drafted in Spanish, was allegedly signed and thumbmarked by the
deceased in the presence of Cornelio Gandionco, Eusebio Cabiluna,
and Felixberto Leonardo who acted as witnesses.
Oppositions to the probate of the will were filed. On May 28, 1960, after
due trial, the probate court held that the document presented as the
will of the deceased was a forgery.
On appeal to this Court, the decision of the probate court disallowing
the probate of the will was affirmed in Testate Estate of Vito Borromeo,
Jose H. Junquera et al. v. Crispin Borromeo et al. (19 SCRA 656).
The testate proceedings was converted into an intestate proceedings.
Several parties came before the court filing claims or petitions alleging
themselves as heirs of the intestate estate of Vito Borromeo.
The following petitions or claims were filed:
1. On August 29, 1967, the heirs of Jose Ma. Borromeo and
Cosme Borromeo filed a petition for declaration of heirs and
 determination of heirship. There was no opposition filed against
said petition.
2. On November 26, 1967, Vitaliana Borromeo also filed a
petition for declaration as heir. The heirs of Jose Ma. Borromeo
and Cosme Borromeo filed an opposition to this petition.
3. On December 13, 1967, Jose Barcenilla, Jr., Anecita
Ocampo de Castro, Ramon Ocampo, Lourdes Ocampo,
Elena Ocampo, Isagani Morre, Rosario Morre, Aurora Morre,
Lila Morre, Lamberto Morre, and Patricia Morre, filed a petition
for declaration of heirs and determination of shares. The
petition was opposed by the heirs of Jose and Cosme
Borromeo.
4. On December 2, 1968, Maria Borromeo Atega, Luz
Borromeo, Hermenegilda Borromeo Nonnenkamp, Rosario
Borromeo, and Fe Borromeo Queroz filed a claim. Jose
Cuenco Borromeo, Crispin Borromeo, Vitaliana Borromeo and
the heirs of Carlos Borromeo represented by Jose Talam filed
oppositions to this claim.
When the aforementioned petitions and claims were heard jointly, the
following facts were established:
1. Maximo Borromeo and Hermenegilda Galan, husband and wife (the
latter having predeceased the former), were survived by their eight (8)
children, namely,
Jose Ma. Borromeo
Cosme Borromeo
Pantaleon Borromeo
Vito Borromeo
Paulo Borromeo
Anecita Borromeo
Quirino Borromeo and
Julian Borromeo
2. Vito Borromeo died a widower on March 13, 1952, without any issue,
and all his brothers and sisters predeceased him.
3. Vito's brother Pantaleon Borromeo died leaving the following
children:
a. Ismaela Borromeo,who died on Oct. 16, 1939
b. Teofilo Borromeo, who died on Aug. 1, 1955, or 3 years after
the death of Vito Borromeo. He was married to Remedios
Cuenco Borromeo, who died on March 28, 1968. He had an
only son-Atty. Jose Cuenco Borromeo one of the petitioners
herein.
c. Crispin Borromeo, who is still alive.
4. Anecita Borromeo, sister of Vito Borromeo, died ahead of him and
left an only daughter, Aurora B. Ocampo, who died on Jan. 30, 1950
leaving the following children:
a. Anecita Ocampo Castro
b. Ramon Ocampo
c. Lourdes Ocampo
d. Elena Ocampo, all living, and
e. Antonieta Ocampo Barcenilla (deceased), survived by
claimant Jose Barcenilla, Jr.
5. Cosme Borromeo, another brother of Vito Borromeo, died before the
war and left the following children:
a. Marcial Borromeo
b. Carlos Borromeo,who died on Jan. 18, 1965,survived by his
wife, Remedios Alfonso, and his only daughter, Amelinda
Borromeo Talam
c. Asuncion Borromeo
d. Florentina Borromeo, who died in 1948.
e. Amilio Borromeo, who died in 1944.
f. Carmen Borromeo, who died in 1925.
 The last three died leaving no issue.
6. Jose Ma. Borromeo, another brother of Vito Borromeo, died before
the war and left the following children:
a. Exequiel Borromeo,who died on December 29, 1949
b. Canuto Borromeo, who died on Dec. 31, 1959, leaving the
following children:
On April 10, 1969, the trial court, invoking Art. 972 of the Civil Code,
issued an order declaring the following, to the exclusion of all others, as
the intestate heirs of the deceased Vito Borromeo:
1. Jose Cuenco Borromeo
2. Judge Crispin Borromeo
3. Vitaliana Borromeo

aa. Federico Borromeo 4. Patrocinio Borromeo Herrera

bb. Marisol Borromeo (Maria B. Putong, Rec. p. 85) 5. Salud Borromeo

cc. Canuto Borromeo, Jr. 6. Asuncion Borromeo

dd. Jose Borromeo 7. Marcial Borromeo

ee. Consuelo Borromeo 8. Amelinda Borromeo de Talam, and

ff. Pilar Borromeo 9. The heirs of Canuto Borromeo

gg. Salud Borromeo The court also ordered that the assets of the intestate estate of Vito
Borromeo shall be divided into 4/9 and 5/9 groups and distributed in
hh. Patrocinio Borromeo Herrera equal and equitable shares among the 9 abovenamed declared
intestate heirs.

c. Maximo Borromeo, who died in July, 1948

d. Matilde Borromeo, who died on Aug. 6, 1946
e. Andres Borromeo, who died on Jan. 3, 1923, but survived by
his children:
aa. Maria Borromeo Atega
On April 21 and 30, 1969, the declared heirs, with the exception of
Patrocinio B. Herrera, signed an agreement of partition of the properties
of the deceased Vito Borromeo which was approved by the trial court,
in its order of August 15, 1969. In this same order, the trial court ordered
the administrator, Atty Jesus Gaboya, Jr., to partition the properties of
the deceased in the way and manner they are divided and partitioned
in the said Agreement of Partition and further ordered that 40% of the
market value of the 4/9 and 5/9 of the estate shall be segregated. All
attorney's fees shall be taken and paid from this segregated portion.

bb. Luz Borromeo

On August 25, 1972, respondent Fortunato Borromeo, who had earlier
claimed as heir under the forged will, filed a motion before the trial
cc. Hermenegilda Borromeo Nonnenkamp court praying that he be declared as one of the heirs of the deceased
Vito Borromeo, alleging that he is an illegitimate son of the deceased
dd. Rosario Borromeo and that in the declaration of heirs made by the trial court, he was
omitted, in disregard of the law making him a forced heir entitled to
ee. Fe Borromeo Queroz receive a legitime like all other forced heirs. As an acknowledged
illegitimate child, he stated that he was entitled to a legitime equal in
every case to four-fifths of the legitime of an acknowledged natural
child.
Finding that the motion of Fortunato Borromeo was already barred by
the order of the court dated April 12, 1969 declaring the persons named
therein as the legal heirs of the deceased Vito Borromeo, the court
dismissed the motion on June 25, 1973.
Fortunato Borromeo filed a motion for reconsideration. In the
memorandum he submitted to support his motion for reconsideration,
Fortunato changed the basis for his claim to a portion of the estate. He
asserted and incorporated a Waiver of Hereditary Rights dated July 31,
1967, supposedly signed by Pilar N. Borromeo, Maria B. Putong, Jose
Borromeo, Canuto V. Borromeo, Jr., Salud Borromeo, Patrocinio
Borromeo-Herrera, Marcial Borromeo, Asuncion Borromeo, Federico V.
Borromeo, Consuelo B. Morales, Remedios Alfonso and Amelinda B.
Talam In the waiver, five of the nine heirs relinquished to Fortunato their
shares in the disputed estate. The motion was opposed on the ground
that the trial court, acting as a probate court, had no jurisdiction to take
cognizance of the claim; that respondent Fortunato Borromeo is
estopped from asserting the waiver agreement; that the waiver
agreement is void as it was executed before the declaration of heirs;
that the same is void having been executed before the distribution of
the estate and before the acceptance of the inheritance; and that it is
void ab initio and inexistent for lack of subject matter.
On December 24, 1974, after due hearing, the trial court concluding
that the five declared heirs who signed the waiver agreement assigning
their hereditary rights to Fortunato Borromeo had lost the same rights,
declared the latter as entitled to 5/9 of the estate of Vito Borromeo.
A motion for reconsideration of this order was denied on July 7, 1975.
In the present petition, the petitioner seeks to annul and set aside the
trial court's order dated December 24, 1974, declaring respondent
Fortunato Borromeo entitled to 5/9 of the estate of Vito Borromeo and
the July 7, 1975 order, denying the motion for reconsideration.
The petitioner argues that the trial court had no jurisdiction to take
cognizance of the claim of respondent Fortunato Borromeo because it
is not a money claim against the decedent but a claim for properties,
real and personal, which constitute all of the shares of the heirs in the
decedent's estate, heirs who allegedly waived their rights in his favor.
The claim of the private respondent under the waiver agreement,
according to the petitioner, may be likened to that of a creditor of the
heirs which is improper. He alleges that the claim of the private
respondent under the waiver agreement was filed beyond the time
allowed for filing of claims as it was filed only sometime in 1973, after
there had been a declaration of heirs (April 10, 1969), an agreement of
partition (April 30, 1969), the approval of the agreement of partition and
an order directing the administrator to partition the estate (August 15,
1969), when in a mere memorandum, the existence of the waiver
agreement was brought out.
It is further argued by the petitioner that the document entitled " waiver
of Hereditary Rights" executed on July 31, 1967, aside from having been
cancelled and revoked on June 29, 1968, by Tomas L. Borromeo,
Fortunato Borromeo and Amelia Borromeo, is without force and effect
because there can be no effective waiver of hereditary rights before
there has been a valid acceptance of the inheritance the heirs intend
to transfer. Pursuant to Article 1043 of the Civil Code, to make
acceptance or repudiation of inheritance valid, the person must be
certain of the death of the one from whom he is to inherit and of his
right to the inheritance. Since the petitioner and her co-heirs were not
certain of their right to the inheritance until they were declared heirs,
their rights were, therefore, uncertain. This view, according to the
petitioner, is also supported by Article 1057 of the same Code which
directs heirs, devicees, and legatees to signify their acceptance or
repudiation within thirty days after the court has issued an order for the
distribution of the estate.
Respondent Fortunato Borromeo on the other hand, contends that
under Article 1043 of the Civil Code there is no need for a person to be
first declared as heir before he can accept or repudiate an inheritance.
What is required is that he must first be certain of the death of the person
from whom he is to inherit and that he must be certain of his right to the
inheritance. He points out that at the time of the signing of the waiver
document on July 31, 1967, the signatories to the waiver document
were certain that Vito Borromeo was already dead as well as of their
rights to the inheritance as shown in the waiver document itself.
With respect to the issue of jurisdiction of the trial court to pass upon the
validity of the waiver of hereditary rights, respondent Borromeo asserts
that since the waiver or renunciation of hereditary rights took place
after the court assumed jurisdiction over the properties of the estate it
partakes of the nature of a partition of the properties of the estate
needing approval of the court because it was executed in the course
of the proceedings. lie further maintains that the probate court loses
jurisdiction of the estate only after the payment of all the debts of the
estate and the remaining estate is distributed to those entitled to the
same.
The prevailing jurisprudence on waiver of hereditary rights is that "the
properties included in an existing inheritance cannot be considered as
belonging to third persons with respect to the heirs, who by fiction of
law continue the personality of the former. Nor do such properties have
the character of future property, because the heirs acquire a right to
succession from the moment of the death of the deceased, by
principle established in article 657 and applied by article 661 of the Civil
Code, according to which the heirs succeed the deceased by the
mere fact of death. More or less, time may elapse from the moment of
the death of the deceased until the heirs enter into possession of the
hereditary property, but the acceptance in any event retroacts to the
moment of the death, in accordance with article 989 of the Civil Code.
The right is vested, although conditioned upon the adjudication of the
corresponding hereditary portion." (Osorio v. Osorio and Ynchausti
Steamship Co., 41 Phil., 531). The heirs, therefore, could waive their
hereditary rights in 1967 even if the order to partition the estate was
issued only in 1969.
In this case, however, the purported "Waiver of Hereditary Rights"
cannot be considered to be effective. For a waiver to exist, three
elements are essential: (1) the existence of a right; (2) the knowledge
of the existence thereof; and (3) an intention to relinquish such right.
(People v. Salvador, (CA) 53 O.G. No. 22, p. 8116, 8120). The intention
to waive a right or advantage must be shown clearly and convincingly,
and when the only proof of intention rests in what a party does, his act
should be so manifestly consistent with, and indicative of an intent to,
voluntarily relinquish the particular right or advantage that no other
reasonable explanation of his conduct is possible (67 C.J., 311).
(Fernandez v. Sebido, et al., 70 Phil., 151, 159).
The circumstances of this case show that the signatories to the waiver
document did not have the clear and convincing intention to relinquish
their rights, Thus: (1) On October 27, 1967. Fortunato, Tomas, and Amelia
Borromeo filed a pleading entitled "Compliance" wherein they
submitted a proposal for the amicable settlement of the case. In that
Compliance, they proposed to concede to all the eight (8) intestate
heirs of Vito Borromeo all properties, personal and real, including all
cash and sums of money in the hands of the Special Administrator, as
of October 31, 1967, not contested or claimed by them in any action
then pending in the Court of First Instance of Cebu. In turn, the heirs
would waive and concede to them all the 14 contested lots. In this
document, the respondent recognizes and concedes that the
petitioner, like the other signatories to the waiver document, is an heir
of the deceased Vito Borromeo, entitled to share in the estate. This
shows that the "Waiver of Hereditary Rights" was never meant to be
what the respondent now purports it to be. Had the intent been
otherwise, there would not be any reason for Fortunato, Tomas, and
Amelia Borromeo to mention the heirs in the offer to settle the case
amicably, and offer to concede to them parts of the estate of the
deceased; (2) On April 21 and 30, 1969, the majority of the declared
heirs executed an Agreement on how the estate they inherited shall be
distributed. This Agreement of Partition was approved by the trial court
on August 15, 1969; (3) On June 29, 1968, the petitioner, among others,
signed a document entitled Deed of Assignment" purporting to transfer
and assign in favor of the respondent and Tomas and Amelia Borromeo
all her (Patrocinio B. Herrera's) rights, interests, and participation as an
intestate heir in the estate of the deceased Vito Borromeo. The stated
consideration for said assignment was P100,000.00; (4) On the same
date, June 29, 1968, the respondent Tomas, and Amelia Borromeo
(assignees in the aforementioned deed of assignment) in turn executed
a "Deed of Reconveyance" in favor of the heirs-assignors named in the
same deed of assignment. The stated consideration was P50,000.00; (5)
A Cancellation of Deed of Assignment and Deed of Reconveyance
was signed by Tomas Borromeo and Amelia Borromeo on October 15,
1968, while Fortunato Borromeo signed this document on March 24,
1969.
With respect to the issue of jurisdiction, we hold that the trial court had
jurisdiction to pass upon the validity of the waiver agreement. It must
be noted that in Special Proceedings No. 916-R the lower court
disallowed the probate of the will and declared it as fake. Upon
appeal, this Court affirmed the decision of the lower court on March 30,
1967, in G.R. No. L-18498. Subsequently, several parties came before the
lower court filing claims or petitions alleging themselves as heirs of the
intestate estate of Vito Borromeo. We see no impediment to the trial
court in exercising jurisdiction and trying the said claims or petitions.
Moreover, the jurisdiction of the trial court extends to matters incidental
and collateral to the exercise of its recognized powers in handling the
settlement of the estate.
In view of the foregoing, the questioned order of the trial court dated
December 24, 1974, is hereby SET ASIDE.
G.R. No. 55000
This case was originally an appeal to the Court of Appeals from an order
of the Court of First Instance of Cebu, Branch 11, dated December 24,
1974, declaring the waiver document earlier discussed in G.R. No. 41171
valid. The appellate court certified this case to this Court as the
questions raised are all of law.
The appellants not only assail the validity of the waiver agreement but
they also question the jurisdiction of the lower court to hear and decide
the action filed by claimant Fortunato Borromeo.
The appellants argue that when the waiver of hereditary right was
executed on July 31, 1967, Pilar Borromeo and her children did not yet
possess or own any hereditary right in the intestate estate of the
deceased Vito Borromeo because said hereditary right was only
acquired and owned by them on April 10, 1969, when the estate was
ordered distributed.
They further argue that in contemplation of law, there is no such
contract of waiver of hereditary right in the present case because there
was no object, which is hereditary right, that could be the subject
matter of said waiver, and, therefore, said waiver of hereditary right was
not only null and void ab initio but was inexistent.
With respect to the issue of jurisdiction, the appellants contend that
without any formal pleading filed by the lawyers of Fortunato Borromeo
for the approval of the waiver agreement and without notice to the
parties concerned, two things which are necessary so that the lower
court would be vested with authority and jurisdiction to hear and
decide the validity of said waiver agreement, nevertheless, the lower
court set the hearing on September 25, 1973 and without asking for the
requisite pleading. This resulted in the issuance of the appealed order
of December 24, 1974, which approved the validity of the waiver
agreement. The appellants contend that this constitutes an error in the
exercise of jurisdiction.
The appellee on the other hand, maintains that by waiving their
hereditary rights in favor of Fortunato Borromeo, the signatories to the
waiver document tacitly and irrevocably accepted the inheritance
and by virtue of the same act, they lost their rights because the rights
from that moment on became vested in Fortunato Borromeo.
It is also argued by the appellee that under Article 1043 of the Civil
Code there is no need for a person to be declared as heir first before
he can accept or repudiate an inheritance. What is required is that he
is certain of the death of the person from whom he is to inherit, and of
his right to the inheritance. At the time of the signing of the waiver
document on July 31, 1967, the signatories to the waiver document
were certain that Vito Borromeo was already dead and they were also
certain of their right to the inheritance as shown by the waiver
document itself.
On the allegation of the appellants that the lower court did not acquire
jurisdiction over the claim because of the alleged lack of a pleading
invoking its jurisdiction to decide the claim, the appellee asserts that on
August 23, 1973, the lower court issued an order specifically calling on
all oppositors to the waiver document to submit their comments within
ten days from notice and setting the same for hearing on September
25, 1973. The appellee also avers that the claim as to a 5/9 share in the
inheritance involves no question of title to property and, therefore, the
probate court can decide the question.
The issues in this case are similar to the issues raised in G.R. No. 41171.
The appellants in this case, who are all declared heirs of the late Vito
Borromeo are contesting the validity of the trial court's order dated
December 24, 1974, declaring Fortunato Borromeo entitled to 5/9 of the
estate of Vito Borromeo under the waiver agreement.
As stated in G.R. No. 41171, the supposed waiver of hereditary rights
can not be validated. The essential elements of a waiver, especially the
clear and convincing intention to relinquish hereditary rights, are not
found in this case.
The October 27, 1967 proposal for an amicable settlement conceding
to all the eight (8) intestate heirs various properties in consideration for
the heirs giving to the respondent and to Tomas, and Amelia Borromeo
the fourteen (14) contested lots was filed inspite of the fact that on July
31, 1967, some of the heirs had allegedly already waived or sold their
hereditary rights to the respondent.
The agreement on how the estate is to be distributed, the June 29, 1968
deed of assignment, the deed of reconveyance, and the subsequent
cancellation of the deed of assignment and deed of reconveyance all
argue against the purported waiver of hereditary rights.
Concerning the issue of jurisdiction, we have already stated in G.R. No.
41171 that the trial court acquired jurisdiction to pass upon the validity
of the waiver agreement because the trial court's jurisdiction extends
to matters incidental and collateral to the exercise of its recognized
powers in handling the settlement of the estate.
The questioned order is, therefore, SET ASIDE.
G.R. No. 62895
A motion dated April 28, 1972, was filed by Atty. Raul M. Sesbreno,
representative of some of the heirs-distributees, praying for the
immediate closure of Special Proceeding No. 916-R. A similar motion
dated May 29, 1979 was filed by Atty. Jose Amadora. Both motions
were grounded on the fact that there was nothing more to be done
after the payment of all the obligations of the estate since the order of
partition and distribution had long become final.
Alleging that respondent Judge Francisco P. Burgos failed or refused to
resolve the aforesaid motions, petitioner Jose Cuenco Borromeo-filed a
petition for mandamus before the Court of Appeals to compel the
respondent judge to terminate and close Special Proceedings No. 916-
R.
Finding that the inaction of the respondent judge was due to pending
motions to compel the petitioner, as co-administrator, to submit an
inventory of the real properties of the estate and an accounting of the
cash in his hands, pending claims for attorney's fees, and that
mandamus will not lie to compel the performance of a discretionary
function, the appellate court denied the petition on May 14, 1982. The
petitioner's motion for reconsideration was likewise denied for lack of
merit. Hence, this petition.
The petitioner's stand is that the inaction of the respondent judge on the
motion filed on April 28, 1972 for the closure of the administration
proceeding cannot be justified by the filing of the motion for inventory
and accounting because the latter motion was filed only on March 2,
1979. He claimed that under the then Constitution, it is the duty of the
respondent judge to decide or resolve a case or matter within three
months from the date of its submission.
The respondents contend that the motion to close the administration
had already been resolved when the respondent judge cancelled all
settings of all incidents previously set in his court in an order dated June
4, 1979, pursuant to the resolution and restraining order issued by the
Court of Appeals enjoining him to maintain status quo on the case.
As stated in G.R. No. 41171, on April 21 and 30, 1969, the declared heirs,
with the exception of Patrocinio B. Herrera, signed an agreement of
partition of the properties of the deceased Vito Borromeo which was
approved by the trial court, in its order dated August 15, 1969. In this
same order, the trial court ordered the administrator, Atty. Jesus
Gaboya, Jr., to partition the properties of the deceased in the way and
manner they are divided and partitioned in the said Agreement of
Partition and further ordered that 40% of the market value of the 4/9
and 5/9 of the estate shall be segregated and reserved for attorney's
fees.
According to the manifestation of Judge Francisco Burgos dated July
5, 1982, (p. 197, Rollo, G. R. No. 41171) his court has not finally distributed
to the nine (9) declared heirs the properties due to the following
circumstances:
1. The court's determination of the market value of the estate
in order to segregate the 40% reserved for attorney's fees;
2. The order of December 24, 1974, declaring Fortunato
Borromeo as beneficiary of the 5/9 of the estate because of
the waiver agreement signed by the heirs representing the 5/9
group which is still pending resolution by this Court (G.R. No.
4117 1);
3. The refusal of administrator Jose Cuenco Borromeo to render
his accounting; and
4. The claim of Marcela Villegas for 1/2 of the estate causing
annotations of notices of lis pendens on the different titles of
the properties of the estate.
Since there are still real properties of the estate that were not vet
distributed to some of the declared heirs, particularly the 5/9 group of
heirs due to the pending resolution of the waiver agreement, this Court
in its resolution of June 15, 1983, required the judge of the Court of First
Instance of Cebu, Branch 11, to expedite the determination of Special
Proceedings No. 916-R and ordered the co-administrator Jose Cuenco
Borromeo to submit an inventory of real properties of the estate and to
render an accounting of cash and bank deposits realized from rents of
several properties.
The matter of attorney's fees shall be discussed in G.R. No. 65995.
Considering the pronouncements stated in:
1. G.R. No. 41171 & G.R. No. 55000, setting aside the Order of
the trial court dated December 24, 1974;
2. G.R. No. 63818, denying the petition for review seeking to
modify the decision of the Intermediate Appellate Court
insofar as it disqualifies and inhibits Judge Francisco P. Burgos
from further hearing the Intestate Estate of Vito Borromeo and
ordering the remand of the case to the Executive,Judge of the
Regional trial Court of Cebu for re-raffling; and
3. G.R. No. 65995, granting the petition to restrain the
respondents from further acting on any and all incidents in
Special proceedings No. 916-11 because of the affirmation of
the decision of the Intermediate Appellate Court in G.R. No.
63818.
the trial court may now terminate and close Special Proceedings No.
916-R, subject to the submission of an inventory of the real properties of
the estate and an accounting of the call and bank deposits of the
petitioner, as co-administrator of the estate, if he has not vet done so,
as required by this Court in its Resolution dated June 15, 1983. This must
be effected with all deliberate speed.
G.R. No. 63818
On June 9, 1979, respondents Jose Cuenco Borromeo and Petra 0.
Borromeo filed a motion for inhibition in the Court of First Instance of
Cebu, Branch 11, presided over by Judge Francisco P. Burgos to inhibit
the judge from further acting in Special Proceedings No. 916-R. 'The
movants alleged, among others, the following:
xxx xxx xxx
6. To keep the agitation to sell moving, Atty. Antigua filed a
motion for the production of the certificates of title and to
deposit the same with the Branch Clerk of Court, presumably
for the ready inspection of interested buyers. Said motion was
granted by the Hon. Court in its order of October 2, 1978 which,
however, became the subject of various motions for
reconsideration from heirs-distributees who contended that as
owners they cannot be deprived of their titles for the flimsy
reasons advanced by Atty, Antigua. In view of the motions for
reconsideration, Atty Antigua ultimately withdraw his motions
for production of titles.
 7. The incident concerning the production of titles triggered
another incident involving Atty. Raul H. Sesbreno who was then
the counsel of herein movants Petra O. Borromeo and
Amelinda B. Talam In connection with said incident, Atty.
Sesbreno filed a pleading which the tion. presiding, Judge
Considered direct contempt because among others, Atty.
Sesbreno insinuated that the Hon. Presiding Judge stands to
receive "fat commission" from the sale of the entire property.
Indeed, Atty. Sesbreno was seriously in danger of being
declared in contempt of court with the dim prospect of
suspension from the practice of his profession. But obviously to
extricate himself from the prospect of contempt and
suspension. Atty. Sesbreno chose rapproachment and
ultimately joined forces with Atty. Antigua, et al., who,
together, continued to harass administrator
xxx xxx xxx
9. The herein movants are informed and so they allege, that a
brother of the Hon. Presiding Judge is married to a sister of Atty.
Domingo L. Antigua.
10. There is now a clear tug of war bet ween Atty. Antigua, et
al. who are agitating for the sale of the entire estate or to buy
out the individual heirs, on the one hand, and the herein
movants, on the other, who are not willing to sell their
distributive shares under the terms and conditions presently
proposed. In this tug of war, a pattern of harassment has
become apparent against the herein movants, especially
Jose Cuenco Borromeo. Among the harassments employed
by Atty Antigua et al. are the pending motions for the removal
of administrator Jose Cuenco Borromeo, the subpoena duces
tecum issued to the bank which seeks to invade into the
privacy of the personal account of Jose Cuenco Borromeo,
and the other matters mentioned in paragraph 8 hereof. More
harassment motions are expected until the herein movants
shall finally yield to the proposed sale. In such a situation, the
herein movants beg for an entirely independent and impartial
judge to pass upon the merits of said incidents.
11. Should the Hon. Presiding Judge continue to sit and take
cognizance of this proceeding, including the incidents above-
mentioned, he is liable to be misunderstood as being biased in
favor of Atty Antigua, et al. and prejudiced against the herein
movants. Incidents which may create this impression need not
be enumerated herein. (pp. 39-41, Rollo)
The motion for inhibition was denied by Judge Francisco P. Burgos. Their
motion for reconsideration having been denied, the private
respondents filed a petition for certiorari and/or prohibition with
preliminary injunction before the Intermediate Appellate Court.
In the appellate court, the private respondents alleged, among others,
the following:
xxx xxx xxx
16. With all due respect, petitioners regret the necessity of
having to state herein that respondent Hon. Francisco P.
Burgos has shown undue interest in pursing the sale initiated by
Atty. Domingo L. Antigua, et al. Significantly, a brother of
respondent Hon. Francisco P. Burgos is married to a sister of
Atty. Domingo L. Antigua.
17. Evidence the proposed sale of the entire properties of the
estate cannot be legally done without the conformity of the
heirs-distributees because the certificates of title are already
registered in their names Hence, in pursuit of the agitation to
sell, respondent Hon. Francisco P. Burgos urged the heirs-
distributees to sell the entire property based on the rationale
that proceeds thereof deposited in the bank will earn interest
more than the present income of the so called estate. Most of
the heirs-distributees, however. have been petitioner timid to
say their piece. Only the 4/9 group of heirs led by Jose Cuenco
Borromeo have had the courage to stand up and refuse the
proposal to sell clearly favored by respondent Hon. Francisco
P. Burgos.
xxx xxx xxx
20. Petitioners will refrain from discussing herein the merits of the
shotgun motion of Atty. Domingo L. Antigua as well as other
incidents now pending in the court below which smack of
harassment against the herein petitioners. For, regardless of the
merits of said incidents, petitioners respectfully contend that it
is highly improper for respondent Hon. Francisco P. Burgos to
continue to preside over Sp. Proc. No. 916-R by reason of the
following circumstances:
(a) He has shown undue interest in the sale of the
properties as initiated by Atty. Domingo L. Antigua
whose sister is married to a brother of respondent.
(b) The proposed sale cannot be legally done without
the conformity of the heirs-distributees, and
petitioners have openly refused the sale, to the great
disappointment of respondent.
 (c) The shot gun motion of Atty. Antigua and similar
incidents are clearly intended to harass and
embarrass administrator Jose Cuenco Borromeo in
order to pressure him into acceding to the proposed
sale.
(d) Respondent has shown bias and prejudice against
petitioners by failing to resolve the claim for attorney's
fees filed by Jose Cuenco Borromeo and the late
Crispin Borromeo. Similar claims by the other lawyers
were resolved by respondent after petitioners refused
the proposed sale. (pp. 41-43, Rollo)
On March 1, 1983, the appellate court rendered its decision granting
the petition for certiorari and/or prohibition and disqualifying Judge
Francisco P. Burgos from taking further cognizance of Special
Proceedings No. 916-R. The court also ordered the transmission of the
records of the case to the Executive Judge of the Regional Trial Court
of Region VII for re-raffling.
A motion for reconsideration of the decision was denied by the
appellate court on April 11, 1983. Hence, the present petition for review
seeking to modify the decision of the Intermediate Appellate Court
insofar as it disqualifies and inhibits Judge Francisco P. Burgos from
further hearing the case of Intestate Estate of Vito Borromeo and orders
the remand of the case to the Executive Judge of the Regional Trial
Court of Cebu for re-raffling.
The principal issue in this case has become moot and academic
because Judge Francisco P. Burgos decided to retire from the Regional
Trial Court of Cebu sometime before the latest reorganization of the
judiciary. However, we decide the petition on its merits for the guidance
of the judge to whom this case will be reassigned and others
concerned.
The petitioners deny that respondent Jose Cuenco Borromeo has been
harassed. They contend that Judge Burgos has benn shown unusual
interest in the proposed sale of the entire estate for P6,700,000.00 in
favor of the buyers of Atty. Antigua. They claim that this disinterest is
shown by the judge's order of March 2, 1979 assessing the property of
the estate at P15,000,000.00. They add that he only ordered the
administrator to sell so much of the properties of the estate to pay the
attorney's fees of the lawyers-claimants. To them, the inhibition of Judge
Burgos would have been unreasonable because his orders against the
failure of Jose Cuenco Borromeo, as administrator, to give an
accounting and inventory of the estate were all affirmed by the
appellate court. They claim that the respondent court, should also have
taken judicial notice of the resolution of this Court directing the said
judge to "expedite the settlement and adjudication of the case" in G.R.
No. 54232. And finally, they state that the disqualification of judge
Burgos would delay further the closing of the administration proceeding
as he is the only judge who is conversant with the 47 volumes of the
records of the case.
Respondent Jose Cuenco Borromeo, to show that he had been
harassed. countered that Judge Burgos appointed Ricardo V. Reyes as
co-administrator of the estate on October 11, 1972, yet Borromeo was
singled out to make an accounting of what t he was supposed to have
received as rentals for the land upon which the Juliana Trade Center is
erected, from January, 1977 to February 1982, inclusive, without
mentioning the withholding tax for the Bureau of Internal Revenue. In
order to bolster the agitation to sell as proposed by Domingo L. Antigua,
Judge Burgos invited Antonio Barredo, Jr., to a series of conferences
from February 26 to 28, 1979. During the conferences, Atty. Antonio
Barredo, Jr., offered to buy the shares of the heirs-distributees
presumably to cover up the projected sale initiated by Atty. Antigua.
On March 2, 1979, or two days after the conferences, a motion was filed
by petitioner Domingo L. Antigua praying that Jose Cuenco Borromeo
be required to file an inventory when he has already filed one to
account for cash, a report on which the administrators had already
rendered: and to appear and be examined under oath in a
proceeding conducted by Judge Burgos lt was also prayed that
subpoena duces tecum be issued for the appearance of the Manager
of the Consolidated Bank and Trust Co., bringing all the bank records in
the name of Jose Cuenco Borromeo jointly with his wife as well as the
appearance of heirs-distributees Amelinda Borromeo Talam and
another heir distributee Vitaliana Borromeo. Simultaneously with the
filing of the motion of Domingo Antigua, Atty. Raul H. Sesbreno filed a
request for the issuance of subpoena duces tecum to the Manager of
Consolidated Bank and 'Trust Co., Inc.; Register of Deeds of Cebu City;
Register of Deeds for the Province of Cebu and another
subpoena duces tecum to Atty. Jose Cuenco Borromeo.
On the same date, the Branch Clerk of Court issued a subpoena duces
tecum to the Managert of the bank, the Register of deeds for the City
of Cebu, the Register of Deeds for the Province, of Cebu. and to Jose
Cuenco Borromeo.
On the following day, March 3, 1979, Atty Gaudioso v. Villagonzalo in
behalf of the heirs of Marcial Borromeo who had a common cause with
Atty Barredo, Jr., joined petitioner Domingo L. Antigua by filing a motion
for relief of the administrator.
On March 5, 1979, Atty. Villagonzalo filed a request for the issuance of
a subpoena duces tecum to private respondent Jose Cuenco
Borromeo to bring and produce all the owners" copies of the titles in the
court presided order by Judge Burgos.
Consequently. the Branch Clerk of Court issued a subpoena duces
tecum commanding Atty. Jose Cuenco Borromeo to bring and
produce the titles in court.
All the above-incidents were set for hearing on June 7, 1979 but on June
14, 1979, before the date of the hearing, Judge Burgos issued an order
denying the private respondents' motion for reconsideration and the
motion to quash the subpoena.1avvphi1
It was further argued by the private respondents that if ,judge Francisco
P. Burgos is not inhibited or disqualified from trying Sp. Proc. No. 916-R,
there would be a miscarriage of justice Because for the past twelve
years, he had not done anything towards the closure of the estate
proceedings except to sell the properties of the heirs-distributees as
initiated by petitioner Domingo L. Antigua at 6.7 million pesos while the
Intestate Court had already evaluated it at 15 million pesos.
The allegations of the private respondents in their motion for inhibition,
more specifically, the insistence of the trial judge to sell the entire estate
at P6,700,000.00, where 4/9 group of heirs objected, cannot easily be
ignored. Suspicion of partiality on the part of a trial judge must be
avoided at all costs. In the case of Bautista v. Rebeuno (81 SCRA 535),
this Court stated:
... The Judge must maintain and preserve the trust and faith of
the parties litigants. He must hold himself above reproach and
suspicion. At the very first sign of lack of faith and trust to his
actions, whether well grounded or not, the Judge has no other
alternative but inhibit himself from the case. A judge may not
be legally Prohibited from sitting in a litigation, but when
circumstances appear that will induce doubt to his honest
actuations and probity in favor or of either partly or incite such
state of mind, he should conduct a careful self-examination.
He should exercise his discretion in a way that the people's
faith in the Courts of Justice is not impaired, "The better course
for the Judge under such circumstances is to disqualify himself
"That way he avoids being misunderstood, his reputation for
probity and objectivity is preserve ed. what is more important,
the Ideal of impartial administration of justice is lived up to.
In this case, the fervent distrust of the private respondents is based on
sound reasons. As Earlier stated, however, the petition for review
seeking to modify the decision of the Intermediate Appellate Court
insofar as it disqualifies and inhibits Judge Francisco P. Burgos from
further hearing the Intestate Estate of Vito Borromeo case and ordering
the remand of the case to the Executive Judge of the Regional Trial
Court for re-raffling should be DENIED for the decision is not only valid
but the issue itself has become moot and academic.
G.R. No. 65995
The petitioners seek to restrain the respondents from further acting on
any and all incidents in Special Proceedings No. 916-R during the
pendency of this petition and No. 63818. They also pray that all acts of
the respondents related to the said special proceedings after March 1,
1983 when the respondent Judge was disqualified by the appellate
court be declared null and void and without force and effect
whatsoever.
The petitioners state that the respondent Judge has set for hearing all
incidents in Special Proceedings No. 916-R, including the reversion from
the heirs-distributees to the estate, of the distributed properties already
titled in their names as early as 1970, notwithstanding the pending
inhibition case elevated before this Court which is docketed as G.R. No.
63818.
The petitioners further argue that the present status of Special
Proceeding No. 916-R requires only the appraisal of the attorney's fees
of the lawyers-claimants who were individually hired by their respective
heirs-clients, so their attorney's fees should be legally charged against
their respective clients and not against the estate.
On the other hand, the respondents maintain that the petition is a
dilatory one and barred by res judicata because this Court on July 8,
1981, in G.R. No. 54232 directed the respondent Judge to expedite the
settlement and liquidation of the decedent's estate. They claim that this
resolution, which was already final and executory, was in effect
reversed and nullified by the Intermediate Appellate Court in its case-
AC G.R.-No. SP - 11145 — when it granted the petition for certiorari and
or prohibition and disqualified Judge Francisco P. Burgos from taking
further cognizance of Special Proceedings No. 916R as well as ordering
the transmission of the records of the case to the Executive Judge of
the Regional Trial Court of Region VII for re-raffling on March 1, 1983,
which was appealed to this Court by means of a Petition for Review
(G.R. No. 63818).
We agree with the petitioners' contention that attorney's fees are not
the obligation of the estate but of the individual heirs who individually
hired their respective lawyers. The portion, therefore, of the Order of
August 15, 1969, segregating the exhorbitantly excessive amount of 40%
of the market value of the estate from which attorney's fees shall be
taken and paid should be deleted.
Due to our affirmance of the decision of the Intermediate Appellate
Court in G.R. No. 63818, we grant the petition.
WHEREFORE, —
 (1) In G.R. No. 41171, the order of the respondent judge dated
December 24, 1974, declaring the respondent entitled to 5/9
of the estate of the late Vito Borromeo and the order dated
July 7, 1975, denying the petitioner's motion for reconsideration
of the aforementioned order are hereby SET ASIDE for being
NULL and VOID;

(2) In G.R. No. 55000, the order of the trial court declaring the
waiver document valid is hereby SET ASIDE;

(3) In G.R. No. 63818, the petition is hereby DENIED. The issue in
the decision of the Intermediate Appellate Court disqualifying
and ordering the inhibition of Judge Francisco P. Burgos from
further hearing Special Proceedings No. 916-R is declared
moot and academic. The judge who has taken over the sala
of retired Judge Francisco P. Burgos shall immediately conduct
hearings with a view to terminating the proceedings. In the
event that the successor-judge is likewise disqualified, the
order of the Intermediate Appellate Court directing the
Executive Judge of the Regional Trial Court of Cebu to re-raffle
the case shall be implemented:

(4) In G.R. No. 65995, the petition is hereby GRANTED. 'The issue
seeking to restrain Judge Francisco P. Burgos from further
acting in G.R. No. 63818 is MOOT and ACADEMIC:

(5) In G.R, No, 62895, the trial court is hereby ordered to

speedily terminate the close Special Proceedings No. 916-R,
subject to the submission of an inventory of the real properties
of the estate and an accounting of the cash and bank
deposits by the petitioner-administrator of the estate as
required by this Court in its Resolution dated June 15, 1983; and

(6) The portion of the Order of August 15, 1969, segregating

40% of the market value of the estate from which attorney's
fees shall be taken and paid should be, as it is hereby DELETED.
The lawyers should collect from the heirs-distributees who
individually hired them, attorney's fees according to the nature
of the services rendered but in amounts which should not
exceed more than 20% of the market value of the property the
latter acquired from the estate as beneficiaries.

SO ORDERED.

Feliciano, Bidin and Cortes, JJ., concur.

Fernan (Chairman), took no part.
TEODORA A. RIOFERIO, VERONICA O. EVANGELISTA assisted by her
husband ZALDY EVANGELISTA, ALBERTO ORFINADA, and
ROWENA O. UNGOS, assisted by her husband BEDA
UNGOS, petitioners, vs. COURT OF APPEALS, ESPERANZA P.
ORFINADA, LOURDES P. ORFINADA, ALFONSO ORFINADA,
NANCY P. ORFINADA, ALFONSO JAMES P. ORFINADA,
CHRISTOPHER P. ORFINADA and ANGELO P.
ORFINADA, respondents.
DECISION
TINGA, J.:
Whether the heirs may bring suit to recover property of the estate
pending the appointment of an administrator is the issue in this case.
This Petition for Review on Certiorari, under Rule 45 of the Rules of
Court, seeks to set aside the Decision[1] of the Court of Appeals in CA-
G.R. SP No. 42053 dated January 31, 1997, as well as
its Resolution[2] dated March 26, 1997, denying petitioners motion for
reconsideration.
On May 13, 1995, Alfonso P. Orfinada, Jr. died without a will in
Angeles City leaving several personal and real properties located in
Angeles City, Dagupan City and Kalookan City.[3] He also left a widow,
respondent Esperanza P. Orfinada, whom he married on July 11, 1960
and with whom he had seven children who are the herein respondents,
namely: Lourdes P. Orfinada, Alfonso Clyde P. Orfinada, Nancy P.
Orfinada-Happenden, Alfonso James P. Orfinada, Christopher P.
Orfinada, Alfonso Mike P. Orfinada (deceased) and Angelo P.
Orfinada.[4]
Apart from the respondents, the demise of the decedent left in
mourning his paramour and their children. They are petitioner Teodora
Riofero, who became a part of his life when he entered into an extra-
marital relationship with her during the subsistence of his marriage to
Esperanza sometime in 1965, and co-petitioners Veronica[5], Alberto
and Rowena.[6]
On November 14, 1995, respondents Alfonso James and Lourdes
Orfinada discovered that on June 29, 1995, petitioner Teodora Rioferio
and her children executed an Extrajudicial Settlement of Estate of a
Deceased Person with Quitclaim involving the properties of the estate
of the decedent located in Dagupan City and that accordingly, the
Registry of Deeds in Dagupan issued Certificates of Titles Nos. 63983,
63984 and 63985 in favor of petitioners Teodora Rioferio, Veronica
Orfinada-Evangelista, Alberto Orfinada and Rowena Orfinada-Ungos.
Respondents also found out that petitioners were able to obtain a loan
of P700,000.00 from the Rural Bank of Mangaldan Inc. by executing
a Real Estate Mortgage over the properties subject of the extra-judicial
settlement.[7]
On December 1, 1995, respondent Alfonso Clyde P. Orfinada III
filed a Petition for Letters of Administration docketed as S.P. Case No.
5118 before the Regional Trial Court of Angeles City, praying that letters
of administration encompassing the estate of Alfonso P. Orfinada, Jr. be
issued to him.[8]
On December 4, 1995, respondents filed a Complaint for the
Annulment/Rescission of Extra Judicial Settlement of Estate of a
Deceased Person with Quitclaim, Real Estate Mortgage and
Cancellation of Transfer Certificate of Titles with Nos. 63983, 63985 and
63984 and Other Related Documents with Damages against
petitioners, the Rural Bank of Mangaldan, Inc. and the Register of Deeds
of Dagupan City before the Regional Trial Court, Branch 42, Dagupan
City.[9]
On February 5, 1996, petitioners filed their Answer to the aforesaid
complaint interposing the defense that the property subject of the
contested deed of extra-judicial settlement pertained to the properties
originally belonging to the parents of Teodora Riofero[10] and that the
titles thereof were delivered to her as an advance inheritance but the
decedent had managed to register them in his name.[11] Petitioners also
raised the affirmative defense that respondents are not the real parties-
in-interest but rather the Estate of Alfonso O. Orfinada, Jr. in view of the
pendency of the administration proceedings.[12] On April 29, 1996,
petitioners filed a Motion to Set Affirmative Defenses for Hearing[13] on
the aforesaid ground.
The lower court denied the motion in its Order[14] dated June 27,
1996, on the ground that respondents, as heirs, are the real parties-in-
interest especially in the absence of an administrator who is yet to be
appointed in S.P. Case No. 5118. Petitioners moved for its
reconsideration[15] but the motion was likewise denied.[16]
This prompted petitioners to file before the Court of Appeals
their Petition for Certiorari under Rule 65 of the Rules of Court docketed
as CA G.R. S.P. No. 42053.[17] Petitioners averred that the RTC committed
grave abuse of discretion in issuing the assailed order which denied the
dismissal of the case on the ground that the proper party to file the
complaint for the annulment of the extrajudicial settlement of the
estate of the deceased is the estate of the decedent and not the
respondents.[18]
The Court of Appeals rendered the assailed Decision[19] dated
January 31, 1997, stating that it discerned no grave abuse of discretion
amounting to lack or excess of jurisdiction by the public respondent
judge when he denied petitioners motion to set affirmative defenses for
hearing in view of its discretionary nature.
A Motion for Reconsideration was filed by petitioners but it was
denied.[20] Hence, the petition before this Court.
The issue presented by the petitioners before this Court is whether
the heirs have legal standing to prosecute the rights belonging to the
deceased subsequent to the commencement of the administration
proceedings.[21]
Petitioners vehemently fault the lower court for denying their
motion to set the case for preliminary hearing on their affirmative
defense that the proper party to bring the action is the estate of the
decedent and not the respondents. It must be stressed that the holding
of a preliminary hearing on an affirmative defense lies in the discretion
of the court. This is clear from the Rules of Court, thus:
SEC. 5. Pleadings grounds as affirmative defenses.- Any of the grounds
for dismissal provided for in this rule, except improper venue, may be
pleaded as an affirmative defense, and a preliminary hearing may be
had thereon as if a motion to dismiss had been filed.[22] (Emphasis
supplied.)
Certainly, the incorporation of the word may in the provision is
clearly indicative of the optional character of the preliminary hearing.
The word denotes discretion and cannot be construed as having a
mandatory effect.[23] Subsequently, the electivity of the proceeding
was firmed up beyond cavil by the 1997 Rules of Civil Procedure with
the inclusion of the phrase in the discretion of the Court, apart from the
retention of the word may in Section 6,[24] in Rule 16 thereof.
Just as no blame of abuse of discretion can be laid on the lower
courts doorstep for not hearing petitioners affirmative defense, it
cannot likewise be faulted for recognizing the legal standing of the
respondents as heirs to bring the suit.
Pending the filing of administration proceedings, the heirs without
doubt have legal personality to bring suit in behalf of the estate of the
decedent in accordance with the provision of Article 777 of the New
Civil Code that (t)he rights to succession are transmitted from the
moment of the death of the decedent. The provision in turn is the
foundation of the principle that the property, rights and obligations to
the extent and value of the inheritance of a person are transmitted
through his death to another or others by his will or by operation of
law.[25]
Even if administration proceedings have already been
commenced, the heirs may still bring the suit if an administrator has not
yet been appointed. This is the proper modality despite the total lack of
advertence to the heirs in the rules on party representation, namely
Section 3, Rule 3[26] and Section 2, Rule 87[27] of the Rules of Court. In
fact, in the case of Gochan v. Young,[28] this Court recognized the legal
standing of the heirs to represent the rights and properties of the
decedent under administration pending the appointment of an
administrator. Thus:
The above-quoted rules,[29] while permitting an executor or
administrator to represent or to bring suits on behalf of the deceased,
do not prohibit the heirs from representing the deceased. These rules
are easily applicable to cases in which an administrator has already
been appointed. But no rule categorically addresses the situation in
which special proceedings for the settlement of an estate have already
been instituted, yet no administrator has been appointed. In such
instances, the heirs cannot be expected to wait for the appointment of
an administrator; then wait further to see if the administrator appointed
would care enough to file a suit to protect the rights and the interests
of the deceased; and in the meantime do nothing while the rights and
the properties of the decedent are violated or dissipated.
Even if there is an appointed administrator, jurisprudence
recognizes two exceptions, viz: (1) if the executor or administrator is
unwilling or refuses to bring suit;[30] and (2) when the administrator is
alleged to have participated in the act complained of[31] and he is
made a party defendant.[32] Evidently, the necessity for the heirs to seek
judicial relief to recover property of the estate is as compelling when
there is no appointed administrator, if not more, as where there is an
appointed administrator but he is either disinclined to bring suit or is one
of the guilty parties himself.
All told, therefore, the rule that the heirs have no legal standing to
sue for the recovery of property of the estate during the pendency of
administration proceedings has three exceptions, the third being when
there is no appointed administrator such as in this case.
As the appellate court did not commit an error of law in upholding
the order of the lower court, recourse to this Court is not warranted.
WHEREFORE, the petition for review is DENIED. The assailed decision
and resolution of the Court of Appeals are hereby AFFIRMED. No costs.
SO ORDERED.
Puno, (Chairman), Quisumbing, Austria-Martinez, and Callejo, Sr.,
JJ., concur.
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. Gonzales for private respondent.
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
appointment as administratrix of the estate of the deceased testatrix.
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-partepresentation 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 Dasmariñas, 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 WHEREFORE, the petition for certiorari and prohibition is hereby
relief, the records wig bear the fact that what was repeatedly dismissed for lack of merit.
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 SO ORDERED.
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 Melencio-Herrera, Plana, Relova and De la Fuente, JJ., concur.
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 Teehankee, J., (Chairman), took no part.
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).
G.R. No. L-22036 April 30, 1979
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. Tañedo, 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 Rigor-Quiambao. 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 año 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 año, 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 5 6 9 3 8
who shall take the priesthood, and in the interim to be 2 6 2 3 0
administered by the actual Catholic Priest of the 1 5 .
Roman Catholic Church of Victoria, Tarlac, 1 0
Philippines, or his successors, the real properties 0
hereinbelow indicated, to wit:

Total amount and value — 44.1163 P13,090.00

T L A T A
i o r a s Judge Roman A. Cruz in his order of August 15, 1940, approving the
t t e x s project of partition, directed that after payment of the obligations of
l N a D . the estate (including the sum of P3,132.26 due to the church of the
e o i e V Victoria parish) the administratrix should deliver to the devisees their
N . n c a respective shares.
o H . l
. a u It may be noted that the administratrix and Judge Cruz did not bother
s e 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
T 3 1 1 P administratrix and the legal heirs believed that the parish priest of
- 6 . 8 3 Victoria had no right to administer the ricelands, the same were not
6 6 6 7 4 delivered to that ecclesiastic. The testate proceeding remained
5 3 2 4 0 pending.
3 4 0 .
0 9 0 About thirteen years after the approval of the project of partition, or on
0 February 19, 1954, the parish priest of Victoria filed in the pending
testate proceeding a petition praying for the appointment of a new
T 3 2 1 7 administrator (succeeding the deceased administration Florencia
- 4 4 8 , Rigor), who should deliver to the church the said ricelands, and further
6 4 . 7 2 praying that the possessors thereof be ordered to render an accounting
5 5 2 3 9 of the fruits. The probate court granted the petition. A new administrator
4 - 9 0 0 was appointed. On January 31, 1957 the parish priest filed another
8 C 9 . petition for the delivery of the ricelands to the church as trustee.
8 0
0 The intestate heirs of Father Rigor countered with a petition dated
March 25, 1957 praying that the bequest be d inoperative and that they
T 3 6 1 1 be adjudged as the persons entitled to the said ricelands since, as
- 6 . 8 , admitted by the parish priest of Victoria, "no nearest male relative of"
6 7 2 7 8 the testator "has ever studied for the priesthood" (pp. 25 and 35, Record
5 0 6 3 8 on Appeal). That petition was opposed by the parish priest of Victoria.
2 6 6 0
5 5 . Finding that petition to be meritorious, the lower court, through Judge
0 Bernabe de Aquino, declared the bequest inoperative and
0 adjudicated the ricelands to the testator's legal heirs in his order of June
28, 1957. The parish priest filed two motions for reconsideration.
T 3 1 1 3
- 6 1 8 , Judge De Aquino granted the respond motion for reconsideration in his
6 . 7 5 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 re-statement 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 Fernando, C.J.(Actg. ), Barredo (Actg. Chairman), Antonio,
became a priest, the unavoidable conclusion is that the bequest in Concepcion, Jr., and Santos, JJ., concur.
question was ineffectual or inoperative. Therefore, the administration of
the ricelands by the parish priest of Victoria, as envisaged in the wilt was Abad Santos, J., took no part.
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
G.R. No. L-23638 October 12, 1967
DIONISIO FERNANDEZ, EUSEBIO REYES and LUISA REYES, petitioners,
vs.
ISMAELA DIMAGIBA, respondent.
----------------------------------------
G.R. No. L-23662 October 12, 1967
MARIANO REYES, CESAR REYES, LEONOR REYES and PACIENCIA
REYES, petitioners,
vs.
ISMAELA DIMAGIBA, respondent.
Jose D. Villena for petitioners.
Antonio Barredo and Exequiel M. Zaballero for respondent.
REYES, J.B.L., Actg. C.J.:
The heirs intestate of the late Benedicta de los Reyes have petitioned
for a review of the decision of the Court of Appeals (in CA-G. R. No.
31221-R) affirming that of the Court of First Instance of Bulacan, in
Special Proceeding No. 831 of said Court, admitting to probate the
alleged last will and testament of the deceased, and overruling the
opposition to the probate.
It appears from the record that on January 19, 1955, Ismaela Dimagiba,
now respondent, submitted to the Court of First Instance a petition for
the probate of the purported will of the late Benedicta de los Reyes,
executed on October 22, 1930, and annexed to the petition. The will
instituted the petitioner as the sole heir of the estate of the deceased.
The petition was set for hearing, and in due time, Dionisio Fernandez,
Eusebio Reyes and Luisa Reyes and one month later, Mariano, Cesar,
Leonor and Paciencia, all surnamed Reyes, all claiming to be heirs
intestate of the decedent, filed oppositions to the probate asked.
Grounds advanced for the opposition were forgery, vices of consent of
the testatrix, estoppel by laches of the proponent and revocation of
the will by two deeds of conveyance of the major portion of the estate
made by the testatrix in favor of the proponent in 1943 and 1944, but
which conveyances were finally set aside by this Supreme Court in a
decision promulgated on August 3, 1954, in cases G.R. Nos. L-5618 and
L-5620 (unpublished).
After trial on the formulated issues, the Court of First Instance, by
decision of June 20, 1958, found that the will was genuine and properly
executed; but deferred resolution on the questions of estoppel and
revocation "until such time when we shall pass upon the intrinsic validity
of the provisions of the will or when the question of adjudication of the
properties is opportunely presented."
Oppositors Fernandez and Reyes petitioned for reconsideration, and/or
new trial, insisting that the issues of estoppel and revocation be
considered and resolved; whereupon, on July 27, 1959, the Court
overruled the claim that proponent was in estoppel to ask for the
probate of the will, but "reserving unto the parties the right to raise the
issue of implied revocation at the opportune time."
On January 11, 1960, the Court of First Instance appointed Ricardo Cruz
as administrator for the sole purpose of submitting an inventory of the
estate, and this was done on February 9, 1960.
On February 27, 1962, after receiving further evidence on the issue
whether the execution by the testatrix of deeds of sale of the larger
portion of her estate in favor of the testamentary heir, made in 1943 and
1944, subsequent to the execution of her 1930 testament, had revoked
the latter under Article 957(2) of the 1950 Civil Code (Art. 869 of the Civil
Code of 1889), the trial Court resolved against the oppositors and held
the will of the late Benedicta de los Reyes "unaffected and unrevoked
by the deeds of sale." Whereupon, the oppositors elevated the case to
the Court of Appeals.
The appellate Court held that the decree of June 20, 1958, admitting
the will to probate, had become final for lack of opportune appeal;
that the same was appealable independently of the issue of implied
revocation; that contrary to the claim of oppositors-appellants, there
had been no legal revocation by the execution of the 1943 and 1944
deeds of sale, because the latter had been made in favor of the
legatee herself, and affirmed the decision of the Court of First Instance.
Oppositors then appealed to this Court.
In this instance, both sets of oppositors-appellants pose three main
issues: (a) whether or not the decree of the Court of First Instance
allowing the will to probate had become final for lack of appeal; (b)
whether or not the order of the Court of origin dated July 27, 1959,
overruling the estoppel invoked by oppositors-appellants had likewise
become final; and (c) whether or not the 1930 will of Benedicta de los
Reyes had been impliedly revoked by her execution of deeds of
conveyance in favor of the proponent on March 26, 1943 and April 3,
1944.
As to the first point, oppositors-appellants contend that the order
allowing the will to probate should be considered interlocutory,
because it fails to resolve the issues of estoppel and revocation
propounded in their opposition. We agree with the Court of Appeals
that the appellant's stand is untenable. It is elementary that a probate
decree finally and definitively settles all questions concerning capacity
of the testator and the proper execution and witnessing of his last will
and testament, irrespective of whether its provisions are valid and
enforceable or otherwise. (Montañano vs. Suesa, 14 Phil. 676; Mercado
vs. Santos, 66 Phil. 215; Trillana vs. Crisostomo, 89 Phil. 710). As such, the
probate order is final and appealable; and it is so recognized by express
provisions of Section 1 of Rule 109, that specifically prescribes that "any
interested person may appeal in special proceedings from an order or
judgment . . . where such order or judgment: (a) allows or disallows a
will."
Appellants argue that they were entitled to await the trial Court's
resolution on the other grounds of their opposition before taking an
appeal, as otherwise there would be a multiplicity of recourses to the
higher Courts. This contention is without weight, since Rule 109, section
1, expressly enumerates six different instances when appeal may be
taken in special proceedings.
There being no controversy that the probate decree of the Court below
was not appealed on time, the same had become final and
conclusive. Hence, the appellate courts may no longer revoke said
decree nor review the evidence upon which it is made to rest. Thus, the
appeal belatedly lodged against the decree was correctly dismissed.
The alleged revocation implied from the execution of the deeds of
conveyance in favor of the testamentary heir is plainly irrelevant to and
separate from the question of whether the testament was duly
executed. For one, if the will is not entitled to probate, or its probate is
denied, all questions of revocation become superfluous in law, there is
no such will and hence there would be nothing to revoke. Then, again,
the revocation invoked by the oppositors-appellants is not an express
one, but merely implied from subsequent acts of the testatrix allegedly
evidencing an abandonment of the original intention to bequeath or
devise the properties concerned. As such, the revocation would not
affect the will itself, but merely the particular devise or legacy. Only
the total and absolute revocation can preclude probate of the
revoked testament (Trillana vs. Crisostomo, supra.).
As to the issue of estoppel, we have already ruled in Guevara vs.
Guevara, 98 Phil. 249, that the presentation and probate of a will are
requirements of public policy, being primarily designed to protect the
testator's, expressed wishes, which are entitled to respect as a
consequence of the decedent's ownership and right of disposition
within legal limits. Evidence of it is the duty imposed on a custodian of
a will to deliver the same to the Court, and the fine and imprisonment
prescribed for its violation (Revised Rule 75). It would be a non
sequitur to allow public policy to be evaded on the pretext of estoppel.
Whether or not the order overruling the allegation of estoppel is still
appealable or not, the defense is patently unmeritorious and the Court
of Appeals correctly so ruled.
The last issue, that of revocation, is predicated on paragraph 2 of Article
957 of the Civil Code of 1950 (Art. 869 of the Code of 1889), which
recites:
Art. 957. The legacy or devise shall be without effect:
(1) . . . .
(2) If the testator by any title or for any cause alienates the
thing bequeathed or any part thereof, it being understood
that in the latter case the legacy or devise shall be without
effect only with respect to the part thus alienated. If after the
alienation the thing should again belong to the testator, even
if it be by reason of nullity of the contract, the legacy or devise
shall not thereafter be valid, unless the reacquisition shall have
been effected by virtue of the exercise of the right of
repurchase;
xxx xxx xxx
It is well to note that, unlike in the French and Italian Codes, the basis of
the quoted provision is a presumed change of intention on the part of
the testator. As pointed out by Manresa in his Commentaries on Article
869 of the Civil Code (Vol. 6, 7th Ed., p. 743) —
Este caso se funda en la presunta voluntad del testador. Si
este, despues de legar, se desprende de la cosa por titulo
lucrativo u oneroso, hace desaparecer su derecho sobra ella,
dando lugar a la presuncion de que ha cambiado de
voluntad, y no quiere que el legado se cumpla. Mas para que
pueda presumirse esa voluntad, es necesario que medien
actos del testador que la indiquen. Si la perdida del derecho
sobre la cosa ha sido independiente de la voluntad del
testador, el legado podraquedar sin efecto, mas no en virtud
del numero 2 del articulo 869, que exige siempre actos
voluntarios de enajenacion por parte del mismo testador.
As observed by the Court of Appeals, the existence of any such change
or departure from the original intent of the testatrix, expressed in her
1930 testament, is rendered doubtful by the circumstance that the
subsequent alienations in 1943 and 1944 were executed in favor of the
legatee herself, appellee Dimagiba. In fact, as found by the Court of
Appeals in its decision annulling these conveyances (affirmed in that
point by this Supreme Court in Reyes vs. Court of Appeals and
Dimagiba, L-5618 and L-5620, promulgated on July 31, 1954), "no
consideration whatever was paid by respondent Dimagiba" on
account of the transfers, thereby rendering it even more doubtful
whether in conveying the property to her legatee, the testatrix merely
intended to comply in advance with what she had ordained in her
testament, rather than an alteration or departure
therefrom.1 Revocation being an exception, we believe, with the
Courts below, that in the circumstances of the particular case, Article
957 of the Civil Code of the Philippines, does not apply to the case at
bar.

Not only that, but even if it were applicable, the annulment of the
conveyances would not necessarily result in the revocation of the
legacies, if we bear in mind that the findings made in the decision
decreeing the annulment of the subsequent 1943 and 1944 deeds of
sale were also that

it was the moral influence, originating from their confidential

relationship, which was the only cause for the execution of
Exhs. A and B (the 1943 and 1944 conveyances). (Decision, L-
5618 and L-5620).

If the annulment was due to undue influence, as the quoted passage

implies, then the transferor was not expressing her own free will and
intent in making the conveyances. Hence, it can not be concluded,
either, that such conveyances established a decision on her part to
abandon the original legacy.

True it is that the legal provision quoted prescribes that the recovery of
the alienated property "even if it be by reason of the nullity of the
contract" does not revive the legacy; but as pointed out by Scaevola
(Codigo Civil, Vol. XV, 4th Ed., pp. 324-325) the "nullity of the contract"
can not be taken in an absolute sense.2 Certainly, it could not be
maintained, for example, that if a testator's subsequent alienation were
avoided because the testator was mentally deranged at the time, the
revocatory effect ordained by the article should still ensue. And the
same thing could be said if the alienation (posterior to the will) were
avoided on account of physical or mental duress. Yet, an alienation
through undue influence in no way differs from one made through
violence or intimidation. In either case, the transferor is not expressing
his real intent,3 and it can not be held that there was in fact an
alienation that could produce a revocation of the anterior bequest.

In view of the foregoing considerations, the appealed decision of the

Court of Appeals is hereby affirmed. Costs against appellants Reyes
and Fernandez. So ordered.

Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles and Fernando,

JJ., concur.
Concepcion, C.J. and Bengzon, J.P., J., are on leave, took no part.
 On April 27, 1987, Margarita died single and without any
SECOND DIVISION ascending nor descending heirs as her parents, grandparents and
siblings predeceased her. She was survived by her first cousins Catalina
PAZ SAMANIEGO-CELADA, G.R. No. 145545
Petitioner, Samaniego-
Present: Bombay, Manuelita Samaniego Sajonia, Feliza Samaniego, and

QUISUMBING, J., Chairperson, petitioner.

- versus - CARPIO MORALES,
TINGA,
VELASCO, JR., and Before her death, Margarita executed a Last Will and
BRION, JJ. Testament[3] on February 2, 1987 where she bequeathed one-half of her

LUCIA D. ABENA, Promulgated: undivided share of a real property located at Singalong Manila,
Respondent. consisting of 209.8 square meters, and covered by Transfer Certificate
June 30, 2008
of Title (TCT) No. 1343 to respondent, Norma A. Pahingalo, and
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - -x Florentino M. Abena in equal shares or one-third portion each. She
likewise bequeathed one-half of her undivided share of a real property
DECISION
located at San AntonioVillage, Makati, consisting of 225 square meters,
and covered by TCT No. 68920 to respondent, Isabelo M. Abena, and
Amanda M. Abena in equal shares or one-third portion each. Margarita
QUISUMBING, J.:
also left all her personal properties to respondent whom she likewise

This is a petition for review under Rule 45 of the 1997 Rules of designated as sole executor of her will.

Civil Procedure seeking to reverse the Decision[1] dated October 13,

2000 of the Court of Appeals in CA-G.R. CV No. 41756, which affirmed
the Decision[2] dated March 2, 1993 of the Regional Trial Court (RTC),
Branch 66, Makati City. The RTC had declared the last will and
testament of Margarita S. Mayores probated and designated
respondent Lucia D. Abena as the executor of her will. It also ordered
the issuance of letters testamentary in favor of respondent.
The facts are as follows:
On August 11, 1987, petitioner filed a petition for letters of
administration of the estate of Margarita before the RTC of Makati. The
case was docketed as SP Proc. No. M-1531.
On October 27, 1987, respondent filed a petition for probate
of the will of Margarita before the RTC of Makati. The case was
docketed as SP Proc. No. M-1607 and consolidated with SP Proc. No. M-
1531.

Petitioner Paz Samaniego-Celada was the first cousin of On March 2, 1993, the RTC rendered a decision declaring the
decedent Margarita S. Mayores (Margarita) while respondent was the last will and testament of Margarita probated and respondent as the
decedents lifelong companion since 1929. executor of the will. The dispositive portion of the decision states:

In view of the foregoing, judgment is hereby

rendered:
 1) declaring the will as probated;
2) declaring Lucia Abena as the executor
of the will who will serve as such without
a bond as stated in paragraph VI of the
probated will;
3) ordering the issuance of letters
testamentary in favor of Lucia Abena.
So ordered.[4]
Petitioner appealed the RTC decision to the Court of
Appeals. But the Court of Appeals, in a decision dated October 13,
2000, affirmed in toto the RTC ruling.The dispositive portion of the Court
of Appeals decision states:
WHEREFORE, foregoing premises considered,
the appeal having no merit in fact and in law, is
hereby ORDERED DISMISSED and the appealed
Decision of the trial court AFFIRMED IN TOTO, with cost
to oppositors-appellants.
SO ORDERED.[5]
Hence, the instant petition citing the following issues:
I.
WHETHER OR NOT THE COURT OF APPEALS COMMITTED
A REVERSIBLE ERROR IN NOT INVALIDATING THE WILL
SINCE IT DID NOT CONFORM TO THE FORMALITIES
REQUIRED BY LAW;
II.
WHETHER OR NOT THE COURT OF APPEALS
COMMITTED ERROR IN NOT INVALIDATING THE WILL
BECAUSE IT WAS PROCURED THROUGH UNDUE
INFLUENCE AND PRESSURE[;] AND
III.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY
ERRED IN NOT DECLARING PETITIONER, HER SIBLINGS
AND COUSIN AS THE LEGAL HEIRS OF MARGARITA S.
MAYORES AND IN NOT ISSUING LETTERS OF
ADMINISTRATION TO HER.[6]
Briefly stated, the issues are (1) whether the Court of Appeals
erred in not declaring the will invalid for failure to comply with the
formalities required by law, (2) whether said court erred in not declaring
the will invalid because it was procured through undue influence and
pressure, and (3) whether it erred in not declaring petitioner and her
siblings as the legal heirs of Margarita, and in not issuing letters of
administration to petitioner.
Petitioner, in her Memorandum,[7] argues that Margaritas will
failed to comply with the formalities required under Article 805[8] of the
Civil Code because the will was not signed by the testator in the
presence of the instrumental witnesses and in the presence of one
another. She also argues that the signatures of the testator on pages A,
B, and C of the will are not the same or similar, indicating that they were
not signed on the same day. She further argues that the will was
procured through undue influence and pressure because at the time
of execution of the will, Margarita was weak, sickly, jobless and entirely
dependent upon respondent and her nephews for support, and these
alleged handicaps allegedly affected her freedom and willpower to
decide on her own. Petitioner thus concludes that Margaritas total
dependence on respondent and her nephews compelled her to sign
the will. Petitioner likewise argues that the Court of Appeals should have
declared her and her siblings as the legal heirs of Margarita since they
are her only living collateral relatives in accordance with Articles
1009[9] and 1010[10] of the Civil Code.
Respondent, for her part, argues in her Memorandum[11] that
the petition for review raises questions of fact, not of law and as
a rule, findings of fact of the Court of Appeals are final and conclusive
and cannot be reviewed on appeal to the Supreme Court. She also
points out that although the Court of Appeals at the outset opined
there was no compelling reason to review the petition, the Court of
Appeals proceeded to tackle the assigned errors and rule that the will
was validly executed, sustaining the findings of the trial court that the
formalities required by law were duly complied with. The Court of

Appeals also concurred with the findings of the trial court that the
testator, Margarita, was of sound mind when she executed the will.
After careful consideration of the parties contentions, we rule
in favor of respondent.
We find that the issues raised by petitioner concern pure
questions of fact, which may not be the subject of a petition for review
on certiorari under Rule 45 of the Rules of Civil Procedure.
The issues that petitioner is raising now i.e., whether or not the
will was signed by the testator in the presence of the witnesses and of
one another, whether or not the signatures of the witnesses on the
pages of the will were signed on the same day, and whether or not
undue influence was exerted upon the testator which compelled her
to sign the will, are all questions of fact.
This Court does not resolve questions of fact in a petition for
review under Rule 45 of the 1997 Rules of Civil Procedure. Section 1[12] of
Rule 45 limits this Courts review to questions of law only.
Well-settled is the rule that the Supreme Court is not a trier of
facts. When supported by substantial evidence, the findings of fact of
the Court of Appeals are conclusive and binding on the parties and are
not reviewable by this Court, unless the case falls under any of the
following recognized exceptions:
(1) When the conclusion is a finding grounded entirely
on speculation, surmises and conjectures;
(2) When the inference made is manifestly mistaken,
absurd or impossible;
(3) Where there is a grave abuse of discretion;
(4) When the judgment is based on a of the oppositors witnesses has mentioned any
misapprehension of facts;
(5) When the findings of fact are conflicting;
(6) When the Court of Appeals, in making its findings,
went beyond the issues of the case and the
same is contrary to the admissions of both
appellant and appellee;
(7) When the findings are contrary to those of the trial
court;
(8) When the findings of fact are conclusions without
citation of specific evidence on which they are
based;
(9) When the facts set forth in the petition as well as in
the petitioners main and reply briefs are not
disputed by the respondents; and
(10) When the findings of fact of the Court of Appeals
are premised on the supposed absence of
evidence and contradicted by the evidence
on record.[13]
We find that this case does not involve any of the
abovementioned exceptions.
Nonetheless, a review of the findings of the RTC as upheld by
the Court of Appeals, reveal that petitioners arguments lack basis. The
RTC correctly held:
With [regard] to the contention of the
oppositors [Paz Samaniego-Celada, et al.] that the
testator [Margarita Mayores] was not mentally
capable of making a will at the time of the execution
thereof, the same is without merit. The oppositors
failed to establish, by preponderance of evidence,
said allegation and contradict the presumption that
the testator was of sound mind (See Article 800 of the
Civil Code). In fact, witness for the oppositors, Dr.
Ramon Lamberte, who, in some occasions, attended
to the testator months before her death, testified that
Margarita Mayores could engage in a normal
conversation and he even stated that the illness of
the testator does not warrant hospitalization. Not one
instance that they observed act/s of the testator
during her lifetime that could be construed as a
manifestation of mental incapacity. The testator may
be admitted to be physically weak but it does not
necessarily follow that she was not of sound
mind. [The] testimonies of contestant witnesses are
pure aforethought.
Anent the contestants submission that the
will is fatally defective for the reason that its
attestation clause states that the will is composed of
three (3) pages while in truth and in fact, the will
consists of two (2) pages only because the attestation
is not a part of the notarial will, the same is not
accurate. While it is true that the attestation clause is
not a part of the will, the court, after examining the
totality of the will, is of the considered opinion that
error in the number of pages of the will as stated in the
attestation clause is not material to invalidate the
subject will. It must be noted that the subject
instrument is consecutively lettered with pages A, B,
and C which is a sufficient safeguard from the
possibility of an omission of some of the pages. The
error must have been brought about by the honest
belief that the will is the whole instrument consisting of
three (3) pages inclusive of the attestation clause and
the acknowledgement. The position of the court is in
consonance with the doctrine of liberal interpretation
enunciated in Article 809 of the Civil Code which
reads:
In the absence of bad faith, forgery
or fraud, or undue [and] improper
pressure and influence, defects and
imperfections in the form of
attestation or in the language used
therein shall not render the will
invalid if it is proved that the will was
in fact executed and attested in
substantial compliance with all the
requirements of Article 805.
evidence to show that the first signature was
procured earlier than February 2, 1987.
Finally, the court finds that no pressure nor
undue influence was exerted on the testator to
execute the subject will. In fact, the picture reveals
that the testator was in a good mood and smiling with
the other witnesses while executing the subject will
(See Exhibit H).
In fine, the court finds that the testator was
mentally capable of making the will at the time of its
execution, that the notarial will presented to the court
is the same notarial will that was executed and that
all the formal requirements (See Article 805 of the Civil
Code) in the execution of a will have been
substantially complied with in the subject notarial
will.[14] (Emphasis supplied.)
Thus, we find no reason to disturb the abovementioned
findings of the RTC. Since, petitioner and her siblings are not compulsory
heirs of the decedent under Article 887[15] of the Civil Code and as the
decedent validly disposed of her properties in a will duly executed and
probated, petitioner has no legal right to claim any part of the
decedents estate.
WHEREFORE, the petition is DENIED. The assailed Decision
dated October 13, 2000 of the Court of Appeals in CA-G.R. CV No.
41756 is AFFIRMED.
Costs against petitioner.

The court also rejects the contention of the SO ORDERED.

oppositors that the signatures of the testator were
affixed on different occasions based on their
observation that the signature on the first page is
allegedly different in size, texture and appearance as
compared with the signatures in the succeeding
pages. After examination of the signatures, the court
does not share the same observation as the
oppositors. The picture (Exhibit H-3) shows that the
testator was affixing her signature in the presence of
the instrumental witnesses and the notary. There is no
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., oppositors-appellants.
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 co-witnesses, 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 appellee-petitioner
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.
G.R. No. L-32636 March 17, 1930
In the matter Estate of Edward Randolph Hix, deceased.
A.W. FLUEMER, petitioner-appellant,
vs.
ANNIE COUSHING HIX, oppositor-appellee.
C.A. Sobral for appellant.
Harvey & O' Brien and Gibbs & McDonough for appellee.
MALCOLM, J.:
The special administrator of the estate of Edward Randolph Hix appeals
from a decision of Judge of First Instance Tuason denying the probate
of the document alleged to by the last will and testament of the
deceased. Appellee is not authorized to carry on this appeal. We think,
however, that the appellant, who appears to have been the moving
party in these proceedings, was a "person interested in the allowance
or disallowance of a will by a Court of First Instance," and so should be
permitted to appeal to the Supreme Court from the disallowance of the
will (Code of Civil Procedure, sec. 781, as amended; Villanueva vs. De
Leon [1925], 42 Phil., 780).
It is 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 Verginia Code, Annotated, by
Hogg, Charles E., vol. 2, 1914, p. 1690, 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 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 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 sale 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.
In addition, the due execution of the will was not established. The only
evidence on this point is to be found in the testimony of the petitioner.
Aside from this, there was nothing to indicate that the will was
acknowledged by the testator in the presence of two competent
witnesses, of that these witnesses subscribed the will in the presence of
the testator and of each other as the law of West Virginia seems to
require. On the supposition that the witnesses to the will reside without
the Philippine Islands, it would then the duty of the petitioner to prove
execution by some other means (Code of Civil Procedure, sec. 633.)
It was also necessary for the petitioner to prove that the testator had his
domicile in West Virginia and not establish this fact consisted of the
recitals in the CATHY will and the testimony of the petitioner. Also in
beginning administration proceedings orginally in the Philippine Islands,
the petitioner violated his own theory by attempting to have the
principal administration in the Philippine Islands.
While the appeal pending submission in this court, the attorney for the
appellant presented an unverified petition asking the court to accept
as part of the evidence the documents attached to the petition. One
of these documents discloses that a paper writing purporting to be the
was presented for probate on June 8, 1929, to the clerk of Randolph
Country, State of West Virginia, in vacation, and was duly proven by the
oaths of Dana Wamsley and Joseph L. MAdden, the subscribing
witnesses thereto , and ordered to be recorded and filed. It was shown
by another document that, in vacation, on June 8, 1929, the clerk of
court of Randolph Country, West Virginia, appointed Claude W.
Maxwell as administrator, cum testamento annexo, of the estate of
Edward Randolph Hix, deceased. In this connection, it is to be noted
that the application for the probate of the will in the Philippines was filed
on February 20, 1929, while the proceedings in West Virginia appear to
have been initiated on June 8, 1929. These facts are strongly indicative
of an intention to make the Philippines the principal administration and
West Virginia the ancillary administration. However this may be, no
attempt has been made to comply with Civil Procedure, for no hearing
on the question of the allowance of a will said to have been proved
and allowed in West Virginia has been requested. There is no showing
that the deceased left any property at any place other than the
Philippine Islands and no contention that he left any in West Virginia.
Reference has been made by the parties to a divorce purported to
have been awarded Edward Randolph Hix from Annie Cousins Hix on
October 8, 1925, in the State of West specific pronouncements on the
validity or validity of this alleged divorce.
For all of the foregoing, the judgment appealed from will be affirmed,
with the costs of this instance against the appellant.
Villamor, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.
G.R. No. L-20234 December 23, 1964
PAULA DE LA CERNA, ET AL., petitioners,
vs.
MANUELA REBACA POTOT, ET AL., and THE HONORABLE COURT OF
APPEALS, respondents.
Philip M. Alo and Crispin M. Menchavez for petitioners.
Nicolas Jumapao for respondents.
REYES, J.B.L., J.:
Appeal by Paula de la Cerna and others from a decision of the Court
of Appeals, Sixth Division (C.A.-G.R. No. 23763-R) reversing that of the
Court of First Instance of Cebu (Civ. Case No. R-3819) and ordering the
dismissal of an action for partition.
The factual background appears in the following portion of the decision
of the Court of Appeals (Petition, Annex A, pp. 2-4):
It appears that on May 9, 1939, the spouses, Bernabe de la
Serna and Gervasia Rebaca, executed a joint last will and
testament in the local dialect whereby they willed that "our
two parcels of land acquired during our marriage together
with all improvements thereon shall be given to Manuela
Rebaca, our niece, whom we have nurtured since childhood,
because God did not give us any child in our union, Manuela
Rebaca being married to Nicolas Potot", and that "while each
of the testators is yet living, he or she will continue to enjoy the
fruits of the two lands aforementioned", the said two parcels of
land being covered by Tax No. 4676 and Tax No. 6677, both
situated in sitio Bucao, barrio Lugo, municipality of Borbon,
province of Cebu. Bernabe dela Serna died on August 30,
1939, and the aforesaid will was submitted to probate by said
Gervasia and Manuela before the Court of First Instance of
Cebu which, after due publication as required by law and
there being no opposition, heard the evidence, and, by Order
of October 31, 1939; in Special Proceedings No. 499, "declara
legalizado el documento Exhibit A como el testamento y
ultima voluntad del finado Bernabe de la Serna con derecho
por parte du su viuda superstite Gervasia Rebaca y otra
testadora al propio tiempo segun el Exhibit A de gozar de los
frutos de los terranos descritos en dicho documents; y habido
consideracion de la cuantia de dichos bienes, se decreta la
distribucion sumaria de los mismos en favor de la logataria
universal Manuela Rebaca de Potot previa prestacion por
parte de la misma de una fianza en la sum de P500.00 para
responder de cualesquiera reclamaciones que se presentare
contra los bienes del finado Bernabe de la Serna de los años
desde esta fecha" (Act Esp. 499, Testamentaria Finado
Bernabe de la Serna) Upon the death of Gervasia Rebaca on
October 14, 1952, another petition for the probate of the same
will insofar as Gervasia was concerned was filed on November
6, 1952, being Special Proceedings No. 1016-R of the same
Court of First Instance of Cebu, but for failure of the petitioner,
Manuela R. Potot and her attorney, Manuel Potot to appear,
for the hearing of said petition, the case was dismissed on
March 30, 1954 Spec. Proc. No. 1016-R, In the matter of the
Probate of the Will of Gervasia Rebaca).
The Court of First Instance ordered the petition heard and declared the
testament null and void, for being executed contrary to the prohibition
of joint wills in the Civil Code (Art. 669, Civil Code of 1889 and Art. 818,
Civil Code of the Philippines); but on appeal by the testamentary heir,
the Court of Appeals reversed, on the ground that the decree of
probate in 1939 was issued by a court of probate jurisdiction and
conclusive on the due execution of the testament. Further, the Court of
Appeals declared that:
... . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil
Code). prohibits the making of a will jointly by two or more
persons either for their reciprocal benefit or for the benefit of a
third person. However, this form of will has long been
sanctioned by use, and the same has continued to be used;
and when, as in the present case, one such joint last will and
testament has been admitted to probate by final order of a
Court of competent jurisdiction, there seems to be no
alternative except to give effect to the provisions thereof that
are not contrary to law, as was done in the case of Macrohon
vs. Saavedra, 51 Phil. 267, wherein our Supreme Court gave
effect to the provisions of the joint will therein mentioned,
saying, "assuming that the joint will in question is valid."
Whence this appeal by the heirs intestate of the deceased husband,
Bernabe de la Cerna.
The appealed decision correctly held that the final decree of probate,
entered in 1939 by the Court of First Instance of Cebu (when the
testator, Bernabe de la Cerna, died), has conclusive effect as to his last
will and testament despite the fact that even then the Civil Code
already decreed the invalidity of joint wills, whether in favor of the joint
testators, reciprocally, or in favor of a third party (Art. 669, old Civil
Code). The error thus committed by the probate court was an error of
law, that should have been corrected by appeal, but which did not
affect the jurisdiction of the probate court, nor the conclusive effect of
its final decision, however erroneous. A final judgment rendered on a
petition for the probate of a will is binding upon the whole world
(Manalo vs. Paredes, 47 Phil. 938; In re Estates of Johnson, 39 Phil. 156);
and public policy and sound practice demand that at the risk of
occasional errors judgment of courts should become final at some Bengzon, C.J., Bautista, Angelo, Concepcion, Barrera, Paredes, Dizon
definite date fixed by law. Interest rei publicae ut finis set litium (Dy Cay Regala, Makalintal, Bengzon, J.P., and Zaldivar, JJ., concur.
vs. Crossfield, 38 Phil, 521, and other cases cited in 2 Moran, Comments
on the Rules of Court (1963 Ed., p. 322).

Petitioners, as heirs and successors of the late Bernabe de la Cerna, are

concluded by the 1939 decree admitting his will to probate. The
contention that being void the will cannot be validated, overlooks that
the ultimate decision on Whether an act is valid or void rests with the
courts, and here they have spoken with finality when the will was
probated in 1939. On this court, the dismissal of their action for partition
was correct.

But the Court of Appeals should have taken into account also, to avoid
future misunderstanding, that the probate decree in 1989 could only
affect the share of the deceased husband, Bernabe de la Cerna. It
could not include the disposition of the share of the wife, Gervasia
Rebaca, who was then still alive, and over whose interest in the
conjugal properties the probate court acquired no jurisdiction,
precisely because her estate could not then be in issue. Be it
remembered that prior to the new Civil Code, a will could not be
probated during the testator's lifetime.

It follows that the validity of the joint will, in so far as the estate of the
wife was concerned, must be, on her death, reexamined and
adjudicated de novo, since a joint will is considered a separate will of
each testator. Thus regarded, the holding of the court of First Instance
of Cebu that the joint will is one prohibited by law was correct as to the
participation of the deceased Gervasia Rebaca in the properties in
question, for the reasons extensively discussed in our decision in Bilbao
vs. Bilbao, 87 Phil. 144, that explained the previous holding in Macrohon
vs. Saavedra, 51 Phil. 267.

Therefore, the undivided interest of Gervasia Rebaca should pass upon

her death to her heirs intestate, and not exclusively to the testamentary
heir, unless some other valid will in her favor is shown to exist, or unless
she be the only heir intestate of said Gervasia.

It is unnecessary to emphasize that the fact that joint wills should be in

common usage could not make them valid when our Civil Codes
consistently invalidated them, because laws are only repealed by other
subsequent laws, and no usage to the contrary may prevail against
their observance (Art. 5, Civ. Code of 1889; Art. 7, Civil Code of the
Philippines of 1950).

WITH THE FOREGOING MODIFICATION, the judgment of the Court of

Appeals in CA-G.R. No. 23763-R is affirmed. No Costs.
G.R. No. L-23678 June 6, 1967
TESTATE ESTATE OF AMOS G. BELLIS, deceased.
PEOPLE'S BANK and TRUST COMPANY, executor.
MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS, oppositors-
appellants,
vs.
EDWARD A. BELLIS, ET AL., heirs-appellees.
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.
J. R. Balonkita for appellee People's Bank & Trust Company.
Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman.
BENGZON, J.P., J.:
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.1äwphï1.ñët
The facts of the case are as follows:
Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of
the United States." By his first wife, Mary E. Mallen, whom he divorced,
he had five legitimate children: Edward A. Bellis, George Bellis (who pre-
deceased him in infancy), Henry A. Bellis, Alexander Bellis and Anna
Bellis Allsman; by his second wife, Violet Kennedy, who survived him, he
had three legitimate children: Edwin G. Bellis, Walter S. Bellis and
Dorothy Bellis; and finally, he had three illegitimate children: Amos Bellis,
Jr., Maria Cristina Bellis and Miriam Palma Bellis.
On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in
which he directed that after all taxes, obligations, and expenses of
administration are paid for, his distributable estate should be divided, in
trust, in the following order and manner: (a) $240,000.00 to his first wife,
Mary E. Mallen; (b) P120,000.00 to his three illegitimate children, Amos
Bellis, Jr., Maria Cristina Bellis, Miriam Palma Bellis, or P40,000.00 each
and (c) after the foregoing two items have been satisfied, the
remainder shall go to his seven surviving children by his first and second
wives, namely: Edward A. Bellis, Henry A. Bellis, Alexander Bellis and
Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis, and Dorothy E. Bellis,
in equal shares.1äwphï1.ñët
Subsequently, or on July 8, 1958, Amos G. Bellis died a resident of San
Antonio, Texas, U.S.A. His will was admitted to probate in the Court of
First Instance of Manila on September 15, 1958.
The People's Bank and Trust Company, as executor of the will, paid all
the bequests therein including the amount of $240,000.00 in the form of
shares of stock to Mary E. Mallen and to the three (3) illegitimate
children, Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis,
various amounts totalling P40,000.00 each in satisfaction of their
respective legacies, or a total of P120,000.00, which it released from
time to time according as the lower court approved and allowed the
various motions or petitions filed by the latter three requesting partial
advances on account of their respective legacies.
On January 8, 1964, preparatory to closing its administration, the
executor submitted and filed its "Executor's Final Account, Report of
Administration and Project of Partition" wherein it reported, inter alia,
the satisfaction of the legacy of Mary E. Mallen by the delivery to her of
shares of stock amounting to $240,000.00, and the legacies of Amos
Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis in the amount of
P40,000.00 each or a total of P120,000.00. In the project of partition, the
executor — pursuant to the "Twelfth" clause of the testator's Last Will and
Testament — divided the residuary estate into seven equal portions for
the benefit of the testator's seven legitimate children by his first and
second marriages.
On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed
their respective oppositions to the project of partition on the ground
that they were deprived of their legitimes as illegitimate children and,
therefore, compulsory heirs of the deceased.
Amos Bellis, Jr. interposed no opposition despite notice to him, proof of
service of which is evidenced by the registry receipt submitted on April
27, 1964 by the executor.1
After the parties filed their respective memoranda and other pertinent
pleadings, the lower court, on April 30, 1964, issued an order overruling
the oppositions and approving the executor's final account, report and
administration and project of partition. Relying upon Art. 16 of the Civil
Code, it applied the national law of the decedent, which in this case is
Texas law, which did not provide for legitimes.
Their respective motions for reconsideration having been denied by the
lower court on June 11, 1964, oppositors-appellants appealed to this
Court to raise the issue of which law must apply — Texas law or
Philippine law.
In this regard, the parties do not submit the case on, nor even discuss,
the doctrine of renvoi, applied by this Court in Aznar v. Christensen
Garcia, L-16749, January 31, 1963. Said doctrine is usually pertinent
where the decedent is a national of one country, and a domicile of
another. In the present case, it is not disputed that the decedent was
both a national of Texas and a domicile thereof at the time of his
death.2 So that even assuming Texas has a conflict of law rule providing
that the domiciliary system (law of the domicile) should govern, the
same would not result in a reference back (renvoi) to Philippine law, but
would still refer to Texas law. Nonetheless, if Texas has a conflicts rule
adopting the situs theory (lex rei sitae) calling for the application of the
law of the place where the properties are situated, renvoi would arise,
since the properties here involved are found in the Philippines. In the
absence, however, of proof as to the conflict of law rule of Texas, it
should not be presumed different from ours.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.