1. Article 776. The inheritance includes all the
That on the 28th of November, 1906, Paula
property, rights and obligations of a person
which are not extinguished by his death.
G.R. No. L-4275 March 23, 1909
PAULA CONDE, plaintiff-appellee,
vs.
ROMAN ABAYA, defendant-appellant.
C. Oben for appellant.
L. Joaquin for appellee.
ARELLANO, C.J.:
From the hearing of the appeal interposed by
Roman Abaya in the special proceedings
brought in the Court of First Instance of La
Laguna for the settlement of the intestate
estate and the distribution of the property of
Casiano Abaya it appears:
I. As antecedents: that Casiano Abaya,
unmarried, the son of Romualdo Abaya and
Sabrina Labadia, died on the 6th of April, 1899;
that Paula Conde, as the mother of the natural
children Jose and Teopista Conde, whom the
states she had by Casiano Abaya, on the 6th
of November, 1905, moved the settlement of
the said intestate succession; that an
administrator having been appointed for the
said estate on the 25th of November, 1905,
Roman Abaya, a son of the said Romualdo
Abaya and Sabrina Labadia, the parents of the
late Casiano Abaya, came forward and
opposed said appointment and claimed it for
himself as being the nearest relative of the
deceased; that this was granted by the court
below on the 9th of January, 1906; that on the
17th of November, 1906, Roman Abaya moved
that, after due process of law, the court declare
him to be the sole heir of Casiano Abaya, to the
exclusion of all other persons, especially of
Paula Conde, and to be therefore entitled to
take possession of all the property of said
estate, and that it be adjudicated to him; and
that on November 22, 1906, the court ordered
the publication of notices for the declaration of
heirs and distribution of the property of the
estate.
II.
Conde, in replying to the foregoing motion of
Roman Abaya, filed a petition wherein she
stated that she acknowledged the relationship
alleged by Roman Abaya, but that she
considered that her right was superior to his
and moved for a hearing of the matter, and, in
consequence of the evidence that she intended
to present she prayed that she be declared to
have preferential rights to the property left by
Casiano Abaya, and that the same be
adjudicated to her together with the
corresponding products thereof.
III. That the trial was held, both parties
presenting documentary and oral evidence,
and the court below entered the following
judgment:
That the administrator of the estate of
Casiano Abaya should recognize
Teopista and Jose Conde as being
natural children of Casiano Abaya; that
the petitioner Paula Conde should
succeed to the hereditary rights of her
children with respect to the inheritance
of their deceased natural father
Casiano Abaya; and therefore, it is
hereby declared that she is the only
heir to the property of the said intestate
estate, to the exclusion of the
administrator, Roman Abaya.
IV. That Roman Abaya excepted to the
foregoing judgment, appealed to this court, and
presented the following statement of errors:
1. The fact that the court below found that an
ordinary action for the acknowledgment of
natural children under articles 135 and 137 of
the Civil Code, might be brought in special
probate proceedings.
2. The finding that after the death of a person
claimed to be an unacknowledged natural
child, the mother of such presumed natural
child, as heir to the latter, may bring an action
to enforce the acknowledgment of her
deceased child in accordance with articles 135
and 137 of the Civil Code.
3. The finding in the judgment that the alleged
continuos possession of the deceased children
of Paula Conde of the status of natural children
of the late Casiano Abaya, has been fully
proven in these proceedings; and
4. On the hypothesis that it was proper to
adjudicate the property of this intestate estate
to Paula Conde, as improperly found by the
court below, the court erred in not having
declared that said property should be reserved
in favor of relatives of Casiano Abaya to the
third degree, and in not having previously
demanded securities from Paula Conde to
guarantee the transmission of the property to
those who might fall within the reservation.
As to the first error assigned, the question is set
up as to whether in special proceedings for the
administration and distribution of an intestate
estate, an action might be brought to enforce
the acknowledgment of the natural child of the
person from whom the inheritance is derived,
that is to say, whether one might appear as heir
on the ground that he is a recognized natural
child of the deceased, not having been so
recognized by the deceased either voluntarily
or compulsorily by reason of a preexisting
judicial decision, but asking at the same time
that, in the special proceeding itself, he be
recognized by the presumed legitimate heirs of
the deceased who claim to be entitled to the
succession opened in the special proceeding.
According to section 782 of the Code of Civil
Procedure —
If there shall be a controversy before
the Court of First Instance as to who
the lawful heirs of the deceased person
are, or as to the distributive share to
which each person is entitled under the
law, the testimony as to such
controversy shall be taken in writing by
the judge, under oath, and signed by
the witness. Any party in interest
whose distributive share is affected by
the determination of such controversy,
may appeal from the judgment of the
Court of First Instance determining
such controversy to the Supreme
Court, within the time and in the
manner provided in the last preceding
section.
This court has decided the present question in
the manner shown in the case of Juana
Pimentel vs. Engracio Palanca (5 Phil. Rep.,
436.)
The main question with regard to the second
error assigned, is whether or not the mother of
a natural child now deceased, but who survived
the person who, it is claimed, was his natural
father, also deceased, may bring an action for
the acknowledgment of the natural filiation in
favor of such child in order to appear in his
behalf to receive the inheritance from the
person who is supposed to be his natural
father.
In order to decide in the affirmative the court
below has assigned the following as the only
foundation:
In resolving a similar question Manresa
says: "An acknowledgment can only be
demanded by the natural child and his
descendants whom it shall benefit, and
should they be minors or otherwise
incapacitated, such person as legally
represents them; the mother may ask it
in behalf of her child so long as he is
under her authority." On this point no
positive declaration has been made,
undoubtedly because it was not
considered necessary. A private action
is in question and the general rule must
be followed. Elsewhere the same
author adds: "It may so happen that the
child dies before four years have
expired after attaining majority, or that
the document supporting his petition
for acknowledgment is discovered after
his death, such death perhaps
occurring after his parents had died, as
is supposed by article 137, or during
their lifetime. In any case such right of
action shall pertain to the descendants
of the child whom the acknowledgment
may interest." (See Commentaries to
arts. 135 and 137, Civil Code, Vol. I.)
The above doctrine, advanced by one of the
most eminent commentators of the Civil Code,
lacks legal and doctrinal foundation. The power
to transmit the right of such action by the
natural child to his descendants can not be
sustained under the law, and still less to his
mother.
It is without any support in law because the rule
laid down in the code is most positive, limiting
in form, when establishing the exception for the
exercise of such right of action after the death
of the presumed parents, as is shown
hereafter. It is not supported by any doctrine,
because up to the present time no argument
has been presented, upon which even an
approximate conclusion could be based.
Although the Civil Code considerably improved
the condition of recognized natural children,
granting them rights and actions that they did
not possess under the former laws, they were
not, however, placed upon the same place as
legitimate ones. The difference that separates
these two classes of children is still great, as
proven by so many articles dealing with the
rights of the family and the succession in
relation to the members thereof. It may be laid
down as legal maxim, that whatever the code
does not grant to the legitimate children, or in
connection with their rights, must still less be
understood as granted to recognized natural
children or in connection with their rights. There
is not a single exception in its provisions.
If legitimacy is the attribute that constitutes the
basis of the absolute family rights of the child,
the acknowledgment of the natural child is,
among illegitimate ones, that which unites him
to the family of the father or the mother who
recognized him, and affords him a participation
in the rights of the family, relatively
advantageous according to whether they are
alone or whether they concur with other
individuals of the family of his purely natural
father or mother.
Thus, in order to consider the spirit of the Civil
Code, nothing is more logical than to establish
a comparison between an action to claim the
legitimacy, and one to enforce
acknowledgment.
ART. 118. The action to claim its
legitimacy may be brought by the child
at any time of its lifetime and shall be
transmitted to its heirs, should it die
during minority or in a state of insanity.
In such cases the heirs shall be allowed
a period of five years in which to
institute the action.
The action already instituted by the child is
transmitted by its death to the heirs, if it has not
lapsed before then.
ART. 137. The actions for the
acknowledgment of natural children
can be instituted only during the life of
the presumed parents, except in the
following cases:
1. If the father or mother died during the
maturity of the child, in which case the
latter may institute the action before
the expiration of the first four years of
its maturity.
2. If, after the death of the father or
mother, some instrument, before
unknown, should be discovered in
which the child is expressly
acknowledged.
In this case the action must be
instituted with the six months following
the discovery of such instrument.
On this supposition the first difference that
results between one action and the other
consists in that the right of action for legitimacy
lasts during the whole lifetime of the child, that
is, it can always be brought against the
presumed parents or their heirs by the child
itself, while the right of action for the
acknowledgment of a natural child does not
last his whole lifetime, and, as a general rule, it
can not be instituted against the heirs of the
presumed parents, inasmuch as it can be
exercised only during the life of the presumed
parents.
With regard to the question at issue, that is, the
transmission to the heirs of the presumed
parents of the obligation to admit the legitimate
filiation, or to recognize the natural filiation,
there exists the most radical difference in that
the former continues during the life of the child
who claims to be legitimate, and he may
demand it either directly and primarily from the
said presumed parents, or indirectly and
secondarily from the heirs of the latter; while
the second does not endure for life; as a
general rule, it only lasts during the life of the
presumed parents. Hence the other difference,
derived as a consequence, that an action for
legitimacy is always brought against the heirs
of the presumed parents in case of the death of
the latter, while the action for acknowledgment
is not brought against the heirs of such parents,
with the exception of the two cases prescribed
by article 137 transcribed above.
So much for the passive transmission of the
obligation to admit the legitimate filiation, or to
acknowledge the natural filiation.
As to the transmission to the heirs of the child
of the latter's action to claim his legitimacy, or
to obtain the acknowledgment of his natural
filiation, it is seen that the code grants it in the
first case, but not in the second. It contains
provisions for the transmission of the right of
action which, for the purpose claiming his
legitimacy inheres in the child, but it does not
say a word with regard to the transmission of
the right to obtain the acknowledgment of the
natural filiation.
Therefore, the respective corollary of each of
the two above-cited articles is: (1) That the right
of action which devolves upon the child to claim
his legitimacy under article 118, may be
transmitted to his heirs in certain cases
designated in the said article; (2) That the right
of action for the acknowledgment of natural
children to which article 137 refers, can never
be transmitted, for the reason that the code
makes no mention of it in any case, not even
as an exception.
It is most illogical and contrary to every rule of
correct interpretation, that the right of action to
secure acknowledgment by the natural child
should be presumed to be transmitted,
independently, as a rule, to his heirs, while the
right of action to claim legitimacy from his
predecessor is not expressly, independently,
or, as a general rule, conceded to the heirs of
the legitimate child, but only relatively and as
an exception. Consequently, the pretension
that the right of action on the part of the child to
obtain the acknowledgment of his natural
filiation is transmitted to his descendants is
altogether unfounded. No legal provision exists
to sustain such pretension, nor can an
argument of presumption be based on the
lesser claim when there is no basis for the
greater one, and when it is only given as an
exception in well-defined cases. It is placing
the heirs of the natural child on a better footing
than the heirs of the legitimate one, when, as a
matter of fact, the position of a natural child is
no better than, no even equal to, that of a
legitimate child.
From the express and precise precepts of the
code the following conclusions are derived:
The right of action that devolves upon the child
to claim his legitimacy lasts during his whole
life, while the right to claim the
acknowledgment of a natural child lasts only
during the life of his presumed parents.
Inasmuch as the right of action accruing to the
child to claim his legitimacy lasts during his
whole life, he may exercise it either against the
presumed parents, or their heirs; while the right
of action to secure the acknowledgment of a
natural child, since it does not last during his
whole life, but depends on that of the presumed
parents, as a general rule can only be
exercised against the latter.
Usually the right of action for legitimacy
devolving upon the child is of a personal
character and pertains exclusively to him, only
the child may exercise it at any time during his
lifetime. As an exception, and in three cases
only, it may be transmitted to the heirs of the
child, to wit, if he died during his minority, or
while insane, or after action had been already
instituted.
An action for the acknowledgment of a natural
child may, as an exception, be exercised
against the heirs of the presumed parents in
two cases: first, in the event of the death of the
latter during the minority of the child, and
second, upon the discovery of some instrument
of express acknowledgment of the child,
executed by the father or mother, the existence
of which was unknown during the life of the
latter.
But such action for the acknowledgment of a
natural child can only be exercised by him. It
can not be transmitted to his descendants, or
his ascendants.
In support of the foregoing the following
authorities may be cited:
Sanchez Roman, in his Treatise of Civil Law,
propounds the question as to whether said
action should be considered transmissive to
the heirs or descendants of the natural child,
whether he had or had not exercised it up to
the time of his death, and decides it as follows:
There is an entire absence of legal
provisions, and at most, it might be
deemed admissible as a solution, that
the right of action to claim the
acknowledgment of a natural child is
transmitted by the analogy to his heirs
on the same conditions and terms that
it is transmitted to the descendants of a
legitimate child, to claim his legitimacy,
under article 118, but nothing more;
because on this point nothing warrants
placing the heirs of a natural child on a
better footing than those of the
legitimate child, and even to compare
them would not fail to be a strained and
questionable matter, and one of
great difficulty for decision by the
courts, for the simple reason that for
the heirs of the legitimate child, the said
article 118 exists, while for those of the
natural child, as we have said, there is
no provision in the code authorizing the
same, although on the other hand there
is none that prohibits it. (Vol. V.)
Diaz Guijarro and Martinez Ruiz in their work
on "The Civil Code as construed by the
supreme court of Spain," commenting upon
article 137, say:
Article 118, taking into account the
privileges due to the legitimacy of
children, grants them the right to claim
said legitimacy during their lifetime,
and even authorizes the transmission
of said right for the space of five years
to the heirs thereof, if the child die
during his minority or in a state of
insanity. But as article 137 is based on
the consideration that in the case of a
natural child, ties are less strong and
sacred in the eyes of the law, it does
not fix such a long and indefinite period
for the exercise of the action; it limits it
to the life of the parents, excepting in
the two cases mentioned in said article;
and it does not allow, as does article
118, the action to pass on to the heirs,
inasmuch as, although it does not
prohibit it, and for that reason it might
be deemed on general principles of law
to consent to it, such a supposition is
inadmissible for the reason that a
comparison of both articles shows that
the silence of the law in the latter case
is not, nor it can be, an omission, but a
deliberate intent to establish a wide
difference between the advantages
granted to a legitimate child and to a
natural one.
(Ibid., Vol. II, 171.)
Navarro Amandi (Cuestionario del Código
Civil) raises the question: "Can the heirs of a
natural child claim the acknowledgment in
those cases wherein the father or mother are
under obligation to acknowledge"? And says:
Opinions are widely divergent. The
court of Rennes held (on April 13,
1844) that the right of investigation
forms a part of the estate of the child,
and along with his patrimony is
transmitted to his heirs. The affirmation
is altogether too categorical to be
admissible. If it were correct the same
thing would happen as when the
legitimacy of a child is claimed, and as
already seen, the right of action to
demand the legitimacy is not
transmitted to the heirs in every case
and as an absolute right, but under
 certain limitations and circumstances.
Now, were we to admit the doctrine of
the court of Rennes, the result would
be that the claim for natural filiation
would be more favored than one for
legitimate filiation. This would be
absurd, because it can not be
conceived that the legislator should
have granted a right of action to the
heirs of the natural child, which is only
granted under great limitations and in
very few cases to those of a legitimate
one. Some persons insist that the
same rules that govern legitimate
filiation apply by analogy to natural
child are entitled to claim it in the cases
prescribed by the article 118. The
majority, however, are inclined to
consider the right to claim
acknowledgment as a personal right,
and consequently, not transmissive to
the heirs. Really there are no legal
grounds to warrant the transmission.
(Vol. 2, 229.)
In a decision like the present one it is
impossible to bring forward the argument of
analogy for the purpose of considering that the
heirs of the natural child are entitled to the right
of action which article 118 concedes to the
heirs of the legitimate child. The existence of a
provision for the one case and the absence
thereof for the other is a conclusive argument
that inclusio unius est exclusio alterius, and it
can not be understood that the provision of law
should be the same when the same reason
does not hold in the one case as in the other.
The theory of law of transmission is also
entirely inapplicable in this case. This theory,
which in the Roman Law expressed the
general rule than an heir who did not accept an
inheritance during his lifetime was
incapacitated from transmitting it to his own
heirs, included at the same time the idea that if
the inheritance was not transmitted because
the heir did not possess it, there were,
however, certain things which the heir held and
could transmit. Such was the law and the right
to accept the inheritance, for the existing
reason that all rights, both real and personal,
shall pass to the heir; quia haeres representat
defunctum in omnibus et per omnia. According
to the article 659 of the Civil Code, "the
inheritance includes all the property, rights, and
obligations of a person, which are not
extinguished by his death." If the mother is the
heir of her natural child, and the latter, among
other rights during his lifetime was entitled to
exercise an action of his acknowledgment
against his father, during the life of the latter, if
after his death in some of the excepting cases
of article 137, such right, which is a portion of
his inheritance, is transmitted to his mother as
being his heir, and it was so understood by the
court of Rennes when it considered the right in
question, not as a personal and exclusive right
of the child which is extinguished by his death,
but a any other right which might be transmitted
after his death. This right of supposed
transmission is even less tenable than that
sought to be sustained by the argument of
analogy.
The right of action pertaining to the child to
claim his legitimacy is in all respects superior
to that of the child who claims acknowledgment
as a natural child. And it is evident that the right
of action to claim his legitimacy is not one of
those rights which the legitimate child may
transmit by inheritance to his heirs; it forms no
part of the component rights of his inheritance.
If it were so, there would have been no
necessity to establish its transmissibility to
heirs as an exception in the terms and
conditions of article 118 of the code. So that, in
order that it may constitute a portion of the
child's inheritance, it is necessary that the
conditions and the terms contained in article
118 shall be present, since without them, the
right that the child held during his lifetime, being
personal and exclusive in principle, and
therefore, as a general rule not susceptible of
transmission, would and should have been
extinguished by his death. Therefore, where no
express provision like that of article 118 exists,
the right of action for the acknowledgment of a
natural child is, in principle and without
exception, extinguished by his death, and can
not be transmitted as a portion of the
inheritance of the deceased child.
On the other hand, if said right of action formed
a part of the child's inheritance, it would be
necessary to establish the doctrine that the
right to claim such an acknowledgment from
the presumed natural father and from his heirs
is an absolute right of the heirs of the child, not
limited by certain circumstances as in the case
of the heirs of a natural child with a legitimate
one to place the heirs of a natural child and his
inheritance on a better footing than those of a
legitimate child would not only be
unreasonable, but, as stated in one of the
above citations, most absurd and illegal in the
present state of the law and in accordance with
the general principles thereof.
For all of the foregoing reasons we hereby
reverse the judgment appealed from in all its
parts, without any special ruling as to the costs
of this instance.
G.R. No. L-33187 March 31, 1980
CORNELIO PAMPLONA alias GEMINIANO
PAMPLONA and APOLONIA
ONTE, petitioners,
vs.
VIVENCIO MORETO, VICTOR MORETO,
ELIGIO MORETO, MARCELO MORETO,
PAULINA MORETO, ROSARIO MORETO,
MARTA MORETO, SEVERINA MENDOZA,
PABLO MENDOZA, LAZARO MENDOZA,
VICTORIA TUIZA, JOSEFINA MORETO,
LEANDRO MORETO and LORENZO
MENDOZA, respondents.
E.P. Caguioa for petitioners.
Benjamin C. Yatco for respondents.
GUERRERO, J.:
This is a petition for certiorari by way of appeal
from the decision of the Court of Appeals 1 in
CA-G.R. No. 35962-R, entitled "Vivencio
Moreto, et al., Plaintiff-Appellees vs. Cornelio
Pamplona, et al., Defendants-Appellants,"
affirming the decision of the Court of First
Instance of Laguna, Branch I at Biñan.
The facts, as stated in the decision appealed
from, show that:
Flaviano Moreto and Monica Maniega were
husband and wife. During their marriage, they
acquired adjacent lots Nos. 1495, 4545, and
1496 of the Calamba Friar Land Estate,
situated in Calamba, Laguna, containing 781-
544 and 1,021 square meters respectively and
covered by certificates of title issued in the
name of "Flaviano Moreto, married to Monica
Maniega."
The spouses Flaviano Moreto and Monica
Maniega begot during their marriage six (6)
children, namely, Ursulo, Marta, La Paz, Alipio,
Pablo, and Leandro, all surnamed Moreto.
Ursulo Moreto died intestate on May 24, 1959
leaving as his heirs herein plaintiffs Vivencio,
Marcelo, Rosario, Victor, Paulina, Marta and
Eligio, all surnamed Moreto.
Marta Moreto died also intestate on April 30,
1938 leaving as her heir plaintiff Victoria Tuiza.
La Paz Moreto died intestate on July 17, 1954
leaving the following heirs, namely, herein
plaintiffs Pablo, Severina, Lazaro, and
Lorenzo, all surnamed Mendoza.
Alipio Moreto died intestate on June 30, 1943
leaving as his heir herein plaintiff Josefina
Moreto.
Pablo Moreto died intestate on April 25, 1942
leaving no issue and as his heirs his brother
plaintiff Leandro Moreto and the other plaintiffs
herein.
On May 6, 1946, Monica Maniega died
intestate in Calamba, Laguna.
On July 30, 1952, or more than six (6) years
after the death of his wife Monica Maniega,
Flaviano Moreto, without the consent of the
heirs of his said deceased wife Monica, and
before any liquidation of the conjugal
partnership of Monica and Flaviano could be
effected, executed in favor of Geminiano
Pamplona, married to defendant Apolonia
Onte, the deed of absolute sale (Exh. "1")
covering lot No. 1495 for P900.00. The deed of
sale (Exh. "1") contained a description of lot
No. 1495 as having an area of 781 square
meters and covered by transfer certificate of
title No. 14570 issued in the name of Flaviano
Moreto, married to Monica Maniega, although
the lot was acquired during their marriage. As
a result of the sale, the said certificate of title
was cancelled and a new transfer certificate of
title No. T-5671 was issued in the name of
Geminiano Pamplona married to Apolonia
Onte (Exh. "A").
After the execution of the above-mentioned
deed of sale (Exh. "1"), the spouses Geminiano
Pamplona and Apolonia Onte constructed their
house on the eastern part of lot 1496 as
Flaviano Moreto, at the time of the sale, pointed
to it as the land which he sold to Geminiano
Pamplona. Shortly thereafter, Rafael
Pamplona, son of the spouses Geminiano
Pamplona and Apolonia Onte, also built his
house within lot 1496 about one meter from its
boundary with the adjoining lot. The vendor
Flaviano Moreto and the vendee Geminiano
Pamplona thought all the time that the portion
of 781 square meters which was the subject
matter of their sale transaction was No. 1495
and so lot No. 1495 appears to be the subject
matter in the deed of sale (Exh. "1") although
the fact is that the said portion sold thought of
by the parties to be lot No. 1495 is a part of lot
No. 1496.
From 1956 to 1960, the spouses Geminiano
Pamplona and Apolonio Onte enlarged their
house and they even constructed a piggery
corral at the back of their said house about one
and one-half meters from the eastern boundary
of lot 1496.
On August 12, 1956, Flaviano Moreto died
intestate. In 1961, the plaintiffs demanded on
the defendants to vacate the premises where
they had their house and piggery on the ground
that Flaviano Moreto had no right to sell the lot
which he sold to Geminiano Pamplona as the
same belongs to the conjugal partnership of
Flaviano and his deceased wife and the latter
was already dead when the sale was executed
without the consent of the plaintiffs who are the
heirs of Monica. The spouses Geminiano
Pamplona and Apolonia Onte refused to
vacate the premises occupied by them and
hence, this suit was instituted by the heirs of
Monica Maniega seeking for the declaration of
the nullity of the deed of sale of July 30, 1952
above-mentioned as regards one-half of the
property subject matter of said deed; to declare
the plaintiffs as the rightful owners of the other
half of said lot; to allow the plaintiffs to redeem
the one-half portion thereof sold to the
defendants. "After payment of the other half of
the purchase price"; to order the defendants to
vacate the portions occupied by them; to order
the defendants to pay actual and moral
damages and attorney's fees to the plaintiffs; to
order the defendants to pay plaintiffs P120.00
a year from August 1958 until they have
vacated the premises occupied by them for the
use and occupancy of the same.
The defendants claim that the sale made by
Flaviano Moreto in their favor is valid as the lot
sold is registered in the name of Flaviano
Moreto and they are purchasers believing in
good faith that the vendor was the sole owner
of the lot sold.
After a relocation of lots 1495, 1496 and 4545
made by agreement of the parties, it was found
out that there was mutual error between
Flaviano Moreto and the defendants in the
execution of the deed of sale because while the
said deed recited that the lot sold is lot No.
1495, the real intention of the parties is that it
was a portion consisting of 781 square meters
of lot No. 1496 which was the subject matter of
their sale transaction.
After trial, the lower court rendered judgment,
the dispositive part thereof being as follows:
WHEREFORE, judgment is
hereby rendered for the
plaintiffs declaring the deed of
absolute sale dated July 30,
1952 pertaining to the eastern
portion of Lot 1496 covering an
area of 781 square meters null
and void as regards the 390.5
square meters of which
plaintiffs are hereby declared
the rightful owners and entitled
to its possession.
The sale is ordered valid with
respect to the eastern one-half
(1/2) of 1781 square meters of
Lot 1496 measuring 390.5
square meters of which
defendants are declared lawful
owners and entitled to its
possession.
After proper survey
segregating the eastern one-
half portion with an area of
390.5 square meters of Lot
1496, the defendants shall be
entitled to a certificate of title
covering said portion and
Transfer Certificate of Title No.
9843 of the office of the
Register of Deeds of Laguna
shall be cancelled accordingly
and new titles issued to the
plaintiffs and to the defendants
covering their respective
portions.
Transfer Certificate of Title No.
5671 of the office of the
Register of Deeds of Laguna
covering Lot No. 1495 and
registered in the name of
Cornelio Pamplona, married to
Apolonia Onte, is by virtue of
this decision ordered
cancelled. The defendants are
ordered to surrender to the
office of the Register of Deeds
of Laguna the owner's
duplicate of Transfer Certificate
of Title No. 5671 within thirty
(30) days after this decision
shall have become final for
cancellation in accordance with
this decision.
Let copy of this decision be
furnished the Register of
Deeds for the province of
Laguna for his information and
guidance.
With costs against the
defendants. 2
The defendants-appellants, not being satisfied
with said judgment, appealed to the Court of
Appeals, which affirmed the judgment, hence
they now come to this Court.
The fundamental and crucial issue in the case
at bar is whether under the facts and
circumstances duly established by the
evidence, petitioners are entitled to the full
ownership of the property in litigation, or only
one-half of the same.
There is no question that when the petitioners
purchased the property on July 30, 1952 from
Flaviano Moreto for the price of P900.00, his
wife Monica Maniega had already been dead
six years before, Monica having died on May 6,
1946. Hence, the conjugal partnership of the
spouses Flaviano Moreto and Monica Maniega
had already been dissolved. (Article 175, (1)
New Civil Code; Article 1417, Old Civil Code).
The records show that the conjugal estate had
not been inventoried, liquidated, settled and
divided by the heirs thereto in accordance with
law. The necessary proceedings for the
liquidation of the conjugal partnership were not
instituted by the heirs either in the testate or
intestate proceedings of the deceased spouse
pursuant to Act 3176 amending Section 685 of
Act 190. Neither was there an extra-judicial
partition between the surviving spouse and the
heirs of the deceased spouse nor was an
ordinary action for partition brought for the
purpose. Accordingly, the estate became the
property of a community between the surviving
husband, Flaviano Moreto, and his children
with the deceased Monica Maniega in the
concept of a co-ownership.
The community property of the
marriage, at the dissolution of
this bond by the death of one of
the spouses, ceases to belong
to the legal partnership and
becomes the property of a
community, by operation of
law, between the surviving
spouse and the heirs of the
deceased spouse, or the
exclusive property of the
widower or the widow, it he or
she be the heir of the deceased
spouse. Every co-owner shall
 have full ownership of his part
and in the fruits and benefits
derived therefrom, and he
therefore may alienate, assign
or mortgage it, and even
substitute another person in its
enjoyment, unless personal
rights are in question. (Marigsa
vs. Macabuntoc, 17 Phil. 107)
In Borja vs. Addision, 44 Phil. 895, 906, the
Supreme Court said that "(t)here is no reason
in law why the heirs of the deceased wife may
not form a partnership with the surviving
husband for the management and control of
the community property of the marriage and
conceivably such a partnership, or rather
community of property, between the heirs and
the surviving husband might be formed without
a written agreement." In Prades vs. Tecson, 49
Phil. 230, the Supreme Court held that
"(a)lthough, when the wife dies, the surviving
husband, as administrator of the community
property, has authority to sell the property
with•ut the concurrence of the children of the
marriage, nevertheless this power can be
waived in favor of the children, with the result
of bringing about a conventional ownership in
common between the father and children as to
such property; and any one purchasing with
knowledge of the changed status of the
property will acquire only the undivided interest
of those members of the family who join in the
act of conveyance.
It is also not disputed that immediately after the
execution of the sale in 1952, the vendees
constructed their house on the eastern part of
Lot 1496 which the vendor pointed out to them
as the area sold, and two weeks thereafter,
Rafael who is a son of the vendees, also built
his house within Lot 1496. Subsequently, a
cemented piggery coral was constructed by the
vendees at the back of their house about one
and one-half meters from the eastern boundary
of Lot 1496. Both vendor and vendees believed
all the time that the area of 781 sq. meters
subject of the sale was Lot No. 1495 which
according to its title (T.C.T. No. 14570)
contains an area of 781 sq. meters so that the
deed of sale between the parties Identified and
described the land sold as Lot 1495. But
actually, as verified later by a surveyor upon
agreement of the parties during the
proceedings of the case below, the area sold
was within Lot 1496.
Again, there is no dispute that the houses of
the spouses Cornelio Pamplona and Apolonia
Onte as well as that of their son Rafael
Pamplona, including the concrete piggery coral
adjacent thereto, stood on the land from 1952
up to the filing of the complaint by the private
respondents on July 25, 1961, or a period of
over nine (9) years. And during said period, the
private respondents who are the heirs of
Monica Maniega as well as of Flaviano Moreto
who also died intestate on August 12, 1956,
lived as neighbors to the petitioner-vendees,
yet lifted no finger to question the occupation,
possession and ownership of the land
purchased by the Pamplonas, so that We are
persuaded and convinced to rule that private
respondents are in estoppel by laches to claim
half of the property, in dispute as null and void.
Estoppel by laches is a rule of equity which
bars a claimant from presenting his claim
when, by reason of abandonment and
negligence, he allowed a long time to elapse
without presenting the same. (International
Banking Corporation vs. Yared, 59 Phil. 92)
We have ruled that at the time of the sale in
1952, the conjugal partnership was already
dissolved six years before and therefore, the
estate became a co-ownership between
Flaviano Moreto, the surviving husband, and
the heirs of his deceased wife, Monica
Maniega. Article 493 of the New Civil Code is
applicable and it provides a follows:
Art. 493. Each co-owner shall
have the full ownership of his
part and of the fruits and
benefits pertaining thereto, and
he may therefore alienate,
assign or mortgage it, and even
substitute another person in its
enjoyment, except when
personal rights are involve. But
the effect of the alienation or
the mortgage, with respect to
the co-owners, shall be limited
to the portion which may be
allotted to him in the division
 upon the termination of the co-
ownership.
We agree with the petitioner that there was a
partial partition of the co-ownership when at the
time of the sale Flaviano Moreto pointed out the
area and location of the 781 sq. meters sold by
him to the petitioners-vendees on which the
latter built their house and also that whereon
Rafael, the son of petitioners likewise erected
his house and an adjacent coral for piggery.
Petitioners point to the fact that spouses
Flaviano Moreto and Monica Maniega owned
three parcels of land denominated as Lot 1495
having an area of 781 sq. meters, Lot 1496 with
an area of 1,021 sq. meters, and Lot 4545 with
an area of 544 sq. meters. The three lots have
a total area of 2,346 sq. meters. These three
parcels of lots are contiguous with one another
as each is bounded on one side by the other,
thus: Lot 4545 is bounded on the northeast by
Lot 1495 and on the southeast by Lot 1496. Lot
1495 is bounded on the west by Lot 4545. Lot
1496 is bounded on the west by Lot 4545. It is
therefore, clear that the three lots constitute
one big land. They are not separate properties
located in different places but they abut each
other. This is not disputed by private
respondents. Hence, at the time of the sale, the
co-ownership constituted or covered these
three lots adjacent to each other. And since
Flaviano Moreto was entitled to one-half pro-
indiviso of the entire land area or 1,173 sq.
meters as his share, he had a perfect legal and
lawful right to dispose of 781 sq. meters of his
share to the Pamplona spouses. Indeed, there
was still a remainder of some 392 sq. meters
belonging to him at the time of the sale.
We reject respondent Court's ruling that the
sale was valid as to one-half and invalid as to
the other half for the very simple reason that
Flaviano Moreto, the vendor, had the legal right
to more than 781 sq. meters of the communal
estate, a title which he could dispose, alienate
in favor of the vendees-petitioners. The title
may be pro-indiviso or inchoate but the
moment the co-owner as vendor pointed out its
location and even indicated the boundaries
over which the fences were to be erectd without
objection, protest or complaint by the other co-
owners, on the contrary they acquiesced and
tolerated such alienation, occupation and
possession, We rule that a factual partition or
termination of the co-ownership, although
partial, was created, and barred not only the
vendor, Flaviano Moreto, but also his heirs, the
private respondents herein from asserting as
against the vendees-petitioners any right or
title in derogation of the deed of sale executed
by said vendor Flaiano Moreto.
Equity commands that the private respondents,
the successors of both the deceased spouses,
Flaviano Moreto and Monica Maniega be not
allowed to impugn the sale executed by
Flaviano Moreto who indisputably received the
consideration of P900.00 and which he,
including his children, benefitted from the
same. Moreover, as the heirs of both Monica
Maniega and Flaviano Moreto, private
respondents are duty-bound to comply with the
provisions of Articles 1458 and 1495, Civil
Code, which is the obligation of the vendor of
the property of delivering and transfering the
ownership of the whole property sold, which is
transmitted on his death to his heirs, the herein
private respondents. The articles cited provide,
thus:
Art. 1458. By the contract of
sale one of the contracting
parties obligates himself to
transfer the ownership of and
to deliver a determinate thing,
and the other part to pay
therefore a price certain in
money or its equivalent.
A contract of sale may be
absolute or conditionial.
Art. 1495. The vendor is bound
to transfer the ownership of
and deliver, as well as warrant
the thing which is the object of
the sale.
Under Article 776, New Civil Code, the
inheritance which private respondents received
from their deceased parents and/or
predecessors-in-interest included all the
property rights and obligations which were not
extinguished by their parents' death. And under
Art. 1311, paragraph 1, New Civil Code, the
contract of sale executed by the deceased
Flaviano Moreto took effect between the
parties, their assigns and heirs, who are the
private respondents herein. Accordingly, to the
private respondents is transmitted the
obligation to deliver in full ownership the whole
area of 781 sq. meters to the petitioners (which
was the original obligation of their predecessor
Flaviano Moreto) and not only one-half thereof.
Private respondents must comply with said
obligation.
The records reveal that the area of 781 sq.
meters sold to and occupied by petitioners for
more than 9 years already as of the filing of the
complaint in 1961 had been re-surveyed by
private land surveyor Daniel Aranas.
Petitioners are entitled to a segregation of the
area from Transfer Certificate of Title No. T-
9843 covering Lot 1496 and they are also
entitled to the issuance of a new Transfer
Certificate of Title in their name based on the
relocation survey.
WHEREFORE, IN VIEW OF THE
FOREGOING, the judgment appealed from is
hereby AFFIRMED with modification in the
sense that the sale made and executed by
Flaviano Moreto in favor of the petitioners-
vendees is hereby declared legal and valid in
its entirely.
Petitioners are hereby declared owners in full
ownership of the 781 sq. meters at the eastern
portion of Lot 1496 now occupied by said
petitioners and whereon their houses and
piggery coral stand.
The Register of Deeds of Laguna is hereby
ordered to segregate the area of 781 sq.
meters from Certificate of Title No. 9843 and to
issue a new Transfer Certificate of Title to the
petitioners covering the segregated area of 781
sq. meters.
No costs.
SO ORDERED.
G.R. No. 121940 December 4, 2001
JESUS SAN AGUSTIN, petitioner,
vs.
HON. COURT OF APPEALS and MAXIMO
MENEZ, JR., respondents.
QUISUMBING, J.:
This petition for review on certiorari seeks the
reversal of the decision 1 of the Court of
Appeals dated May 19, 1995, affirming that of
the Regional Trial Court in LRC Case No. R-
4659.
The relevant facts, as summarized by the CA,
are as follows:
On February 11, 1974, the Government
Service Insurance System (GSIS) sold to a
certain Macaria Vda. de Caiquep, a parcel of
residential land with an area of 168 square
meters located in Rosario, Pasig City and
denominated as Lot 13, Block 7, Pcs-5816 of
the Government Service and Insurance
System Low Cost Housing Project (GSIS-
LCHP). The sale is evidenced by a Deed of
Absolute Sale. 2 On February 19, 1974, the
Register of Deeds of Rizal issued in the name
of Macaria Vda. de Caiquep. Transfer
Certificate of Title (TCT) No. 436465 with the
following encumbrance annotated at the back
of the title:
This Deed of Absolute Sale is subject
to the conditions enumerated below
which shall be permanent
encumbrances on the property, the
violation of any of which shall entitle the
vendor to cancel x x x. this Deed of
Absolute Sale and reenter the property;
The purpose of the sale be to aid the
vendee in acquiring a lot for
himself/themselves and not to provide
him/them with a means for speculation
or profit by a future assignment of
his/their right herein acquired or the
resale of the lot through rent, lease or
subletting to others of the lot and
subject of this deed, and therefore, the
vendee shall not sell, convey, lease or
 sublease, or otherwise encumber the
property in favor of any other party
within five (5) years from the dates final
and absolute ownership thereof
becomes vested in the vendee, except
in cases of hereditary succession or
resale in favor of the vendor:
x x x (emphasis supplied).3
A day after We issuance of TCT No. 436465,
or on February 20, 1974, Macaria Vda. de
Caiquep sold the subject lot to private
respondent, Maximo Menez, Jr., as evidenced
by a Deed of Absolute Sale (Exhibit "D").4 This
deed was notarized but was not registered
immediately upon its execution in 1974
because GSIS prohibited him from registering
the same in view of the five-year prohibition to
sell during the period ending in 1979.
Sometime in 1979, for being suspected as a
subversive, an Arrest, Search and Seizure
Order (ASSO) was issued against private
respondent. Military men ransacked his house
in Cainta, Rizal. Upon learning that he was
wanted by the military, he voluntarily
surrendered and was detained for two (2)
years. When released, another order for his re-
arrest was issued so he hid in Mindanao for
another four (4) years or until March 1984. In
December of 1990, he discovered that the
subject TCT was missing. He consulted a
lawyer but the latter did not act immediately on
the matter. Upon consulting a new counsel, an
Affidavit of Loss5 was filed with the Register of
Deeds of Pasig and a certified copy6 of TCT
No. 436465 was issued. Private respondent
also declared the property for tax purposes and
obtained a certification thereof from the
Assessor's Office.7
Private respondent sent notices to the
registered owner at her address appearing in
the title and in the Deed of Sale. And, with his
counsel, he searched for the ,registered owner
in Metro Manila and Rizal and as far as Samar,
Leyte, Calbayog City, Tacloban City, and in
Eastern and Northern Samar. However, their
search proved futile.
On July 8, 1992 private respondent filed a
petition docketed as LRC Case No. R-4659
with the RTC, Branch 154, Pasig, Metro Manila
for the issuance of owner's duplicate copy of
TCT No. 436465 to replace the lost one. To
show he was the owner of the contested lot, he
showed the Deed of Absolute Sale, Exhibit "D".
The petition was set for hearing and the court's
order dated July 10, 1992 was published once
in Malaya, a nationally circulated newspaper in
the Philippines.8
During the hearing on September 3, 1992, only
Menez and his counsel appeared. The
Register of Deeds who was not served notice,
and the Office of the Solicitor General and the
Provincial Prosecutor who were notified did not
attend.
On September 18, 1992, there being no
opposition, Menez presented his evidence ex-
parte. The trial court granted his petition in its
decision9 dated September 30, 1992, the
dispositive portion of which reads:
WHEREFORE, the petition is hereby
GRANTED and the Registry of Deeds
of Pasig, Metro Manila, is hereby
directed to issue a new Owner's
Duplicate Copy of Transfer Certificate
of Title No. 436465 based on the
original thereon filed in his office which
shall contain the memorandum of
encumbrance and an additional
memorandum of the fact that it was
issued in place of the lost duplicate and
which shall, in all respect, be entitled to
like faith and credit as the original
duplicate, for all legal intents and
purposes.
Issuance of new owner's duplicate
copy shall be made only after this
decision shall have become final and
executory. The said lost owner's
duplicate is hereby declared null and
void.
Petitioner shall pay all legal fees in
connection with the issuance of the
new owner's copy.
 Let copies of this Order be furnished
the petitioner, the registered owner of
his given address in the title, in the
deed of sale, and in the tax declaration;
the Registry of Deeds of Pasig, the
Office of the Solicitor General; and the
Provincial Fiscal of Pasig, Metro
Manila.
SO ORDERED.10
On October 13, 1992, herein petitioner, Jesus
San Agustin, received a copy of the abovecited
decision. He-claimed this was the first time he
became aware of the case of her aunt, Macaria
Vda. de Caiquep who, according to him, died
sometime in 1974. Claiming that he was the
present occupant of the property and the heir
of Macaria, he filed his "Motion to Reopen
Reconstitution Proceedings''11 on October 27,
1992. On December 3, 1992, RTC issued an
order denying said motion.12
Petitioner filed an appeal with the Court of
Appeals, which, as earlier stated, was denied
in its decision of May 19, 1995. Petitioner
moved for a reconsideration, but it was denied
in a resolution dated September 11, 1995.13
Thus, the present petition, attributing the
following errors to the court a quo:
A.
THE RESPONDENT COURT GRAVELY
ERRED IN HOLDING THAT LRC CASE NO.
R-4659 BEING ONLY A PETITION FOR THE
ISSUANCE OF A NEW OWNER'S
DUPLICATE OF TITLE, THERE IS NO NEED
OF PERSONAL NOTICE TO THE
PETITIONER, THE ACTUAL POSSESSOR
[WHO HAS] AND ACTUALLY BEEN PAYING
THE REAL ESTATE TAX, DESPITE PRIVATE
RESPONDENT'S KNOWLEDGE OF ACTUAL
POSSESSION OF AND INTEREST OVER
THE PROPERTY COVERED BY TCT NO.
436465.14
B.
RESPONDENT COURT GRAVELY ERRED IN
HOLDING THAT THE SALE BETWEEN THE
PRIVATE RESPONDENT AND MACARIA
VDA. DE CAIQUEP IS NOT NULL AND VOID
AND UNDER ARTICLE 1409 OF THE CIVIL
CODE SPECIFICALLY PARAGRAPH (7)
THEREOF WHICH REFERS TO
CONTRACTS EXPRESSLY PROHIBITED OR
DECLARED VOID BY LAW.15
Considering the above assignment of errors,
let us resolve the corresponding issues raised
by petitioner.
The first issue involves private respondent's
alleged failure to send notice to petitioner who
is the actual possessor of the disputed lot.
Stated briefly, is petitioner entitled to notice?
Our finding is in the negative.
Presidential Decree No. 1529, otherwise
known as the "Property Registration Decree" is
decisive. It provides:
Sec. 109. Notice and replacement of
lost duplicate certificate. — In case of
loss or theft of an owner's duplicate
certificate of title, due notice under oath
shall be sent by the owner or by
someone in his behalf to the Register
of Deeds of the province or city where
the land lies as soon as the loss or theft
is discovered. If a duplicate certificate
is lost or destroyed, or cannot be
produced by a person applying for the
entry of a new certificate to him or for
:the registration of any instrument, a
sworn statement of the fact of such loss
or destruction may be filed by the
registered owner or other person it
interest and registered.
Upon the petition of the registered
owner or other person in interest, the
court may, after notice and due
hearing, direct the issuance of a new
duplicate certificate, which shall
contain a memorandum of the fact that
it is issued in place of the lost duplicate
certificate, but shall in all respects be
entitled to like faith and credit as the
original duplicate, and shall thereafter
be regarded as such for all purposes of
this decree.
In Office of Court Administrator vs. Matas, A.M.
No. RTJ-92-836, 247 SCRA 9, 16-17 (1995),
we held:
In the case at bar, the respective
certificate of title of the properties in
question on file with the Register of
Deeds are existing, and it is the
owner's copy of the certificate of title
that was alleged to have been lost or
destroyed. Thus, it is Section 109 of
P.D. 1529 which was approved on
June 11, 1978 that becomes effective
and is applicable, a reading of which
shows that it is practically the same as
Section 109 of Act No. 496, governing
reconstitution of a duplicate certificate
of title lost or destroyed. Consequently,
it is sufficient that the notice under
Section 109 is sent to the Register of
Deeds and to those persons who are
known to have, or appear to have, an
interest in the property as shown in the
Memorandum of encumbrances at the
back of the original or transfer
certificate of title on file in the office of
the Register of Deeds. From a legal
standpoint, there are no other
interested parties who should be
notified, except those abovementioned
since they are the only ones who may
be deemed to have a claim to the
property involved. A person dealing
with registered is not charged with
notice of encumbrances not annotated
on the back of the title. (Emphasis
supplied.)
Here, petitioner does not appear to have an
interest in the property based on the
memorandum of encumbrances annotated at
the back of the title. His claim, that he is an heir
(nephew) of the original owner of the lot
covered by the disputed lot and the present
occupant thereof is not annotated in the said
memorandum of encumbrances. Neither was
his claim entered on the Certificate of Titles in
the name of their original/former owners on file
with the Register of Deeds at the time of the
filing or pendency of LRC Case No. R-4659.
Clearly, petitioner is not entitled to notice.
Noteworthy is the fact that there was
compliance by private respondent of the RTC's
order of publication of the petition in a
newspaper of general circulation. This is
sufficient notice of the petition to the public at
large.
Petitioner contends that as possessor or actual
occupant of the lot in controversy, he is entitled
under the law to be notified. He relies
on Alabang Development Corporation vs.
Valenzuela, G.R. No. L-54094, 116 SCRA 261,
277 (1982)) which held that in reconstitution
proceedings, courts must make sure that
indispensable parties, i.e.. the actual owners
and possessors of the lands involved, are duly
served with actual and personal notice of the
petition. As pointed out by the appellate court,
his reliance on Alabang is misplaced because
the cause of action in that case is based on
Republic Act i No. 26, entitled "An Act
Providing A Special Procedure for the
Reconstitution of Torrens Certificate of Title
Lost or Destroyed," while the present case is
based on Section 109 of P.D. 1529 as above
explained.
Under Republic Act No. 26, reconstitution is
validly made only in case the original copy of
the certificate of title with the Register of Deeds
is lost or destroyed. And if no notice of the date
of hearing of a reconstitution case is served on
a possessor or one having interest in the
property involved, he is deprived of his day in
court and the order of reconstitution is null and
void.16 The case at bar is not for reconstitution,
but merely for replacement of lost duplicate
certificate.
On the second assigned error, petitioner
contends that Exhibit "D" is null and void under
Article 1409 of the Civil Code, specifically
paragraph (7),17 because the deed of sale was
executed within the five-year prohibitory period
under Commonwealth Act No. 141, as
amended, otherwise known as "The Public
Land Act."18
We find petitioner's contention less than
meritorious. We agree with respondent court
that the proscription under Com. Act No. 141
on sale within the 5-year restrictive period
refers to homestead lands only. Here the lot in
dispute is not a homestead land, as found by
the trial and appellate courts. Said lot is owned
by GSIS, under TCT No. 10028 in its
proprietary capacity.
Moreover, as far as the violation of the 5-year
restrictive condition imposed by GSIS in its
contract with petitioner's predecessor-in-
interest is concerned, it is the GSIS and not
petitioner who had a cause of action against
private respondent. Vide the instructive case
of Sarmiento vs. Salud:
The condition that the appellees
Sarmiento spouses could not resell the
property except to the People's
Homesite and Housing Corporation
(PHHC for short) within the next 25
years after appellees' purchasing the
lot is manifestly a condition in favor of
the PHHC, and not one in favor of the
Sarmiento spouses. The condition
conferred no actionable right on
appellees herein, since it operated as a
restriction upon their jus disponendi of
the property they bought, and thus
limited their right of ownership. It
follows that on the assumption that the
mortgage to appellee Salud and the
foreclosure sale violated the condition
in the Sarmiento contract, only the
PHHC was entitled to invoke the
condition aforementioned, and not the
Sarmientos. The validity or invalidity of
the sheriff's foreclosure sale to
appellant Salud thus violative of its
right of exclusive reacquisition; but it
(PHHC) also could waive the condition
and treat the sale as good, in which
event, the sale can not be assailed for
breach of the condition aforestated.19
In this case, the GSIS has not filed any action
for the annulment of Exhibit "D", nor for the
forfeiture of the lot in question. In our view, the
contract of sale remains valid between the
parties, unless and until annulled in the proper
suit filed by the rightful party, the GSIS. For
now, the said contract of sale is binding upon
the heirs of Macaria Vda. de Caiquep, including
petitioner who alleges to be one of her heirs, in
line with the rule that heirs are bound by
contracts entered into by their predecessors-in-
interest.20
We are not unmindful of the social justice policy
of R.A. 8291 otherwise known as "Government
Service Insurance Act of 1997" in granting
housing assistance to the less-privileged GSIS
members and their dependents payable at an
affordable payment scheme.21 This is the same
policy which the 5-year restrictive clause in the
contract seeks to implement by stating in the
encumbrance itself annotated at the back of
TCT No. 436465 that, "The purpose of the sale
is to aid the vendee in acquiring a lot for
himself/themselves and not to provide
him/them with a means for speculation or profit
by a future assignment of his/their right herein
acquired or the resale of the lot through rent,
lease or subletting to others of the lot and
subject of this deed, . . . within five (5) years
from the date final and absolute ownership
thereof becomes vested in the vendee, except
in cases of hereditary succession or resale in
favor of the vendor."22 However, absent the
proper action taken by the GSIS as the original
vendor referred to, the contract between
petitioner's predecessor-in-interest and private
respondent deserves to be upheld. For as
pointed out by said private respondent, it is
protected by the Constitution under Section 10,
Article III, of the Bill of Rights stating that, "No
law impairing the obligation of contracts shall
be passed." Much as we would like to see a
salutary policy triumph, that provision of the
Constitution duly calls for compliance.
More in point, however, is the fact that,
following Sarmiento v. Salud,23 "Even if the
transaction between the original awardee and
herein petitioner were wrongful, still, as
between themselves, the purchaser and the
seller were both in pari delicto, being participes
criminis as it were." As in Sarmiento, in this
case both were aware of the existence of the
stipulated condition in favor of the original
seller, GSIS, yet both entered into an
agreement violating said condition and
nullifying its effects. Similarly, as Acting Chief
Justice JBL Reyes concluded in Sarmiento,
"Both parties being equally guilty, neither is
entitled to complain against the other. Having
entered into the transaction with open eyes,
and having benefited from it, said parties
should be held in estoppel to assail and annul
their own deliberate acts."
WHEREFORE, the appeal is DENIED, and the
decision of the respondent court is AFFIRMED.
SO ORDERED.
2. Article 777. The rights to the succession are
transmitted from the moment of the death of the
decedent.
Related to:
Art. 390. After an absence of seven years, it
being unknown whether or not the absentee
still lives, he shall be presumed dead for all
purposes, except for those of succession.
The absentee shall not be presumed dead for
the purpose of opening his succession till after
an absence of ten years. If he disappeared
after the age of seventy-five years, an absence
of five years shall be sufficient in order that his
succession may be opened. (n)
Art. 391. The following shall be presumed dead
for all purposes, including the division of the
estate among the heirs:
(1) A person on board a vessel lost during a
sea voyage, or an aeroplane which is missing,
who has not been heard of for four years since
the loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken
part in war, and has been missing for four
years;
(3) A person who has been in danger of death
under other circumstances and his existence
has not been known for four years.
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, MATILDE DE
BORJA and CRISANTO DE BORJA
(deceased) as Children of Josefa
Tangco, appellees,
vs.
TASIANA VDA. DE DE BORJA, Special
Administratrix of the Testate Estate of
Francisco de Borja, appellant. .
G.R. No L-28568 August 18, 1972
TESTATE ESTATE OF THE LATE
FRANCISCO DE BORJA, TASIANA O. VDA.
DE DE BORJA, special Administratrix
appellee,
vs.
JOSE DE BORJA, oppositor-appellant.
G.R. No. L-28611 August 18, 1972
TASIANA 0. VDA. DE BORJA, as
Administratrix of the Testate Estate of the
late Francisco de Borja, plaintiff-appellee,
vs.
JOSE DE BORJA, as Administrator of the
Testate Estate of the late Josefa
Tangco, defendant-appellant.
L-28040
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.
Pelaez, Jalandoni & Jamir for oppositor-
appellant.
L-28611 Francisco de Borja allegedly took unto himself
a second wife, Tasiana Ongsingco. Upon
Sevilla & Aquino for plaintiff-appellee. Francisco's death, Tasiana instituted testate
proceedings in the Court of First Instance of
Pelaez, Jalandoni & Jamir and David Gueverra Nueva Ecija, where, in 1955, she was
for defendant-appellant. appointed special administratrix. The validity of
Tasiana's marriage to Francisco was
questioned in said proceeding.

REYES, J.B.L., J.:p The relationship between the children of the

first marriage and Tasiana Ongsingco has
Of these cases, the first, numbered L-28040 is an appeal by
been plagued with several court suits and
Tasiana Ongsingco Vda. de de Borja, special administratrix of the counter-suits; including the three cases at bar,
testate estate of Francisco de Borja,1 from the approval of a some eighteen (18) cases remain pending
compromise agreement by the Court of First Instance of Rizal,
Branch I, in its Special Proceeding No. R-7866, entitled, "Testate determination in the courts. The testate estate
Estate of Josefa Tangco, Jose de Borja, Administrator". of Josefa Tangco alone has been unsettled for
more than a quarter of a century. In order to put
Case No. L-28568 is an appeal by an end to all these litigations, a compromise
administrator Jose Borja from the disapproval agreement was entered into on 12 October
of the same compromise agreement by the 1963,2 by and between "[T]he heir and son of
Court of First Instance of Nueva Ecija, Branch Francisco de Borja by his first marriage,
II, in its Special Proceeding No. 832, entitled, namely, Jose de Borja personally and as
"Testate Estate of Francisco de Borja, Tasiana administrator of the Testate Estate of Josefa
O. Vda. de de Borja, Special Administratrix". Tangco," and "[T]he heir and surviving spouse
of Francisco de Borja by his second marriage,
And Case No. L-28611 is an appeal by Tasiana Ongsingco Vda. de Borja, assisted by
administrator Jose de Borja from the decision her lawyer, Atty. Luis Panaguiton Jr." The
of the Court of First Instance of Rizal, Branch terms and conditions of the compromise
X, in its Civil Case No. 7452, declaring the agreement are as follows:
Hacienda Jalajala Poblacion, which is the main
object of the aforesaid compromise agreement, AGREEMENT
as the separate and exclusive property of the
late Francisco de Borja and not a conjugal THIS AGREEMENT made and
asset of the community with his first wife, entered into by and between
Josefa Tangco, and that said hacienda
pertains exclusively to his testate estate, which The heir and son of Francisco
is under administrator in Special Proceeding de Borja by his first marriage,
No. 832 of the Court of First Instance of Nueva namely, Jose de Borja
Ecija, Branch II. personally and as administrator
of the Testate Estate of Josefa
It is uncontested that Francisco de Borja, upon Tangco,
the death of his wife Josefa Tangco on 6
October 1940, filed a petition for the probate of AND
her will which was docketed as Special
Proceeding No. R-7866 of the Court of First
The heir and surviving spouse
Instance of Rizal, Branch I. The will was
of Francisco de Borja by his
probated on 2 April 1941. In 1946, Francisco
second marriage, Tasiana
de Borja was appointed executor and
Ongsingco Vda. de Borja,
administrator: in 1952, their son, Jose de Borja,
assisted by her lawyer, Atty.
was appointed co-administrator. When
Luis Panaguiton Jr.
Francisco died, on 14 April 1954, Jose became
the sole administrator of the testate estate of
his mother, Josefa Tangco. While a widower WITNESSETH
THAT it is the mutual desire of Familia
all the parties herein terminate Maronilla
and settle, with finality, the
various court litigations, with a segregated area of
controversies, claims, approximately 1,313 hectares
counterclaims, etc., between at the amount of P0.30 per
them in connection with the square meter.
administration, settlement,
partition, adjudication and 2. That Jose de Borja agrees
distribution of the assets as and obligates himself to pay
well as liabilities of the estates Tasiana Ongsingco Vda. de de
of Francisco de Borja and Borja the total amount of Eight
Josefa Tangco, first spouse of Hundred Thousand Pesos
Francisco de Borja. (P800,000) Philippine
Currency, in cash, which
THAT with this end in view, the represent P200,000 as his
parties herein have agreed share in the payment and
voluntarily and without any P600,000 as pro-rata shares of
reservations to enter into and the heirs Crisanto, Cayetano
execute this agreement under and Matilde, all surnamed de
the following terms and Borja and this shall be
conditions: considered as full and
complete payment and
1. That the parties agree to sell settlement of her hereditary
the Poblacion portion of the share in the estate of the late
Jalajala properties situated in Francisco de Borja as well as
Jalajala, Rizal, presently under the estate of Josefa Tangco,
administration in the Testate Sp. Proc. No. 832-Nueva Ecija
Estate of Josefa Tangco (Sp. and Sp. Proc. No. 7866-Rizal,
Proc. No. 7866, Rizal), more respectively, and to any
specifically described as properties bequeathed or
follows: devised in her favor by the late
Francisco de Borja by Last Will
Linda al Norte and Testament or by Donation
con el Rio Inter Vivos or Mortis Causa or
Puwang que la purportedly conveyed to her for
separa de la consideration or otherwise.
jurisdiccion del The funds for this payment
Municipio de shall be taken from and shall
Pililla de la depend upon the receipt of full
Provincia de payment of the proceeds of the
Rizal, y con el sale of Jalajala, "Poblacion."
pico del Monte
Zambrano; al 3. That Tasiana Ongsingco
Oeste con Vda. de de Borja hereby
Laguna de assumes payment of that
Bay; por el Sur particular obligation incurred by
con los the late Francisco de Borja in
herederos de favor of the Rehabilitation
Marcelo de Finance Corporation, now
Borja; y por el Development Bank of the
Este con los Philippines, amounting to
terrenos de la 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.
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, therefore, no
reason for the respondent Court not to allow
their substitution as parties in interest for the
deceased plaintiff.
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
notice, the legal representative of the
deceased to appear and be 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 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 qualified person as
guardian ad litem for them. Without
pronouncement as to costs.
SO ORDERED.
G.R. No. 75884 September 24, 1987
JULITA GO ONG, FOR HERSELF AND AS
JUDICIAL GUARDIAN OF STEVEN GO
ONG, petitioners,
vs.
THE HON. COURT OF APPEALS, ALLIED
BANKING CORPORATION and the CITY
SHERIFF OF QUEZON CITY, respondents.
PARAS, J.:
This is a petition for review on certiorari of the
March 21, 1986 Decision * of the Court of Appeals in
AC-G.R. CV No. 02635, "Julita Ong etc. vs. Allied Banking Corp.
et al." affirming, with modification, the January 5, 1984 Decision
of the Regional Trial Court of Quezon City in Civil Case No. Q-
35230.
The uncontroverted facts of this case, as found
by the Court of Appeals, are as follows:
...: Two (2) parcels of land in
Quezon City Identified as Lot
No. 12, Block 407, Psd 37326
with an area of 1960.6 sq. m.
and Lot No. 1, Psd 15021, with
an area of 3,660.8 sq. m. are
covered by Transfer Certificate
of Title No. 188705 in the name Exports, Inc. which will also
of "Alfredo Ong Bio Hong take charge of the interest of
married to Julita Go Ong "(Exh. the loan.
D). Alfredo Ong Bio Hong died
on January 18, 1975 and Julita Concluding, the trial court
Go Ong was appointed ruled:
administratrix of her husband's
estate in Civil Case No. Absent (of) any
107089. The letters of evidence that
administration was registered the property in
on TCT No. 188705 on October question is the
23, 1979. Thereafter, Julita Go capital of the
Ong sold Lot No. 12 to Lim Che deceased
Boon, and TCT No. 188705 husband
was partially cancelled and brought into the
TCT No. 262852 was issued in marriage, said
favor of Lim Che Boon covering property should
Lot No. 12 (Exh. D-4). On June be presumed
8, 1981 Julita Go Ong through as acquired
her attorney-in-fact Jovita K. during the
Yeo (Exh. 1) mortgaged Lot marriage and,
No. 1 to the Allied Banking therefore,
Corporation to secure a loan of conjugal
P900,000.00 obtained by JK property,
Exports, Inc. The mortgage
was registered on TCT No.
After the
188705 on the same date with
dissolution of
the following notation: "...
the marriage
mortgagee's consent
with the death
necessary in case of
of plaintiff's
subsequent alienation or
husband, the
encumbrance of the property
plaintiff
other conditions set forth in
acquired, by
Doc. No. 340, Page No. 69,
law, her
Book No. XIX, of the Not.
conjugal share,
Public of Felixberto Abad". On
together with
the loan there was due the sum
the hereditary
of P828,000.00 and Allied
rights thereon.
Banking Corporation tried to
(Margate vs.
collect it from Julita Go Ong,
Rabacal, L-
(Exh. E). Hence, the complaint
14302, April
alleging nullity of the contract
30, 1963).
for lack of judicial approval
Consequently,
which the bank had allegedly
the mortgage
promised to secure from the
constituted on
court. In response thereto, the
said property,
bank averred that it was
upon express
plaintiff Julita Go Ong who
authority of
promised to secure the court's
plaintiff,
approval, adding that Julita Go
notwithstandin
Ong informed the defendant
g the lack of
that she was processed the
judicial
sum of P300,000.00 by the JK
approval, is
 valid, with
respect to her
conjugal share
thereon,
together with
her hereditary
rights.
On appeal by petitioner, respondent Court of
Appeals affirmed, with modification, the
appealed decision (Record, pp. 19-22). The
dispositive portion of the appellate court's
decision reads:
WHEREFORE, with the
modification that the
extrajudicial foreclosure
proceedings instituted by
defendant against plaintiff shall
be held in abeyance to await
the final result of Civil Case No.
107089 of the Court of First
Instance of Manila, 6th Judicial
District Branch XXXII, entitled
"IN THE MATTER OF THE
INTESTATE ESTATE OF THE
LATE ALFREDO ONG BIO:
JULITA GO ONG,
ADMINISTRATRIX". In
pursuance with which the
restraining order of the lower
court in this case restraining
the sale of the properties levied
upon is hereby ordered to
continue in full force and effect
coterminous with the final
result of Civil Case No.
107089, the decision appealed
from is hereby affirmed. Costs
against plaintiff-appellant.
SO ORDERED.
On April 8, 1986, petitioner moved for the
reconsideration of the said decision (Ibid., pp.
24-29), but in a Resolution dated September
11, 1986, respondent court denied the motion
for lack of merit (Ibid., p. 23). Hence, the instant
petition (Ibid., pp. 6-17).
The Second Division of this Court, in a
Resolution dated November 19, 1986 (Rollo, p.
30), without giving due course to the petition,
resolved to require private respondent to
comment thereon and it did on February 19,
1987 (Ibid., pp. 37-42). Thereafter, in a
Resolution dated April 6, 1987, the petition was
given due course and the parties were required
to file their respective memoranda (Ibid., p. 43).
Petitioner filed her Memorandum on May 13,
1987 (Ibid., pp. 45-56), while private
respondent filed its Memorandum on May 20,
1987 (Ibid., pp. 62-68).
The sole issue in this case is —
WHETHER OR NOT THE MORTGAGE
CONSTITUTED OVER THE PARCEL OF
LAND UNDER PETITIONER'S
ADMINISTRATION IS NULL AND VOID FOR
WANT OF JUDICIAL APPROVAL.
The instant petition is devoid of merit.
The well-settled rule that the findings of fact of
the trial court are entitled to great respect,
carries even more weight when affirmed by the
Court of Appeals as in the case at bar.
In brief, the lower court found: (1) that the
property under the administration of petitioner
— the wife of the deceased, is a community
property and not the separate property of the
latter; (2) that the mortgage was constituted in
the wife's personal capacity and not in her
capacity as administratrix; and (3) that the
mortgage affects the wife's share in the
community property and her inheritance in the
estate of her husband.
Petitioner, asserting that the mortgage is void
for want of judicial approval, quoted Section 7
of Rule 89 of the Rules of Court and cited
several cases wherein this Court ruled that the
regulations provided in the said section are
mandatory.
While petitioner's assertion may have merit
insofar as the rest of the estate of her husband
is concerned the same is not true as regards
her conjugal share and her hereditary rights in
the estate. The records show that petitioner
willingly and voluntarily mortgaged the property
in question because she was processed by JK
Exports, Inc. the sum of P300,000.00 from the
proceeds of the loan; and that at the time she
executed the real estate mortgage, there was
no court order authorizing the mortgage, so
she took it upon herself, to secure an order.
Thus, in confirming the findings of the lower
court, as supported by law and the evidence,
the Court of Appeals aptly ruled that Section 7
of Rule 89 of the Rules of Court is not
applicable, since the mortgage was constituted
in her personal capacity and not in her capacity
as administratrix of the estate of her husband.
Nevertheless, petitioner, citing the cases
of Picardal, et al. vs. Lladas (21 SCRA 1483)
and Fernandez, et al. vs. Maravilla (10 SCRA
589), further argues that in the settlement
proceedings of the estate of the deceased
spouse, the entire conjugal partnership
property of the marriage is under
administration. While such may be in a sense
true, that fact alone is not sufficient to invalidate
the whole mortgage, willingly and voluntarily
entered into by the petitioner. An opposite view
would result in an injustice. Under similar
circumstances, this Court applied the
provisions of Article 493 of the Civil Code,
where the heirs as co-owners shall each have
the full ownership of his part and the fruits and
benefits pertaining thereto, and he may
therefore alienate, assign or mortgage it, and
even effect of the alienation or mortgage, with
respect to the co-owners, shall be limited to the
portion which may be allotted to him in the
division upon the termination of the co-
ownership (Philippine National Bank vs. Court
of Appeals, 98 SCRA 207 [1980]).
Consequently, in the case at bar, the trial court
and the Court of Appeals cannot be faulted in
ruling that the questioned mortgage constituted
on the property under administration, by
authority of the petitioner, is valid,
notwithstanding the lack of judicial approval,
with respect to her conjugal share and to her
hereditary rights. The fact that what had been
mortgaged was in custodia legis is immaterial,
insofar as her conjugal share and hereditary
share in the property is concerned for after all,
she was the ABSOLUTE OWNER thereof. This
ownership by hers is not disputed, nor is there
any claim that the rights of the government
(with reference to taxes) nor the rights of any
heir or anybody else have been prejudiced for
impaired. As stated by Associate Justice (later
Chief Justice) Manuel Moran in Jakosalem vs.
Rafols, et al., 73 Phil. 618 —
The land in question, described
in the appealed decision,
originally belonged to Juan
Melgar. The latter died and the
judicial administration of his
estate was commenced in
1915 and came to a close on
December 2, 1924, only.
During the pendency of the
said administration, that is, on
July 5, 1917, Susana Melgar,
daughter of the deceased Juan
Melgar, sold the land with the
right of repurchase to Pedro
Cui, subject to the stipulation
that during the period for the
repurchase she would continue
in possession of the land as
lessee of the purchase. On
December 12, 1920, the
partition of the estate left by the
deceased Juan Melgar was
made, and the land in question
was adjudicated to Susana
Melgar. In 1921, she conveyed,
in payment of professional
fees, one-half of the land in
favor of the defendant-appellee
Nicolas Rafols, who entered
upon the portion thus conveyed
and has been in possession
thereof up to the present. On
July 23, 1921, Pedro Cui
brought an action to recover
said half of the land from
Nicolas Rafols and the other
half from the other defendants,
and while that case was
pending, or about August 4,
1925, Pedro Cui donated the
whole land in question to
Generosa Teves, the herein
plaintiff-appellant, after trial,
the lower court rendered a
decision absolving Nicolas
Rafols as to the one-half of the
 land conveyed to him by
Susana Melgar, and declaring
the plaintiff owner of the other
half by express
acknowledgment of the other
defendants. The plaintiff
appealed from that part of the
judgment which is favorable to
Nicolas Rafols.
The lower court absolved
Nicolas Rafols upon the theory
that Susana Melgar could not
have sold anything to Pedro
Cui because the land was then
in custodia legis, that is, under
judicial administration. This is
error. That the land could not
ordinary be levied upon while
in custodia legis, does not
mean that one of the heirs may
not sell the right, interest or
participation which he has or
might have in the lands under
administration. The ordinary
execution of property in
custodia legis is prohibited in
order to avoid interference with
the possession by the court.
But the sale made by an heir of
his share in an inheritance,
subject to the result of the
pending administration, in no
wise stands in the way of such
administration.
The reference to judicial approval in Sec. 7,
Rule 89 of the Rules of Court cannot adversely
affect the substantiverights of private
respondent to dispose of her Ideal [not
inchoate, for the conjugal partnership ended
with her husband's death, and her hereditary
rights accrued from the moment of the death of
the decedent (Art. 777, Civil Code) share in the
co-heirship and/or co-ownership formed
between her and the other heirs/co-owners
(See Art. 493, Civil Code, supra.). Sec. 7, Art.
89 of the Civil Code applies in a case where
judicial approval has to be sought in connection
with, for instance, the sale or mortgage of
property under administration for the payment,
say of a conjugal debt, and even here, the
conjugal and hereditary shares of the wife are
excluded from the requisite judicial approval for
the reason already adverted to hereinabove,
provided of course no prejudice is caused
others, including the government.
Moreover, petitioner is already estopped from
questioning the mortgage. An estoppel may
arise from the making of a promise even
though without consideration, if it was intended
that the promise should be relied upon and in
fact it was relied upon, and if a refusal to
enforce it would be virtually to sanction the
perpetration of fraud or would result in other
injustice (Gonzalo Sy Trading vs. Central Bank,
70 SCRA 570).
PREMISES CONSIDERED, the instant petition
is hereby DENIED and the assailed decision of
the Court of Appeals is hereby AFFIRMED.
SO ORDERED.
G.R. No. L-15499 February 28, 1962
ANGELA M. BUTTE, plaintiff-appellant,
vs.
MANUEL UY and SONS, INC., defendant-
appellee.
Delgado, Flores and Macapagal for plaintiff-
appellant.
Pelaez and Jalandoni for defendant-appellee.
REYES, J.B.L., J.:
Appeal from a decision of the Court of First
instance of Manila dismissing the action for
legal redemption filed by plaintiff-appellant.
It appears that Jose V. Ramirez, during his
lifetime, was a co-owner of a house and lot
located at Sta. Cruz, Manila, as shown by
Transfer Certificate of Title No. 52789, issued
in the name of the following co-owners: Marie
Garnier Vda. de Ramirez, 1/6; Jose V.
Ramirez, 1/6; Jose E. Ramirez, 1/6; Rita de
Ramirez, 1/6; and Jose Ma. Ramirez, 1/6.
On October 20, 1951, Jose V. Ramirez died.
Subsequently, Special Proceeding No. 15026
was instituted to settle his estate, that included
the one-sixth (1/6) undivided share in the
aforementioned property. And although his last
will and testament, wherein he bequeathed his
estate to his children and grandchildren and
one-third (1/3) of the free portion to Mrs. Angela
M. Butte, hereinafter referred to as plaintiff-
appellant, has been admitted to probate, the
estate proceedings are still pending up to the
present on account of the claims of creditors
which exceed the assets of the deceased. The
Bank of the Philippine Islands was appointed
judicial administrator.
Meanwhile, on December 9, 1958, Mrs. Marie
Garnier Vda. de Ramirez, one of the co-owners
of the late Jose V. Ramirez in the Sta. Cruz
property, sold her undivided 1/6 share to
Manuel Uy & Sons, Inc. defendant-appellant
herein, for the sum of P500,000.00. After the
execution by her attorney-in-fact, Mrs. Elsa R.
Chambers, of an affidavit to the effect that
formal notices of the sale had been sent to all
possible redemptioners, the deed of sale was
duly registered and Transfer Certificate of Title
No. 52789 was cancelled in lieu of which a new
one was issued in the name of the vendee and
the other-co-owners.
On the same day (December 9, 1958), Manuel
Uy & Sons, Inc. sent a letter to the Bank of the
Philippine Islands as judicial administrator of
the estate of the late Jose V. Ramirez informing
it of the above-mentioned sale. This letter,
together with that of the bank, was forwarded
by the latter to Mrs. Butte c/o her counsel
Delgado, Flores & Macapagal, Escolta, Manila,
and having received the same on December
10, 1958, said law office delivered them to
plaintiff-appellant's son, Mr. Miguel Papa, who
in turn personally handed the letters to his
mother, Mrs. Butte, on December 11 and 12,
1958. Aside from this letter of defendant-
appellant, the vendor, thru her attorney-in-fact
Mrs. Chambers, wrote said bank on December
11, 1958 confirming vendee's letter regarding
the sale of her 1/6 share in the Sta. Cruz
property for the sum of P500,000.00. Said
letter was received by the bank on December
15, 1958 and having endorsed it to Mrs. Butte's
counsel, the latter received the same on
December 16, 1958. Appellant received the
letter on December 19, 1958.
On January 15, 1959, Mrs. Angela M. Butte,
thru Atty. Resplandor Sobretodo, sent a letter
and a Philippine National Bank cashier's check
in the amount of P500,000.00 to Manuel Uy &
Sons, Inc. offering to redeem the 1/6 share sold
by Mrs. Marie Garnier Vda. de Ramirez. This
tender having been refused, plaintiff on the
same day consigned the amount in court and
filed the corresponding action for legal
redemption. Without prejudice to the
determination by the court of the reasonable
and fair market value of the property sold which
she alleged to be grossly excessive, plaintiff
prayed for conveyance of the property, and for
actual, moral and exemplary damages.
After the filing by defendant of its answer
containing a counterclaim, and plaintiff's reply
thereto, trial was held, after which the court
rendered decision on May 13, 1959, dismissing
plaintiff's complaint on the grounds that she
has no right to redeem the property and that, if
ever she had any, she exercised the same
beyond the statutory 30-day period for legal
redemptions provided by the Civil Code. The
counterclaim of defendant for damages was
likewise dismissed for not being sufficiently
established. Both parties appealed directly to
this Court.
Based on the foregoing facts, the main issues
posed in this appeal are: (1) whether or not
plaintiff-appellant, having been bequeathed 1/3
of the free portion of the estate of Jose V.
Ramirez, can exercise the right of legal
redemption over the 1/6 share sold by Mrs.
Marie Garnier Vda. de Ramirez despite the
presence of the judicial administrator and
pending the final distribution of her share in the
testate proceedings; and (2) whether or not she
exercised the right of legal redemption within
the period prescribed by law.
The applicable law involved in the present case
is contained in Articles 1620, p. 1, and 1623 of
the Civil Code of the Philippines, which read as
follows:
 ART. 1620. A co-owner of a thing may
exercise the right of redemption in case
the shares of all the other-co-owners or
of any of them, are sold to a third
person. If the price of the alienation is
grossly excessive, the redemptioner
shall pay only a reasonable one.
Should two or more co-owners desire
to exercise the right of redemption,
they may only do so in proportion to the
share they may respectively have in
the thing owned in common. (1522a)
ART. 1623. The right of legal
predemption or redemption shall not be
exercised except within thirty days from
the notice in writing by the respective
vendor, or by the vendor, as the case
may be. The deed of sale shall not be
accorded in the Registry of Property,
unless accompanied by an affidavit of
the vendor that he has given written
notice thereof at all possible
redemptioners.
The right of redemption of co-owners
excludes that of adjoining owners.
(1524a)
That the appellant Angela M. Butte is entitled
to exercise the right of legal redemption is
clear. As testamentary heir of the estate of J.V.
Ramirez, she and her co-heirs acquired an
interest in the undivided one-sixth (1/6) share
owned by her predecessor (causante) in the
Santa Cruz property, from the moment of the
death of the aforesaid co-owner, J.V. Ramirez.
By law, the rights to the succession of a
deceased persons are transmitted to his heirs
from the moment of his death, and the right of
succession includes all property rights and
obligations that survive the decedent.
ART. 776. The inheritance includes all
the property, rights and obligations of a
person which are not extinguished by
his death. (659)
ART. 777. The rights to the succession
are transmitted from the moment of the
death of the decedent. (657a)
ART. 947. The legatee or devisee
acquires a right to the pure and simple
legacies or devisees from the death of
the testator, and transmits it to his
heirs. (881a)
The principle of transmission as of the time of
the predecessor's death is basic in our Civil
Code, and is supported by other related
articles. Thus, the capacity of the heir is
determined as of the time the decedent died
(Art. 1034); the legitime is to be computed as
of the same moment(Art. 908), and so is the in
officiousness of the donation inter vivos (Art.
771). Similarly, the legacies of credit and
remission are valid only in the amount due and
outstanding at the death of the testator (Art.
935),and the fruits accruing after that instant
are deemed to pertain to the legatee (Art. 948).
As a consequence of this fundamental rule of
succession, the heirs of Jose V. Ramirez
acquired his undivided share in the Sta. Cruz
property from the moment of his death, and
from that instant, they became co-owners in
the aforesaid property, together with the
original surviving co-owners of their decedent
(causante). A co-owner of an undivided share
is necessarily a co-owner of the whole.
Wherefore, any one of the Ramirez heirs, as
such co-owner, became entitled to exercise the
right of legal redemption (retracto de
comuneros) as soon as another co-owner
(Maria Garnier Vda. de Ramirez) had sold her
undivided share to a stranger, Manuel Uy &
Sons, Inc. This right of redemption vested
exclusively in consideration of the
redemptioner's share which the law nowhere
takes into account.
The situation is in no wise altered by the
existence of a judicial administrator of the
estate of Jose V. Ramirez while under the
Rules of Court the administrator has the right
to the possession of the real and personal
estate of the deceased, so far as needed for
the payment of the decedent's debts and the
expenses of administration (sec. 3, Rule 85),
and the administrator may bring or defend
actions for the recovery or protection of the
property or rights of the deceased (sec. 2, Rule
88), such rights of possession and
administration do not include the right of legal
redemption of the undivided share sold to Uy &
Company by Mrs. Garnier Ramirez. The
reason is obvious: this right of legal redemption
only came into existence when the sale to Uy
& Sons, Inc. was perfected, eight (8) years after
the death of Jose V. Ramirez, and formed no
part of his estate. The redemption right vested
in the heirs originally, in their individual
capacity, they did not derivatively acquire it
from their decedent, for when Jose V. Ramirez
died, none of the other co-owners of the Sta.
Cruz property had as yet sold his undivided
share to a stranger. Hence, there was nothing
to redeem and no right of redemption; and if the
late Ramirez had no such right at his death, he
could not transmit it to his own heirs. Much less
could Ramirez acquire such right of redemption
eight years after his death, when the sale to Uy
& Sons, Inc. was made; because death
extinguishes civil personality, and, therefore,
all further juridical capacity to acquire or
transmit rights and obligations of any kind (Civil
Code of the Phil., Art. 42).
It is argued that the actual share of appellant
Mrs. Butte in the estate of Jose V. Ramirez has
not been specifically determined as yet, that it
is still contingent; and that the liquidation of
estate of Jose V. Ramirez may require the
alienation of the decedent's undivided portion
in the Sta. Cruz property, in which event Mrs.
Butte would have no interest in said undivided
portion. Even if it were true, the fact would
remain that so long as that undivided share
remains in the estate, the heirs of Jose V.
Ramirez own it, as the deceased did own it
before his demise, so that his heirs are now as
much co-owners of the Sta. Cruz property as
Jose V. Ramirez was himself a co-owner
thereof during his lifetime. As co-owners of the
property, the heirs of Jose V. Ramirez, or any
one of them, became personally vested with
right of legal redemption as soon as Mrs.
Garnier sold her own pro-indiviso interest to Uy
& Sons. Even if subsequently, the undivided
share of Ramirez (and of his heirs) should
eventually be sold to satisfy the creditors of the
estate, it would not destroy their ownership of it
before the sale, but would only convey or
transfer it as in turn sold (of it actually is sold)
to pay his creditors. Hence, the right of any of
the Ramirez heirs to redeem the Garnier share
will not be retroactively affected. All that the law
requires is that the legal redemptioner should
be a co-owner at the time the undivided share
of another co-owner is sold to a stranger.
Whether or not the redemptioner will continue
being a co-owner after exercising the legal
redemptioner is irrelevant for the purposes of
law.
Nor it can be argued that if the original share of
Ramirez is sold by the administrator, his heirs
would stand in law as never having acquired
that share. This would only be true if the
inheritance is repudiated or the heir's quality as
such is voided. But where the heirship is
undisputed, the purchaser of hereditary
property is not deemed to have acquired the
title directly from the deceased Ramirez,
because a dead man can not convey title, nor
from the administrator who owns no part of the
estate; the purchaser can only derive his title
from the Ramirez heirs, represented by the
administrator, as their trustee or legal
representative.
The right of appellant Angela M. Butte to make
the redemption being established, the next
point of inquiry is whether she had made or
tendered the redemption price within the 30
days from notices as prescribed by law. This
period, be it noted, is peremptory, because the
policy of the law is not to leave the purchaser's
title in uncertainty beyond the established 30-
day period. In considering whether or not the
offer to redeem was timely, we think that the
notice given by the vendee (buyer) should not
be taken into account. The text of Article 1623
clearly and expressly prescribes that the thirty
days for making the redemption are to be
counted from notice in writing by the vendor.
Under the old law (Civ. Code of 1889, Art.
1524), it was immaterial who gave the notice;
so long as the redeeming co-owner learned of
the alienation in favor of the stranger, the
redemption period began to run. It is thus
apparent that the Philippine legislature in
Article 1623 deliberately selected a particular
method of giving notice, and that method must
be deemed exclusive (39 Am. Jur., 237; Payne
vs. State, 12 S.W. [2d] 528). As ruled in
Wampler vs. Lecompte, 150 Atl. 458 (affd. in
75 Law Ed. [U.S.] 275) —
 Why these provisions were inserted in
the statute we are not informed, but we
may assume until the contrary is
shown, that a state of facts in respect
thereto existed, which warranted the
legislature in so legislating.
The reasons for requiring that the notice should
be given by the seller, and not by the buyer, are
easily divined. The seller of an undivided
interest is in the best position to know who are
his co-owners that under the law must be
notified of the sale. Also, the notice by the seller
removes all doubts as to the fact of the sale, its
perfection; and its validity, the notice being a
reaffirmation thereof, so that the party need not
entertain doubt that the seller may still contest
the alienation. This assurance would not exist
if the notice should be given by the buyer.
The notice which became operative is that
given by Mrs. Chambers, in her capacity as
attorney-in-fact of the vendor Marie Garnier
Vda. de Ramirez. Under date of December 11,
1958, she wrote the Administrator Bank of the
Philippine Islands that her principal's one-sixth
(1/6) share in the Sta. Cruz property had been
sold to Manuel Uy & Sons, Inc. for
P500,000.00. The Bank received this notice on
December 15, 1958, and on the same day
endorsed it to Mrs. Butte, care of Delgado,
Flores and Macapagal (her attorneys), who
received the same on December 16, 1958.
Mrs. Butte tendered redemption and upon the
vendee's refusal, judicially consigned the price
of P500,000.00 on January 15, 1959. The latter
date was the last one of the thirty days allowed
by the Code for the redemption, counted by
excluding December 16, 1958 and including
January 15, 1959, pursuant to Article 13 of the
Civil Code. Therefore, the redemption was
made in due time.
The date of receipt of the vendor's notice by the
Administrator Bank (December 15) can not be
counted as determining the start of thirty days;
for the Administrator of the estate was not a
proper redemptioner, since, as previously
shown, the right to redeem the share of Marie
Garnier did not form part of the estate of Jose
V. Ramirez.
We find no jurisdiction for appellant's claim that
the P500,000,00. paid by Uy & Sons, Inc. for
the Garnier share is grossly excessive. Gross
excess cannot be predicated on mere
individual estimates of market price by a single
realtor.
The redemption and consignation having been
properly made, the Uy counterclaim for
damages and attorney's fees predicated on the
assumption that plaintiff's action was clearly
unfounded, becomes untenable.
PREMISES CONSIDERED, the judgment
appealed from is hereby reversed and set
aside, and another one entered:
(a) Declaring the consignation of
P500,000,00 made by appellant
Angela M. Butte duly and properly
made;
(b) Declaring that said appellant
properly exercised in due time the legal
redemption of the one-sixth (1/6)
undivided portion of the land covered
by Certificate of Title No. 59363 of the
Office of the Register of Deeds of the
City of Manila, sold on December 9,
1958 by Marie Garnier Vda. de
Ramirez to appellant Manuel Uy &
Sons, Inc.
(c) Ordering appellant Manuel Uy &
Sons, Inc. to accept the consigned
price and to convey to Angela M. Butte
the undivided portion above referred to,
within 30 days from the time our
decision becomes final, and
subsequently to account for the rentals
and fruits of the redeemed share from
and after January 15, 1958, until its
conveyance; and.
(d) Ordering the return of the records to
the court of origin for further
proceedings conformable to this
opinion.
Without finding as to costs.
G.R. No. L-24434 January 17, 1968
HEIRS OF PEDRO REGANON, JOVENCIA
REGANON, MENCIA REGANON, JOSEFA
REGANON, VIOLETA REGANON, and
FLORA REGANON, plaintiffs-appellees,
vs.
RUFINO IMPERIAL, defendant-appellant.
Torcuato L. Galon for plaintiffs-appellees.
V. Lacaya for defendant-appellant.
BENGZON, J.P., J.:
This is an appeal from the orders dated June 9,
1964, July 14, 1964 and August 11, 1964,
respectively, of the Court of First Instance of
Zamboanga del Norte (Dipolog, Branch II).
The facts of the case are admitted by both
parties.
On February 22, 1963, the heirs of Pedro
Reganon filed a complaint for recovery of
ownership and possession of about one-
hectare portion of a parcel of land (Lot No. 1 or
Lot No. 4952, situated at Miasi, Polanco,
Zamboanga del Norte, covered by O.T.C. No.
1447, with an area of 7.9954 hectares), with
damages, against Rufino Imperial.
Defendant not having filed an answer within the
reglementary period, the plaintiffs on April 8,
1963 filed a motion to declare the former in
default. The trial court granted the motion in its
order dated April 10, 1963.
On April 23, 1963, the plaintiffs presented their
evidence ex parte before the Clerk of Court
acting as Commissioner. The court a quo on
May 6, 1963, rendered a decision declaring the
plaintiffs lawful owners of the land in question
and entitled to its peaceful possession and
enjoyment; ordering defendant immediately to
vacate the portion occupied by him and to
restore the peaceful possession thereof to
plaintiffs; and sentencing defendant to pay
plaintiffs the amount of P1,929.20 and the
costs.
On November 29, 1963, the plaintiffs filed a
motion for issuance of a writ of execution. This
was granted by the trial court in its order of
December 9, 1963.
The Deputy Provincial Sheriff submitted on
February 8, 1964 a sheriff's return of
proceedings reporting the garnishment and
sale of a carabao and goat belonging to
defendant for P153.00, and the attachment and
sale of defendant's parcel of land covered by
Tax Declaration No. 4694, situated in Sicet,
Polanco, Zamboanga del Norte, for P500.00 —
both sales having been made to the only
bidder, plaintiffs' counsel Atty. Vic T. Lacaya.
On March 13, 1964, the Philippine National
Bank deposited in the Philippine National
Bank-Dipolog Branch the residuary estate of its
former ward, Eulogio Imperial, in the sum of
P10,303.80, pursuant to an order of Branch I of
the Court of First Instance of Zamboanga del
Norte in Sp. Proc. No. R-145.
On May 25, 1964, the heirs of said Eulogio
Imperial, one of whom is defendant, executed
a Deed of Extrajudicial Partition of the
residuary estate, wherein was apportioned
P1,471.97 as defendant Rufino Imperial's
share.
Informed of this development, the plaintiffs filed
on June 5, 1964 an ex parte motion for
issuance of an alias writ of execution and of an
order directing the manager, or the
representative, of the Philippine National Bank-
Dipolog Branch, to hold the share of defendant
and deliver the same to the provincial sheriff of
the province to be applied to the satisfaction of
the balance of the money judgment. This was
granted by the trial court (Branch II) in its order
dated June 9, 1964.
On June 17, 1964, the Deputy Provincial
Sheriff issued a sheriffs notification for levy
addressed to defendant, giving notice of the
garnishment of the rights, interests, shares and
participation that defendant may have over the
residuary estate of the late Eulogio Imperial,
consisting of the money deposited in the
Philippine National Bank-Dipolog Branch.
Defendant, through counsel, appearing for the
first time before the trial court, on June 24,
1964 filed a motion for reconsideration of the
order dated June 9, 1964, and to quash the
alias writ of execution issued pursuant to it, to
which plaintiffs filed their opposition on July 6,
1964. On July 14, 1964, the trial court denied
defendant's aforesaid motion.
Defendant's second motion for reconsideration
likewise having denied by the trial court in its
order of August 11, 1964, defendant appealed
to Us, raising the following issues:
(1) Upon the death of a ward, is the
money accumulated in his
guardianship proceedings and
deposited in a bank, still considered
in custodia legis and therefore cannot
be attached?
(2) Is the residuary estate of a U.S.
veteran, which consists in the
aggregate accumulated sum from the
monthly allowances given him by the
United States Veterans Administration
(USVA) during his lifetime, exempt
from execution?
Defendant-appellant argues that the property
of an incompetent under guardianship is
in custodia legis and therefore can not be
attached.
It is true that in a former case it was held that
1 1962, the rights to his succession — from the
property under custodia legis can not be
attached. But this was under the old Rules of
Court. The new Rules of Court 2 now
specifically provides for the procedure to be
followed in case what is attached is in custodia
legis. 3 The clear import of this new provision is
that property under custodia legis is now
attachable, subject to the mode set forth in said
rule.
Besides, the ward having died, the
guardianship proceedings no longer subsist:
The death of the ward necessarily
terminates the guardianship, and
thereupon all powers and duties of the
guardian cease, except the duty, which
remains, to make a proper accounting
and settlement in the probate court. 4
As a matter of fact, the guardianship
proceedings was ordered conditionally closed
by Branch I of the Court of First Instance of
Zamboanga del Norte in which it was pending,
in its order of February 8, 1964, where it stated
—
In the meantime, the guardian
Philippine National Bank is hereby
directed to deposit the residuary estate
of said ward with its bank agency in
Dipolog, this province, in the name of
the estate of the deceased ward
Eulogio Imperial, preparatory to the
eventual distribution of the same to the
heirs when the latter shall be known,
and upon proof of deposit of said
residuary estate, the guardian
Philippine National Bank shall forthwith
be relieved from any responsibility as
such, and this proceeding shall be
considered closed and terminated. 5
And the condition has long been fulfilled,
because on March 13, 1964 the Philippine
National Bank-Manila deposited the residuary
estate of the ward with the Philippine National
Bank-Dipolog Branch, evidenced by a receipt
attached to the records in Sp. Proc. No. R-
145. 6
When Eulogio Imperial died on September 13,
moment of his death — were transmitted to his
heirs, one of whom is his son and heir,
defendant-appellant herein. 7 This automatic
transmission can not but proceed with greater
ease and certainty than in this case where the
parties agree that the residuary estate is not
burdened with any debt. For,
The rights to the succession of a
person are transmitted from the
moment of death, and where, as in this
case, the heir is of legal age and the
estate is not burdened with any debts,
said heir immediately succeeds, by
force of law, to the dominion,
ownership, and possession of the
properties of his predecessor and
consequently stands legally in the
shoes of the latter. 8
That the interest of an heir in the estate of a
deceased person may be attached for
purposes of execution, even if the estate is in
the process of settlement before the courts, is
already a settled matter in this jurisdiction. 9
It is admitted that the heirs of Eulogio Imperial,
including herein defendant-appellant, have on
May 25, 1964 executed a Deed of Extrajudicial
Partition. This instrument suffices to settle the
entire estate of the decedent — provided all the
requisites for its validity are fulfilled 10 — even
without the approval of the court. Therefore,
the estate for all practical purposes have been
settled. The heirs are at full liberty to withdraw
the residuary estate from the Philippine
National Bank-Dipolog Branch and divide it
among themselves. The only reason they have
not done so is because of the alleged illegal
withdrawal from said estate of the amount of
P1,080.00 by one Gloria Gomez by authority of
Branch I of the Court of First Instance of
Zamboanga del Norte, which incident is now on
appeal before the Court of Appeals. This
appeal, however, does not detract any from the
fact that the guardianship proceedings is
closed and terminated and the residuary estate
no longer under custodia legis.
Finally, it is defendant-appellant's position that
the residuary estate of Eulogio Imperial, a
former U.S. veteran, having been set aside
from the monthly allowances given him by the
United States Veterans Administration (USVA)
during his lifetime, is exempt from execution.
Any pension, annuity, or gratuity granted by a
Government to its officers or employees in
recognition of past services rendered, is
primordially aimed at tiding them over during
their old age and/or disability. This is therefore
a right personalissima, purely personal
because founded on necessity. It requires no
argument to show that where the recipient dies,
the necessity motivating or underlying its grant
necessarily ceases to be. Even more so in this
case where the law 11 providing for the
exemption is calculated to benefit U.S.
veterans residing here, and is therefore merely
a manifestation of comity.
Besides, as earlier stated, the heirs of Eulogio
Imperial, one of whom is appellant, have
already executed a Deed of Extrajudicial
Partition — the end result of which is that the
property is no longer the property of the estate
but of the individual heirs. And it is settled that:
When the heirs by mutual agreement
have divided the estate among
themselves, one of the heirs can not
therefore secure the appointment of an
administrator to take charge of and
administer the estate or a part
thereof. The property is no longer the
property of the estate, but of the
individual heirs, whether it remains
undivided or not. 12
WHEREFORE, the orders appealed from are
hereby affirmed, with costs against defendant-
appellant. So ordered.
G.R. No. L-25049 August 30, 1968
FILEMON RAMIREZ, MONICA RAMIREZ,
and JOSE EGUARAS, plaintiffs-appellants,
vs.
ARTEMIO BALTAZAR, ET AL., defendants-
appellees.
Eduardo M. Peralta for plaintiffs-appellants.
Tomas P. Anonuevo for defendants-appellees
Artemio Baltazar and Susana Flores.
Tirso Caballero for defendant-appellee Artemio
Diawan.
ANGELES, J.:
On appeal from an order dismissing the
complaint, on motion to dismiss, in Civil Case
No. SC-319 of the Court of First Instance of
Laguna.
It appears that on 6 January 1959, Victoriana
Eguaras single, made and executed a real
estate mortgage over a parcel of land, owned
by her in fee simple, as security for a loan of
P2,170.00 in favor of the spouses Artemio
Baltazar and Susana Flores.
Upon the demise of the mortgagor, the
mortgagees, as creditors of the deceased, on
16 September 1960 filed a petition for the
intestate proceedings of her estate, in the
Court of First Instance of Laguna, docketed as
Civil Case No. SC-99 wherein said mortgages,
as petitioners, alleged that Filemon Ramirez
and Monica Ramirez are the heirs of the
deceased. Filemon Ramirez was appointed
administrator of the estate; however, having
failed to qualify, on 16 January 1961, the court
appointed Artemio Diawan, then a deputy clerk
of court, administrator of the estate who, in due
time, qualified for the office.
On 19 April 1961, the mortgagees, Artemio
Baltazar and Susana Flores, filed a complaint
for foreclosure of the aforesaid mortgage,
against Artemio Diawan, in his capacity as
administrator of the estate, docketed as Civil
Case No. SC-292 of the Court of First Instance
of Laguna. The defendant-administrator was
duly served with summons but he failed to
answer, whereupon, on petition of the plaintiffs
said defendant was declared in default. The
case was referred to a commissioner to receive
the evidence for the plaintiffs, and defendant-
administrator, as deputy clerk of court, acted as
such hearing commissioner. 1äwphï1.ñët
On 16 August 1961, decision was rendered
decreeing the foreclosure of the mortgaged
property and the sale thereof, if, within ninety
days from finality of the decision, the obligation
was not fully paid. The judgment not having
been satisfied, a writ of execution was issued
for the sale of the mortgaged property, and
after compliance with the requirements of the
law regarding the sending, posting and
publication of the notice of sale, the Sheriff sold
the property at public auction to the highest
bidder, who happened to be the plaintiffs
themselves, for the sum of P2,888.50 covering
the amount of the judgment, plus the expenses
of the sale and the Sheriff's fees. On petition of
the plaintiffs, the sale was confirmed by the
court on 26 January 1962.
On 6 February 1962, Filemon Ramirez, Monica
Ramirez and Jose Eguaras, the first two being
the heirs named in the petition for intestate
proceedings, filed a complaint designated "For
the Annulment of all Proceedings in said Civil
Case No. SC-292 for the Foreclosure of the
Mortgage", against the spouses Artemio
Baltazar and Susana Flores, and Artemio
Diawan, in his capacity as administrator of the
estate of Victoriana Eguaras, deceased, and
Silverio Talabis, in his capacity as deputy
provincial sheriff of Laguna, docketed as Civil
Case No. SC-319 of the Court of First Instance
of Laguna.
The facts hereinabove narrated are, succinctly,
contained in the complaint in said Civil Case
No. SC-319, with the additional averments that
the defendant Diawan, the deputy clerk of court
appointed as administrator of the intestate
estate of the deceased, acted in collusion with
the other defendants Artemio Baltazar and
Susana Flores, deliberately and in fraud of the
plaintiffs: (a) in allowing the reglementary
period within which to file an answer to lapse
without notifying and/or informing the said
plaintiffs of the complaint for foreclosure, as a
result of which he was declared in default to the
prejudice of the estate which he represents; (b)
that had the plaintiffs (Monica and Filemon)
been notified of the pendency of the case, the
defendant administrator could have interposed
a counterclaim because payment in the sum of
P1,548.52 had been made and received by the
mortgagees on account of the debt; (c) in
presiding as hearing officer in the ex
parte hearing in Civil Case No. 292, to receive
evidence for plaintiffs therein, notwithstanding
the fact that there was another deputy clerk of
court available who could have acted in his
stead, as a result of which an anomalous
situation was created whereby he was a
defendant and at the same time a
commissioner receiving evidence against
himself as administrator; (d) in allowing
judgment to become final without notifying the
plaintiffs; (e) in deliberately, allowing the 90-
day period within which to make payment to
expire without notifying the heirs, as a result of
which the said heirs were not afforded an
opportunity to make payments ordered by the
Court in its decision; and (f) in refusing to help
the heirs seek postponement of the auction
sale. It is also alleged that it was only when the
property foreclosed was published for sale at
public auction that the heirs came to know
about the foreclosure proceedings.
The defendants spouses, Artemio Baltazar and
Susana Flores, filed a motion to dismiss the
complaint on the ground that the plaintiffs have
no legal capacity to sue; defendant Diawan
likewise moved to dismiss on two grounds: that
plaintiffs have no legal capacity to sue and that
the complaint states no cause of action. 1äw phï1.ñët
Despite vigorous opposition interposed by the
plaintiffs against the aforesaid motions to
dismiss, the court, on 13 March 1962,
dismissed the complaint with costs against the
plaintiffs, reasoning thus: that "upon
consideration of the evidence, said defendant
could not have offered any evidence to avoid
the foreclosure of the mortgage which the
Court found to be in order. Under the
circumstances and with the apparent
disinterestedness of Filemon and Rolando to
qualify as administrator when appointed, there
could not have been any connivance and/or
collusion between plaintiffs in this case and
Artemio Diawan as administrator"; and that
plaintiffs have no legal capacity to sue since
their status as legal heirs of the deceased has
yet to be determined precisely in Special
Proceeding No. SC-99, and until such status is
so fixed by the Court, they have no cause of
action against defendants.
In that order of 13 March 1962, the court also
denied plaintiffs' petition for the issuance of a
writ of preliminary injunction to enjoin
defendants from entering and taking physical
possession of the land in question on the
ground "that possession thereof was effected
and delivered by the Provincial Sheriff to
Artemio Baltazar and Susana Flores on
February, 1962."
Reconsideration of the aforesaid order having
been denied, the plaintiffs took the present
appeal where they assigned the following
errors: (1) in holding that plaintiffs-appellants
have no legal capacity to sue until their status
as legal heirs of the deceased is determined in
Special Proceeding No. SC-99; (2) in ruling
that there was no collusion or connivance
among the defendants-appellees, despite the
fact that the issue in the motion to dismiss is
purely legal, not factual; and (3) in denying the
petition for a writ of preliminary injunction.
At the outset, let it be remembered that the
defendants-appellees, in availing themselves
of the defense that the plaintiffs-appellants had
not been declared to be the heirs of the
deceased Victoriana Eguaras, have
overlooked the fact that the (defendants-
appellees) themselves in their petition for
intestate proceedings (Case SC-99) have
alleged that Filemon Ramirez and Monica
Ramirez, two of herein plaintiffs-appellants, are
the heirs of the deceased. Insofar as
defendants-appellees are concerned, it is our
opinion that they are estopped from
questioning the heirship of these two named
persons to the estate of the deceased.
There is no question that the rights to
succession are automatically transmitted to the
heirs from the moment of the death of the
decedent.1 While, as a rule, the formal
declaration or recognition to such successional
rights needs judicial confirmation, this Court
has, under special circumstances, protected
these rights from encroachments made or
attempted before the judicial
declaration.2 In Pascual vs. Pascual,3 it was
ruled that although heirs have no legal standing
in court upon the commencement of testate or
intestate proceedings, this rule admits of an
exception as "when the administrator fails or
refuses to act in which event the heirs may act
in his place."
A similar situation obtains in the case at bar.
The administrator is being charged to have
been in collusion and connivance with the
mortgagees of a property of the deceased,
allowing its foreclosure without notifying the
heirs, to the prejudice of the latter. Since the
ground for the present action to annul the
aforesaid foreclosure proceedings is the fraud
resulting from such insidious machinations and
collusion in which the administrator has
allegedly participated, it would be farfetched to
expect the said administrator himself to file the
action in behalf of the estate. And who else but
the heirs, who have an interest to assert and to
protect, would bring the action? Inevitably, this
case should fall under the exception, rather
than the general rule that pending proceedings
for the settlement of the estate, the heirs have
no right to commence an action arising out of
the rights belonging to the deceased.
On the second point raised, We fully agree with
the plaintiffs-appellants that the lower court had
gone too far in practically adjudicating the case
on the merits when it made the observation that
"there could not have been any connivance
and/or collusion between plaintiffs in this case
and Artemio Diawan as administrator." A
thorough scrutiny of the allegations in the
motions to dismiss filed by defendants-
appellees does not indicate that that question
was ever put at issue therein. On the other
hand, the controversy — on the existence or
inexistence of collusion between the parties as
a result of which judgment was rendered
against the estate — is the very core of the
complaint that was dismissed. Undoubtedly,
the cause of action is based on Section 30,
Rule 132 of the Rules of Court.
We are not, however, in accord with the third
assigned error — the denial of the motion for
the issuance of preliminary injunction — for it
puts at issue the factual finding made by the
lower court that the defendants had already
been placed in possession of the property. At
this stage of the proceeding, and considering
the nature of the case before Us, such a
question is, at this time, beyond the
competence of the Court.
PREMISES CONSIDERED, the order
appealed from is hereby set aside insofar as it
dismissed the complaint in Civil Case No. SC-
319, and the records be remanded to the lower
court for further proceedings. Costs against
defendants-appellees. The Clerk of Court is
directed to furnish a copy of this decision to the
Department of Justice for its information.
G.R. No. L-25952 June 30, 1967
MARGARITA SALVADOR, in her own behalf
and as Attorney-in-fact of CANDIDA
SALVADOR, ET AL.,petitioners,
vs.
THE HON. JUDGE ANDRES STA. MARIA,
DOMINADOR CARDENAS, REMEDIOS
CABRERA, ALBERTO M. K. JAMIR and
SIMEON ENRIQUEZ, respondents.
Arturo Joaquin for petitioners.
Pelaez, Jalandoni and Jamir and S. V.
Enriquez, for respondent Simeon Enriquez.
C. E. Medina and J. M. Locsin for respondent
Philippine National Bank.
Bala and Enriquez for the other respondents.
BENGZON, J.P., J.:
Seven parcels of titled land and two parcels of
untitled land, situated in Bigaa, Bulacan, were
owned by Celestino Salvador. In 1941, he
executed a deed of sale over them in favor of
the spouses Alfonso Salvador and Anatolia
Halili. Alleging that the sale was void for lack of
consideration, he filed on May 12,1955, against
said vendees, a suit for reconveyance of said
parcels of land (CFI of Bulacan, Br. I, Civil Case
No. 1082).
On April 27, 1956, Celestino Salvador died,
testate. As his alleged heirs, twenty-one
persons1 were on May 18, 1956 substituted as
plaintiffs in the action for reconveyance. And
meanwhile, special proceedings for the
probate of his will and for letters testamentary
was instituted (CFI of Bulacan, Br. II, Sp.
Proceedings No. 940). In said proceedings,
Dominador Cardenas was appointed on June
11, 1956 special administrator of Celestino
Salvador's testate estate. 1äwphï1.ñët
On September 4, 1956 the administrator filed
in Sp. Proceedings No. 940 an inventory of
properties of the estate, covering the same
parcels of land subject matter of the
reconveyance action. On September 7, 1956,
Celestino Salvador's will was admitted to
probate and Dominador Cardenas was
appointed executor of said will. Actual issuance
of letters testamentary to him was made on
October 27, 1956.
Twenty-three (23) persons were instituted heirs
in the will. Of these, nine (9) were not among
the twenty-one (21) alleged relatives
substituted in the reconveyance case; and of
the twenty-one (21) substituted alleged heirs
seven (7) were not instituted in the will. 2
In the suit for reconveyance, on November 26,
1956, the Court (CFI of Bulacan, Br. I) rendered
judgment, ordering the defendants therein (the
spouses Alfonso and Anatolia), to reconvey the
parcels of land to the estate of Celestino
Salvador. Appeal therefrom to the Court of
Appeals was interposed by said defendants. 1äwphï1.ñët
On August 12, 1961, the Court of Appeals
affirmed the reconveyance judgment, with the
correction that reconveyance be in favor of the
twenty-one (21) heirs substituted as plaintiffs
therein.
About three years later, pursuant to an order of
the CFI of Bulacan, Br. II, in the testacy
proceedings, dated April 21, 1964, one of the
parcels of land involved, Lot 6, was sold so that
with its proceeds debtors who filed claims may
be paid. The Philippine National Bank bought it
at P41,184.00. Said amount was then
deposited in the same bank by the
administrator, subject to Court order.
On December 18, 1964, defendants in the suit
for reconveyance executed a deed of
reconveyance over the subject parcels of
land, in favor of Celestino Salvador's estate.
Revoking the same as lot in accordance with
the final judgment therein, the CFI of Bulacan,
Br. I, on September 24, 1965, ordered a new
deed of reconveyance to be executed, in favor
of the twenty-one persons substituted as
plaintiffs in that action. Accordingly, on
September 30, 1965, a new deed of
reconveyance was made, in favor of said
twenty-one (21) persons as heirs of Celestino.
Following this, on November 22, 1965, said Br.
I, ordered the corresponding title certificate
(TCT No. 54639) in the administrator's name,
cancelled; new title certificate to be issued in
the names of the same twenty-one (21)
persons. Said order was carried out, and TCT
No. 63734 was issued in the names of the
twenty-one persons. 3
On December 7, 1965, Br. I (reconveyance
court) ordered the Philippine National Bank to
release the P41,184.00 proceeds of the sale of
Lot 6, to the twenty-one (21) plaintiffs in the
reconveyance case. Apparently, although the
passbook was given by the administrator to
said twenty-one persons, no release was
made, as the Philippine National Bank awaited
Br. II's order.
Br. II, on March 1, 1966, approved the following
claims against the estate:
— Nat'l.
Taxes P5,328.23
gov't
Atty's — Atty.
8,000.00
fees Enriquez
Atty's — Atty.
12,000.00
fees Jamir
— R.
Loan 13,544.35
Cabrera
TOTAL........ 38,872.58
=========
On March 30, 1966, said Br. II (probate court),
ordered return of the passbook to the
administrator; and release to the administrator
by the PNB of the P41,184.00, or so much
thereof is needed to pay the afore-stated debts
of the estate.
After failing to get reconsideration of said order,
the twenty-one (21) substituted heirs, on April
25, 1966, filed with Us the present special civil
action for certiorari with preliminary injunction
to assail the order to pay the debts of the estate
with the P41,184.00 proceeds of the sale of Lot
6; and to question Br. II's (probate court) power
to dispose of the parcels of land involved in the
reconveyance suit in Br. I.
Raised are these issues: (1) Are the parcels of
land and the proceeds of the sale of one of
them, properties of the estate or not? (2) Does
final judgment in the reconveyance suit in favor
of the twenty-one so-called heirs who
substituted Celestino Salvador, bar the
disposition of the reconveyed properties by the
settlement court?
It is a settled point of law that the right of heirs
to specific, distributive shares of inheritance
does not become finally determinable until all
the debts of the estate are paid. Until then, in
the face of said claims, their rights cannot be
enforced, are inchoate, and subject to the
existence of a residue after payment of the
debts (Castellvi de Raquiza v. Castellvi, L-
17630, October 31, 1963; Jimoga-on v.
Belmonte, 84 Phil. 545; Sec. 1, Rule 90, Rules
of Court).
Petitioners do not question the existence of the
debts abovementioned. They only contend that
the properties involved having been ordered by
final judgment reconveyed to them, not to the
estate the same are not properties of the estate
but their own, and thus, not liable for debts of
the estate.
Said contention is self-refuting. Petitioners rely
for their rights on their alleged character as
heirs of Celestino; as such, they were
substituted in the reconveyance case; the
reconveyance to them was reconveyance to
them as heirs of Celestino Salvador. It follows
that the properties they claim are, even by their
own reasoning, part of Celestino's estate. The
right thereto as allegedly his heirs would arise
only if said parcels of land are part of the estate
of Celestino, not otherwise. Their having
received the same, therefore, in the
reconveyance action, was perforce in trust for
the estate, subject to its obligations. They
cannot distribute said properties among
themselves as substituted heirs without the
debts of the estate being first satisfied.
At any rate, the proceeds of Lot 6 alone
(P41,184.00) appears more than sufficient to
pay the debt (P38,872.58); and there will
remain the other parcels of land not sold. As to
the question of who will receive how much as
heirs, the same is properly determinable by the
settlement court, after payment of the debts
(Pimentel v. Palanca, 5 Phil. 436; Maningat v.
Castillo, 75 Phil. 532; Jimoga-on v.
Belmonte, supra).
Wherefore, the petition for certiorari is denied,
without costs. So ordered.
G.R. No. 178495 July 26, 2010
SPOUSES RODOLFO A. NOCEDA and
ERNA T. NOCEDA, Petitioners,
vs.
AURORA ARBIZO-DIRECTO, Respondent.
DECISION
NACHURA, J.:
Assailed in the instant petition is the
Decision1 of the Court of Appeals (CA),
dismissing the appeal on the ground of res
judicata.
On September 16, 1986, respondent Aurora
Arbizo-Directo filed a complaint against her
nephew, herein petitioner Rodolfo Noceda, for
"Recovery of Possession and Ownership and
Rescission/Annulment of Donation" with the
Regional Trial Court (RTC) of Iba, Zambales,
Branch 71, docketed as Civil Case No. RTC-
354-I. Respondent alleged that she and her co-
heirs have extra-judicially settled the property
they inherited from their late father on August
19, 1981, consisting of a parcel of land,
described as Lot No. 1121, situated in Bitoong,
San Isidro, Cabangan, Zambales. She donated
a portion of her hereditary share to her nephew,
but the latter occupied a bigger area, claiming
ownership thereof since September 1985.
Judgment was rendered in favor of respondent
on November 6, 1991, where the RTC (a)
declared the Extra-Judicial Settlement-
Partition dated August 19, 1981 valid; (b)
declared the Deed of Donation dated June 1,
1981 revoked; (c) ordered defendant to vacate
and reconvey that donated portion of Lot 2, Lot
1121 subject of the Deed of Donation dated
June 1, 1981 to the plaintiff or her heirs or
assigns; (d) ordered the defendant to remove
the house built inside the donated portion at the
defendant’s expense or pay a monthly rental of
₱300.00 Philippine Currency; and (e) ordered
the defendant to pay attorney’s fees in the
amount of ₱5,000.00.2 The decision was
appealed to the CA, docketed as CA-G.R. CV
No. 38126.
On January 5, 1995, spouses Rodolfo Dahipon
and Cecilia Obispo- Dahipon filed a complaint
for recovery of ownership and possession, and
annulment of sale and damages against
spouses Antonio and Dominga Arbizo,
spouses Rodolfo and Erna Noceda, and
Aurora Arbizo-Directo with the RTC, Iba,
Zambales, Branch 70. This was docketed as
Civil Case No. RTC-1106-I. In the complaint,
spouses Dahipon alleged that they were the
registered owners of a parcel of land,
consisting of 127,298 square meters, situated
in Barangay San Isidro, Cabangan, Zambales,
designated as Lot 1121-A. The Original
Certificate of Title No. P-9036 over the land
was issued in the name of Cecilia Obispo-
Dahipon, pursuant to Free Patent No. 548781.
Spouses Dahipon claimed that the defendants
therein purchased portions of the land from
them without paying the full amount. Except for
Aurora, a compromise agreement was entered
into by the parties, as a result of which, a deed
of absolute sale was executed, and TCT No. T-
50730 was issued in the name of spouses
Noceda for their portion of the land. For her
part, Aurora questioned Dahipon’s alleged
ownership over the same parcel of land by filing
an adverse claim.
In the meantime, a decision was rendered in
CA-G.R. CV No. 38126 on March 31, 1995 with
the following fallo:
WHEREFORE, judgment is hereby rendered,
ORDERING defendant Rodolfo Noceda to
VACATE the portion known as Lot "C" of Lot
1121 per Exhibit E, which was allotted to
plaintiff Aurora Arbizo-Directo. Except for this
modification, the Decision dated November 6,
1991 of the RTC, Iba, Zambales, Branch 71, in
Civil Case No. RTC-354-I, is hereby
AFFIRMED in all other respects. Costs against
defendant Rodolfo Noceda.3
Undaunted, petitioners filed a petition for
review with this Court, which was docketed as
G.R. No. 119730. The Court found no
reversible error, much less grave abuse of
discretion, with the factual findings of the two
courts below, and thus denied the petition on
September 2, 1999.4 The decision became
final and executory, and a writ of execution was
duly issued by the RTC on March 6, 2001 in
Civil Case No. RTC-354-I.
On December 4, 2003, petitioners instituted an
action for quieting of title against respondent,
docketed as Civil Case No. 2108-I. In the
complaint, petitioners admitted that Civil Case
No. RTC-354-I was decided in favor of
respondent and a writ of execution had been
issued, ordering them to vacate the property.
However, petitioners claimed that the land,
which was the subject matter of Civil Case No.
RTC-354-I, was the same parcel of land owned
by spouses Dahipon from whom they
purchased a portion; and that a title (TCT No.
T-37468) was, in fact, issued in their name.
Petitioners prayed for the issuance of a writ of
preliminary injunction to enjoin the
implementation of the Writ of Execution dated
March 6, 2001 in Civil Case No. RTC-354-I,
and that "a declaration be made that the
property bought, occupied and now titled in the
name of [petitioners] was formerly part and
subdivision of Lot No. 1121 Pls-468-D, covered
by OCT No. P-9036 in the name of Cecilia
Obispo-Dahipon."5
Respondent filed a Motion to Dismiss on the
ground of res judicata. Respondent averred
that petitioners, aware of their defeat in Civil
Case No. RTC-354-I, surreptitiously negotiated
with Cecilia Obispo-Dahipon for the sale of the
land and filed the present suit in order to
subvert the execution thereof.
The trial court denied the motion, holding that
there was no identity of causes of action.
Trial thereafter ensued. On January 25, 2006,
after petitioners presented their evidence,
respondent filed a Demurrer to Evidence,
stating that the claim of ownership and
possession of petitioners on the basis of the
title emanating from that of Cecilia Obispo-
Dahipon was already raised in the previous
case (Civil Case No. RTC-354-I).
On February 22, 2006, the trial court issued a
resolution granting the demurrer to evidence.
The CA affirmed. Hence, petitioners now come
to this Court, raising the following issues:
WHETHER OR NOT THE PRINCIPLE OF
RES JUDICATA OR DOCTRINE OF
CONCLUSIVENESS OF JUDGMENT IS
APPLICABLE UNDER THE FACTS
OBTAINING IN THE PRESENT CASE[;]
WHETHER OR NOT THE RESPONDENT
HAS A BETTER TITLE THAN THE
PETITIONERS[; and]
WHETHER OR NOT THE RULING ON
PURCHASERS IN BAD FAITH IS
APPLICABLE IN THE PRESENT CASE[.]6
Petitioners assert that res judicata7 does not
apply, considering that the essential requisites
as to the identity of parties, subject matter, and
causes of action are not present.
The petition is bereft of merit.
The doctrine of res judicata is set forth in
Section 47 of Rule 39 of the Rules of Court, as
follows:
Sec. 47. Effect of judgments or final orders. -
The effect of a judgment or final order rendered
by a court of the Philippines, having jurisdiction
to pronounce the judgment or final order, may
be as follows:
xxxx
(b) In other cases, the judgment or final
order is, with respect to the matter
directly adjudged or as to any other
matter that could have been raised in
relation thereto, conclusive between
the parties and their successors in
interest by title subsequent to the
commencement of the action or special
proceeding, litigating for the same thing
and under the same title and in the
same capacity; and
(c) In any other litigation between the
same parties or their successors in
interest, that only is deemed to have
been adjudged in a former judgment or
final order which appears upon its face
to have been so adjudged, or which
actually and necessarily included
therein or necessary thereto.
The principle of res judicata lays down two
main rules, namely: (1) the judgment or decree
of a court of competent jurisdiction on the
merits concludes the litigation between the
parties and their privies and constitutes a bar
to a new action or suit involving the same
cause of action either before the same or any
other tribunal; and (2) any right, fact, or matter
in issue directly adjudicated or necessarily
involved in the determination of an action
before a competent court in which a judgment
or decree is rendered on the merits is
conclusively settled by the judgment therein
and cannot again be litigated between the
parties and their privies whether or not the
claims or demands, purposes, or subject
matters of the two suits are the same. These
two main rules mark the distinction between
the principles governing the two typical cases
in which a judgment may operate as
evidence.8] The first general rule above stated,
and which corresponds to the afore-quoted
paragraph (b) of Section 47, Rule 39 of the
Rules of Court, is referred to as "bar by former
judgment"; while the second general rule,
which is embodied in paragraph (c) of the same
section and rule, is known as "conclusiveness
of judgment."9
The Court in Calalang v. Register of Deeds of
Quezon City10 explained the second concept
which we reiterate herein, to wit:
The second concept — conclusiveness of
judgment — states that a fact or question which
was in issue in a former suit and was there
judicially passed upon and determined by a
court of competent jurisdiction, is conclusively
settled by the judgment therein as far as the
parties to that action and persons in privity with
them are concerned and cannot be again
litigated in any future action between such
parties or their privies, in the same court or any
other court of concurrent jurisdiction on either
the same or different cause of action, while the
judgment remains unreversed by proper
authority. It has been held that in order that a
judgment in one action can be conclusive as to
a particular matter in another action between
the same parties or their privies, it is essential
that the issue be identical. If a particular point
or question is in issue in the second action, and
the judgment will depend on the determination
of that particular point or question, a former
judgment between the same parties or their
privies will be final and conclusive in the
second if that same point or question was in
issue and adjudicated in the first suit (Nabus v.
Court of Appeals, 193 SCRA 732 [1991]).
Identity of cause of action is not required but
merely identity of issue.
Justice Feliciano, in Smith Bell & Company
(Phils.), Inc. v. Court of Appeals (197 SCRA
201, 210 [1991]), reiterated Lopez v.
Reyes (76 SCRA 179 [1977]) in regard to the
distinction between bar by former judgment
which bars the prosecution of a second action
upon the same claim, demand, or cause of
action, and conclusiveness of judgment which
bars the relitigation of particular facts or issues
in another litigation between the same parties
on a different claim or cause of action.
The general rule precluding the relitigation of
material facts or questions which were in issue
and adjudicated in former action are commonly
applied to all matters essentially connected
with the subject matter of the litigation. Thus, it
extends to questions necessarily implied in the
final judgment, although no specific finding
may have been made in reference thereto and
although such matters were directly referred to
in the pleadings and were not actually or
formally presented. Under this rule, if the
record of the former trial shows that the
judgment could not have been rendered
without deciding the particular matter, it will be
considered as having settled that matter as to
all future actions between the parties and if a
judgment necessarily presupposes certain
premises, they are as conclusive as the
judgment itself.11
The foregoing disquisition finds application in
the case at bar. Undeniably, the present case
is closely related to the previous case (Civil
Case No. RTC-354-I), where petitioners raised
the issue of ownership and possession of Lot
No. 1121 and the annulment of the donation of
said lot to them. The RTC found for
respondent, declaring the deed of donation she
executed in favor of petitioners revoked; and
ordered petitioners to vacate and reconvey the
donated portion to respondent. The decision of
the RTC was affirmed by the CA, and became
final with the denial of the petition for review by
this Court in G.R. No. 119730. In that case, the
Court noted the established fact "that petitioner
Noceda occupied not only the portion donated
to him by respondent Aurora Arbizo-Directo,
but he also fenced the whole area of Lot C
which belongs to private respondent Directo,
thus, petitioner’s act of occupying the portion
pertaining to private respondent Directo
without the latter’s knowledge and consent is
an act of usurpation which is an offense against
the property of the donor and considered as an
act of ingratitude of a donee against the
donor."12 Clearly, therefore, petitioners have no
right of ownership or possession over the land
in question.1avv ph!1
Under the principle of conclusiveness of
judgment, such material fact becomes binding
and conclusive on the parties. When a right or
fact has been judicially tried and determined by
a court of competent jurisdiction, or when an
opportunity for such trial has been given, the
judgment of the court, as long as it remains
unreversed, should be conclusive upon the
parties and those in privity with them.13 Thus,
petitioners can no longer question
respondent’s ownership over Lot No. 1121 in
the instant suit for quieting of title. Simply put,
conclusiveness of judgment bars the
relitigation of particular facts or issues in
another litigation between the same parties on
a different claim or cause of action.14
Furthermore, we agree that petitioners
instituted the instant action with unclean hands.
Aware of their defeat in the previous case, they
attempted to thwart execution and assert their
alleged ownership over the land through their
purported purchase of a lot from Cecilia
Obispo-Dahipon. This later transaction
appears to be suspect. A perusal of G.R. No.
119730 reveals that the Court was not unaware
of Dahipon’s alleged claim over the same
parcel of land. It noted that Dahipon did not
even bother to appear in court to present her
free patent upon respondent’s request, or to
intervene in the case, if she really had any
legitimate interest over the land in
question.15 In any event, petitioners’ assertion
of alleged good title over the land cannot stand
considering that they purchased the piece of
land from Dahipon knowing fully well that the
same was in the adverse possession of Court of Appeals for allegedly being contrary to
another. law.

Thus, we find no reversible error in the The following facts as found by the Court of
appellate court’s ruling that petitioners are in Appeals are undisputed:
fact buyers in bad faith. We quote:
Edras Nufable owned at
With appellants’ actual knowledge of facts that Poblacion, Manjuyod, Negros
would impel a reasonable man to inquire Oriental, consisting of 948
further on [a] possible defect in the title of square meters, more or less.
Obispo, considering that she was found not to He died on August 9, 1965 and
have been in actual occupation of the land in was survived by his children,
CA-G.R. CV No. 38126, they cannot simply namely: Angel Custodio,
invoke protection of the law as purchasers in Generosa, Vilfor and Marcelo,
good faith and for value. In a suit to quiet title, all surnamed Nufable. Upon
defendant may set up equitable as well as legal petition for probate filed by said
defenses, including acquisition of title by heirs and after due publication
adverse possession and a prior adjudication on and hearing, the then Court of
the question under the rule on res judicata. First Instance of Negros
Appellants’ status as holders in bad faith of a Oriental (Branch II) issued an
certificate of title, taken together with the Order dated March 30, 1966
preclusive effect of the right of possession and admitting to probate the last will
ownership over the disputed portion, which and testament executed by the
was adjudged in favor of appellee in Civil Case deceased Edras Nufable
No. RTC-354-I, thus provide ample justification (Exhs. B, C and C-1).
for the court a quo to grant the demurrer to
evidence and dismiss their suit for quieting of On June 6, 1966 the same
title filed against the said appellee.16 court issued an Order
approving the Settlement of
WHEREFORE, the Decision of the Court of Estate submitted by the heirs of
Appeals in CA-G.R. CV No. 87026 is the late ESdras Nufable,
AFFIRMED in toto. portions of which read:

KNOW ALL
MEN BY
G.R. No. 126950 July 2, 1999 THESE
PRESENTS:
NELSON NUFABLE, SILMOR NUFABLE and
AQUILINA NUFABLE, petitioners, We, ANGEL
vs. CUSTODIO
GENEROSA NUFABLE, VILFOR NUFABLE, NUFABLE,
MARCELO NUFABLE, and the COURT OF GENEROSA
APPEALS,respondents. NUFABLE,
VILFOR
NUFABLE and
MARCELO
NUFABLE, all
GONZAGA-REYES, J.: of legal ages
(sic), Filipinos,
This petition for review on certiorari seeks to and with
reverse and set aside the Decision dated residence and
November 25, 1995 of the Fifth Division1 of the postal address
at Manjuyod, necessary
Negros bond of
Oriental, P1,000.00;
Philippines,
3. That herein
— HEREBY legitimate
DECLARE children prefer
AND MAKE not to appoint
MANIFEST — an
Administratrix,
1. That on as agreed upon
August 9, (by) all the
1965, Rev. Fr. heirs, because
Esdras Nufable they have no
died leaving (a) objection as to
Last Will and the manner of
Testament disposition of
(marked Exh. their share
G) disposing made by the
(of) his testator, the
properties or expenses of
estate in favor the
of his four proceedings
legitimate and that they
children, have already
namely: Angel taken
Custodio possession of
Nufable, their respective
Generosa shares in
Nufable, Vilfor accordance
Nufable and with the will;
Marcelo
Nufable; 4. That the
herein heirs
2. That on agreed, as they
March 30, 1966 hereby agree
the said Last to settle the
Will and estate in
Testament was accordance
probated by the with the terms
Honorable and condition
Court, Court of of the will in the
First Instance following
of Negros manner, to wit:
Oriental, and is
embodied in a) That the
the same order parcel of land
appointing an situated in
Administratrix, Poblacion
Generosa Manjuyod,
Nufable, but to Negros
qualify only if Oriental
she put up a remains
 undivided for Court that after
community trial judgment
ownership but be rendered
respecting ordering:
conditions
imposed (a) That the
therein (sic) in said Deed of
the will; Sale (Annex
"C") executed
xxx xxx xxx by the
Development
(Exhs. "E" and "E-1") Bank of the
Philippines in
Two months earlier, or on favor of the
March 15, 1966, spouses defendants be
Angel Custodio and Aquilina declared null
Nufable mortgaged the entire and void as far
property located at Manjuyod as the three
to the Development Bank of the fourths (3/4)
Philippines [DBP] (Pre-trial rights which
Order, dated January 7, 1992, belongs (sic) to
p. 103, Original Records). Said the plaintiffs
mortgagors became delinquent are concerned;
for which reason the
mortgaged property was (b) That the
foreclosed by DBP on February said three
26, 1973 (id.). fourths (3/4)
rights over the
On January 11, 1980, Nelson above parcel in
Nufable, the son of Angel question be
Custodio Nufable (who died on declared as
August 29, 1978 [TSN, belonging to
Testimony of Nelson Nufable, the plaintiffs at
Hearing of August 18, 1992, p. one fourth right
17]), purchased said property to each of
from DBP (Exh. "1"). them;

Generosa, Vilfor and Marcelo, (c) To order the

all surnamed Nufable filed with defendants to
the lower court a complaint pay jointly and
dated July 25, 1985 "To Annul severally to the
Fraudulent Transactions, to plaintiffs by
Quiet Title and To Recover way of actual
Damages' against Nelson and moral
Nufable, and wife, Silmor damages the
Nufable and his mother amount of
Aquilina Nufable. Plaintiffs P10,000.00
pray: and another
P5,000.00 as
Attorney's fees,
WHEREFORE,
and to pay the
plaintiffs pray
costs.
this Honorable
 (d) Plus any filed any third
other amount party claim nor
which this attempted to
Court may redeem said
deem just and property as
equitable. (p. 6, redemptioners,
Original and that said
Records) Deed of Sale,
Annex "B" to
In their Answer, defendants the complaint,
contend: is fictitious, not
being
4. Paragraph 4 supported by
is denied, the any
truth being that consideration;
the late Angel (pp. 20-21, id.)
Nufable was
the exclusive The Deed of Sale (Annex "B"),
owner of said referred to by the parties is a
property, that notarized Deed of Sale, dated
as such owner July 12, 1966 (marked as
he mortgaged Exhibit "H") by virtue of which,
the same to the spouses Angel and Aquilina
Development Nufable, as vendors, sold 3/4
Bank of the portion of the subject property
Philippines on to herein plaintiffs for and in
March 15, consideration of P1,000.00
1966, that said (Exh. "5").2
mortgage was
foreclosed and On November 29, 1995, the Court of Appeals
the DBP rendered judgment, the dispositive portion3 of
became the which reads:
successful
bidder at the WHEREFORE, the appealed
auction sale, decision of the lower court is
that ownership REVERSED and SET ASIDE.
was A new judgment is hereby
consolidated in entered declaring plaintiffs-
the name of the appellants as the rightful co-
DBP, and that owners of the subject property
defendant and entitled to possession of
Nelson Nufable 3/4 southern portion thereof;
bought said and defendant-appellee
property from Nelson Nufable to 1/4 portion.
the DBP
thereafter. No award on damages.
During this
period, the
No costs.
plaintiffs never
questioned the
transactions Defendants-appellees' Motion for
which were Reconsideration was denied for lack of merit in
public, never
the Resolution of the Court of Appeals4 dated
October 2, 1996.
Hence, the present petition. Petitioners raise
the following grounds for the petition:
1. Honorable Court of Appeals
erred in considering as
controlling the probate of the
Last Will and Testament of
Esdras Nufable, the probate
thereof not being an issue in
this case;
2. The Honorable Court of
Appeals erred in not
considering the fact that the
Development Bank of the
Philippines became absolute,
exclusive, legal and rightful
owner of the land in question,
from whom petitioner Nelson
Nufable acquired the same by
purchase and that, therefore,
no award can be made in favor
of private respondent unless
and until the Development
Bank of the Philippines' title
thereto is first declared null and
void by the court.
The Court of Appeals, in its decision, stated
that the trial court failed to take into
consideration the probated will of the late
Esdras Nufable bequeathing the subject
property to all his four children.5 In the present
petition, petitioner present the issue of whether
or not the Last Will and Testament of Esdras
Nufable and its subsequent probate are
pertinent and material to the question of the
right of ownership of petitioner Nelson Nufable
who purchased the land in question from, and
as acquired property of, the Development Bank
of the Philippines (DBP, for short). They
contend that the probate of the Last Will
Testament and of Esdras Nufable did not
determine the ownership of the land in question
as against third parties.1âw phi 1.nêt
As a general rule, courts in probate
proceedings are limited only to passing upon
the extrinsic validity of the will sought to be
probated, the due execution thereof, the
testator's testamentary capacity and the
compliance with the requisites or solemnities
prescribes by law. Said court at this stage of
the proceedings is not called to rule on the rule
on the intrinsic validity or efficacy of the
will.6 The question of the intrinsic validity of a
will normally comes only after the court has
declared that the will has been duly
authenticated.
The records show that upon petition for probate
filed by the heirs of the late Esdras Nufable, an
Order dated March 30, 1966 was issued by
then Court of First Instance of Negros Oriental,
Branch II, admitting to probate the last will and
testament executed by the
decedent.7 Thereafter, on June 6, 1966, the
same court approved the Settlement of Estate
submitted by the heirs of the late Esdras
Nufable wherein they agreed "(T)hat the parcel
land situated in Poblacion Manjuyod, Negros
Oriental remains undivided for community
ownership but respecting conditions imposed
therein (sic) in the will."8 In paragraph 3 thereof,
they stated that "they have no objection as to
the manner of disposition of their share made
by the testator, the expenses of the proceeding
and that they have already taken possession of
their respective shares in accordance with the
will." Verily, it was the heirs of the late Esdras
Nufable who agreed among themselves on the
disposition of their shares. The probate court
simply approved the agreement among the
heirs which approval was necessary for the
validity of any disposition of the decedent's
estate.9
It should likewise be noted that the late Esdras
Nufable died on August 9, 1965. When the
entire property located at Manjuyod was
mortgaged on March 15, 1966 by his son Angel
Custodio with DBP, the other heirs of Esdras
— namely: Generosa, Vilfor and Marcelo —
had already acquired successional rights over
the said property. This is so because of the
principle contained in Article 777 of the Civil
Code to the effect that the rights to the
succession are transmitted from the moment of
death of the decedent. Accordingly, for the
purpose of transmission of rights, it does not
matter whether the Last Will and Testament of
the late Esdras Nufable was admitted on March
30, 1966 or thereafter or that the Settlement of
Estate was approved on June 6, 1966 or
months later. It is to be noted that the probated
will of the late Esdras Nufable specifically
referred to the subject property in stating that
"the land situated in the Poblacion, Manjuyod,
Negros Oriental, should not be divided
because this must remain in common for them,
but it is necessary to allow anyone of them
brothers and sisters to construct a house
therein."10 It was therefor the will of the
decedent that the subject property should
undivided, although the restriction should not
exceed twenty (20) years pursuant to Article
870 11 of the Civil Code.
Thus, when Angel Nufable and his spouses
mortgaged the subject property to DBP on
March 15, 1966, they had no right to mortgage
the entire property. Angel's right over the
subject property was limited only to 1/4 pro
indivisoshare. As co-owner of the subject
property, Angel's right to sell, assign or
mortgage is limited to that portion that may be
allotted to him upon termination of the co-
ownership. Well-entrenched is the rule that a
co-owner can only alienate his pro
indiviso share in the co-owned property. 12
The Court of Appeals did not err in ruling that
Angel Custodio Nufable "had no right to
mortgage the subject property in its entirety.
His right to encumber said property was limited
only to 1/4 pro indiviso share of the property in
question." 13 Article 493 of the Civil Code spells
out the rights or co-owners over a co-owned
property. Pursuant to said Article, a co-owner
shall have full ownership of his part and of the
fruits and benefits pertaining thereto. He has
the right to alienate, assign or mortgage it, and
even substitute another person in its
enjoyment. As a mere part owner, he cannot
alienate the shares of the other co-owners. The
prohibition is premised on the elementary rule
that "no one can give what he does not have." 14
Moreover, respondents stipulated that they
were not aware of the mortgage by petitioners
of the subject property. 15This being the case, a
co-owner does not lose his part ownership of a
co-owned property when his share is
mortgaged by another co-owner without the
former's knowledge and consent 16 as in the
case at bar. It has likewise been ruled that the
mortgage of the inherited property is not
binding against co-heirs who never
benefitted. 17
Furthermore, the Deed of Sale dated June 17,
1966 marked as Exhibit "H" executed by
spouses Angel and Aquilina Nufable in favor of
respondents Generosa, Vilfor and Marcelo
wherein the former sold, ceded and transferred
back to the latter the 3/4 portion of the subject
property bolsters respondents' claim that there
was co-ownership. Petitioner Nelson himself
claimed that he was aware of the aforesaid
Deed of Sale. 18
Anent the second ground of the petition,
petitioners allege that the Development Bank
of the Philippines acquired ownership of the
land in question through foreclosure, purchase
and consolidation of ownership. Petitioners
argue that if petitioner Nelson Nufable had not
bought said land from the DBP, private
respondents, in order to acquire said property,
must sue said bank for the recovery thereof,
and in so doing, must allege grounds for the
annulment of documents evidencing the bank's
ownership thereof. Petitioners contend that
since petitioner Nelson Nufable simply bought
the whole land from the bank, they cannot be
deprived of the ownership of 3/4 without
making any pronouncement as to the legality
or illegality of the bank's ownership of said
land. It is argued that there was no evidence to
warrant declaration of nullity of the bank's
acquisition of said land; and that neither was
there a finding by the court that the bank
illegally acquired the said property.
As adverted to above, when the subject
property was mortgaged by Angel Custodio, he
had no right to mortgage the entire property but
only with respect to his 1/4 pro indiviso share
as the property was subject to the successional
rights of the other heirs of the late Esdras.
Moreover, in case of foreclosure; a sale would
result in the transmission of title to the buyer
which is feasible only if the seller can be in a
position to convey ownership of the things
sold. 19And in one case, 20 it was held that a
foreclosure would be ineffective unless the
mortgagor has title to the property to be
foreclosed. Therefore, as regards the
remaining 3/4 pro indiviso share, the same was
held in trust for the party rightfully entitled
thereto, 21 who are the private respondents
herein.
Pursuant to Article 1451 of the Civil Code,
when land passes by succession to any person
and he causes the legal title to be put in the
name of another, a trust is established by
implication of law for the benefit of the true
owner. Likewise, under Article 1456 of the
same Code, if property is acquired through
mistake or fraud, the person obtaining it is, by
force of law, considered a trustee of an implied
trust for the benefit of the person from whom
the property comes. In the case of Noel
vs. Court of Appeals, 22 this Court held that "a
buyer of a parcel of land at a public auction to
satisfy a judgment against a widow acquired
only one-half interest on the land
corresponding to the share of the widow and
the other half belonging to the heirs of her
husband became impressed with a
constructive trust in behalf of said heirs."
Neither does the fact that DBP succeeded in
consolidating ownership over the subject
property in its name terminate the existing co-
ownership. Registration of property is not a
means of acquiring ownership. 23 When the
subject property was sold to and consolidated
in the name of DBP, it being the winning bidder
in the public auction, DBP merely held the 3/4
portion in trust for the private respondents.
When petitioner Nelson purchased the said
property, he merely stepped into the shoes of
DBP and acquired whatever rights and
obligations appertain thereto.
This brings us to the issue of whether or not the
DBP should have been impleaded as party-
defendant in the case at bar. Petitioners
contend that DBP was never impleaded and
that due process requires that DBP be
impleaded so that it can defend its sale to
petitioner Nelson Nufable; and that it was the
duty of private respondents, and not of
petitioner Nelson, to implead the bank and ask
for the annulment of documents evidencing the
bank's ownership of the disputed land.
In the Rejoinder to the Reply, private
respondents that the non-inclusion of DBP as
a "necessary party" was not questioned by
petitioners from the time the Complaint was
filed until the case was "finished." It was only
after the adverse decision by the respondent
Court of Appeals that petitioners raised the
issue.
At the outset, it should be stated petitioners
never raised this issue in their Answers and
pursuant to Section 2, Rule 9 of the Rules of
Court, defenses and objections not pleaded
either in a motion to dismiss or in the answer
are deemed waived.
Nonetheless, the rule is that indispensable
parties, i.e., parties in interest without whom no
final determination can be had of an action,
shall be joined either as plaintiffs or
defendants; the inclusion as a party, i.e.,
persons who are not indispensable but ought
to be parties if complete relief is to be accorded
as between those already parties, the court
may, in its discretion, proceed in the action
without making such persons parties, and the
judgment rendered therein shall be without
prejudice to the rights of such
persons. 25 Proper parties, therefore, have
been described as parties whose presence in
necessary in order to adjudicate the whole
controversy, but whose interests are so far
separable that a final decree can be made in
their absence without affecting them. 26 Any
claim against a party may be severed and
proceeded with separately. 27
The pivotal issue to be determined is whether
DBP is an indispensable party in this case.
Private respondents do not question the
legality of the foreclosure of the mortgaged
property and the subsequent sale of the same
to DBP. The subject property was already
purchased by petitioner Nelson from DBP and
latter, by such sale, transferred its rights and
obligations to the former. Clearly, petitioners'
interest in the controversy is distinct and
separable from the interest of DBP and a final
determination can be had of the action despite
the non-inclusion of DBP as party-defendant.
Hence, DBP, not being an indispensable party,
did not have to be impleaded in this case.
WHEREFORE, there being no reversible error
in the decision appealed from, the petition for
review on certiorari is hereby DENIED. 1âwphi1.nêt
SO ORDERED.
3. Article 778. Succession may be:
(1) Testamentary;
(2) Legal or intestate; or
(3) Mixed. (n)
Article 779. Testamentary succession is that
which results from the designation of an heir,
made in a will executed in the form prescribed
by law. (n)
Article 780. Mixed succession is that effected
partly by will and partly by operation of law. (n)
Art. 84. No marriage license shall be issued to a
widow till after three hundred days following the
death of her husband, unless in the meantime
she has given birth to a child. (n)
G.R. No. L-15088 January 31, 1961
TORIBIA FONTANILLA PACIO, SANTIAGO
PACIO, ESPERANZA PACIO, and ROSARIO
PACIO, plaintiffs-appellants,
vs.
MANUELA PACIO BILLON, BRIGIDA
PACIO, and DOMINGA PACIO, defendants-
appellees.
Alfredo F. Tadiar for plaintiffs-appellants.
Camilo Z. Nisce for defendants-appellees.
BENGZON, J.:
In 1901, Flaviano Pacio married Severa
Jucutan. Herein defendants were their
children. Severa died in 1930; and thereafter
Flavio married the plaintiff Toribia Fontanilla,
who bore him the other four plaintiffs.
The dispute between the parties in the La
Union court of first instance, concerned two
parcels of land which defendants allegedly
retained without any right thereto. The litigants
later agreed to a partition of the first parcel, and
the court so decreed.
As to the second parcel, a hearing was held,
and it was awarded to the defendants, on the
ground that it had been donated propter
nuptias to Severa, in 1901, by Flaviano Pacio,
who was then admittedly the owner.
According to the stipulation of facts:
. . . a donation propter nuptias was
made in a private instrument by
Flaviano Pacio in favor of his first wife
Severa Jucutan, before their marriage
on June 4, 1901 . .;
3. That the land continued to be
declared in the name of Flaviano Pacio
notwithstanding this donation propter
nuptias until 1956 when the same was
changed in the name of the defendants
Brigida, Manuela and Dominga, all
surnamed Pacio;
4. That land taxes were paid in the
name of Flaviano Pacio as shown by
tax receipts for the years 1931, 1933,
1934, 1935, 1940, 1942, 1943, 1944,
1945, 1946, 1947, 1948, 1949, 1955,
and 1956;
5. That Flaviano Pacio died on
November 2, 1951;
xxx xxx xxx
 8. That defendants lived with their
father and the second wife, Toribia
Fontanilla, from the date of their
marriage in 1933, except Manuela who
left on the date of her marriage in 1941,
and returned in 1946, and Dominga
who left in 1943 and Brigida is
presently living with the other
defendants;
9. That while the plaintiffs and the
defendants lived together during the
said period, they equally shared all the
harvests reaped from the land in the
litigation;
10. That the land taxes were paid on
both parcels (a) and (b) in the names of
the defendants starting with the year
1957 when the tax declarations were
changed into their names on
December 20, 1956; . . .,"
The plaintiffs-appellants contend that the
donation was void, because it was not made in
a public instrument. They are right. Art. 633 of
the Spanish Civil Code states that "In order that
a donation of real property be valid it must be
made by public instrument in which the
property donated must be specifically
described and the amount of the
encumbrances to be assumed by the donee
expressed . . .." .
And this Court has held that a donation propter
nuptias of real property written on a private
instrument is not valid even between the
parties.1
The trial judge said "a donation propter
nuptias in order to be valid between the donor
and the donee, need not be embodied in a
public instrument as such formality is only
necessary for registration purposes in the
Office of the Register of Deeds" so as to bind
third persons. He was obviously applying the
new principles in the Philippine Civil Code
effective in the year 1950.2 But in 1901 when
the gift was made, the law was contained in the
Spanish Civil Code, according to which, even
between the parties, the donation must be in a
public instrument.
Realizing the force of plaintiffs' point,
defendants emphasize that the deed of
donation constituted a title on which to base
acquisitive prescription, inasmuch as Severa
possessed the land from 1901 to March 1930
when she died. The stipulation of facts says
nothing about such possession. True, there
was a witness, Monica Pacio, who testified; but
she stated that both husband and wife held
possession of the land, and the stipulation says
that from 1933 the parties shared the harvests
equally. At any rate, it is obvious that normally,
prescription by adverse possession can not
exist between husband and wife. See Article
1109 Civil Code of the Philippines.
Espique v. Espique3 on which the appellees
rely is not controlling because the prescription
there mentioned did not refer to possession by
the wife as against her husband.
It follows that Flaviano Pacio continued to be
the owner of the land as the donation had no
effect and there was no prescription. Upon his
death, the land became the joint property of his
children by the first and second marriage.
Subject of course to the rights of his surviving
spouse, the plaintiff Toribia Fontanilla.
Reversing the decision in so far as this parcel
is concerned, we hereby order the return of the
expediente to the court below for further
proceedings on partition in accordance with
these views.
G.R. No. L-14070 March 29, 1961
MARIA GERVACIO BLAS, MANUEL
GERVACIO BLAS, LEONCIO GERVACIO
BLAS and LODA GERVACIO
BLAS, plaintiffs-appellants,
vs.
ROSALINA SANTOS, in her capacity as
Special Administratrix of the Estate of the
deceased MAXIMA SANTOS VDA. DE
BLAS, in Sp. Proc. No. 2524, Court of First
Instance of Rizal, defendants-appellants.
MARTA GERVACIO BLAS and DR. JOSE
CHIVI, defendants-appellants.
Teofilo Sison and Nicanor Sison for plaintiffs-
appellants.
De los Santos, Caluag, Pascal and Felizardo
for defendants-appellees.
LABRADOR, J.:
This action was instituted by plaintiffs against
the administration of the estate of Maxima
Santos, to secure a judicial declaration that
one-half of the properties left by Maxima
Santos Vda. de Blas, the greater bulk of which
are set forth and described in the project of
partition presented in the proceedings for the
administration of the estate of the deceased
Simeon Blas, had been promised by the
deceased Maxima Santos to be delivered upon
her death and in her will to the plaintiffs, and
requesting that the said properties so promised
be adjudicated to the plaintiffs. The complaint
also prays for actual damages in the amount of
P50,000. (Record on Appeal, pp. 1-65.) The
alleged promise of the deceased Maxima
Santos is contained in a document executed by
Maxima Santos on December 26, 1936
attached to the complaint as Annex "H" and
introduced at the trial as Exhibit "A". (Ibid., pp.
258-259.) The complaint also alleges that the
plaintiffs are entitled to inherit certain
properties enumerated in paragraph 3 thereof,
situated in Malabon, Rizal and Obando,
Bulacan, but which properties have already
been in included in the inventory of the estate
of the deceased Simeon Blas and evidently
partitioned and conveyed to his heirs in the
proceedings for the administration of his
(Simeon Blas) estate.
Defendant, who is the administratrix of the
estate of the deceased Maxima Santos Vda. de
Blas, filed an answer with a counterclaim, and
later, an amended answer and a counterclaim.
The said amended answer admits the
allegations of the complaint as to her capacity
as administratrix the death of Simeon Blas on
January 3, 1937; the fact that Simeon Blas and
Marta Cruz begot three children only one of
whom, namely, Eulalio Blas, left legitimate
descendants; that Simeon Blas contracted a
second marriage with Maxima Santos on June
28, 1898. She denies for lack of sufficient
information and belief, knowledge edge of the
first marriage of Simeon Blas to Marta Cruz, the
averment that Simeon Blas and Marta Cruz
acquired properties situated in Obando,
Bulacan, that said properties were utilized as
capital, etc. As special defenses, she alleges
that the properties of the spouses Blas and
Santos had been settled and liquidated in the
project of partition of the estate of said Simeon
Blas; that pursuant to the project of partition,
plaintiffs and some defendants had already
received the respective properties adjudicated
to them; that the plaintiffs and the defendants
Marta Geracio and Jose Chivi are estopped
from impugning the validity of the project of
partition of the estate of the deceased Simeon
Blas and from questioning the ownership in the
properties conveyed in the project of partition
to Maxima Santos as her own exclusive
property; that the testament executed by
Maxima Santos is valid, the plain plaintiffs
having no right to recover any portion of
Maxima Santos' estate now under
administration by the court. A counterclaim for
the amount of P50,000 as damages is also
included in the complaint, as also a cross-claim
against Marta Gervacio Blas and Jose Chivi.
Trial of the case was Conducted and,
thereafter, the court, Hon. Gustave Victoriano,
presiding, rendered judgment dismissing the
complaint, with costs against plaintiff, and
dismissing also the counterclaim and cross-
claim decision ,the plaintiffs filed by the
defendants. From this district have appealed to
this Court.
The facts essential to an understanding of the
issues involved in the case may be briefly
summarized as follows: Simeon Blas
contracted a first marriage with Marta Cruz
sometime before 1898. They had three
children, only one of whom, Eulalio, left
children, namely, Maria Gervacio Blas, one of
the plaintiffs, Marta Gervacio Blas, one of the
defendants, and Lazaro Gervacio Blas. Lazaro
died in 1950, and is survived by three legitimate
children who are plaintiffs herein, namely,
Manuel Gervacio Blas, Leoncio Gervacio Blas
and Loida Gervacio Blas. Marta Cruz died in
1898, and the following year, Simeon Blas
contracted a second marriage with Maxima
Santos. At the time of this second marriage, no
liquidation of the properties required by Simeon
Blas and Marta Cruz was made. Three of the
properties left are fishponds located in
Obando, Bulacan. Maxima Santos does not
appear to have apported properties to her
marriage with Simeon Blas.
On December 26, 1936, only over a week
before over a week before his death on
January 9, 1937, Simeon Blas executed a last
will and testament. In the said testament
Simeon Blas makes the following declarations:
I Pascual a son-in-law of the testator, and
2. Sa panahon ng aking pangalawang
asawa, MAXIMA SANTOS DE BLAS,
ay nagkaroon ako at nakatipon ng mga
kayamanan (bienes) at pag-aari
(propriedades) na ang lahat ng lupa,
palaisdaan at iba pang pag-aari ay
umaabot sa halagang ANIM NA RAAN
PITONG PU'T WALONG DAAN LIBO
WALONG DAAN WALONG PUNG
PISO (678,880-00) sang-ayon sa mga
halaga sa amillarimento (valor
Amillarado.)
II
1. Ang kalahati ng lahat ng aming pag-
aari, matapos mabayaran ang lahat ng
aking o aming pag-kakautang na mag-
asawa, kung mayroon man, yayamang
ang lahat ng ito ay kita sa loob ng
matrimonio (bienes ganaciales) ay
bahagi ng para sa aking asawa,
MAXIMA SANTOS DE BLAS, sang-
ayon sa batas. (Record on Appeal, pp.
250-251.)
The above testamentary provisions may be
translated as follows:
I conjugal properties and so all those
2. During my second marriage with
Maxima Santos de Blas, I possessed
and acquired wealth and properties,
consisting of lands, fishponds and
other kinds of properties, the total
assessed value of which reached the
amount P678,880.00.
II
1. One-half of our properties, after the
payment of my and our indebtedness,
all these properties having been
acquired during marriage (conjugal
properties), constitutes the share of my
wife Maxima Santos de Blas, according
to the law.
At the time of the execution of said will, Andres
Avelina Pascual and others, were present.
Andres Pascual had married a descendant by
the first marriage. The will was prepared by
Andres Pascual, with the help of his nephew
Avelino Pascual. The testator asked Andres
Pascual to prepare a document which was
presented in court as Exhibit "A", thus:
Q — Was there anybody who asked
you to prepare this document?
A — Don Simeon Blas asked me to
prepare this document (referring to
Exhibit "A"), (t.s.n., Sarmiento to, P.
24).
The reason why the testator ordered the
preparation of Exhibit "A" was because the
properties that the testator had acquired during
his first marriage with Marta Cruz had not been
liquidated and were not separated from those
acquired during the second marriage.
Pascual's testimony is as follows:
Q — To whom do you refer with the
word "they"?
A — Simeon Blas and his first wife,
Marta Cruz. When Marta Cruz died
they had not made a liquidation of their
properties were included all in the
assets of the second marriage, and
that is the reason why this document
was prepared. (t.s.n., Sarmiento, p.
36.)
The above testimony is fully corroborated by
that of Leoncio Gervacio, son-in-law of Simeon
Blas.
 Q — Please state to the Court?
A — My children were claiming from
their grandfather Simeon Blas the
properties left by their grandmother
Marta Cruz in the year 1936.
Q — And what happened with that
claim of your children against Simeon
Blas regarding the assets or properties
of the first marriage that were left after
the death of Marta Cruz in 1936?
A — The claim was not pushed through
because they reached into an
agreement whereby the parties
Simeon Blas Maxima Santos, Maria
Gervacio Bias, Marta Gervacio Blas
and Lazaro Gervacio Blas agreed that
Simeon Blas and Maxima Blas will give
one-half of the estate of Simeon Blas.
(t.s.n., Sarmiento, pp. 143-144).
The document which was thus prepared and
which is marked as Exhibit "A" reads in
Tagalog, thus:
MAUNAWA NG SINO MANG
MAKABABASA:
Na akong si MAXIMA SANTOS DE
BLAS, nasa hustong gulang, kasal kay
SIMEON BLAS, taga bayan ng
Malabon, Rizal, Philippines, sa
pamamagitan ng kasulatang ito ay
malaya kong ipinahahayag:
Na aking nabasa at naunawa ang
testamento at huling kalooban na
nilagdaan ng aking asawa, SIMEON
BLAS, at ipinahahayag ko sa ilalim ng
aking karangalan at sa harap ng aking
asawa na igagalang at pagpipitaganan
ang lahat at bawa't isang bahagi ng
nabanggit na testamento at
ipinangangako ko pa sa pamamagitan
ng kasulatang ito na ang lahat ng
maiiwang pag-aari at kayamanan
naming mag-asawa, na nauukol at
bahaging para sa akin sa paggawa ko
naman ng aking testamento ay
ipagkakaloob ko ang kalahati (½) sa
mga herederos at legatarios o
pinamamanahan ng aking nabanggit
na asawa, SIMEON BLAS, sa
kaniyang testamento, na ako'y
makapipili o makahihirang na kahit
kangino sa kanila ng aking pagbibigyan
at pamamanahan sang-ayon sa
paggalang, paglilingkod, at pakikisama
ng gagawin sa akin.
SA KATUNAYAN NG LAHAT NG ITO
ay nilagdaan ko ang kasulatang ito
ngayon ika 26 ng Diciembre ng taong
1936, dito sa San Francisco del Monte,
San Juan, Rizal, Philippines. (Exh. "A",
pp. 29-30 — Appellant's brief).
(Fdo.) MAXIMA SANTOS DE BLAS
and which, translated into English, reads as
follows:
KNOW ALL MEN BY THESE
PRESENTS:
That I MAXIMA SANTOS DE BLAS, of
legal age, married to SIMEON BLAS,
resident of Malabon, Rizal, Philippines,
voluntarily state:
That I have read and knew the contents
of the will signed by my husband,
SIMEON BLAS, (2) and I promise on
my word of honor in the presence of my
husband that I will respect and obey all
and every disposition of said will (3)
and furthermore, I promise in this
document that all the properties my
husband and I will leave, the portion
and share corresponding to me when I
make my will, I will give one-half (½) to
the heirs and legatees or the
beneficiaries named in the will of my
husband, (4) and that I can select or
choose any of them, to whom I will give
depending upon the respect, service
and treatment accorded to me.
IN WITNESS WHEREOF, I signed this
document this 26th day of December,
1936 at San Francisco del Monte, San
 Juan, Rizal, Philippines. (Exh. "A", pp.
30-31, Appellant's brief).
(Sgd.) MAXIMA SANTOS DE BLAS
The court below held that said Exhibit "A" has
not created any right in favor of plaintiffs which
can serve as basis for the complaint; that
neither can it be considered as a valid and
enforceable contract for lack of consideration
and because it deals with future inheritance.
The court also declared that Exhibit "A" is not a
will because it does not comply with the
requisites for the execution of a will; nor could
it be considered as a donation, etc.
Both the court below in its decision and the
appellees in their brief before us, argue
vehemently that the heirs of Simeon Blas and
his wife Marta Cruz can no longer make any
claim for the unliquidated conjugal properties
acquired during said first marriage, because
the same were already included in the mass of
properties constituting the estate of the
deceased Simeon Blas and in the
adjudications made by virtue of his will, and
that the action to recover the same has
prescribed. This contention is correct. The
descendants of Marta Cruz can no longer claim
the conjugal properties that she and her
husband may have required during their
marriage although no liquidation of such
properties and delivery thereof to the heirs of
Marta Cruz have been made, no action to
recover said propertied having been presented
in the proceedings for the settlement of the
estate of Simeon Blas.
But the principal basis for the plaintiffs' action
in the case at bar is the document Exhibit "A".
It is not disputed that this document was
prepared at the instance of Simeon Blas for the
reason that the conjugal properties of me on
Blas for the reason his first marriage had not
been liquidated; that it was prepared at the
same time as the will of Simeon Blas on
December 26, 1936, at the instance of the latter
himself. It is also not disputed that the
document was signed by Maxima Santos and
one copy thereof, which was presented in court
as Exhibit "A", was kept by plaintiffs' witness
Andres Pascual.
Plaintiffs-appellants argue before us that
Exhibit "A" is both a trust agreement and a
contract in the nature of a compromise to avoid
litigation. Defendants-appellees, in answer,
claim that it is neither a trust agreement nor a
compromise a agreement. Considering that the
properties of the first marriage of Simeon Blas
had not been liquidated when Simeon Blas
executed his will on December 26, 1936', and
the further fact such properties where actually
, and the further fact that included as conjugal
properties acquired during the second
marriage, we find, as contended by plaintiffs-
appellants that the preparation and execution
of Exhibit "A" was ordered by Simeon Blas
evidently to prevent his heirs by his first
marriage from contesting his will and
demanding liquidation of the conjugal
properties acquired during the first marriage,
and an accounting of the fruits and proceeds
thereof from the time of the death of his first
wife.
Exhibit "A", therefore, appears to be the
compromise defined in Article 1809 of the Civil
Code of Spain, in force at the time of the
execution of Exhibit "A", which provides as
follows:
Compromise is a contract by which
each of the parties in interest, by
giving, promising, or retaining
something avoids the provocation of a
suitor terminates one which has
already the provocation been
instituted. (Emphasis supplied.)
Exhibit "A" states that the maker (Maxima
Santos) had read and knew the contents of the
will of her husband read and knew the contents
of the will Simeon Blas — she was evidently
referring to the declaration in the will(of Simeon
Blas) that his properties are conjugal properties
and one-half thereof belongs to her (Maxima
Santos) as her share of the conjugal assets
under the law. The agreement or promise that
Maxima Santos makes in Exhibit "A" is to hold
one-half of her said share in the conjugal
assets in trust for the heirs and legatees of her
husband in his will, with the obligation of
conveying the same to such of his heirs or
legatees as she may choose in her last will and
testament. It is to be noted that the conjugal
properties referred to are those that were
actually existing at that time, December 26,
1936. Simeon Blas died on January 9, 1937.
On June 2, 1937, an inventory of the properties
left by him, all considered conjugal, was
submitted by Maxima Santos herself as
administratrix of his estate. A list of said
properties is found in Annex "E", the complete
inventory submitted by Maxima Santos Vda. de
Blas, is administratrix of the estate of her
husband, dated March 10, 1939. The
properties which were given to Maxima Santos
as her share in the conjugal properties are also
specified in the project of partition submitted by
said Maxima Santos herself on March 14,
1939. (Record on Appeal, pp. 195-241.) Under
Exhibit "A", therefore, Maxima Santos
contracted the obligation and promised to give
one-half of the above indicated properties to
the heirs and legatees of Simeon Blas.
Counsel for the defendant-appellee claims
Exhibit "A" is a worthless piece of paper
because it is not a will nor a donation mortis
causa nor a contract. As we have in indicated
above, it is a compromise and at the same time
a contract with a sufficient cause or
consideration. It is also contended that it deals
with future inheritance. We do not think that
Exhibit "A" is a contract on future inheritance. it
is an obligation or promise made by the maker
to transmit one-half of her share in the conjugal
properties acquired with her husband, which
properties are stated or declared to be conjugal
properties in the will of the husband. The
conjugal properties were in existence at the
time of the execution of Exhibit "A" on
December 26, 1936. As a matter of fact,
Maxima Santos included these properties in
her inventory of her husband's estate of June
2, 1937. The promise does not refer to any
properties that the maker would inherit upon
the death of her husband, because it is her
share in the conjugal assets. That the kind of
agreement or promise contained in Exhibit "A"
is not void under Article 1271 of the old Civil
Code, has been decided by the Supreme Court
of Spain in its decision of October 8, 19154,
thus:
Que si bien el art. 1271 del Codigo civil
dispone que sobre la herenciafutura no
se podra celebrar otros contratos que
aquellos cuyo objecto seapracticar
entre vivos la division de un caudal,
conforme al articulo 1056, esta
prohibicion noes aplicable al caso,
porque la obligacion que contrajoel
recurr en contrato privado de otorgar
testamento e instituir heredera a su
subrina de los bienes que adquirio en
virtud de herencia, procedentes desu
finada consorte que le quedasen
sobrantes despues de pagar las
deudas, y del ganacial que se expresa,
asi como de reconocer, ademas, con
alguna cosaa otros sobrinos, se refiere
a bienes conocidos y determinados
existentes cuando tal compromisi se
otorgo, y no a la universalidad de una
herencia que, sequn el art. 659 del
citado Codigo civil, as determina a
muerte, constituyendola todos los
bienes, derechos y obligaciones que
por ella no sehayan extinguido: ..."
(Emphasis supplied.)
It will be noted that what is prohibited to be the
subject matter of a contract under Article 1271
of the Civil Code is "future inheritance." To
us future inheritance is any property or right not
in existence or capable of determination at the
time of the contract, that a person may in the
future acquire by succession. The properties
subject of the contract Exhibit "A" are well
defined properties, existing at the time of the
agreement, which Simeon Blas declares in his
statement as belonging to his wife as her share
in the conjugal partnership. Certainly his wife's
actual share in the conjugal properties may not
be considered as future inheritance because
they were actually in existence at the time
Exhibit "A" was executed.
The trial court held that the plaintiffs-appellants
in the case at bar are concluded by the
judgement rendered in the proceedings for the
settlement of the estate of Simeon Blas for the
reason that the properties left by him belonged
to himself and his wife Maxima Santos; that the
project of partition in the said case,
adjudicating to Maxima Santos one-half as her
share in the conjugal properties, is a bar to
another action on the same subject matter, It is next contended by the defendant-appellee
Maxima Santos having become absolute that Maxima Santos complied with her above-
owner of the said properties adjudicated in her mentioned promise, — that Andres Pascual,
favor. As already adverted to above, these Tomasa Avelino, Justo Garcia, Ludovico
contentions would be correct if applied to the Pimpin and Marta Gervacio Blas were given
claim of the plaintiffs-appellants that said substancial legacies in the will and testament
properties were acquired with the first wife of of Maxima Santos. To determine whether she
Simeon Blas, Marta Cruz. But the main ground had actually complied with the promise made
upon which plaintiffs base their present action in Exhibit "A", there is herein set forth a list only
is the document Exhibit "A", already fully of the fishponds and their respective areas as
considered above. As this private document contained in the list of properties she acquired
contains the express promise made by Maxima as her share in the conjugal partnership, which
Santos to convey in her testament, upon her list includes, besides many ricelands as well as
death, one-half of the conjugal properties she residential lots, thus:
would receive as her share in the conjugal
properties, the action to enforce the said 31. Paco, Obando, Bulacan 5.8396
promise did not arise until and after her death
when it was found that she did not comply with 32. Pangjolo, Obando 3.5857
her above-mentioned promise. (Art. 1969, old 34. Batang Pirasuan, Lubao, Pampanga 11.951
Civil Code.) The argument that the failure of the
35. Calangian, Lubao, Pampanga 30.205
plaintiffs-appellants herein to oppose the
project of partition in the settlement of the 38. Bakuling, Lubao, Pampanga 215.43
estate of Simeon Blas, especially that portion 39. Bakuling, Lubao, Pampanga 8.3763
of the project which assigned to Maxima
Santos one-half of all the conjugal properties 40. Bangkal, Sinubli 23.073
bars their present action, is, therefore, devoid 41. Tagulod, 6.8692
of merit. It may be added that plaintiffs- 44. Bangkal Pugad (a) 34.277
appellants did not question the validity of the
project of partition precisely because of the (b) 51.791
promise made by Maxima Santos in the (c) 2.5202
compromise Exhibit "A"; they acquised in the
45. Magtapat Bangkal, Lubao, Pampanga (a) 18.002
approval of said project of partition because
they were relying on the promise made by (b) 7.3265
Maxima Santos in Exhibit "A", that she would (c) 53.518
transmit one-half of the conjugal properties that
she was going to receive as her share in the 46. Pinanganakan, Lubao, Pampanga 159.00
conjugal partnership upon her death and in her 47. Emigdio Lingid, Lubao, Pampanga 34.522
will, to the heirs and legatees of her husband 48. Propios, Lubao, Pampanga 80.538
Simeon Blas.
49. Batang Mabuanbuan, Sexmoan,
Pampanga 43.335
Neither can the claim of prescription be
considered in favor of the defendants. The right 50. Binatang Mabuanbuan, Sexmoan,
of action arose at the time of the death of Pampanga 3.5069
Maxima Santos on October 5,1956, when she 51. Sapang Magtua, Sexmoan, Pampanga 56,824
failed to comply with the promise made by her
in Exhibit "A". The plaintiffs-appellants 52. Kay Limpin, Sexmoan, Pampanga 5.0130
immediately presented this action on 53. Calise Mabalumbum, Sexmoan,
December 27, 1956, upon learning of such Pampanga 23.893
failure on the part of Maxima Santos to comply 54. Messapinit Kineke, Sexmoan,
with said promise. This defense is, therefore, Pampanga (a) 5.2972
also without merit.
(b) 5.9230
(c) 1.4638
 (d)of1.4638
convey upon her death.
(e) 2.8316 "
(f) All10.4412
(g) 3.9033respective
(h) 11.9263 "
(i) "A",
55. Dalang, Banga, Sexmoan, Pampanga
62. Alaminos, Pangasinan
80. Mangasu Sexmoan, Pampanga
81. Don Tomas, Sexmoan, Pampanga
82. Matikling, Lubao, Pampanga
Total area ...............................
(See Record on Record, pp.
195-241.)
In her will, Maxima Santos devised to Marta
Gervacio Blas the 80-hectare fishpond situated
in Lubao, Pampanga. The fishpond devised is
evidently that designated as "Propios" in
Lubao, Pampanga, item No. 8 in the list of
properties adjudicated to her in the project of
partition. (Record on Appeal, p. 215.)
Considering that the total area of the fishponds
amount to 1045.7863 hectares, the 80
hectares devised to Marta Gervacio Blas is not
even one-tenth of the total area of the
fishponds. Add to this the fact that in the will
she imposed upon Marta Gervacio Blas de
Chivi an existing obligation on said fishponds,
namely, its lease in 1957 and the duty to pay
out of the rentals thereof an obligation to the
Rehabilitation Finance Corporation RFC (Ibid.,
pp. 262-263.) Angelina Blas was given only a
lot of 150 square meters in Hulong Duhat,
Malabon, Rizal, and Leony Blas, the sum of
P300.00 (Ibid., p. 264.)
It is evident from a consideration of the above
figures and facts that Maxima Santos did not
comply with her obligation to devise one-half of
her conjugal properties to the heirs and
legatees of her husband. She does not state
that she had complied with such obligation in
her will. If she intended to comply therewith by
giving some of the heirs of Simeon Blas the
properties mentioned above, the most that can
be considered in her favor is to deduct the
value of said properties from the total amount
properties
" which she had undertaken to
the issues" in the pleadings of the parties and
in their " briefs, have now been fully
discussed and considered. Reiterating what we
have stated above, we declare that by Exhibit
6.0574 "
a compromise to avoid litigation, Maxima
Santos
23.3989 promised
" to devise to the heirs and
legatees of her husband Simeon Blas, one-half
of147.1242
the properties" she received as her share in
the conjugal
10.000 " partnership of herself and her
husband,
21.6435 " share is specified in the project
which
of partition submitted by herself on March 14,
1939 16.0000 "
in the settlement of the estate of her
husband,
1045.7863 and which
" is found on pages 195 to
240 of the record on appeal and on pages 27
to 46 of the project of partition, submitted by
Maxima Santos herself before the Court of First
Instance of Rizal in Civil Case No. 6707,
entitled "Testamentaria del Finado Don
Simeon Blas, Maxima Santos Vda. de Bias,
Administradora"; and that she failed to comply
with her aforementioned obligation. (Exhibit
"A")
WHEREFORE, the judgment appealed from is
hereby reversed and the defendant-appellee,
administratrix of the estate of Maxima Santos,
is ordered to convey and deliver one-half of the
properties adjudicated o Maxima Santos as her
share in the conjugal properties in said Civil
Case No. 6707, entitled "Testamentaria del
Finado Don Simeon Blas, Maxima Santos Vda.
de Blas, Administradora", to the heirs and the
legatees of her husband Simeon Blas.
Considering that all said heirs and legatees,
designated in the will of Simeon Blas as the
persons for whose benefit Exhibit "A" had been
executed, have not appeared in these
proceedings, the record is hereby remanded to
the court below, with instructions that, after the
conveyance of the properties hereinabove
ordered had been effected, the said heirs and
legatees (of Simeon Blas) file adversary
pleadings to determine the participation of
each and every one of them in said properties.
Costs against the defendant- appellee
Rosalina Santos.
G.R. No. L-39247 June 27, 1975
In the Matter of the Petition to Approve the
Will of Leodegaria Julian. FELIX BALANAY,
JR., petitioner,
vs.
HON. ANTONIO M. MARTINEZ, Judge of the
Court of First Instance of Davao, Branch VI;
AVELINA B. ANTONIO and DELIA B.
LANABAN, respondents.
Roberto M. Sarenas for petitioner.
Jose B. Guyo for private respondents.
AQUINO, J.:
Felix Balanay, Jr. appealed by certiorari from
the order of the Court of First Instance of Davao
dated February 28, 1974, declaring illegal and
void the will of his mother, Leodegaria Julian,
converting the testate proceeding into an
intestate proceeding and ordering the issuance
of the corresponding notice to creditors
(Special Case No. 1808). The antecedents of
the appeal are as follows:
Leodegaria Julian, a native of Sta. Maria,
Ilocos Sur, died on February 12, 1973 in Davao
City at the age of sixty-seven. She was
survived by her husband, Felix Balanay, Sr.,
and by their six legitimate children named Felix
Balanay, Jr., Avelina B. Antonio, Beatriz B.
Solamo, Carolina B. Manguiob, Delia B.
Lanaban and Emilia B. Pabaonon.
Felix J. Balanay, Jr. filed in the lower court a
petition dated February 27, 1973 for the
probate of his mother's notarial will dated
September 5, 1970 which is written in English.
In that will Leodegaria Julian declared (a) that
she was the owner of the "southern half of nine
conjugal lots (par. II); (b) that she was the
absolute owner of two parcels of land which
she inherited from her father (par. III), and (c)
that it was her desire that her properties should
not be divided among her heirs during her
husband's lifetime and that their legitimes
should be satisfied out of the fruits of her
properties (Par. IV).
Then, in paragraph V of the will she stated that
after her husband's death (he was eighty-two
years old in 1973) her paraphernal lands and
all the conjugal lands (which she described as
"my properties") should be divided and
distributed in the manner set forth in that part
of her will. She devised and partitioned the
conjugal lands as if they were all owned by her.
She disposed of in the will her husband's one
half share of the conjugal assets. *
Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of
the will on the grounds of lack of testamentary capacity, undue
influence, preterition of the husband and alleged improper
partition of the conjugal estate. The oppositors claimed that Felix
Balanay, Jr. should collate certain properties which he had
received from the testatrix.
Felix Balanay, Jr., in his reply to the opposition,
attached thereto an affidavit of Felix Balanay,
Sr. dated April 18, 1973 wherein he withdrew
his opposition to the probate of the will and
affirmed that he was interested in its probate.
On the same date Felix Balanay, Sr. signed an
instrument captioned "Conformation (sic) of
Division and Renunciation of Hereditary
Rights" wherein he manifested that out of
respect for his wife's will he "waived and
renounced' his hereditary rights in her estate in
favor of their six children. In that same
instrument he confirmed the agreement, which
he and his wife had perfected before her death,
that their conjugal properties would be
partitioned in the manner indicated in her will.
Avelina B. Antonio, an oppositor, in her
rejoinder contended that the affidavit and
"conformation" of Felix Balanay, Sr. were void.
The lower court in its order of June 18, 1973
"denied" the opposition and reset for hearing
the probate of the will. It gave effect to the
affidavit and conformity of Felix Balanay, Sr. In
an order dated August 28, 1973 it appointed its
branch clerk of court as special administrator of
the decedent's estate.
Mrs. Antonio moved for the reconsideration of
the lower court's order of June 18, 1973 on the
grounds (a) that the testatrix illegally claimed
that she was the owner of the southern half of
the conjugal lots and (b) that she could not
partition the conjugal estate by allocating
portions of the nine lots to her children. Felix
Balanay, Jr., through his counsel,
Hermenegildo Cabreros, opposed that motion.
The lower court denied it in its order of October
15, 1973.
In the meanwhile, another lawyer appeared in
the case. David O. Montaña, Sr., claiming to be
the lawyer of petitioner Felix Balanay, Jr. (his
counsel of record was Atty. Cabreros), filed a
motion dated September 25, 1973 for "leave of
court to withdraw probate of alleged will of
Leodegaria Julian and requesting authority to
proceed by intestate estate proceeding." In that
motion Montaña claimed to be the lawyer not
only of the petitioner but also of Felix Balanay,
Sr., Beatriz B. Solamo, Carolina B. Manguiob
and Emilia B. Pabaonon.
Montaña in his motion assailed the provision of
the will which partitioned the conjugal assets or
allegedly effected a compromise of future
legitimes. He prayed that the probate of the will
be withdrawn and that the proceeding be
converted into an intestate proceeding. In
another motion of the same date he asked that
the corresponding notice to creditors be
issued.
Avelina B. Antonio and Delia B. Lanaban,
through Atty. Jose B. Guyo, in their comments
dated October 15, 1973 manifested their
conformity with the motion for the issuance of
a notice to creditors. They prayed that the will
be declared void for being contrary to law and
that an intestacy be declared.
The lower court, acting on the motions of Atty.
Montaña, assumed that the issuance of a
notice to creditors was in order since the
parties had agreed on that point. It adopted the
view of Attys. Montaña and Guyo that the will
was void. So, in its order of February 28, 1974
it dismissed the petition for the probate,
converted the testate proceeding into an
intestate proceeding, ordered the issuance of a
notice to creditors and set the intestate
proceeding for hearing on April 1 and 2, 1974.
The lower court did not abrogate its prior orders
of June 18 and October 15, 1973. The notice to
creditors was issued on April 1, 1974 and
published on May 2, 9 and 16 in the Davao Star
in spite of petitioner's motion of April 17, 1974
that its publication be held in abeyance.
Felix Balanay, Jr., through a new counsel,
Roberto M. Sarenas, in a verified motion dated
April 15, 1974, asked for the reconsideration of
the lower court's order of February 28, 1974 on
the ground that Atty. Montaña had no authority
to withdraw the petition for the allowance of the
will. Attached to the motion was a copy of a
letter dated March 27, 1974 addressed to Atty.
Montaña and signed by Felix Balanay, Jr.,
Beatriz V. Solamo, Carolina B. Manguiob and
Emilia B. Pabaonon, wherein they terminated
Montaña's services and informed him that his
withdrawal of the petition for the probate of the
will was without their consent and was contrary
to their repeated reminder to him that their
mother's will was "very sacred" to them.
Avelina B. Antonio and Delia B. Lanaban
opposed the motion for reconsideration. The
lower court denied the motion in its order of
June 29, 1974. It clarified that it declared the
will void on the basis of its own independent
assessment of its provisions and not because
of Atty. Montaña's arguments.
The basic issue is whether the probate court
erred in passing upon the intrinsic validity of the
will, before ruling on its allowance or formal
validity, and in declaring it void.
We are of the opinion that in view of certain
unusual provisions of the will, which are of
dubious legality, and because of the motion to
withdraw the petition for probate (which the
lower court assumed to have been filed with the
petitioner's authorization), the trial court acted
correctly in passing upon the will's intrinsic
validity even before its formal validity had been
established. The probate of a will might
become an idle ceremony if on its face it
appears to be intrinsically void. Where practical
considerations demand that the intrinsic
validity of the will be passed upon, even before
it is probated, the court should meet the issue
(Nuguid vs. Nuguid, 64 O.G. 1527, 17 SCRA
449. Compare with Sumilang vs. Ramagosa, L-
23135, December 26, 1967, 21 SCRA 1369;
Cacho vs. Udan, L-19996, April 30, 1965, 13
SCRA 693). 1äw phï1.ñët
But the probate court erred in declaring, in its
order of February 28, 1974 that the will was
void and in converting the testate proceeding
into an intestate proceeding notwithstanding
the fact that in its order of June 18, 1973 , it
gave effect to the surviving husband's
conformity to the will and to his renunciation of
his hereditary rights which presumably
included his one-half share of the conjugal
estate.
The rule is that "the invalidity of one of several
dispositions contained in a will does not result
in the invalidity of the other dispositions, unless
it is to be presumed that the testator would not
have made such other dispositions if the first
invalid disposition had not been made" (Art.
792, Civil Code). "Where some of the
provisions of a will are valid and others invalid,
the valid parts will be upheld if they can be
separated from the invalid without defeating
the intention of the testator or interfering with
the general testamentary scheme, or doing
injustice to the beneficiaries" (95 C.J.S. 873).
The statement of the testatrix that she owned
the "southern half of the conjugal lands is
contrary to law because, although she was a
coowner thereof, her share was inchoate
and proindiviso (Art. 143, Civil Code; Madrigal
and Paterno vs. Rafferty and Concepcion, 38
Phil. 414). But That illegal declaration does not
nullify the entire will. It may be disregarded.
The provision of the will that the properties of
the testatrix should not be divided among her
heirs during her husband's lifetime but should
be kept intact and that the legitimes should be
paid in cash is contrary to article 1080 of the
Civil Code which reads:
ART. 1080. Should a person
make a partition of his estate by
an act inter vivos, or by will,
such partition shall be
respected, insofar as it does
not prejudice the legitime of the
compulsory heirs.
A parent who, in the interest of
his or her family, to keep any
agricultural, industrial, or
manufacturing enterprise
intact, may avail himself of the
right granted him in this article,
by ordering that the legitime of
the other children to whom the
property is not assigned be
paid in cash. (1056a)
The testatrix in her will made a partition of the
entire conjugal estate among her six children
(her husband had renounced his hereditary
rights and his one-half conjugal share). She did
not assign the whole estate to one or more
children as envisaged in article 1080. Hence,
she had no right to require that the legitimes be
paid in cash. On the other hand, her estate may
remain undivided only for a period of twenty
years. So, the provision that the estate should
not be divided during her husband's lifetime
would at most be effective only for twenty years
from the date of her death unless there are
compelling reasons for terminating the
coownership (Art. 1083, Civil Code).
Felix Balanay, Sr. could validly renounce his
hereditary rights and his one-half share of the
conjugal partnership (Arts. 179[1] and 1041,
Civil Code) but insofar as said renunciation
partakes of a donation of his hereditary rights
and his one-half share in the conjugal estate
(Art. 1060[1] Civil Code), it should be subject to
the limitations prescribed in articles 750 and
752 of the Civil Code. A portion of the estate
should be adjudicated to the widower for his
support and maintenance. Or at least his
legitime should be respected.
Subject to the foregoing observations and the
rules on collation, the will is intrinsically valid
and the partition therein may be given effect if
it does not prejudice the creditors and impair
the legitimes. The distribution and partition
would become effective upon the death of Felix
Balanay, Sr. In the meantime, the net income
should be equitably divided among the children
and the surviving spouse.
It should be stressed that by reason of the
surviving husband's conformity to his wife's will
and his renunciation of his hereditary rights, his
one-half conjugal share became a part of his
deceased wife's estate. His conformity had the
effect of validating the partition made in
paragraph V of the will without prejudice, of
course, to the rights of the creditors and the
legitimes of the compulsory heirs.
Article 793 of the Civil Code provides that
"property acquired after the making of a will
shall only pass thereby, as if the testator had it
at the time of making the will, should it
expressly appear by the will that such was his
intention". Under article 930 of the Civil Code
"the legacy or devise of a thing belonging to
another person is void, if the testator
erroneously believed that the thing pertained to
him. But if the thing bequeathed, though not
belonging to the testator when he made the
will, afterwards becomes his, by whatever title,
the disposition shall take effect."
In the instant case there is no doubt that the
testatrix and her husband intended to partition
the conjugal estate in the manner set forth in
paragraph V of her will. It is true that she could
dispose of by will only her half of the conjugal
estate (Art. 170, Civil Code) but since the
husband, after the dissolution of the conjugal
partnership, had assented to her testamentary
partition of the conjugal estate, such partition
has become valid, assuming that the will may
be probated.
The instant case is different from
the Nuguid case, supra, where the testatrix
instituted as heir her sister and preterited her
parents. Her will was intrinsically void because
it preterited her compulsory heirs in the direct
line. Article 854 of the Civil Code provides that
"the preterition or omission of one, some, or all
of the compulsory heirs in the direct line,
whether living at the time of the execution of
the will or born after the death of the testator,
shall annul the institution of heir; but the
devises and legacies, shall be valid insofar as
they are not inofficious." Since the preterition of
the parents annulled the institution of the sister
of the testatrix and there were no legacies and
devises, total intestacy resulted (.Art. 960[2],
Civil Code).1äwphï1.ñët
In the instant case, the preterited heir was the
surviving spouse. His preterition did not
produce intestacy. Moreover, he signified his
conformity to his wife's will and renounced his
hereditary rights. .
It results that the lower court erred in not
proceeding with the probate of the will as
contemplated in its uncancelled order of June
18, 1973. Save in an extreme case where the
will on its face is intrinsically void, it is the
probate court's duty to pass first upon the
formal validity of the will. Generally, the probate
of the will is mandatory (Art. 838, Civil Code;
Guevara vs. Guevara, 74 Phil. 479 and 98 Phil.
249; Fernandez vs. Dimagiba, L-23638,
October 12, 1967, 21 SCRA 428).
As aptly stated by Mr. Justice Barredo, "the
very existence of a purported testament is in
itself prima facie proof that the supposed
testator has willed that his estate should be
distributed in the manner therein provided, and
it is incumbent upon the state that, if legally
tenable, such desire be given effect
independent of the attitude of the parties
affected thereby" (Resolution, Vda. de Precilla
vs. Narciso, L-27200, August 18, 1972, 46
SCRA 538, 565).
To give effect to the intention and wishes of the
testatrix is the first and principal law in the
matter of testaments (Dizon-Rivera vs. Dizon,
L-24561, June 30, 1970, 33 SCRA 554, 561).
Testacy is preferable to intestacy. An
interpretation that will render a testamentary
disposition operative takes precedence over a
construction that will nullify a provision of the
will (Arts. 788 and 791, Civil Code).
Testacy is favored. Doubts are resolved in
favor of testacy especially where the will
evinces an intention on the part of the testator
to dispose of practically his whole estate. So
compelling is the principle that intestacy should
be avoided and that the wishes of the testator
should prevail that sometimes the language of
the will can be varied for the purpose of giving
it effect (Austria vs. Reyes, L-23079, February
27, 1970, 31 SCRA 754, 762).
As far as is legally possible, the expressed
desire of the testator must be followed and the
dispositions of the properties in his will should
be upheld (Estorque vs. Estorque, L-19573,
June 30, 1970, 33 SCRA 540, 546).
The law has a tender regard for the wishes of
the testator as expressed in his will because
any disposition therein is better than that which
the law can make (Castro vs. Bustos, L-25913,
February 28, 1969, 27 SCRA 327, 341).
Two other errors of the lower court may be
noticed. It erred in issuing a notice to creditors
although no executor or regular administrator
has been appointed. The record reveals that it
appointed a special administrator. A notice to
creditors is not in order if only a special
administrator has been appointed. Section 1,
Rule 86 of the Rules of Court, in providing that
"immediately after granting letters of
testamentary or of administration, the court
shall issue a notice requiring all persons having
money claims against the decedent to file them
in the office of the clerk of said court" clearly
contemplates the appointment of an executor
or regular administrator and not that of a
special administrator.
It is the executor or regular administrator who
is supposed to oppose the claims against the
estate and to pay such claims when duly
allowed (See. 10, Rule 86 and sec. 1, Rule 88,
Rules of Court).
We also take this occasion to point out that the
probate court's appointment of its branch clerk
of court as special administrator (p. 30, Rollo)
is not a salutary practice because it might
engender the suspicion that the probate Judge
and his clerk of court are in cahoots in milking
the decedent's estate. Should the branch clerk
of court commit any abuse or devastavit in the
course of his administration, the probate Judge
might find it difficult to hold him to a strict
accountability. A court employee should devote
his official time to his official duties and should
not have as a sideline the administration of a
decedent's estate.
WHEREFORE, the lower court's orders of
February 28, and June 29, 1974 are set aside
and its order of June 18, 1973, setting for
hearing the petition for probate, is affirmed.
The lower court is directed to conduct further
proceedings in Special Case No. 1808 in
consonance with this opinion. Costs, against
the private respondents.
SO ORDERED.
4. Art. 781. The inheritance of a person
includes not only the property and the
transmissible rights and obligations existing at
the time of his death, but also those which have
accrued thereto since the opening of the
succession. (n)
Art. 782. An heir is a person called to the
succession either by the provision of a will or
by operation of law.
Devisees and legatees are persons to whom
gifts of real and personal property are
respectively given by virtue of a will.
Art. 783. A will is an act whereby a person is
permitted, with the formalities prescribed by
law, to control to a certain degree the disposition
of this estate, to take effect after his death.
G.R. No. L-24561 June 30, 1970
MARINA DIZON-RIVERA, executrix-
appellee,
vs.
ESTELA DIZON, TOMAS V. DIZON,
BERNARDITA DIZON, JOSEFINA DIZON,
ANGELINA DIZON and LILIA
DIZON, oppositors-appellants.
Punzalan, Yabut & Eusebio for executrix-
appellee.
Leonardo Abola for oppositors-appellants.
TEEHANKEE, J.:
Appeal from orders of the Court of First
Instance of Pampanga approving the
Executrix-appellee's project of partition instead
of Oppositors-Appellants' proposed counter-
project of partition.1
On January 28, 1961, the testatrix, Agripina J. The real and personal properties of the testatrix
Valdez, a widow, died in Angeles, Pampanga, at the time of her death thus had a total
and was survived by seven compulsory heirs, appraised value of P1,811,695.60, and the
to wit, six legitimate children named Estela legitime of each of the seven compulsory heirs
Dizon, Tomas V. Dizon, Bernardita Dizon, amounted to P129,362.11.3 (¹/7 of the half of the
Marina Dizon (herein executrix-appellee), estate reserved for the legitime of legitimate children and
descendants).4 In her will, the testatrix "commanded that her
Angelina Dizon and Josefina Dizon, and a property be divided" in accordance with her testamentary
legitimate granddaughter named Lilia Dizon, disposition, whereby she devised and bequeathed specific real
properties comprising practically the entire bulk of her estate
who is the only legitimate child and heir of among her six children and eight grandchildren. The appraised
Ramon Dizon, a pre-deceased legitimate son values of the real properties thus respectively devised by the
of the said decedent. Six of these seven testatrix to the beneficiaries named in her will, are as follows:
compulsory heirs (except Marina Dizon, the
executrix-appellee) are the oppositors- 1. Estela Dizon
appellants. ....................................... P
98,474.80
The deceased testatrix left a last will executed 2. Angelina Dizon
on February 2, 1960 and written in the ..................................
Pampango dialect. Named beneficiaries in her 106,307.06
will were the above-named compulsory heirs, 3. Bernardita Dizon
together with seven other legitimate ..................................
grandchildren, namely Pablo Rivera, Jr., 51,968.17
Gilbert D. Garcia, Cayetano Dizon, Francisco 4. Josefina Dizon
Rivera, Agripina Ayson, Jolly Jimenez and ......................................
Laureano Tiambon. 52,056.39
5. Tomas Dizon
.......................................
In her will, the testatrix divided, distributed and
131,987.41
disposed of all her properties appraised at
6. Lilia Dizon
P1,801,960.00 (except two small parcels of
land appraised at P5,849.60, household ..............................................
72,182.47
furniture valued at P2,500.00, a bank deposit in
7. Marina Dizon
the sum of P409.95 and ten shares of
.....................................
Pampanga Sugar Development Company
1,148,063.71
valued at P350.00) among her above-named
8. Pablo Rivera, Jr.
heirs.
......................................
69,280.00
Testate proceedings were in due course 9. Lilia Dizon, Gilbert Garcia,
commenced2 and by order dated March 13, Cayetano Dizon, Francisco
1961, the last will and testament of the Rivera,
decedent was duly allowed and admitted to Agripina Ayson, Dioli or Jolly
probate, and the appellee Marina Dizon-Rivera Jimenez, Laureano Tiamzon
was appointed executrix of the testatrix' estate, ................. 72,540.00
and upon her filing her bond and oath of office, Total Value ......................
letters testamentary were duly issued to her. P1,801,960.01

After the executrix filed her inventory of the The executrix filed her project of partition dated
estate, Dr. Adelaido Bernardo of Angeles, February 5, 1964, in substance adjudicating
Pampanga was appointed commissioner to the estate as follows:
appraise the properties of the estate. He filed
in due course his report of appraisal and the
same was approved in toto by the lower court (1) with the figure of
P129,254.96 as legitime for a
on December 12, 1963 upon joint petition of the
basis Marina (exacultrix-
parties.
appellee) and Tomas
(appellant) are admittedly are adjudicated to them; and
considered to have received in (d) to the grandchildren who
the will more than their are not compulsory heirs are
respective legitime, while the adjudicated the properties
rest of the appellants, namely, respectively devised to them
Estela, Bernardita, Angelina, subject to reimbursement by
Josefina and Lilia received less Gilbert D. Garcia, et al., of the
than their respective legitime; sums by which the devise in
their favor should be
(2) thus, to each of the latter proportionally reduced.
are adjudicated the properties
respectively given them in the Under the oppositors' counter-project of
will, plus cash and/or partition, the testamentary disposition made by
properties, to complete their the testatrix of practically her whole estate of
respective legitimes to P1,801,960.01, as above stated, were
P129,254.96; (3) on the other proposed to be reduced to the amounts set
hand, Marina and Tomas are forth after the names of the respective heirs
adjudicated the properties that and devisees totalling one-half thereof as
they received in the will less the follows:
cash and/or properties
necessary to complete the 1. Estela Dizon
prejudiced legitime mentioned ........................................... P
in number 2 above; 49,485.56
2. Angelina Dizon
(4) the adjudications made in .........................................
the will in favor of the 53,421.42
grandchildren remain 3. Bernardita Dizon
untouched. <äre||anº•1àw> .......................................
26,115.04
On the other hand oppositors 4. Josefina Dizon
submitted their own counter- ..........................................
project of partition dated 26,159.38
February 14, 1964, wherein 5. Tomas V. Dizon
they proposed the distribution .........................................
of the estate on the following 65,874.04
basis: 6. Lilia Dizon
.................................................
(a) all the testamentary . 36,273.13
dispositions were 7. Marina Dizon
proportionally reduced to the ...........................................
value of one-half (½) of the 576,938.82
entire estate, the value of the 8. Pablo Rivera, Jr.
said one-half (½) amounting to .........................................
P905,534.78; (b) the shares of 34,814.50
the Oppositors-Appellants 9. Grandchildren Gilbert Garcia
should consist of their legitime, et al .......... 36,452.80
plus the devises in their favor
proportionally reduced; (c) in T o t a l
payment of the total shares of .................................................
the appellants in the entire .. P905,534.78
estate, the properties devised
to them plus other properties while the other half of the estate (P905,534.78)
left by the Testatrix and/or cash would be deemed as constituting the legitime
of the executrix-appellee and oppositors-
appellants, to be divided among them in seven
equal parts of P129,362.11 as their respective
legitimes.
The lower court, after hearing, sustained and
approved the executrix' project of partition,
ruling that "(A)rticles 906 and 907 of the New
Civil Code specifically provide that when the
legitime is impaired or prejudiced, the same
shall be completed and satisfied. While it is true
that this process has been followed and
adhered to in the two projects of partition, it is
observed that the executrix and the oppositors
differ in respect to the source from which the
portion or portions shall be taken in order to
fully restore the impaired legitime. The
proposition of the oppositors, if upheld, will
substantially result in a distribution of intestacy,
which is in controversion of Article 791 of the
New Civil Code" adding that "the testatrix has
chosen to favor certain heirs in her will for
reasons of her own, cannot be doubted. This is
legally permissible within the limitation of the
law, as aforecited." With reference to the
payment in cash of some P230,552.38,
principally by the executrix as the largest
beneficiary of the will to be paid to her five co-
heirs, the oppositors (excluding Tomas Dizon),
to complete their impaired legitimes, the lower
court ruled that "(T)he payment in cash so as
to make the proper adjustment to meet with the
requirements of the law in respect to legitimes
which have been impaired is, in our opinion, a
practical and valid solution in order to give
effect to the last wishes of the testatrix."
From the lower court's orders of approval,
oppositors-appellants have filed this appeal,
and raise anew the following issues: .
1. Whether or not the testamentary dispositions
made in the testatrix' will are in the nature of
devises imputable to the free portion of her
estate, and therefore subject to reduction;
2. Whether the appellants are entitled to the
devise plus their legitime under Article 1063, or
merely to demand completion of their legitime
under Article 906 of the Civil Code; and
3. Whether the appellants may be compelled to
accept payment in cash on account of their
legitime, instead of some of the real properties
left by the Testatrix;
which were adversely decided against them in
the proceedings below.
The issues raised present a matter of
determining the avowed intention of the
testatrix which is "the life and soul of a will."5 In
consonance therewith, our Civil Code included
the new provisions found in Articles 788 and
791 thereof that "(I)f a testamentary disposition
admits of different interpretations, in case of
doubt, that interpretation by which the
disposition is to be operative shall be preferred"
and "(T)he words of a will are to receive an
interpretation which will give to every
expression some effect, rather than one which
will render any of the expressions inoperative;
and of two modes of interpreting a will, that is
to be preferred which will prevent intestacy."
In Villanueva vs. Juico6 for violation of these
rules of interpretation as well as of Rule 123,
section 59 of the old Rules of Court, 7 the Court,
speaking through Mr. Justice J.B.L. Reyes, overturned the lower
court's decision and stressed that "the intention and wishes of the
testator, when clearly expressed in his will, constitute the fixed law
of interpretation, and all questions raised at the trial, relative to its
execution and fulfillment, must be settled in accordance therewith,
following the plain and literal meaning of the testator's words,
unless it clearly appears that his intention was otherwise." 8
The testator's wishes and intention constitute
the first and principal law in the matter of
testaments, and to paraphrase an early
decision of the Supreme Court of Spain, 9 when
expressed clearly and precisely in his last will amount to the only
law whose mandate must imperatively be faithfully obeyed and
complied with by his executors, heirs and devisees and legatees,
and neither these interested parties nor the courts may substitute
their own criterion for the testator's will. Guided and restricted by
these fundamental premises, the Court finds for the appellee.
1. Decisive of the issues at bar is the fact that
the testatrix' testamentary disposition was in
the nature of a partition of her estate by will.
Thus, in the third paragraph of her will, after
commanding that upon her death all her
obligations as well as the expenses of her last
illness and funeral and the expenses for
probate of her last will and for the
administration of her property in accordance
with law, be paid, she expressly provided that
"it is my wish and I command that my property
be divided" in accordance with the dispositions
immediately thereafter following, whereby she
specified each real property in her estate and
designated the particular heir among her seven
compulsory heirs and seven other
grandchildren to whom she bequeathed the
same. This was a valid partition 10 of her estate,
as contemplated and authorized in the first
paragraph of Article 1080 of the Civil Code,
providing that "(S)hould a person make a
partition of his estate by an act inter vivos or by
will, such partition shall be respected, insofar
as it does not prejudice the legitime of the
compulsory heirs." This right of a testator to
partition his estate is subject only to the right of
compulsory heirs to their legitime. The Civil
Code thus provides the safeguard for the right
of such compulsory heirs:
ART. 906. Any compulsory heir
to whom the testator has left by
any title less than the legitime
belonging to him may demand
that the same be fully satisfied.
ART. 907. Testamentary
dispositions that impair or
diminish the legitime of the
compulsory heirs shall be
reduced on petition of the
same, insofar as they may be
inofficious or excessive.
This was properly complied
with in the executrix-appellee's
project of partition, wherein the
five oppositors-appellants
namely Estela, Bernardita,
Angelina, Josefina and Lilia,
were adjudicated the
properties respectively
distributed and assigned to
them by the testatrix in her will,
and the differential to complete
their respective legitimes of
P129,362.11 each were taken
from the cash and/or properties
of the executrix-appellee,
Marina, and their co-oppositor-
appellant, Tomas, who
admittedly were favored by the
testatrix and received in the
partition by will more than their
respective legitimes.
2. This right of a testator to partition his estate
by will was recognized even in Article 1056 of
the old Civil Code which has been reproduced
now as Article 1080 of the present Civil Code.
The only amendment in the provision was that
Article 1080 "now permits any person (not a
testator, as under the old law) to partition his
estate by act inter vivos." 11 This was intended
to repeal the then prevailing doctrine 12 that for
a testator to partition his estate by an act inter
vivos, he must first make a will with all the
formalities provided by law. Authoritative
commentators doubt the efficacy of the
amendment 13 but the question does not here
concern us, for this is a clear case of
partition by will, duly admitted to probate, which
perforce must be given full validity and effect.
Aside from the provisions of Articles 906 and
907 above quoted, other codal provisions
support the executrix-appellee's project of
partition as approved by the lower court rather
than the counter-project of partition proposed
by oppositors-appellants whereby they would
reduce the testamentary disposition or partition
made by the testatrix to one-half and limit the
same, which they would consider as mere
devises or legacies, to one-half of the estate as
the disposable free portion, and apply the other
half of the estate to payment of the legitimes of
the seven compulsory heirs. Oppositors'
proposal would amount substantially to a
distribution by intestacy and pro tanto nullify
the testatrix' will, contrary to Article 791 of the
Civil Code. It would further run counter to the
provisions of Article 1091 of the Civil Code that
"(A) partition legally made confers upon each
heir the exclusive ownership of the property
adjudicated to him."
3. In Habana vs. Imbo, 14 the Court upheld the
distribution made in the will of the deceased
testator Pedro Teves of two large coconut
plantations in favor of his daughter,
Concepcion, as against adverse claims of
other compulsory heirs, as being a partition by
will, which should be respected insofar as it
does not prejudice the legitime of the
compulsory heirs, in accordance with Article
1080 of the Civil Code. In upholding the sale
made by Concepcion to a stranger of the
plantations thus partitioned in her favor in the
deceased's will which was being questioned by
the other compulsory heirs, the Court ruled that
"Concepcion Teves by operation of law,
became the absolute owner of said lots
because 'A partition legally made confers upon
each heir the exclusive ownership of the
property adjudicated to him' (Article 1091, New
Civil Code), from the death of her ancestors,
subject to rights and obligations of the latter,
and, she can not be deprived of her rights
thereto except by the methods provided for by
law (Arts. 657, 659, and 661, Civil
Code). 15 Concepcion Teves could, as she did,
sell the lots in question as part of her share of
the proposed partition of the properties,
especially when, as in the present case, the
sale has been expressly recognized by herself
and her co-heirs ..."
4. The burden of oppositors' contention is that
the testamentary dispositions in their favor are
in the nature of devises of real property, citing
the testatrix' repeated use of the words "I
bequeath" in her assignment or distribution of
her real properties to the respective heirs.
From this erroneous premise, they proceed to
the equally erroneous conclusion that "the
legitime of the compulsory heirs passes to
them by operation of law and that the testator
can only dispose of the free portion, that is, the
remainder of the estate after deducting the
legitime of the compulsory heirs ... and all
testamentary dispositions, either in the nature
of institution of heirs or of devises or legacies,
have to be taken from the remainder of the
testator's estate constituting the free portion." 16
Oppositors err in their premises, for the
adjudications and assignments in the testatrix'
will of specific properties to specific heirs
cannot be considered all devises, for it clearly
appear from the whole context of the will and
the disposition by the testatrix of her whole
estate (save for some small properties of little
value already noted at the beginning of this
opinion) that her clear intention was to partition
her whole estate through her will. The repeated
use of the words "I bequeath" in her
testamentary dispositions acquire no legal
significance, such as to convert the same into
devises to be taken solely from the free one-
half disposable portion of the estate.
Furthermore, the testatrix' intent that her
testamentary dispositions were by way of
adjudications to the beneficiaries as heirs and
not as mere devisees, and that said
dispositions were therefore on account of the
respective legitimes of the compulsory heirs is
expressly borne out in the fourth paragraph of
her will, immediately following her
testamentary adjudications in the third
paragraph in this wise: "FOURTH: I likewise
command that in case any of those I named as
my heirs in this testament any of them shall die
before I do, his forced heirs under the law
enforced at the time of my death shall inherit
the properties I bequeath to said deceased." 17
Oppositors' conclusions necessarily are in
error. The testamentary dispositions of the
testatrix, being dispositions in favor of
compulsory heirs, do not have to be taken only
from the free portion of the estate, as
contended, for the second paragraph of Article
842 of the Civil Code precisely provides that
"(O)ne who has compulsory heirs may dispose
of his estate provided he does not contravene
the provisions of this Code with regard to the
legitime of said heirs." And even going by
oppositors' own theory of bequests, the second
paragraph of Article 912 Civil Code covers
precisely the case of the executrix-appellee,
who admittedly was favored by the testatrix
with the large bulk of her estate in providing
that "(T)he devisee who is entitled to a legitime
may retain the entire property, provided its
value does not exceed that of the disposable
portion and of the share pertaining to him as
legitime." For "diversity of apportionment is the
usual reason for making a testament;
otherwise, the decedent might as well die
intestate." 18 Fundamentally, of course, the
dispositions by the testatrix constituted a
partition by will, which by mandate of Article
1080 of the Civil Code and of the other cited
codal provisions upholding the primacy of the
testator's last will and testament, have to be
respected insofar as they do not prejudice the
legitime of the other compulsory heirs.
Oppositors' invoking of Article 1063 of the Civil
Code that "(P)roperty left by will is not deemed
subject to collation, if the testator has not
otherwise provided, but the legitime shall in any
case remain unimpaired" and invoking of the
construction thereof given by some authorities
that "'not deemed subject to collation' in this
article really means not imputable to or
chargeable against the legitime", while it may
have some plausibility 19 in an appropriate
case, has no application in the present case.
Here, we have a case of a distribution and
partition of the entire estate by the testatrix,
without her having made any previous
donations during her lifetime which would
require collation to determine the legitime of
each heir nor having left merely some
properties by will which would call for the
application of Articles 1061 to 1063 of the Civil
Code on collation. The amount of the legitime
of the heirs is here determined and undisputed.
5. With this resolution of the decisive issue
raised by oppositors-appellants, the secondary
issues are likewise necessarily resolved. Their
right was merely to demand completion of their
legitime under Article 906 of the Civil Code and
this has been complied with in the approved
project of partition, and they can no longer
demand a further share from the remaining
portion of the estate, as bequeathed and
partitioned by the testatrix principally to the
executrix-appellee.
Neither may the appellants legally insist on
their legitime being completed with real
properties of the estate instead of being paid in
cash, per the approved project of partition. The
properties are not available for the purpose, as
the testatrix had specifically partitioned and
distributed them to her heirs, and the heirs are
called upon, as far as feasible to comply with
and give effect to the intention of the testatrix
as solemnized in her will, by implementing her
manifest wish of transmitting the real properties
intact to her named beneficiaries, principally
the executrix-appellee. The appraisal report of
the properties of the estate as filed by the
commissioner appointed by the lower court
was approved in toto upon joint petition of the
parties, and hence, there cannot be said to be
any question — and none is presented — as to
fairness of the valuation thereof or that the
legitime of the heirs in terms of cash has been
understated. The plaint of oppositors that the
purchasing value of the Philippine peso has
greatly declined since the testatrix' death in
January, 1961 provides no legal basis or
justification for overturning the wishes and
intent of the testatrix. The transmission of rights
to the succession are transmitted from the
moment of death of the decedent (Article 777,
Civil Code) and accordingly, the value thereof
must be reckoned as of then, as otherwise,
estates would never be settled if there were to
be a revaluation with every subsequent
fluctuation in the values of the currency and
properties of the estate. There is evidence in
the record that prior to November 25, 1964, one
of the oppositors, Bernardita, accepted the
sum of P50,000.00 on account of her
inheritance, which, per the parties'
manifestation, 20 "does not in any way affect the
adjudication made to her in the projects of
partition of either party as the same is a mere
advance of the cash that she should receive in
both projects of partition." The payment in cash
by way of making the proper adjustments in
order to meet the requirements of the law on
non-impairment of legitimes as well as to give
effect to the last will of the testatrix has
invariably been availed of and
sanctioned. 21That her co-oppositors would
receive their cash differentials only now when
the value of the currency has declined further,
whereas they could have received them earlier,
like Bernardita, at the time of approval of the
project of partition and when the peso's
purchasing value was higher, is due to their
own decision of pursuing the present appeal.
ACCORDINGLY, the orders appealed from are
hereby affirmed. Without cost.
G.R. No. 118248 April 5, 2000
DKC HOLDINGS CORPORATION,petitioner,
vs.
COURT OF APPEALS, VICTOR U.
BARTOLOME and REGISTER OF DEEDS
FOR METRO MANILA, DISTRICT
III, respondents.
YNARES-SANTIAGO, J.:
This is a petition for review
on certiorari seeking the reversal of the
December 5, 1994 Decision of the Court of
Appeals in CA-G.R. CV No. 40849 entitled
"DKC Holdings Corporation vs. Victor U.
Bartolome, et al.",1 affirming in toto the January
4, 1993 Decision of the Regional Trial Court of
Valenzuela, Branch 172,2 which dismissed Civil
Case No. 3337-V-90 and ordered petitioner to
pay P30,000.00 as attorney's fees.
The subject of the controversy is a 14,021
square meter parcel of land located in Malinta,
Valenzuela, Metro Manila which was originally
owned by private respondent Victor U.
Bartolome's deceased mother, Encarnacion
Bartolome, under Transfer Certificate of Title
No. B-37615 of the Register of Deeds of Metro
Manila, District III. This lot was in front of one
of the textile plants of petitioner and, as such,
was seen by the latter as a potential warehouse
site.
On March 16, 1988, petitioner entered into a
Contract of Lease with Option to Buy with
Encarnacion Bartolome, whereby petitioner
was given the option to lease or lease with
purchase the subject land, which option must
be exercised within a period of two years
counted from the signing of the Contract. In
turn, petitioner undertook to pay P3,000.00 a
month as consideration for the reservation of
its option. Within the two-year period, petitioner
shall serve formal written notice upon the
lessor Encarnacion Bartolome of its desire to
exercise its option. The contract also provided
that in case petitioner chose to lease the
property, it may take actual possession of the
premises. In such an event, the lease shall be
for a period of six years, renewable for another
six years, and the monthly rental fee shall be
P15,000.00 for the first six years and
P18,000.00 for the next six years, in case of
renewal.
Petitioner regularly paid the monthly P3,000.00
provided for by the Contract to Encarnacion
until her death in January 1990. Thereafter,
petitioner coursed its payment to private
respondent Victor Bartolome, being the sole
heir of Encarnacion. Victor, however, refused
to accept these payments.
Meanwhile, on January 10, 1990, Victor
executed an Affidavit of Self-Adjudication over
all the properties of Encarnacion, including the
subject lot. Accordingly, respondent Register of
Deeds cancelled Transfer Certificate of Title
No. B-37615 and issued Transfer Certificate of
Title No. V-14249 in the name of Victor
Bartolome.
On March 14, 1990, petitioner served upon
Victor, via registered mail, notice that it was
exercising its option to lease the property,
tendering the amount of P15,000.00 as rent for
the month of March. Again, Victor refused to
accept the tendered rental fee and to surrender
possession of the property to petitioner.
Petitioner thus opened Savings Account No. 1-
04-02558-I-1 with the China Banking
Corporation, Cubao Branch, in the name of
Victor Bartolome and deposited therein the
P15,000.00 rental fee for March as well as
P6,000.00 reservation fees for the months of
February and March.
Petitioner also tried to register and annotate
the Contract on the title of Victor to the
property. Although respondent Register of
Deeds accepted the required fees, he
nevertheless refused to register or annotate
the same or even enter it in the day book or
primary register.
1âwphi1.nêt
Thus, on April 23, 1990, petitioner filed a
complaint for specific performance and
damages against Victor and the Register of
Deeds,3 docketed as Civil Case No. 3337-V-90
which was raffled off to Branch 171 of the
Regional Trial Court of Valenzuela. Petitioner
prayed for the surrender and delivery of
possession of the subject land in accordance
with the Contract terms; the surrender of title
for registration and annotation thereon of the
Contract; and the payment of P500,000.00 as
actual damages, P500,000.00 as moral
damages, P500,000.00 as exemplary
damages and P300,000.00 as attorney's fees.
Meanwhile, on May 8, 1990, a Motion for
Intervention with Motion to Dismiss4 was filed
by one Andres Lanozo, who claimed that he
was and has been a tenant-tiller of the subject
property, which was agricultural riceland, for
forty-five years. He questioned the jurisdiction
of the lower court over the property and
invoked the Comprehensive Agrarian Reform
Law to protect his rights that would be affected
by the dispute between the original parties to
the case.
On May 18, 1990, the lower court issued an
Order5 referring the case to the Department of
Agrarian Reform for preliminary determination
and certification as to whether it was proper for
trial by said court.
On July 4, 1990, the lower court issued another
Order6 referring the case to Branch 172 of the
RTC of Valenzuela which was designated to
hear cases involving agrarian land, after the
Department of Agrarian Reform issued a letter-
certification stating that referral to it for
preliminary determination is no longer required.
On July 16, 1990, the lower court issued an
Order denying the Motion to Intervene,7 holding
that Lanozo's rights may well be ventilated in
another proceeding in due time.
After trial on the merits, the RTC of Valenzuela,
Branch 172 rendered its Decision on January
4, 1993, dismissing the Complaint and ordering
petitioner to pay Victor P30,000.00 as
attorney's fees. On appeal to the CA, the
Decision was affirmed in toto.
Hence, the instant Petition assigning the
following errors:
(A)
FIRST ASSIGNMENT OF ERROR
THE HONORABLE COURT OF
APPEALS ERRED IN RULING THAT
THE PROVISION ON THE NOTICE
TO EXERCISE OPTION WAS NOT
TRANSMISSIBLE.
(B)
SECOND ASSIGNMENT OF ERROR
THE HONORABLE COURT OF
APPEALS ERRED IN RULING THAT
THE NOTICE OF OPTION MUST BE
SERVED BY DKC UPON
ENCARNACION BARTOLOME
PERSONALLY.
(C)
THIRD ASSIGNMENT OF ERROR
THE HONORABLE COURT OF
APPEALS ERRED IN RULING THAT
THE CONTRACT WAS ONE-SIDED
AND ONEROUS IN FAVOR OF DKC.
(D)
FOURTH ASSIGNMENT OF ERROR
THE HONORABLE COURT OF
APPEALS ERRED IN RULING THAT
THE EXISTENCE OF A REGISTERED
TENANCY WAS FATAL TO THE
VALIDITY OF THE CONTRACT.
(E)
FIFTH ASSIGNMENT OF ERROR
THE HONORABLE COURT OF
APPEALS ERRED IN RULING THAT
PLAINTIFF-APPELLANT WAS
LIABLE TO DEFENDANT-APPELLEE
FOR ATTORNEY'S FEES.8
The issue to be resolved in this case is whether
or not the Contract of Lease with Option to Buy
entered into by the late Encarnacion Bartolome
with petitioner was terminated upon her death
or whether it binds her sole heir, Victor, even
after her demise.
Both the lower court and the Court of Appeals
held that the said contract was terminated upon
the death of Encarnacion Bartolome and did
not bind Victor because he was not a party
thereto.
Art. 1311 of the Civil Code provides, as follows
—
Art. 1311. Contracts take effect only
between the parties, their assigns and
heirs, except in case where the rights
 and obligations arising from the
contract are not transmissible by their
nature, or by stipulation or by provision
of law. The heir is not liable beyond the
value of the property he received from
the decedent.
xxx xxx xxx
The general rule, therefore, is that heirs are
bound by contracts entered into by their
predecessors-in-interest except when the
rights and obligations arising therefrom are not
transmissible by (1) their nature, (2) stipulation
or (3) provision of law.
In the case at bar, there is neither contractual
stipulation nor legal provision making the rights
and obligations under the contract
intransmissible. More importantly, the nature of
the rights and obligations therein are, by their
nature, transmissible.
The nature of intransmissible rights as
explained by Arturo Tolentino, an eminent
civilist, is as follows:
Among contracts which are
intransmissible are those which are
purely personal, either by provision of
law, such as in cases of partnerships
and agency, or by the very nature of the
obligations arising therefrom, such as
those requiring special personal
qualifications of the obligor. It may also
be stated that contracts for the
payment of money debts are not
transmitted to the heirs of a party, but
constitute a charge against his estate.
Thus, where the client in a contract for
professional services of a lawyer died,
leaving minor heirs, and the lawyer,
instead of presenting his claim for
professional services under the
contract to the probate court,
substituted the minors as parties for his
client, it was held that the contract
could not be enforced against the
minors; the lawyer was limited to a
recovery on the basis of quantum
meruit.9
In American jurisprudence, "(W)here acts
stipulated in a contract require the exercise of
special knowledge, genius, skill, taste, ability,
experience, judgment, discretion, integrity, or
other personal qualification of one or both
parties, the agreement is of a personal nature,
and terminates on the death of the party who is
required to render such service." 10
It has also been held that a good measure for
determining whether a contract terminates
upon the death of one of the parties is whether
it is of such a character that it may be
performed by the promissor's personal
representative. Contracts to perform personal
acts which cannot be as well performed by
others are discharged by the death of the
promissor. Conversely, where the service or
act is of such a character that it may as well be
performed by another, or where the contract,
by its terms, shows that performance by others
was contemplated, death does not terminate
the contract or excuse nonperformance. 11
In the case at bar, there is no personal act
required from the late Encarnacion Bartolome.
Rather, the obligation of Encarnacion in the
contract to deliver possession of the subject
property to petitioner upon the exercise by the
latter of its option to lease the same may very
well be performed by her heir Victor.
As early as 1903, it was held that "(H)e who
contracts does so for himself and his heirs." 12 In
1952, it was ruled that if the predecessor was
duty-bound to reconvey land to another, and at
his death the reconveyance had not been
made, the heirs can be compelled to execute
the proper deed for reconveyance. This was
grounded upon the principle that heirs cannot
escape the legal consequence of a transaction
entered into by their predecessor-in-interest
because they have inherited the property
subject to the liability affecting their common
ancestor. 13
It is futile for Victor to insist that he is not a party
to the contract because of the clear provision
of Article 1311 of the Civil Code. Indeed, being
an heir of Encarnacion, there is privity of
interest between him and his deceased
mother. He only succeeds to what rights his
mother had and what is valid and binding
against her is also valid and binding as against
him. 14 This is clear from Parañaque Kings
Enterprises vs. Court of Appeals, 15 where this
Court rejected a similar defense —
With respect to the contention of
respondent Raymundo that he is not
privy to the lease contract, not being
the lessor nor the lessee referred to
therein, he could thus not have violated
its provisions, but he is nevertheless a
proper party. Clearly, he stepped into
the shoes of the owner-lessor of the
land as, by virtue of his purchase, he
assumed all the obligations of the
lessor under the lease contract.
Moreover, he received benefits in the
form of rental payments. Furthermore,
the complaint, as well as the petition,
prayed for the annulment of the sale of
the properties to him. Both pleadings
also alleged collusion between him and
respondent Santos which defeated the
exercise by petitioner of its right of first
refusal.
In order then to accord complete relief
to petitioner, respondent Raymundo
was a necessary, if not indispensable,
party to the case. A favorable judgment
for the petitioner will necessarily affect
the rights of respondent Raymundo as
the buyer of the property over which
petitioner would like to assert its right of
first option to buy.
In the case at bar, the subject matter of the
contract is likewise a lease, which is a property
right. The death of a party does not excuse
nonperformance of a contract which involves a
property right, and the rights and obligations
thereunder pass to the personal
representatives of the deceased. Similarly,
nonperformance is not excused by the death of
the party when the other party has a property
interest in the subject matter of the contract. 16
Under both Article 1311 of the Civil Code and
jurisprudence, therefore, Victor is bound by the
subject Contract of Lease with Option to Buy.
That being resolved, we now rule on the issue
of whether petitioner had complied with its
obligations under the contract and with the
requisites to exercise its option. The payment
by petitioner of the reservation fees during the
two-year period within which it had the option
to lease or purchase the property is not
disputed. In fact, the payment of such
reservation fees, except those for February
and March, 1990 were admitted by
Victor. 17 This is clear from the transcripts, to wit
—
ATTY. MOJADO:
One request, Your Honor. The last
payment which was allegedly made in
January 1990 just indicate in that
stipulation that it was issued November
of 1989 and postdated January 1990
and then we will admit all.
COURT:
All reservation fee?
ATTY. MOJADO:
Yes, Your Honor.
COURT:
All as part of the lease?
ATTY. MOJADO:
Reservation fee, Your Honor. There
was no payment with respect to
payment of rentals. 18
Petitioner also paid the P15,000.00 monthly
rental fee on the subject property by depositing
the same in China Bank Savings Account No.
1-04-02558-I-1, in the name of Victor as the
sole heir of Encarnacion Bartolome, 19 for the
months of March to July 30, 1990, or a total of
five (5) months, despite the refusal of Victor to
turn over the subject property. 20
Likewise, petitioner complied with its duty to
inform the other party of its intention to exercise
its option to lease through its letter dated Match
12, 1990, 21 well within the two-year period for it
to exercise its option. Considering that at that
time Encarnacion Bartolome had already
passed away, it was legitimate for petitioner to
have addressed its letter to her heir. 1âwphi1
It appears, therefore, that the exercise by
petitioner of its option to lease the subject
property was made in accordance with the
contractual provisions. Concomitantly, private
respondent Victor Bartolome has the obligation
to surrender possession of and lease the
premises to petitioner for a period of six (6)
years, pursuant to the Contract of Lease with
Option to Buy.
Coming now to the issue of tenancy, we find
that this is not for this Court to pass upon in the
present petition. We note that the Motion to
Intervene and to Dismiss of the alleged tenant,
Andres Lanozo, was denied by the lower court
and that such denial was never made the
subject of an appeal. As the lower court stated
in its Order, the alleged right of the tenant may
well be ventilated in another proceeding in due
time.
WHEREFORE, in view of the foregoing, the
instant Petition for Review is GRANTED. The
Decision of the Court of Appeals in CA-G.R. CV
No. 40849 and that of the Regional Trial Court
of Valenzuela in Civil Case No. 3337-V-90 are
both SET ASIDE and a new one rendered
ordering private respondent Victor Bartolome
to:
(a) surrender and deliver possession of
that parcel of land covered by Transfer
Certificate of Title No. V-14249 by way
of lease to petitioner and to perform all
obligations of his predecessor-in-
interest, Encarnacion Bartolome, under
the subject Contract of Lease with
Option to Buy;
(b) surrender and deliver his copy of
Transfer Certificate of Title No. V-
14249 to respondent Register of Deeds
for registration and annotation thereon
of the subject Contract of Lease with
Option to Buy;
(c) pay costs of suit.
Respondent Register of Deeds is, accordingly,
ordered to register and annotate the subject
Contract of Lease with Option to Buy at the
back of Transfer Certificate of Title No. V-
14249 upon submission by petitioner of a copy
thereof to his office.
SO ORDERED.
G.R. No. L-47799 June 13, 1941
Administration of the estate of Agripino
Neri y Chavez. ELEUTERIO NERI, ET
AL., petitioners,
vs.
IGNACIA AKUTIN AND HER
CHILDREN, respondents.
Ozamiz & Capistrano for petitioners.
Gullas, Leuterio, Tanner & Laput for
respondents.
MORAN, J.:
Agripino Neri y Chavez, who died on
December 12, 1931, had by his first marriage
six children named Eleuterio, Agripino,
Agapito, Getulia, Rosario and Celerina; and by
his second marriage with Ignacia Akutin, five
children named Gracia, Godofredo, Violeta,
Estela Maria, and Emma. Getulia, daughter in
the first marriage, died on October 2, 1923, that
is, a little less than eight years before the death
of said Agripino Neri y Chavez, and was
survived by seven children named Remedios,
Encarnacion, Carmen, Trinidad, Luz, Alberto
and Minda. In Agripino Neri's testament, which
was admitted to probate on March 21, 1932, he
willed that his children by the first marriage
shall have no longer any participation in his
estate, as they had already received their
corresponding shares during his lifetime. At the
hearing for the declaration of heirs, the trial
court found, contrary to what the testator had
declared in his will, that all his children by the
first and second marriages intestate heirs of
the deceased without prejudice to one-half of
the improvements introduced in the properties
during the existence of the last conjugal
partnership, which should belong to Ignacia
Akutin. The Court of Appeals affirmed the trial
court's decision with the modification that the
will was "valid with respect to the two-thirds
part which the testator could freely dispose of.
"This judgment of the Court of Appeals is now
sought to be reviewed in this petition
for certiorari.
The decisive question here raised is whether,
upon the foregoing facts, the omission of the
children of the first marriage annuls the
institution of the children of the first marriage as
sole heirs of the testator, or whether the will
may be held valid, at least with respect to one-
third of the estate which the testator may
dispose of as legacy and to the other one-third
which he may bequeath as betterment, to said
children of the second marriage.
The Court of Appeals invoked the provisions of
article 851 of the Civil Code, which read in part
as follows:
Disinheritance made without a that according to law, "no existe hoy cuestion
statement of the cause, or for a cause
the truth of which, if contradicted, is not
proven, ... shall annul the institution of
the heir in so far as it prejudices the
person disinherited; but the legacies,
betterments, and other testamentary
dispositions, in so far as they do no
encroach upon the legitime, shall be
valid.
The appellate court thus seemed to have
rested its judgment upon the impression that
the testator had intended to disinherit, though
ineffectively, the children of the first marriage.
There is nothing in the will that supports this
conclusion. True, the testator expressly denied
them any share in his estate; but the denial was
predicated, not upon the desire to disinherit,
but upon the belief, mistaken though it was,
that the children by the first marriage had
already received more than their
corresponding shares in his lifetime in the form
of advancement. Such belief conclusively
negatives all inference as to any intention to
disinherit, unless his statement to that effect is
prove to be deliberately fictitious, a fact not
found by the Court of Appeals. The situation
contemplated in the above provision is one in
which the purpose to disinherit is clear, but
upon a cause not stated or not proved, a
situation which does not obtain in the instant
case.
The Court of Appeals quotes Manresa thus:
En el terreno de los principios, la
solucion mas justa del problema que
hemos hecho notar al comentar el
articulo, seria distinguir el caso en que
el heredero omitido viviese al otorgarse
el testamento, siendo conocida su
existencia por el testador, de aquel en
que, o naciese despues, o se ignorase
su existencia, aplicando en el primer
caso la doctrina del articulo 851, y en
el segundo la del 814. (6 Manresa,
354-355.)
But it must be observed that this opinion is
founded on mere principles (en el terreno de
los principios) and not on the express
provisions of the law. Manresa himself admits
alguna en esta materia: la pretericion produce
siempre los mismos efectos, ya se refiera a
personas vivas al hacer el testamento o
nacidas despues. Este ultimo grupo solo
puede hacer relacion a los descendientes
legitimos, siempre que ademas tengan
derecho a legitima." (6 Manresa, 381.)
Appellants, on the other hand, maintain that the
case is one of voluntary preterition of four of the
children by the first marriage, and of
involuntary preterition of the children by the
deceased Getulia, also of the first marriage,
and is thus governed by the provisions of article
814 of the Civil Code, which read in part as
follows:
The preterition of one or all of the
forced heirs in the direct line, whether
living at the time of the execution of the
will or born after the death of the
testator, shall void the institution of
heir; but the legacies and betterments
shall be valid, in so far as they are not
inofficious.
Preterition consists in the omission in the G.R. Nos. 140371-72 November 27,
testator's will of the forced heirs or anyone of 2006
them, either because they are not mentioned
therein, or, though mentioned, they are neither DY YIENG SEANGIO, BARBARA D.
instituted as heirs nor are expressly SEANGIO and VIRGINIA D.
disinherited.(Cf. 6 Manresa, 346.) In the instant SEANGIO, Petitioners,
case, while the children of the first marriage vs.
were mentioned in the will, they were not HON. AMOR A. REYES, in her capacity as
accorded any share in the heriditary property, Presiding Judge, Regional Trial Court,
without expressly being disinherited. It is, National Capital Judicial Region, Branch 21,
therefore, a clear case of preterition as Manila, ALFREDO D. SEANGIO, ALBERTO
contended by appellants. The omission of the D. SEANGIO, ELISA D. SEANGIO-SANTOS,
forced heirs or anyone of them, whether VICTOR D. SEANGIO, ALFONSO D.
voluntary or involuntary, is a preterition if the SEANGIO, SHIRLEY D. SEANGIO-LIM,
purpose to disinherit is not expressly made or BETTY D. SEANGIO-OBAS and JAMES D.
is not at least manifest. SEANGIO, Respondents.

Except as to "legacies and betterments" which DECISION

"shall be valid in so far as they are not
inofficious" (art. 814 of the Civil Code), AZCUNA, J.:
preterition avoids the institution of heirs and
gives rise to intestate succession. (Art. 814,
This is a petition for certiorari1 with application
Civil Code; Decisions of the Supreme Court of
for the issuance of a writ of preliminary
Spain of June 17, 1908 and February 27,
injunction and/or temporary restraining order
1909.) In the instant case, no such legacies or
seeking the nullification of the orders, dated
betterments have been made by the testator.
August 10, 1999 and October 14, 1999, of the
"Mejoras" or betterments must be expressly
Regional Trial Court of Manila, Branch 21 (the
provided, according to articles 825 and 828 of
RTC), dismissing the petition for probate on the
the Civil Code, and where no express provision
ground of preterition, in the consolidated
therefor is made in the will, the law would
cases, docketed as SP. Proc. No. 98-90870
presume that the testator had no intention to
and SP. Proc. No. 99-93396, and entitled, "In
that effect. (Cf. 6 Manresa, 479.) In the will here
the Matter of the Intestate Estate of Segundo
in question, no express betterment is made in
C. Seangio v. Alfredo D. Seangio, et al." and
favor of the children by the second marriage;
"In the Matter of the Probate of the Will of
neither is there any legacy expressly made in
Segundo C. Seangio v. Dy Yieng Seangio,
their behalf consisting of the third available for
Barbara D. Seangio and Virginia Seangio."
free disposal. The whole inheritance is
accorded the heirs by the second marriage
upon the mistaken belief that the heirs by the The facts of the cases are as follows:
first marriage have already received their
shares. Were it not for this mistake, the On September 21, 1988, private respondents
testator's intention, as may be clearly inferred filed a petition for the settlement of the intestate
from his will, would have been to divide his estate of the late Segundo Seangio, docketed
property equally among all his children. as Sp. Proc. No. 98–90870 of the RTC, and
praying for the appointment of private
Judgment of the Court of Appeals is reversed respondent Elisa D. Seangio–Santos as
and that of the trial court affirmed, without special administrator and guardian ad litem of
prejudice to the widow's legal usufruct, with petitioner Dy Yieng Seangio.
costs against respondents.
Petitioners Dy Yieng, Barbara and Virginia, all
surnamed Seangio, opposed the petition. They
contended that: 1) Dy Yieng is still very healthy
and in full command of her faculties; 2) the
deceased Segundo executed a general power
of attorney in favor of Virginia giving her the
power to manage and exercise control and
supervision over his business in the
Philippines; 3) Virginia is the most competent
and qualified to serve as the administrator of
the estate of Segundo because she is a
certified public accountant; and, 4) Segundo
left a holographic will, dated September 20,
1995, disinheriting one of the private
respondents, Alfredo Seangio, for cause. In
view of the purported holographic will,
petitioners averred that in the event the
decedent is found to have left a will, the
intestate proceedings are to be automatically
suspended and replaced by the proceedings
for the probate of the will.
On April 7, 1999, a petition for the probate of
the holographic will of Segundo, docketed as
SP. Proc. No. 99–93396, was filed by
petitioners before the RTC. They likewise
reiterated that the probate proceedings should
take precedence over SP. Proc. No. 98–90870
because testate proceedings take precedence
and enjoy priority over intestate proceedings.2
The document that petitioners refer to as
Segundo’s holographic will is quoted, as
follows:
Kasulatan sa pag-aalis ng mana
Tantunin ng sinuman
Ako si Segundo Seangio Filipino may asawa
naninirahan sa 465-A Flores St., Ermita,
Manila at nagtatalay ng maiwanag na pag-iisip
at disposisyon ay tahasan at hayagang
inaalisan ko ng lahat at anumang mana ang
paganay kong anak na si Alfredo Seangio dahil
siya ay naging lapastangan sa akin at isan
beses siya ng sasalita ng masama harapan ko
at mga kapatid niya na si Virginia Seangio labis
kong kinasama ng loob ko at sasabe rin ni
Alfredo sa akin na ako nasa ibabaw gayon
gunit daratin ang araw na ako nasa ilalim siya
at siya nasa ibabaw.
Labis kong ikinasama ng loob ko ang gamit ni
Alfredo ng akin pagalan para makapagutang
na kuarta siya at kanya asawa na si Merna de
los Reyes sa China Bangking Corporation na
millon pesos at hindi ng babayad at hindi ng
babayad ito ay nagdulot sa aking ng malaking
kahihiya sa mga may-ari at stockholders ng
China Banking.
At ikinagalit ko pa rin ang pagkuha ni Alfredo at
ng kanyang asawa na mga custome[r] ng
Travel Center of the Philippines na
pinagasiwaan ko at ng anak ko si Virginia.
Dito ako nagalit din kaya gayon ayoko na
bilanin si Alfredo ng anak ko at hayanan kong
inaalisan ng lahat at anoman mana na si
Alfredo at si Alfredo Seangio ay hindi ko siya
anak at hindi siya makoha mana.
Nila[g]daan ko ngayon ika 20 ng Setyembre
1995 sa longsod ng Manila sa harap ng tatlong
saksi. 3
(signed)
Segundo Seangio
Nilagdaan sa harap namin
(signed)
Dy Yieng Seangio (signed)
Unang Saksi ikalawang saksi
(signed)
ikatlong saksi
On May 29, 1999, upon petitioners’ motion, SP.
Proc. No. 98–90870 and SP. Proc. No. 99–
93396 were consolidated.4
On July 1, 1999, private respondents moved
for the dismissal of the probate
proceedings5 primarily on the ground that the
document purporting to be the holographic will
of Segundo does not contain any disposition of
the estate of the deceased and thus does not
meet the definition of a will under Article 783 of
the Civil Code. According to private
respondents, the will only shows an alleged act
of disinheritance by the decedent of his eldest
son, Alfredo, and nothing else; that all other
compulsory heirs were not named nor
instituted as heir, devisee or legatee, hence,
there is preterition which would result to
intestacy. Such being the case, private
respondents maintained that while
procedurally the court is called upon to rule
only on the extrinsic validity of the will, it is not
barred from delving into the intrinsic validity of
the same, and ordering the dismissal of the
petition for probate when on the face of the will
it is clear that it contains no testamentary
disposition of the property of the decedent.
Petitioners filed their opposition to the motion
to dismiss contending that: 1) generally, the
authority of the probate court is limited only to
a determination of the extrinsic validity of the
will; 2) private respondents question the
intrinsic and not the extrinsic validity of the will;
3) disinheritance constitutes a disposition of
the estate of a decedent; and, 4) the rule on
preterition does not apply because Segundo’s
will does not constitute a universal heir or heirs
to the exclusion of one or more compulsory
heirs.6
On August 10, 1999, the RTC issued its
assailed order, dismissing the petition for
probate proceedings:
A perusal of the document termed as "will" by
oppositors/petitioners Dy Yieng Seangio, et al.,
clearly shows that there is preterition, as the
only heirs mentioned thereat are Alfredo and
Virginia. [T]he other heirs being omitted, Article
854 of the New Civil Code thus applies.
However, insofar as the widow Dy Yieng
Seangio is concerned, Article 854 does not
apply, she not being a compulsory heir in the
direct line.
As such, this Court is bound to dismiss this
petition, for to do otherwise would amount to an
abuse of discretion. The Supreme Court in the
case of Acain v. Intermediate Appellate Court
[155 SCRA 100 (1987)] has made its position
clear: "for … respondents to have tolerated the
probate of the will and allowed the case to
progress when, on its face, the will appears to
be intrinsically void … would have been an
exercise in futility. It would have meant a waste
of time, effort, expense, plus added futility. The
trial court could have denied its probate
outright or could have passed upon the intrinsic
validity of the testamentary provisions before
the extrinsic validity of the will was
resolved(underscoring supplied).
WHEREFORE, premises considered, the
Motion to Suspend Proceedings is hereby
DENIED for lack of merit. Special Proceedings
No. 99–93396 is hereby DISMISSED without
pronouncement as to costs.
SO ORDERED.7
Petitioners’ motion for reconsideration was
denied by the RTC in its order dated October
14, 1999.
Petitioners contend that:
THE RESPONDENT JUDGE ACTED IN
EXCESS OF HER JURISDICTION OR WITH
GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF
JURISDICTION AND DECIDED A QUESTION
OF LAW NOT IN ACCORD WITH LAW AND
JURISPRUDENCE IN ISSUING THE
QUESTIONED ORDERS, DATED 10
AUGUST 1999 AND 14 OCTOBER 1999
(ATTACHMENTS "A" AND "B" HEREOF)
CONSIDERING THAT:
I
THE RESPONDENT JUDGE, WITHOUT
EVEN COMPLYING WITH SECTIONS 3 AND
4 OF RULE 76 OF THE RULES OF COURT
ON THE PROPER PROCEDURE FOR
SETTING THE CASE FOR INITIAL HEARING
FOR THE ESTABLISHMENT OF THE
JURISDICTIONAL FACTS, DISMISSED THE
TESTATE CASE ON THE ALLEGED
GROUND THAT THE TESTATOR’S WILL IS
VOID ALLEGEDLY BECAUSE OF THE
EXISTENCE OF PRETERITION, WHICH
GOES INTO THE INTRINSIC VALIDITY OF
THE WILL, DESPITE THE FACT THAT IT IS A
SETTLED RULE THAT THE AUTHORITY OF
PROBATE COURTS IS LIMITED ONLY TO A
DETERMINATION OF THE EXTRINSIC
VALIDITY OF THE WILL, I.E., THE DUE
EXECUTION THEREOF, THE TESTATOR’S
TESTAMENTARY CAPACITY AND THE
COMPLIANCE WITH THE REQUISITES OR
SOLEMNITIES PRESCRIBED BY LAW;
II
EVEN ASSUMING ARGUENDO THAT THE
RESPONDENT JUDGE HAS THE
AUTHORITY TO RULE UPON THE
INTRINSIC VALIDITY OF THE WILL OF THE
TESTATOR, IT IS INDUBITABLE FROM THE
FACE OF THE TESTATOR’S WILL THAT NO
PRETERITON EXISTS AND THAT THE WILL
IS BOTH INTRINSICALLY AND
EXTRINSICALLY VALID; AND,
III
RESPONDENT JUDGE WAS DUTY BOUND
TO SUSPEND THE PROCEEDINGS IN THE
INTESTATE CASE CONSIDERING THAT IT
IS A SETTLED RULE THAT TESTATE
PROCEEDINGS TAKE PRECEDENCE OVER
INTESTATE PROCEEDINGS.
Petitioners argue, as follows:
First, respondent judge did not comply with
Sections 3 and 4 of Rule 76 of the Rules of
Court which respectively mandate the court to:
a) fix the time and place for proving the will
when all concerned may appear to contest the
allowance thereof, and cause notice of such
time and place to be published three weeks
successively previous to the appointed time in
a newspaper of general circulation; and, b)
cause the mailing of said notice to the heirs,
legatees and devisees of the testator Segundo;
Second, the holographic will does not contain
any institution of an heir, but rather, as its title
clearly states, Kasulatan ng Pag-Aalis ng
Mana, simply contains a disinheritance of a
compulsory heir. Thus, there is no preterition in
the decedent’s will and the holographic will on
its face is not intrinsically void;
Third, the testator intended all his compulsory
heirs, petitioners and private respondents
alike, with the sole exception of Alfredo, to
inherit his estate. None of the compulsory heirs
in the direct line of Segundo were preterited in
the holographic will since there was no
institution of an heir;
Fourth, inasmuch as it clearly appears from the
face of the holographic will that it is both
intrinsically and extrinsically valid, respondent
judge was mandated to proceed with the
hearing of the testate case; and,
Lastly, the continuation of the proceedings in
the intestate case will work injustice to
petitioners, and will render nugatory the
disinheritance of Alfredo.
The purported holographic will of Segundo that
was presented by petitioners was dated,
signed and written by him in his own
handwriting. Except on the ground of
preterition, private respondents did not raise
any issue as regards the authenticity of the
document.
The document, entitled Kasulatan ng Pag-Aalis
ng Mana, unmistakably showed Segundo’s
intention of excluding his eldest son, Alfredo,
as an heir to his estate for the reasons that he
cited therein. In effect, Alfredo was disinherited
by Segundo.
For disinheritance to be valid, Article 916 of the
Civil Code requires that the same must be
effected through a will wherein the legal cause
therefor shall be specified. With regard to the
reasons for the disinheritance that were stated
by Segundo in his document, the Court
believes that the incidents, taken as a whole,
can be considered a form of maltreatment of
Segundo by his son, Alfredo, and that the
matter presents a sufficient cause for the
disinheritance of a child or descendant under
Article 919 of the Civil Code:
Article 919. The following shall be sufficient
causes for the disinheritance of children and
descendants, legitimate as well as illegitimate:
(1) When a child or descendant has
been found guilty of an attempt against
the life of the testator, his or her
spouse, descendants, or ascendants;
 (2) When a child or descendant has
accused the testator of a crime for
which the law prescribes imprisonment
for six years or more, if the accusation
has been found groundless;
(3) When a child or descendant has
been convicted of adultery or
concubinage with the spouse of the
testator;
(4) When a child or descendant by
fraud, violence, intimidation, or undue
influence causes the testator to make a
will or to change one already made;
(5) A refusal without justifiable cause to
support the parents or ascendant who
disinherit such child or descendant;
(6) Maltreatment of the testator by word
or deed, by the child or descendant;8
(7) When a child or descendant leads a
dishonorable or disgraceful life;
(8) Conviction of a crime which carries
with it the penalty of civil interdiction.
Now, the critical issue to be determined is
whether the document executed by Segundo
can be considered as a holographic will.
A holographic will, as provided under Article
810 of the Civil Code, must be entirely written,
dated, and signed by the hand of the testator
himself. It is subject to no other form, and may
be made in or out of the Philippines, and need
not be witnessed.
Segundo’s document, although it may initially
come across as a mere disinheritance
instrument, conforms to the formalities of a
holographic will prescribed by law. It is written,
dated and signed by the hand of Segundo
himself. An intent to dispose mortis
causa[9] can be clearly deduced from the
terms of the instrument, and while it does not
make an affirmative disposition of the latter’s
property, the disinheritance of Alfredo,
nonetheless, is an act of disposition in itself. In
other words, the disinheritance results in the
disposition of the property of the testator
Segundo in favor of those who would succeed
in the absence of Alfredo.10
Moreover, it is a fundamental principle that the
intent or the will of the testator, expressed in
the form and within the limits prescribed by law,
must be recognized as the supreme law in
succession. All rules of construction are
designed to ascertain and give effect to that
intention. It is only when the intention of the
testator is contrary to law, morals, or public
policy that it cannot be given effect.11
Holographic wills, therefore, being usually
prepared by one who is not learned in the law,
as illustrated in the present case, should be
construed more liberally than the ones drawn
by an expert, taking into account the
circumstances surrounding the execution of
the instrument and the intention of the
testator.12 In this regard, the Court is convinced
that the document, even if captioned
as Kasulatan ng Pag-Aalis ng Mana, was
intended by Segundo to be his last
testamentary act and was executed by him in
accordance with law in the form of a
holographic will. Unless the will is
probated,13 the disinheritance cannot be given
effect.14
With regard to the issue on preterition,15 the
Court believes that the compulsory heirs in the
direct line were not preterited in the will. It was,
in the Court’s opinion, Segundo’s last
expression to bequeath his estate to all his
compulsory heirs, with the sole exception of
Alfredo. Also, Segundo did not institute an
heir16 to the exclusion of his other compulsory
heirs. The mere mention of the name of one of
the petitioners, Virginia, in the document did
not operate to institute her as the universal heir.
Her name was included plainly as a witness to
the altercation between Segundo and his son,
Alfredo.1âwphi 1
Considering that the questioned document is
Segundo’s holographic will, and that the law
favors testacy over intestacy, the probate of the
will cannot be dispensed with. Article 838 of the
Civil Code provides that no will shall pass either
real or personal property unless it is proved and
allowed in accordance with the Rules of Court.
Thus, unless the will is probated, the right of a
person to dispose of his property may be
rendered nugatory.17
In view of the foregoing, the trial court,
therefore, should have allowed the holographic
will to be probated. It is settled that testate
proceedings for the settlement of the estate of
the decedent take precedence over intestate
proceedings for the same purpose.18
WHEREFORE, the petition is GRANTED. The
Orders of the Regional Trial Court of Manila,
Branch 21, dated August 10, 1999 and October
14, 1999, are set aside. Respondent judge is
directed to reinstate and hear SP Proc. No. 99-
93396 for the allowance of the holographic will
of Segundo Seangio. The intestate case or SP.
Proc. No. 98-90870 is hereby suspended until
the termination of the aforesaid testate
proceedings.
No costs.
5. Art. 791. The words of a will are to receive
an interpretation which will give to every
expression some effect, rather than one which
will render any of the expressions inoperative;
and of two modes of interpreting a will, that is
to be preferred which will prevent intestacy.
G.R. No. L-15737 February 28, 1962
LEONOR VILLAFLOR VDA. DE
VILLANUEVA, plaintiff-appellant,
vs.
DELFIN N. JUICO, in his capacity as
Judicial Administrator of the testate estate
of FAUSTA NEPOMUCENO,defendant-
appellee.
Amado G. Salazar for plaintiff-appellant.
Sycip, Salazar, Luna and Associates for
defendant-appellee.
REYES, J.B.L., J.:
Subject to this direct appeal to us on points of
law is the decision of the Court of First Instance
of Rizal, in its Civil Case No. Q-2809,
dismissing plaintiff-appellant's complaint for
the recovery of certain properties that were
originally owned by the plaintiff's granduncle,
Nicolas Villaflor, and which he granted to his
widow, Doña Fausta Nepomuceno,
bequeathing to her "su uso y posesion
mientras viva y no se case en segundas
nupcias".
The following facts appear of record: On
October 9, 1908, Don Nicolas Villaflor, a
wealthy man of Castillejos, Zambales,
executed a will in Spanish in his own
handwriting, devising and bequeathing in favor
of his wife, Dona Fausta Nepomuceno, one-
half of all his real and personal properties,
giving the other half to his brother Don Fausto
Villaflor.
Clause 6th, containing the institution of heirs,
reads as follows: .
SEXTO — En virtud de las facultades
que me conceden las leyes, instituyo
per mis unicos y universales herederos
de todos mis derechos y acciones a mi
hermano D. Fausto Villaflor y a mi
esposa Da. Fausta Nepomuceno para
que partan todos mis bienes que me
pertenescan, en iguales partes, para
despues de mi muerte, exceptuando
las donaciones y legados que, abajo mi
mas expontanea voluntad, lo hago en
la forma siguiente: .
SEPTIMO: — Lego para dispues de mi
muerte a mi esposa Da. Fausta
Nepomuceno, en prueba de mi amor y
carino, los bienes, alhajas y muebles
que a continuacion se expresan; .
OCTAVO: — Que estos legades
disfrutaria mi referida esposa Da.
Fausta Nepomuceno su uso y
posesion mientras viva y no se case en
segundas nupcias, de la contrario,
pasara a ser propiedad estos dichos
legados de mi sobrina nieta Leonor
Villaflor.
The 12th clause of the will provided, however,
that Clauses 6th and 7th thereof would be
deemed annulled from the moment he bore
any child with Doña Fausta Nepomuceno. Said
Clause 12th reads as follows: .
DUODECIMO: — Quedan anulados
las parrafos 6.0 y 7.0 de este
testamento que tratan de institucion de
herederos y los legados que se haran
despues de mi muerte a favor de mi
esposa, en el momento que podre
tener la dicha de contrar con hijo y hijos
legitimos o legitimados, pues estos,
conforme a ley seran mis herederos.
Don Nicolas Villaflor died on March 3, 1922,
without begetting any child with his wife Doña
Fausta Nepomuceno. The latter, already a
widow, thereupon instituted Special
Proceeding No. 203 of the Court of First
Instance of Zambales, for the settlement of her
husband's estate and in that proceeding, she
was appointed judicial administratrix. In due
course of administration, she submitted a
project of partition, now Exhibit "E". In the order
of November 24, 1924, now exhibit "C", the
probate court approved the project of partition
and declared the proceeding closed. As the
project of partition, Exhibit "E", now shows
Doña Fausta Nepomuceno received by virtue
thereof the ownership and possession of a
considerable amount of real and personal
estate. By virtue also of the said project of
partition, she received the use and possession
of all the real and personal properties
mentioned and referred to in Clause 7th of the
will. The order approving the project of partition
(Exh. "C"), however, expressly provided that
approval thereof was "sin perjuicio de lo
dispuesto en la clausula 8.o del testamento de
Nicolas Villaflor." .
On May 1, 1956, Doña Fausta Nepomuceno
died without having contracted a second
marriage, and without having begotten any
child with the deceased Nicolas Villaflor. Her
estate is now being settled in Special
Proceeding No. Q-1563 in the lower court, with
the defendant Delfin N. Juico as the duly
appointed and qualified judicial administrator.
The plaintiff Leonor Villaflor Vda. de Villanueva
is admitted to be the same Leonor Villaflor
mentioned by Don Nicolas Villaflor in his will as
his "sobrina nieta Leonor Villaflor".
Plaintiff Leonor Villaflor instituted the present
action against the administrator of the estate of
the widow Fausta Nepomuceno, on February
8, 1958, contending that upon the widow's
death, said plaintiff became vested with the
ownership of the real and personal properties
bequeathed by the late Nicolas Villaflor to
clause 7 of his will, pursuant to its eight (8th)
clause. Defendant's position, adopted by the
trial court, is that the title to the properties
aforesaid became absolutely vested in the
widow upon her death, on account of the fact
that she never remarried.
We agree with appellant that the plain desire
and intent of the testator, as manifested in
clause 8 of his testament, was to invest his
widow with only a usufruct or life tenure in the
properties described in the seventh clause,
subject to the further condition (admitted by the
appellee) that if the widow remarried, her rights
would thereupon cease, even during her own
lifetime. That the widow was meant to have no
more than a life interest in those properties,
even if she did not remarry at all, is evident
from the expressions used by the deceased
"uso y posesion mientras viva" (use and
possession while alive) in which the first half of
the phrase "uso y posesion" instead of
"dominio" or "propiedad") reinforces the
second ("mientras viva"). The testator plainly
did not give his widow the full ownership of
these particular properties, but only the right to
their possession and use (or enjoyment) during
her lifetime. This is in contrast with the
remainder of the estate in which she was
instituted universal heir together with the
testator's brother (clause 6).1äwphï1.ñët
SEXTO: — En virtud de las facultades
que me conceden las leyes, instituyo
por mis unicos y universales herederos
de todos mis derechos y acciones a mi
hermano D. Fausto Villaflor y a mi
esposa Da. Fausta Nepomuceno para
que parten todos mis bienes que me
pertenescan, en iguales partes, para
despues de mi muerte, exceptuando
las donaciones y legados que, abajo mi
 mas expontanea voluntad, lo hago en
la forma siguiente.
The court below, in holding that the appellant
Leonor Villaflor, as reversionary legatee, could
succeed to the properties bequeathed by
clause 7 of the testament only in the event that
the widow remarried, has unwarrantedly
discarded the expression "mientras viva," and
considered the words "uso y posesion" as
equivalent to "dominio" (ownership). In so
doing, the trial court violated Article 791 of the
Civil Code of the Philippines, as well as section
59 of Rule 123 of the Rules of Court.
ART. 791. The words of a will are to
receive an interpretation which will give
to every expression some effect, rather
than one which will render any of the
expressions inoperative; and of two
modes of interpreting a will, that one is
to be preferred which will prevent
intestacy." .
SEC. 59. Instrument construed so as to
give effect to all provisions. — In the
construction of an instrument where
there are several provisions or
particulars, such a construction is, if
possible, to be adopted as will give
effect to all." .
Speculation as to the motives of the testator in
imposing the conditions contained in clause 7
of his testament should not be allowed to
obscure the clear and unambiguous meaning
of his plain words, which are over the primary
source in ascertaining his intent. It is well to
note that if the testator had intended to impose
as sole condition the non-remarriage of his
widow, the words "uso y posesion mientras
viva" would have been unnecessary, since the
widow could only remarry during her own
lifetime.
The Civil Code, in Article 790, p. 1 (Article 675
of the Code of 1889), expressly enjoins the
following: .
ART. 790. The words of a will are to be
taken in their ordinary and grammatical
sense, unless a clear intention to use
them in another sense can be
gathered, and that other can be
ascertained." .
Technical words in a will are to be
taken in their technical sense, unless
the context clearly indicates a contrary
intention, or unless it satisfactorily
appears that the will was drawn solely
by the testator, and that he was
unacquainted with such technical
sense. (675a)
In consonance with this rule, this Supreme
Court has laid the doctrine in In re Estate of
Calderon, 26 Phil., 233, that the intention and
wishes of the testator, when clearly expressed
in his will, constitute the fixed law of
interpretation, and all questions raised at the
trial, relative to its execution and fulfillment,
must be settled in accordance therewith,
following the plain and literal meaning of the
testator's words, unless it clearly appears that
his intention was otherwise. The same rule is
adopted by the Supreme Court of Spain (TS.
Sent. 20 Marzo 1918; 28 Mayo 1918; 30 Abril
1913; 16 Enero 1915; 23 Oct. 1925).
La voluntad del testador, clara, precisa
y constantemente expresada al
ordenar su ultimo voluntad, es ley
unica, imperativa y obligatoria que han
de obedecer y cumplir fieldmente
albaceas, legatarios y heredera, hoy
sus sucesores, sin que esa voluntad
patente, que no ha menester de
interpretaciones, pues no ofrece la
menor duda, pueda sustituirse, pues
no ofrece la menor duda, pueda
sustituirse por ningun otro criterio de
alguna de los interesados, ni tampoco
por el judicial. (Tribunal Supremo of
Spain, Sent. 20 March 1918) .
The American decisions invoked by appellee in
his brief inapplicable, because they involve
cases where the only condition imposed on the
legatee was that she should remain a widow.
As already shown, the testament of Don
Nicolas Villaflor clearly and unmistakably
provided that his widow should have the
possession and use of the legacies while alive
and did not remarry. It necessarily follows that
by the express provisions of the 8th clause of
his will, the legacies should pass to the
testator's "sobrinanieta", appellant herein,
upon the widow's death, even if the widow
never remarried in her lifetime. Consequently,
the widow had no right to retain or dispose of
the aforesaid properties, and her estate is
accountable to the reversionary legatee for
their return, unless they had been lost due to
fortuitous event, or for their value should rights
of innocent third parties have intervened.
PREMISES CONSIDERED, the decision
appealed from is reversed, and the appellant
Leonor Villaflor Vda. de VILLANUEVA is
declared entitled to the ownership and fruits of
the properties described in clause 7 of the will
or testament, from the date of the death of
Doña Fausta Nepomuceno. The records are
ordered remanded to the court of origin for
liquidation, accounting and further proceedings
conformably to this decision. Costs against the
Administrator-appellee.
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
Title
FACTO se le despoja No. este
legado, y la administracion de
esto pasara a cargo del actual
T-
Parroco y sus sucesores de la
Iglecia Catolica 6530 de Victoria,
Tarlac.
T-
6548
Y en intervalo de tiempo que no
haya legatario acondicionado
T-
segun lo arriba
6525 queda
expresado, pasara
administracion deT-este legado
a cargo del actual 6521 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 who shall take the
priesthood, and in the interim to
be administered by the actual
Catholic Priest of the Roman
Catholic Church of Victoria,
Tarlac, Philippines, or his
successors, the real properties
hereinbelow indicated, to wit:
Lot Area in Tax
No. Has. Dec.
3663 1.6249 18740
3445- 24.2998 18730
C
3670 6.2665 18736
la
3666 11.9251 18733
Total amount and value — 44.1163
P13,090.00
Judge Roman A. Cruz in his order of August
15, 1940, approving the project of partition,
directed that after payment of the obligations of
the estate (including the sum of P3,132.26 due
to the church of the Victoria parish) the
administratrix should deliver to the devisees
their respective shares.
It may be noted that the administratrix and
Judge Cruz did not bother to analyze the
meaning and implications of Father Rigor's
bequest to his nearest male relative who would
study for the priesthood. Inasmuch as no
nephew of the testator claimed the devise and
as the administratrix and the legal heirs
believed that the parish priest of Victoria had
no right to administer the ricelands, the same
were not delivered to that ecclesiastic. The
testate proceeding remained pending.
About thirteen years after the approval of the
project of partition, or on February 19, 1954,
the parish priest of Victoria filed in the pending
testate proceeding a petition praying for the
appointment of a new administrator
(succeeding the deceased administration
Florencia Rigor), who should deliver to the
church the said ricelands, and further praying
that the possessors thereof be ordered to
render an accounting of the fruits. The probate
court granted the petition. A new administrator
was appointed. On January 31, 1957 the parish
priest filed another petition for the delivery of
the ricelands to the church as trustee.
The intestate heirs of Father Rigor countered
with a petition dated March 25, 1957 praying
that the bequest be d inoperative and that they
be adjudged as the persons entitled to the said
ricelands since, as admitted by the parish
priest of Victoria, "no nearest male relative of"
the testator "has ever studied for the
priesthood" (pp. 25 and 35, Record on Appeal).
That petition was opposed by the parish priest
of Victoria.
Finding that petition to be meritorious, the
lower court, through Judge Bernabe de Aquino,
declared the bequest inoperative and
adjudicated the ricelands to the testator's legal
heirs in his order of June 28, 1957. The parish
priest filed two motions for reconsideration.
Judge De Aquino granted the respond motion
for reconsideration in his order of December
10, 1957 on the ground that the testator had a
grandnephew named Edgardo G. Cunanan
(the grandson of his first cousin) who was a
seminarian in the San Jose Seminary of the
Jesuit Fathers in Quezon City. The
administrator was directed to deliver the
ricelands to the parish priest of Victoria as
trustee.
The legal heirs appealed to the Court of
Appeals. It reversed that order. It held that
Father Rigor had created a testamentary trust
for his nearest male relative who would take the
holy orders but that such trust could exist only
for twenty years because to enforce it beyond
that period would violate "the rule against
perpetuities. It ruled that since no legatee
claimed the ricelands within twenty years after
the testator's death, the same should pass to
his legal heirs, citing articles 888 and 912(2) of
the old Civil Code and article 870 of the new
Civil Code.
The parish priest in this appeal contends that
the Court of Appeals erred in not finding that
the testator created a public charitable trust
and in not liberally construing the testamentary
provisions so as to render the trust operative
and to prevent intestacy.
As refutation, the legal heirs argue that the
Court of Appeals d the bequest inoperative
because no one among the testator's nearest
male relatives had studied for the priesthood
and not because the trust was a private
charitable trust. According to the legal heirs,
that factual finding is binding on this Court.
They point out that appellant priest's change of
theory cannot be countenanced in this appeal .
In this case, as in cases involving the law of
contracts and statutory construction, where the
intention of the contracting parties or of the
lawmaking body is to be ascertained, the
primary issue is the determination of the
testator's intention which is the law of the case
(dicat testor et erit lex. Santos vs. Manarang,
27 Phil. 209, 215; Rodriguez vs. Court of
Appeals, L-28734, March 28, 1969, 27 SCRA
546).
The will of the testator is the first and principal
law in the matter of testaments. When his
intention is clearly and precisely expressed,
any interpretation must be in accord with the
plain and literal meaning of his words, except
when it may certainly appear that his intention
was different from that literally expressed (In
re Estate of Calderon, 26 Phil. 333).
The intent of the testator is the cardinal rule in
the construction of wills." It is "the life and soul
of a will It is "the first greatest rule, the
sovereign guide, the polestar, in giving effect to
a will". (See Dissent of Justice Moreland in
Santos vs. Manarang, 27 Phil. 209, 223, 237-
8.)
One canon in the interpretation of the
testamentary provisions is that "the testator's
intention is to be ascertained from the words of
the wilt taking into consideration the
circumstances under which it was made", but
excluding the testator's oral declarations as to
his intention (Art. 789, Civil Code of the
Philippines).
To ascertain Father Rigor's intention, it may be
useful to make the following 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 became a priest, the
unavoidable conclusion is that the bequest in
question was ineffectual or inoperative.
Therefore, the administration of the ricelands
by the parish priest of Victoria, as envisaged in
the wilt was likewise inoperative.
The appellant in contending that a public
charitable trust was constituted by the testator
in is favor assumes that he was a trustee or a
substitute devisee That contention is
untenable. A reading of the testamentary
provisions regarding the disputed bequest not
support the view that the parish priest of
Victoria was a trustee or a substitute devisee in
the event that the testator was not survived by
a nephew who became a priest.
It should be understood that the parish priest of
Victoria could become a trustee only when the
testator's nephew living at the time of his death,
who desired to become a priest, had not yet
entered the seminary or, having been ordained
a priest, he was excommunicated. Those two
contingencies did not arise, and could not have
arisen in this case because no nephew of the
testator manifested any intention to enter the
seminary or ever became a priest.
The Court of Appeals correctly ruled that this
case is covered by article 888 of the old Civil
Code, now article 956, which provides that if
"the bequest for any reason should be
inoperative, it shall be merged into the estate,
except in cases of substitution and those in
which the right of accretion exists" ("el legado
... por qualquier causa, no tenga efecto se
refundira en la masa de la herencia, fuera de
los casos de sustitucion y derecho de
acrecer").
This case is also covered by article 912(2) of
the old Civil Code, now article 960 (2), which
provides that legal succession takes place
when the will "does not dispose of all that
belongs to the testator." There being no
substitution nor accretion as to the said
ricelands the same should be distributed
among the testator's legal heirs. The effect is
as if the testator had made no disposition as to
the said ricelands.
The Civil Code recognizes that a person may
die partly testate and partly intestate, or that
there may be mixed succession. The old rule
as to the indivisibility of the testator's win is no
longer valid. Thus, if a conditional legacy does
not take effect, there will be intestate
succession as to the property recovered by the
said legacy (Macrohon Ong Ham vs.
Saavedra, 51 Phil. 267).
We find no merit in the appeal The Appellate
Court's decision is affirmed. Costs against the
petitioner.
SO ORDERED
6. Art. 795. The validity of a will as to its form
depends upon the observance of the law in
force at the time it is made.
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.
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
1äw phï1.ñët
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.
G.R. No. L-10806 July 6, 1918
It is therefore evident that whatever public
policy or good customs may be involved in our MONICA BONA, petitioner-appellant,
System of legitimes, Congress has not vs.
intended to extend the same to the succession HOSPICIO BRIONES, ET AL., objectors-
of foreign nationals. For it has specifically appellees.
chosen to leave, inter alia, the amount of
successional rights, to the decedent's national Ramon Pimentel for appellant.
law. Specific provisions must prevail over Ocampo and De la Rosa for appellees.
general ones.
TORRES, J.:
Appellants would also point out that the
decedent executed two wills — one to govern
Counsel for Monica Bona, the widow by the
his Texas estate and the other his Philippine
second marriage of the deceased Francisco
estate — arguing from this that he intended
Briones who died on August 14, 1913, applied
Philippine law to govern his Philippine estate.
for the probate of the will which the said
Assuming that such was the decedent's
deceased husband on September 16, 1911,
intention in executing a separate Philippine will,
executed during his lifetime; for the fixing of a
it would not alter the law, for as this Court ruled
day for the hearing and presentation of
in Miciano v. Brimo, 50 Phil. 867, 870, a
evidence after all the interested parties had
provision in a foreigner's will to the effect that
been cited; and then for the approval of the
his properties shall be distributed in
partition had been cited; and then for the
accordance with Philippine law and not with his
approval of the partition property made by the
national law, is illegal and void, for his national
testator in the said will. By an order dated
law cannot be ignored in regard to those
January 20, 1915, Monica Bona's petition was
matters that Article 10 — now Article 16 — of
granted and a date set for the trial and other
the Civil Code states said national law should
necessary proceedings for the probate of said
govern.
will.
The parties admit that the decedent, Amos G.
Counsel for Hospicio, Gregoria, and Carmen,
Bellis, was a citizen of the State of Texas,
all surnamed Briones, the legitimate children
U.S.A., and that under the laws of Texas, there
by the first marriage of the testator, by a
are no forced heirs or legitimes. Accordingly,
pleading dated March 5, 1915, opposed the
since the intrinsic validity of the provision of the
probate of the will presented by the widow of
will and the amount of successional rights are
the deceased Briones, alleging that the said
to be determined under Texas law, the
will was executed before two witnesses only
Philippine law on legitimes cannot be applied
and under unlawful and undue pressure or
to the testacy of Amos G. Bellis.
influence exercised upon the person of the
testator who thus signed through fraud and
Wherefore, the order of the probate court is deceit; and he prayed that for that reason the
hereby affirmed in toto, with costs against said will be declared null and of no value, with
appellants. So ordered. costs against the petitioners.

The trial of the case opened and in the

7. Art. 795. The validity of a will as to its form
depends upon the observance of the law in
force at the time it is made.
presence of counsel for both parties, Gregorio
Bustilla, one of the witnesses of the said will,
was examined and he stated under oath: That
he as well as Sixto Barrameda and Domingo
de la Fuente, was actually present as attesting
witness when Francisco Briones executed his
will in the month of September in his (Bustilla's)
house situated in the municipality of Bao,
Ambos Camarines; that Francisco Briones
knowing of the presence of notary Domingo de
la Fuente in the house, he went upstairs and
announced himself; that on being asked what
he wanted, Briones stated that he wanted to
execute his will; that after Briones and the
notary had talked with each other, the former
left and after a while returned bringing with him
some paper; that then Domingo de la Fuente,
under the direction of Francisco Briones,
began to draft the will, which when finished was
signed by the latter in the presence of the
notary, of the declarant, and of another
witness, Sixto Barrameda; that then the three
witnesses — the declarant, de la Fuente, and
Barrameda — signed in the presence of each
other. The declarant identified the signature
placed on the will by the testator Briones and
those of the other witnesses Sixto Barrameda
and Domingo dela Fuente, who all signed in the
presence of the testator himself. He stated
further that the testator at that moment was in
his sound judgment and not forced to execute
the will. He identified the document Exhibit A
as the will executed by Francisco Briones and
the signature of the latter as the one placed by
the testator. By agreement of both parties it
was made to appear in the record that, if the
witnesses Sixto Barrameda and Domingo de la
Fuente were called, they would have testified
in the same terms as witness Gregorio Bustilla.
In view of the above, the judge rendered
judgment, dated March 27, 1915, denying
probate to the will Exhibit A as executed by
Francisco Briones. From the judgment,
counsel for Monica Bona appealed and prayed
to be allowed to sue further as a pauper;
whereupon, by order of March 31, 1915, the
judge admitted the appeal, ordered the original
records to be brought up, and reiterated his
order of December 28, 1913, declaring Bona
as a pauper, for the purposes of the appeal
interposed.
The whole issue discussed by the parties and
submitted for the decision of this court resolves
itself as to whether or not in the execution of
the will in question the solemnities prescribed
by section 618 of Act No. 190 have been
observed.
But before proceeding further it is
indispensable to note that the will in question
was executed by Francisco Briones on
September 16, 1911, as already stated and the
order denying probate was rendered on March
27, 1915, both dated being prior to that of Act
No. 2645 amending said section 618 and
promulgated on February 24, 1916, which took
effect only from July first of the last named
year: so that, in order to explain whether or not
the above-mentioned will was executed in
accordance with the law then in force, the last
named law cannot be applied and the will in
question should be examined in accordance
with, and under the rules of, the law in force at
the time of its execution.
The oft-repeated section 618 of Act No. 190
says:
No will, except as provided in the
preceding section, shall be valid to
pass any estate, real or personal, nor
charge or affect the same, unless it be
in writing and signed by the testator, or
by some other person in his presence,
and by his express direction, and
attested and subscribed by three or
more credible witnesses in the
presence of the testator and of each
other. But the absence of such form of
attestation shall not render the will
invalid if it is proven that the will was in
fact signed and attested as in this
section provided.
A mere reading of the last four paragraphs or
parts of the will Exhibit A shows in a clear
manner that the said will in its form and
contents expresses without shadow of doubt
the will of the testator; and that in its execution
the solemnities prescribed by the above-
mentioned section 618 of Act No. 190 have
been observed.
Even though Domingo de la Fuente drafted the
will and intervened in its preparation as a
notary, by the order and under the express
direction of the testator, it is nevertheless true
that he did it as a witness to the execution of
the said will with positive and concrete acts,
while the two other witnesses Gregorio Bustilla
and Sixto Barrameda merely attested all that
appeared in the second of the four paragraphs
mentioned; for in its they certify that the
foregoing testament contains the last will of the
testator Francisco Briones; that the latter told
them that before and at the time that he
dictated his will, there was no inducement nor
threat by anybody; and that as he did not know
how to write the Spanish language, said
testator requested Domingo de la Fuente to
write the will, and he did it as it is now drafted,
certifying also, that the testator Briones signed
his will voluntarily with his own hand, in the
presence of the declarants who, as witnesses,
signed the instrument on the date expressed.
Domingo de la Fuente on his part declared that
the two said witnesses formally swore before
him on the certification which precedes the said
will and, according to this testimony as shown
in the records and the testimony of the above-
mentioned witnesses, the said Domingo de la
Fuente wrote and drafted the said will Exhibit A
by the order and under the direction of the
testator Francisco Briones, who signed in the
presence of the witnesses, Bustilla and
Barrameda and of Notary Domingo de la
Fuente, all of whom immediately signed also in
the presence of the testator, each doing it in the
presence of each other. So that, although it is
not shown expressly that Domingo de la
Fuente was an attesting witness to the will, yet
it cannot be denied that it was he who wrote it
by the order and under the direction of the
testator; that he was a witness to its execution
from the first to its last line; and that he was
perfectly aware of the fact that all that he had
written in the document Exhibit A expresses
the genuine and true will of the testator. He saw
and was present when the latter signed his will,
as also when the two witnesses Bustilla and
Barrameda affixed their signatures; said
witnesses also saw and were present when
Domingo de la Fuente signed at the end of the
said document.
The name of Domingo de la Fuente appears as
that of a notary who certifies as to the certainty
of the will made by Francisco Briones and of
the signatures of the testator as well as of the
witnesses at its end; and as the law does not
require that one of the witnesses must
necessarily be a notary, and it cannot be
denied that Domingo de la Fuente attested the
execution and the signing of the will not only by
the testator but also by the attesting witnesses,
it cannot but be admitted that Domingo de la
Fuente intervened, attested, and signed the
testament as a witness.
This is a case in which the judicial criterion
should be inspired in the sense that it is not
defeated, and if the wish of the testator is so
manifest and express as in the instant case, it
is not proper nor just to invalidate the will of
Francisco Briones merely because of some
small defect in form which is not essential nor
of great importance, such as the failure to state
therein that Domingo de la Fuente was also a
witness to the said will when he signed it twice.
As a matter of act, he understood the contents
of the will better than the two other attesting
witnesses, for he really was a witness and he
attested the execution of the will during its
making until it was terminated and signed by
the testator, by the witnesses, and by himself,
even though he did it in the capacity of a notary.
The last paragraph of section 618 of Act No.
190 supplies a legal basis to support the
validity of the will in question with the conditions
for its probate because, notwithstanding the
existence of such defect merely in the form and
not in the substance, the certification of
authenticity and the very text of the will show in
a clear and indubitable manner that the will
Exhibit A contains the last will of the testator,
and that it was signed by the latter and attested
as being true and legitimate not only the two
witnesses Bustilla and Barrameda but also by
the one who wrote it, Domingo de la Fuente,
who was also a truthful and reliable witness,
even though he be called a notary public.
The requisites established by Act No. 2645,
which amended the oft-repeated section 618
cannot be required in the probate of the will
here, inasmuch as this document was
executed in September, 1911, five years
before said amendatory law began to take
effect (July 1, 1916), while the testator died on
August 14, 1913, two years and some months
before the enforcement of the said law; and so,
the only law applicable to the present case is
the provision contained in section 618 of Act
No. 190, and in accordance with the provisions
of this section, the said will should be probated;
for it has been presented to the court many
months before the amendatory act went into
effect.
It is well-known that the principle that a new law
shall not have retroactive effect only governs
the rights arising from acts done under the rule
of the former law; but if the right be declared for
the first time by a subsequent law it shall take
effect from that time even though it has arisen
from acts subject to the former laws, provided
that it does not prejudice another acquired right
of the same origin.
It is well-known that hereditary rights are not
born nor does the will produce any effect until
the moment of the death of the person whose
inheritance is concerned. (Decision rendered in
cassation by the supreme court of Spain on
June 24, 1897.)
In view of these facts, it follows that the
judgment appealed from should be reversed
and it should be declared as we hereby declare
that the will Exhibit A has been executed in due
form by Francisco Briones on September 16,
1911, and that the said will contains and
expresses the last will and testamentary
wishes of the deceased testator.
Consequently, let the records be returned to
the court wherefrom they came with a certified
copy of this resolution in order that the judge,
upon petition by the proper party, may provide
for the necessary proceedings with respect to
the inheritance, and the clerk of the court may
issue certified copies of the said testament;
without any special ruling as to costs. so
ordered.
G.R. No. L-6801 March 14, 1912
JULIANA BAGTAS, plaintiffs-appellee,
vs.
ISIDRO PAGUIO, ET AL., defendants-
appellants.
Salas and Kalaw for appellants.
Jose Santiago for appellee.
TRENT, J.:
This is an appeal from an order of the Court of
First Instance of the Province of Bataan,
admitting to probate a document which was
offered as the last will and testament of
Pioquinto Paguio y Pizarro. The will purports to
have been executed in the pueblo of Pilar,
Province of Bataan, on the 19th day of April,
1908. The testator died on the 28th of
September, 1909, a year and five months
following the date of the execution of the will.
The will was propounded by the executrix,
Juliana Bagtas, widow of the decedent, and the
opponents are a son and several grandchildren
by a former marriage, the latter being the
children of a deceased daughter.
The basis of the opposition to the probation of
the will is that the same was not executed
according to the formalities and requirements
of the law touching wills, and further that the
testator was not in the full of enjoyment and use
of his mental faculties and was without the
mental capacity necessary to execute a valid
will.
The record shows that the testator, Pioquinto
Paguio, for some fourteen of fifteen years prior
to the time of his death suffered from a
paralysis of the left side of his body; that a few
years prior to his death his hearing became
impaired and that he lost the power of speech.
Owing to the paralysis of certain muscles his
head fell to one side, and saliva ran from his
mouth. He retained the use of his right hand,
however, and was able to write fairly well.
Through the medium of signs he was able to
indicate his wishes to his wife and to other
members of his family.
At the time of the execution of the will there
were present the four testamentary witnesses,
Agustin Paguio, Anacleto Paguio, and Pedro
Paguio, and attorney, Señor Marco, and one
Florentino Ramos. Anacleto Paguio and the
attorney have since died, and consequently
their testimony was not available upon the trial
of the case in the lower court. The other three
testamentary witnesses and the witness
Florentino Ramos testified as to the manner in
which the will was executed. According to the
uncontroverted testimony of these witnesses
the will was executed in the following manner:
Pioquinto Paguio, the testator, wrote out on
pieces of paper notes and items relating to the
disposition of his property, and these notes
were in turn delivered to Señor Marco, who
transcribed them and put them in form. The
witnesses testify that the pieces of paper upon
which the notes were written are delivered to
attorney by the testator; that the attorney read
them to the testator asking if they were his
testamentary dispositions; that the testator
assented each time with an affirmative
movement of his head; that after the will as a
whole had been thus written by the attorney, it
was read in a loud voice in the presence of the
testator and the witnesses; that Señor Marco
gave the document to the testator; that the
latter, after looking over it, signed it in the
presence of the four subscribing witnesses;
and that they in turn signed it in the presence
of the testator and each other.
These are the facts of record with reference to
the execution of the will and we are in perfect
accord with the judgment of the lower court that
the formalities of the Code of Civil Procedure
have been fully complied with.
This brings us now to a consideration of
appellants' second assignment of error, viz, the
testator's alleged mental incapacity at the time
of the execution of the will. Upon this point
considerable evidence was adduced at the
trial. One of the attesting witnesses testified
that at the time of the execution of the will the
testator was in his right mind, and that although
he was seriously ill, he indicated by
movements of his head what his wishes were.
Another of the attesting witnesses stated that
he was not able to say whether decedent had
the full use of his mental faculties or not,
because he had been ill for some years, and
that he (the witnesses) was not a physician.
The other subscribing witness, Pedro Paguio,
testified in the lower court as a witness for the
opponents. He was unable to state whether or
not the will was the wish of the testator. The
only reasons he gave for his statement were
the infirmity and advanced age of the testator
and the fact that he was unable to speak. The
witness stated that the testator signed the will,
and he verified his own signature as a
subscribing witness.
Florentino Ramos, although not an attesting
witness, stated that he was present when the
will was executed and his testimony was
cumulative in corroboration of the manner in
which the will was executed and as to the fact
that the testator signed the will. This witness
also stated that he had frequently transacted
matters of business for the decedent and had
written letters and made inventories of his
property at his request, and that immediately
before and after the execution of the will he had
performed offices of his character. He stated
that the decedent was able to communicate his
thoughts by writing. The testimony of this
witness clearly indicates the presence of
mental capacity on the part of the testator.
Among other witnesses for the opponents were
two physician, Doctor Basa and Doctor Viado.
Doctor Basa testified that he had attended the
testator some four or five years prior to his
death and that the latter had suffered from a
cerebral congestion from which the paralysis
resulted. The following question was
propounded to Doctor Basa:
Q. Referring to mental condition in
which you found him the last time you
attended him, do you think he was in
his right mind?
A. I can not say exactly whether he
was in his right mind, but I noted some
mental disorder, because when I spoke
to him he did not answer me.
Doctor Basa testified at more length, but the
substance of his testimony is that the testator
had suffered a paralysis and that he had
noticed some mental disorder. He does not say
that the testator was not in his right mind at the
time of the execution of the will, nor does he
give it at his opinion that he was without the
necessary mental capacity to make a valid will.
He did not state in what way this mental
disorder had manifested itself other than that
he had noticed that the testator did not reply to
him on one occasion when he visited him.
Doctor Viado, the other physician, have never
seen the testator, but his answer was in reply
to a hypothetical question as to what be the
mental condition of a person who was 79 years
old and who had suffered from a malady such
as the testator was supposed to have had
according to the testimony of Doctor Basa,
whose testimony Doctor Viado had heard. He
replied and discussed at some length the
symptoms and consequences of the decease
from which the testator had suffered; he read
in support of his statements from a work by a
German Physician, Dr. Herman Eichost. In
answer, however, to a direct question, he
stated that he would be unable to certify to the
mental condition of a person who was suffering
from such a disease.
We do not think that the testimony of these two
physicians in any way strengthens the
contention of the appellants. Their testimony
only confirms the fact that the testator had been
for a number of years prior to his death afflicted
with paralysis, in consequence of which his
physician and mental strength was greatly
impaired. Neither of them attempted to state
what was the mental condition of the testator at
the time he executed the will in question. There
can be no doubt that the testator's infirmities
were of a very serious character, and it is quite
evident that his mind was not as active as it had
been in the earlier years of his life. However,
we can not include from this that he wanting in
the necessary mental capacity to dispose of his
property by will.
The courts have been called upon frequently to
nullify wills executed under such
circumstances, but the weight of the authority
is in support if the principle that it is only when
those seeking to overthrow the will have clearly
established the charge of mental incapacity
that the courts will intervene to set aside a
testamentary document of this character. In the
case of Bugnao vs. Ubag (14 Phil. Rep., 163),
the question of testamentary capacity was
discussed by this court. The numerous
citations there given from the decisions of the
United States courts are especially applicable
to the case at bar and have our approval. In this
jurisdiction the presumption of law is in favor of
the mental capacity of the testator and the
burden is upon the contestants of the will to
prove the lack of testamentary capacity. (In the
matter of the will of Cabigting, 14 Phil. Rep.,
463; in the matter of the will of Butalid, 10 Phil.
Rep., 27; Hernaez vs. Hernaez, 1 Phil. Rep.,
689.)
The rule of law relating to the presumption of
mental soundness is well established, and the
testator in the case at bar never having been
adjudged insane by a court of competent
jurisdiction, this presumption continues, and it
is therefore incumbent upon the opponents to
overcome this legal presumption by proper
evidence. This we think they have failed to do.
There are many cases and authorities which
we might cite to show that the courts have
repeatedly held that mere weakness of mind
and body, induced by age and disease do not
render a person incapable of making a will. The
law does not require that a person shall
continue in the full enjoyment and use of his
pristine physical and mental powers in order to
execute a valid will. If such were the legal
standard, few indeed would be the number of
wills that could meet such exacting
requirements. The authorities, both medical
and legal, are universal in statement that the
question of mental capacity is one of degree,
and that there are many gradations from the
highest degree of mental soundness to the
lowest conditions of diseased mentality which
are denominated as insanity and idiocy.
The right to dispose of property by
testamentary disposition is as sacred as any
other right which a person may exercise and
this right should not be nullified unless mental
incapacity is established in a positive and
conclusive manner. In discussing the question
of testamentary capacity, it is stated in volume
28, 70, of the American and English
Encyclopedia of Law, that —
Contrary to the very prevalent lay
impression, perfect soundness of mind
is not essential to testamentary
capacity. A testator may be afflicted
with a variety of mental weaknesses,
disorders, or peculiarities and still be
capable in law of executing a valid will.
(See the numerous cases there cited in
support of this statement.)
The rule relating to testamentary capacity is
stated in Buswell on Insanity, section 365, and
quoted with approval in Campbell vs.
Campbell (130 Ill., 466), as follows:
 To constitute a sound and disposing
mind, it is not necessary that the mind
shall be wholly unbroken, unimpaired,
or unshattered by disease or
otherwise, or that the testator should
be in the full possession of his
reasoning faculties.
In note, 1 Jarman on Wills, 38, the rule is thus
stated:
The question is not so much, that was
the degree of memory possessed by
the testator, as, had he a disposing
memory? Was he able to remember
the property he was about to bequeath,
the manner of disturbing it, and the
objects of his bounty? In a word, were
his mind and memory sufficiently
sound to enable him to know and
understand the business in which he
was engaged at the time when he
executed his will. (See authorities there
cited.)
In Wilson vs. Mitchell (101 Penn., 495), the
following facts appeared upon the trial of the
case: The testator died at the age of nearly 102
years. In his early years he was an intelligent
and well informed man. About seven years
prior to his death he suffered a paralytic stroke
and from that time his mind and memory were
mush enfeebled. He became very dull of
hearing and in consequence of the shrinking of
his brain he was affected with senile cataract
causing total blindness. He became filthy and
obscene in his habits, although formerly he
was observant of the properties of life. The
court, in commenting upon the case, said:
Neither age, nor sickness, nor extreme
distress, nor debility of body will affect
the capacity to make a will, if sufficient
intelligence remains. The failure of
memory is not sufficient to create the
incapacity, unless it be total, or extend
to his immediate family or property. . . .
xxx xxx xxx
Dougal (the testator) had lived over
one hundred years before he made the
will, and his physical and mental
weakness and defective memory were
in striking contrast with their strength in
the meridian of his life. He was blind;
not deaf, but hearing impaired; his
mind acted slowly, he was forgetful or
recent events, especially of names,
and repeated questions in
conversation; and sometimes, when
aroused for sleep or slumber, would
seem bewildered. It is not singular that
some of those who had known him
when he was remarkable for vigor and
intelligence, are of the opinion that his
reason was so far gone that he was
incapable of making a will, although
they never heard him utter an irrational
expression.
In the above case the will was sustained. In the
case at bar we might draw the same contrast
as was pictured by the court in the case just
quoted. The striking change in the physical and
mental vigor of the testator during the last years
of his life may have led some of those who
knew him in his earlier days to entertain doubts
as to his mental capacity to make a will, yet we
think that the statements of the witnesses to the
execution of the will and statements of the
conduct of the testator at that time all indicate
that he unquestionably had mental capacity
and that he exercised it on this occasion. At the
time of the execution of the will it does not
appear that his conduct was irrational in any
particular. He seems to have comprehended
clearly what the nature of the business was in
which he was engaged. The evidence show
that the writing and execution of the will
occupied a period several hours and that the
testator was present during all this time, taking
an active part in all the proceedings. Again, the
will in the case at bar is perfectly reasonable
and its dispositions are those of a rational
person.
For the reasons above stated, the order
probating the will should be and the same is
hereby affirmed, with costs of this instance
against the appellants.
8. Art. 802. A married woman may make a will
without the consent of her husband, and
without the authority of the court.
Art. 804. Every will must be in writing and
executed in a language or dialect known to the
testator.
G.R. No. L-1787 August 27, 1948
Testacy of Sixto Lopez. JOSE S.
LOPEZ, petitioner-appellee,
vs.
AGUSTIN LIBORO, oppositor-appellant.
Tirona, Gutierrez and Adorable for appellant.
Ramon Diokno for appellee.
TUASON, J.:
In the Court of First Instance of Batangas the
appellant opposed unsuccessfully the probate
of what purports to be the last will and
testament (Exhibit A) of Don Sixto Lopez, who
died at the age of 83 in Balayan, Batangas, on
March 3, 1947, almost six months after the
document in question was executed. In the
court below, the present appellant specified
five grounds for his opposition, to wit: (1) that
the deceased never executed the alleged will;
(2) that his signature appearing in said will was
a forgery; (3) that at the time of the execution
of the will, he was wanting in testamentary as
well as mental capacity due to advanced age;
(4) that, if he did ever execute said will, it was
not executed and attested as required by law,
and one of the alleged instrumental witnesses
was incapacitated to act as such; and it was
procured by duress, influence of fear and
threats and undue and improper pressure and
influence on the part of the beneficiaries
instituted therein, principally the testator's
sister, Clemencia Lopez, and the herein
proponent, Jose S. Lopez; and (5) that the
signature of the testator was procured by fraud
or trick.
In this instance only one of these objections is
reiterated, formulated in these words: "That the
court a quo erred in holding that the document
Exhibit "A" was executed in all particulars as
required by law." To this objection is added the
alleged error of the court "in allowing the
petitioner to introduce evidence that Exhibit "A"
was written in a language known to the
decedent after petitioner rested his case and
over the vigorous objection of the oppositor.
The will in question comprises two pages, each
of which is written on one side of a separate
sheet. The first sheet is not paged either in
letters or in Arabic numerals. This, the
appellant believes, is a fatal defect.
The purpose of the law in prescribing the
paging of wills is guard against fraud, and to
afford means of preventing the substitution or
of defecting the loss of any of its pages.
(Abangan vs. Abangan, 40 Phil., 476.) In the
present case, the omission to put a page
number on the first sheet, if that be necessary,
is supplied by other forms of identification more
trustworthy than the conventional numerical
words or characters. The unnumbered page is
clearly identified as the first page by the internal
sense of its contents considered in relation to
the contents of the second page. By their
meaning and coherence, the first and second
lines on the second page are undeniably a
continuation of the last sentence of the
testament, before the attestation clause, which
starts at the bottom of the preceding page.
Furthermore, the unnumbered page contains
the caption "TESTAMENTO," the invocation of
the Almighty, and a recital that the testator was
in full use of his testamentary faculty, — all of
which, in the logical order of sequence,
precede the direction for the disposition of the
marker's property. Again, as page two contains
only the two lines above mentioned, the
attestation clause, the mark of the testator and
the signatures of the witnesses, the other sheet
can not by any possibility be taken for other
than page one. Abangan vs. Abangan, supra,
and Fernandez vs. Vergel de Dios, 46 Phil.,
922 are decisive of this issue.
Although not falling within the purview and
scope of the first assignment of error, the
matter of the credibility of the witnesses is
assailed under this heading. On the merits we
do not believe that the appellant's contention
deserves serious consideration. Such
contradictions in the testimony of the
instrumental witnesses as are set out in the
appellant's brief are incidents not all of which
every one of the witnesses can be supposed to
have perceived, or to recall in the same order
in which they occurred.
Everyday life and the result of
investigations made in the field of
experimental psychology show that the
contradictions of witnesses generally
occur in the details of a certain incident,
after a long series of questioning, and
far from being an evidence of
falsehood constitute a demonstration
of good faith. Inasmuch as not all those
who witness an incident are impressed
in like manner, it is but natural that in
relating their impressions they should
not agree in the minor details; hence,
the contradictions in their testimony.
(People vs. Limbo, 49 Phil., 99.)
The testator affixed his thumbmark to the
instrument instead of signing his name. The
reason for this was that the testator was
suffering from "partial paralysis." While another
in testator's place might have directed
someone else to sign for him, as appellant
contends should have been done, there is
nothing curious or suspicious in the fact that the
testator chose the use of mark as the means of
authenticating his will. It was a matter of taste
or preference. Both ways are good. A statute
requiring a will to be "signed" is satisfied if the
signature is made by the testator's mark. (De
Gala vs. Gonzales and Ona, 53 Phil., 108; 28
R. C. L., 117.)
With reference to the second assignment of
error, we do not share the opinion that the trial
court communicated an abuse of discretion in
allowing the appellant to offer evidence to
prove knowledge of Spanish by the testator,
the language in which the will is drawn, after
the petitioner had rested his case and after the
opponent had moved for dismissal of the
petition on the ground of insufficiency of
evidence. It is within the discretion of the court
whether or not to admit further evidence after
the party offering the evidence has rested, and
this discretion will not be reviewed except
where it has clearly been abused. (64 C. J.,
160.) More, it is within the sound discretion of
the court whether or not it will allow the case
to be reopened for the further introduction of
evidence after a motion or request for a
nonsuit, or a demurrer to the evidence, and the
case may be reopened after the court has
announced its intention as to its ruling on the
request, motion, or demurrer, or has granted it
or has denied the same, or after the motion has
been granted, if the order has not been written,
or entered upon the minutes or signed. (64 C.
J., 164.)
In this jurisdiction this rule has been followed.
After the parties have produced their
respective direct proofs, they are allowed to
offer rebutting evidence only, but, it has been
held, the court, for good reasons, in the
furtherance of justice, may permit them to offer
evidence upon their original case, and its ruling
will not be disturbed in the appellate court
where no abuse of discretion appears.
(Siuliong and Co. vs. Ylagan, 43 Phil., 393; U.
S. vs. Alviar, 36 Phil., 804.) So, generally,
additional evidence is allowed when it is newly
discovered, or where it has been omitted
through inadvertence or mistake, or where the
purpose of the evidence is to the evidence is to
correct evidence previously offered. (I Moran's
Comments on the Rules of Court, 2d ed., 545;
64 C. J., 160-163.) The omission to present
evidence on the testator's knowledge of
Spanish had not been deliberate. It was due to
a misapprehension or oversight.
Although alien to the second assignment of
error, the appellant impugns the will for its
silence on the testator's understanding of the
language used in the testament. There is no
statutory requirement that such knowledge be
expressly stated in the will itself. It is a matter
that may be established by proof aliunde. This
Court so impliedly ruled in Gonzales vs. Laurel,
46 Phil., 781, in which the probate of a will
written in Tagalog was ordered although it did
not say that the testator knew that idiom. In
fact, there was not even extraneous proof on
the subject other than the fact that the testator
resided in a Tagalog region, from which the
court said "a presumption arises that said
Maria Tapia knew the Tagalog dialect.
The order of the lower court ordering the
probate of the last will and testament of Don
Sixto Lopez is affirmed, with costs.
A.M. No. 2026-CFI December 19, 1981
NENITA DE VERA SUROZA, complainant,
vs.
JUDGE REYNALDO P. HONRADO of the
Court of First Instance of Rizal, Pasig
Branch 25 and EVANGELINE S. YUIPCO,
Deputy Clerk of Court, respondents.
AQUINO, J.:
Should disciplinary action be taken against
respondent judge for having admitted to
probate a will, which on its face is void because
it is written in English, a language not known to
the illiterate testatrix, and which is probably
a forged will because she and the attesting
witnesses did not appear before the notary as
admitted by the notary himself?
That question arises under the pleadings filed
in the testate case and in the certiorari case in
the Court of Appeals which reveal the following
tangled strands of human relationship:
Mauro Suroza, a corporal in the 45th Infantry of
the U.S. Army (Philippine Scouts), Fort
McKinley, married Marcelina Salvador in 1923
(p. 150, Spec. Proc. No. 7816). They were
childless. They reared a boy named Agapito
who used the surname Suroza and who
considered them as his parents as shown in his
1945 marriage contract with Nenita de Vera (p.
15, Rollo of CA-G.R. No. 08654-R; p. 148,
Rollo of Testate Case showing that Agapito
was 5 years old when Mauro married Marcelina
in 1923).
Mauro died in 1942. Marcelina, as a veteran's
widow, became a pensioner of the Federal
Government. That explains why on her death
she had accumulated some cash in two banks.
Agapito and Nenita begot a child named Lilia
who became a medical technologist and went
abroad. Agapito also became a soldier. He was
disabled and his wife Nenita was appointed as
his guardian in 1953 when he was declared an
incompetent in Special Proceeding No. 1807 of
the Court of First Instance of Rizal, Pasig
Branch I (p. 16, Rollo of CA-G.R. No. 08654-
R).
In that connection, it should be noted that a
woman named Arsenia de la Cruz wanted also
to be his guardian in another proceeding.
Arsenia tried to prove that Nenita was living
separately from Agapito and that she (Nenita)
admitted to Marcelina that she was unfaithful to
Agapito (pp. 61-63, Record of testate case).
Judge Bienvenido A. Tan dismissed the
second guardianship proceeding and
confirmed Nenita's appointment as guardian of
Agapito (p. 16, Rollo of CA case). Agapito has
been staying in a veteran's hospital in San
Francisco or Palo Alto, California (p. 87,
Record).
On a date not indicated in the record, the
spouses Antonio Sy and Hermogena Talan
begot a child named Marilyn Sy, who, when a
few days old, was entrusted to Arsenia de la
Cruz (apparently a girl friend of Agapito) and
who was later delivered to Marcelina Salvador
Suroza who brought her up as a supposed
daughter of Agapito and as her granddaughter
(pp. 23-26, Rollo of CA-G.R. No.SP-08654-R).
Marilyn used the surname Suroza. She stayed
with Marcelina but was not legally adopted by
Agapito. She married Oscar Medrano and is
residing at 7666 J.B. Roxas Street, Makati,
apparently a neighbor of Marina Paje, a
resident of 7668 J.B. Roxas Street.
Marcelina supposedly executed a notarial will
in Manila on July 23, 1973, when she was 73
years old. That will which is in English was
thumbmarked by her. She was illiterate. Her
letters in English to the Veterans
Administration were also thumbmarked by her
(pp. 38-39, CA Rollo). In that wig, Marcelina
bequeathed all her estate to her supposed
granddaughter Marilyn.
Marcelina died on November 15, 1974 at the
Veterans Hospital in Quezon City. At the time
of her death, she was a resident of 7374 San
Maximo Street, Olimpia, Makati, Rizal. She
owned a 150-square meter lot and house in
that place. She acquired the lot in 1966 (p. 134,
Record of testate case).
On January 13, 1975, Marina Paje, alleged to
be a laundrywoman of Marcelina (P. 97, CA
Rollo) and the executrix in her will (the alternate
executrix was Juanita Macaraeg, mother of
Oscar, Marilyn's husband), filed with the Court
of First Instance of Rizal, Pasig Branch 25, a
petition for the probate of Marcelina's alleged
will. The case was assigned to Judge Reynaldo
P. Honrado.
As there was no opposition, Judge Honrado
commissioned his deputy clerk of court,
Evangeline S. Yuipco, to hear the evidence.
The transcripts of the stenographic notes taken
at the hearing before the deputy clerk of court
are not in the record.
In an order dated March 31, 1975, Judge
Honrado appointed Marina as administratrix.
On the following day, April 1, Judge Honrado
issued two orders directing the Merchants
Banking Corporation and the Bank of
America to allow Marina to withdraw the sum of
P10,000 from the savings accounts of
Marcelina S. Suroza and Marilyn Suroza and
requiring Corazon Castro, the custodian of the
passbooks, to deliver them to Marina.
Upon motion of Marina, Judge Honrado issued
another order dated April 11, 1975, instructing
a deputy sheriff to eject the occupants of the
testatrix's house, among whom was Nenita V.
Suroza, and to place Marina in possession
thereof.
That order alerted Nenita to the existence of
the testamentary proceeding for the settlement
of Marcelina's estate. She and the other
occupants of the decedent's house filed on
April 18 in the said proceeding a motion to set
aside the order of April 11 ejecting them. They
alleged that the decedent's son Agapito was
the sole heir of the deceased, that he has a
daughter named Lilia, that Nenita was
Agapito's guardian and that Marilyn was not
Agapito's daughter nor the decedent's
granddaughter (pp. 52-68, Record of testate
case). Later, they questioned the probate
court's jurisdiction to issue the ejectment order.
In spite of the fact that Judge Honrado was
already apprised that persons, other than
Marilyn, were claiming Marcelina's estate, he
issued on April 23 an order probating her
supposed will wherein Marilyn was the
instituted heiress (pp. 74-77, Record).
On April 24, Nenita filed in the testate case an
omnibus petition "to set aside proceedings,
admit opposition with counter-petition for
administration and preliminary injunction".
Nenita in that motion reiterated her allegation
that Marilyn was a stranger to Marcelina, that
the will was not duly executed and attested,
that it was procured by means of undue
influence employed by Marina and Marilyn and
that the thumbmarks of the testatrix were
procured by fraud or trick.
Nenita further alleged that the institution of
Marilyn as heir is void because of the
preterition of Agapito and that Marina was not
qualified to act as executrix (pp. 83-91,
Record).
To that motion was attached an affidavit of
Zenaida A. Penaojas the housemaid of
Marcelina, who swore that the alleged will was
falsified (p. 109, Record).
Not content with her motion to set aside the
ejectment order (filed on April 18) and her
omnibus motion to set aside the proceedings
(filed on April 24), Nenita filed the next day,
April 25, an opposition to the probate of the will
and a counter-petition for letters of
administration. In that opposition, Nenita
assailed the due execution of the will and
stated the names and addresses of Marcelina's
intestate heirs, her nieces and nephews (pp.
113-121, Record). Nenita was not aware of the
decree of probate dated April 23, 1975.
To that opposition was attached an affidavit of
Dominga Salvador Teodocio, Marcelina's
niece, who swore that Marcelina never
executed a win (pp. 124-125, Record).
Marina in her answer to Nenita's motion to set
aside the proceedings admitted that Marilyn
was not Marcelina's granddaughter but was the
daughter of Agapito and Arsenia de la Cruz and
that Agapito was not Marcelina's sonbut merely
an anak-anakan who was not legally adopted
(p. 143, Record).
Judge Honrado in his order of July 17, 1975
dismissed Nenita's counter-petition for the
issuance of letters of administration because of
the non-appearance of her counsel at the
hearing. She moved for the reconsideration of
that order.
In a motion dated December 5, 1975, for the
consolidation of all pending incidents, Nenita V.
Suroza reiterated her contention that the
alleged will is void because Marcelina did not
appear before the notary and because it is
written in English which is not known to her (pp.
208-209, Record).
Judge Honrado in his order of June 8, 1976
"denied" the various incidents "raised" by
Nenita (p. 284, Record).
Instead of appealing from that order and the
order probating the wig, Nenita "filed a case to
annul" the probate proceedings (p. 332,
Record). That case, Civil Case No. 24276,
Suroza vs. Paje and Honrado (p. 398, Record),
was also assigned to Judge Honrado. He
dismissed it in his order of February 16, 1977
(pp. 398-402, Record).
Judge Honrado in his order dated December
22, 1977, after noting that the executrix had
delivered the estate to Marilyn, and that the
estate tax had been paid, closed the
testamentary proceeding.
About ten months later, in a verified complaint
dated October 12, 1978, filed in this Court,
Nenita charged Judge Honrado with having
probated the fraudulent will of Marcelina. The
complainant reiterated her contention that the
testatrix was illiterate as shown by the fact that
she affixed her thumbmark to the will and that
she did not know English, the language in
which the win was written. (In the decree of
probate Judge Honrado did not make any
finding that the will was written in a language
known to the testatrix.)
Nenita further alleged that Judge Honrado, in
spite of his knowledge that the testatrix had a
son named Agapito (the testatrix's supposed
sole compulsory and legal heir), who was
preterited in the will, did not take into account
the consequences of such a preterition.
Nenita disclosed that she talked several times
with Judge Honrado and informed him that the
testatrix did not know the executrix Marina
Paje, that the beneficiary's real name is Marilyn
Sy and that she was not the next of kin of the
testatrix.
Nenita denounced Judge Honrado for having
acted corruptly in allowing Marina and her
cohorts to withdraw from various banks the
deposits Marcelina.
She also denounced Evangeline S. Yuipco, the
deputy clerk of court, for not giving her access
to the record of the probate case by alleging
that it was useless for Nenita to oppose the
probate since Judge Honrado would not
change his decision. Nenita also said that
Evangeline insinuated that if she (Nenita) had
ten thousand pesos, the case might be decided
in her favor. Evangeline allegedly advised
Nenita to desist from claiming the properties of
the testatrix because she (Nenita) had no rights
thereto and, should she persist, she might lose
her pension from the Federal Government.
Judge Honrado in his brief comment did not
deal specifically with the allegations of the
complaint. He merely pointed to the fact that
Nenita did not appeal from the decree of
probate and that in a motion dated July 6, 1976
she asked for a thirty day period within which
to vacate the house of the testatrix.
Evangeline S. Yuipco in her affidavit said that
she never talked with Nenita and that the latter
did not mention Evangeline in her letter dated
September 11, 1978 to President Marcos.
Evangeline branded as a lie Nenita's
imputation that she (Evangeline) prevented
Nenita from having access to the record of the
testamentary proceeding. Evangeline was not
the custodian of the record. Evangeline "
strongly, vehemently and flatly denied"
Nenita's charge that she (Evangeline) said that
the sum of ten thousand pesos was needed in
order that Nenita could get a favorable
decision. Evangeline also denied that she has
any knowledge of Nenita's pension from the
Federal Government.
The 1978 complaint against Judge Honorado
was brought to attention of this Court in the
Court Administrator's memorandum of
September 25, 1980. The case was referred to
Justice Juan A. Sison of the Court of Appeals
for investigation, report and recommendation.
He submitted a report dated October 7, 1981.
On December 14, 1978, Nenita filed in the
Court of Appeals against Judge Honrado a
petition for certiorari and prohibition wherein
she prayed that the will, the decree of probate
and all the proceedings in the probate case be
declared void.
Attached to the petition was the affidavit of
Domingo P. Aquino, who notarized the will. He
swore that the testatrix and the three attesting
witnesses did not appear before him and that
he notarized the will "just to accommodate a
brother lawyer on the condition" that said
lawyer would bring to the notary the testatrix
and the witnesses but the lawyer never
complied with his commitment.
The Court of Appeals dismissed the petition
because Nenita's remedy was an appeal and
her failure to do so did not entitle her to resort
to the special civil action of certiorari (Suroza
vs. Honrado, CA-G.R. No. SP-08654, May 24,
1981).
Relying on that decision, Judge Honrado filed
on November 17, 1981 a motion to dismiss the
administrative case for having allegedly
become moot and academic.
We hold that disciplinary action should be
taken against respondent judge for his
improper disposition of the testate case which
might have resulted in a miscarriage of justice
because the decedent's legal heirs and not the
instituted heiress in the void win should have
inherited the decedent's estate.
A judge may be criminally liable or knowingly
rendering an unjust judgment or interlocutory
order or rendering a manifestly unjust judgment
or interlocutory order by reason of inexcusable
negligence or ignorance (Arts. 204 to 206,
Revised Penal Code).
Administrative action may be taken against a
judge of the court of first instance for serious
misconduct or inefficiency ( Sec. 67, Judiciary
Law). Misconduct implies malice or a wrongful
intent, not a mere error of judgment. "For
serious misconduct to exist, there must be
reliable evidence showing that the judicial acts
complained of were corrupt or inspired by an
intention to violate the law, or were in persistent
disregard of well-known legal rules" (In
relmpeachment of Horrilleno, 43 Phil. 212, 214-
215).
Inefficiency implies negligence, incompetence,
ignorance and carelessness. A judge would be
inexcusably negligent if he failed to observe in
the performance of his duties that diligence,
prudence and circumspection which the law
requires in the rendition of any public service
(In re Climaco, Adm. Case No. 134-J, Jan. 21,
1974, 55 SCRA 107, 119).
In this case, respondent judge, on perusing the
will and noting that it was written in English and
was thumbmarked by an obviously illiterate
testatrix, could have readily perceived that the
will is void.
In the opening paragraph of the will, it was
stated that English was a language
"understood and known" to the testatrix. But in
its concluding paragraph, it was stated that the
will was read to the testatrix "and translated
into Filipino language". (p. 16, Record of
testate case). That could only mean that the will
was written in a language not known to the
illiterate testatrix and, therefore, it is void
because of the mandatory provision of article
804 of the Civil Code that every will must be
executed in a language or dialect known to the
testator. Thus, a will written in English, which
was not known to the Igorot testator, is void and
was disallowed (Acop vs. Piraso, 52 Phil. 660).

The hasty preparation of the will is shown in the

attestation clause and notarial
acknowledgment where Marcelina Salvador
Suroza is repeatedly referred to as the
"testator" instead of "testatrix".

Had respondent judge been careful and

observant, he could have noted not only the
anomaly as to the language of the will but also
that there was something wrong in instituting
the supposed granddaughter as sole heiress
and giving nothing at all to her supposed father
who was still alive.

Furthermore, after the hearing conducted by

respondent deputy clerk of court, respondent
judge could have noticed that the notary was
not presented as a witness.

In spite of the absence of an opposition,

respondent judge should have personally
conducted the hearing on the probate of the will
so that he could have ascertained whether the
will was validly executed.

Under the circumstances, we find his

negligence and dereliction of duty to be
inexcusable.

WHEREFORE, for inefficiency in handling the

testate case of Marcelina S. Suroza, a fine
equivalent to his salary for one month is
imposed on respondent judge (his compulsory
retirement falls on December 25, 1981).

The case against respondent Yuipco has

become moot and academic because she is no
longer employed in the judiciary. Since
September 1, 1980 she has been assistant city
fiscal of Surigao City. She is beyond this
Court's disciplinary jurisdiction (Peralta vs.
Firm Adm. Matter No. 2044-CFI November 21,
1980, 101 SCRA 225).

SO ORDERED.