Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No.

82027 March 29, 1990 ROMARICO G. VITUG, petitioner, vs. THE HONORABLE COURT OF APPEALS and ROWENA FAUSTINO-CORONA, respondents. Rufino B. Javier Law Office for petitioner. Quisumbing, Torres & Evangelista for private respondent.

We hereby agree with each other and with the BANK OF AMERICAN NATIONAL TRUST AND SAVINGS ASSOCIATION (hereinafter referred to as the BANK), that all money now or hereafter deposited by us or any or either of us with the BANK in our joint savings current account shall be the property of all or both of us and shall be payable to and collectible or withdrawable by either or any of us during our lifetime, and after the death of either or any of us shall belong to and be the sole property of the survivor or survivors, and shall be payable to and collectible or withdrawable by such survivor or survivors. We further agree with each other and the BANK that the receipt or check of either, any or all of us during our lifetime, or the receipt or check of the survivor or survivors, for any payment or withdrawal made for our above-mentioned account shall be valid and sufficient release and discharge of the BANK for such payment or withdrawal.
5

The trial courts 6 upheld the validity of this agreement and granted "the motion to sell some of the estate of Dolores L. Vitug, the proceeds of which shall be used to pay the personal funds of Romarico Vitug in the total sum of P667,731.66 ... ." 7 On the other hand, the Court of Appeals, in the petition for certiorari filed by the herein private respondent, held that the above-quoted survivorship agreement constitutes a conveyance mortis causa which "did not comply with the formalities of a valid will as prescribed by Article 805 of the Civil Code," 8 and secondly, assuming that it is a mere donation inter vivos, it is a prohibited donation under the provisions of Article 133 of the Civil Code. 9 The dispositive portion of the decision of the Court of Appeals states: WHEREFORE, the order of respondent Judge dated November 26, 1985 (Annex II, petition) is hereby set aside insofar as it granted private respondent's motion to sell certain properties of the estate of Dolores L. Vitug for reimbursement of his alleged advances to the estate, but the same order is sustained in all other respects. In addition, respondent Judge is directed to include provisionally the deposits in Savings Account No. 35342-038 with the Bank of America, Makati, in the inventory of actual properties possessed by the spouses at the time of the decedent's death. With costs against private respondent. 10 In his petition, Vitug, the surviving spouse, assails the appellate court's ruling on the strength of our decisions in Rivera v. People's Bank and Trust Co. 11 and Macam v. Gatmaitan 12 in which we sustained the validity of "survivorship agreements" and considering them as aleatory contracts. 13 The petition is meritorious.

SARMIENTO, J.: This case is a chapter in an earlier suit decided by this Court 1 involving the probate of the two wills of the late Dolores Luchangco Vitug, who died in New York, U. S.A., on November 10, 1980, naming private respondent Rowena Faustino-Corona executrix. In our said decision, we upheld the appointment of Nenita Alonte as co-special administrator of Mrs. Vitug's estate with her (Mrs. Vitug's) widower, petitioner Romarico G. Vitug, pending probate. On January 13, 1985, Romarico G. Vitug filed a motion asking for authority from the probate court to sell certain shares of stock and real properties belonging to the estate to cover allegedly his advances to the estate in the sum of P667,731.66, plus interests, which he claimed were personal funds. As found by the Court of Appeals, 2 the alleged advances consisted of P58,147.40 spent for the payment of estate tax, P518,834.27 as deficiency estate tax, and P90,749.99 as "increment thereto." 3 According to Mr. Vitug, he withdrew the sums of P518,834.27 and P90,749.99 from savings account No. 35342-038 of the Bank of America, Makati, Metro Manila. On April 12, 1985, Rowena Corona opposed the motion to sell on the ground that the same funds withdrawn from savings account No. 35342-038 were conjugal partnership properties and part of the estate, and hence, there was allegedly no ground for reimbursement. She also sought his ouster for failure to include the sums in question for inventory and for "concealment of funds belonging to the estate." 4 Vitug insists that the said funds are his exclusive property having acquired the same through a survivorship agreement executed with his late wife and the bank on June 19, 1970. The agreement provides:

The conveyance in question is not, first of all, one of mortis causa, which should be embodied in a will. A will has been defined as "a personal, solemn, revocable and free act by which a capacitated person disposes of his property and rights and declares or complies with duties to take effect after his death." 14 In other words, the bequest or device must pertain to the testator. 15 In this case, the monies subject of savings account No. 35342-038 were in the nature of conjugal funds In the case relied on, Rivera v. People's Bank and Trust Co., 16 we rejected claims that a survivorship agreement purports to deliver one party's separate properties in favor of the other, but simply, their joint holdings: xxx xxx xxx ... Such conclusion is evidently predicated on the assumption that Stephenson was the exclusive owner of the funds-deposited in the bank, which assumption was in turn based on the facts (1) that the account was originally opened in the name of Stephenson alone and (2) that Ana Rivera "served only as housemaid of the deceased." But it not infrequently happens that a person deposits money in the bank in the name of another; and in the instant case it also appears that Ana Rivera served her master for about nineteen years without actually receiving her salary from him. The fact that subsequently Stephenson transferred the account to the name of himself and/or Ana Rivera and executed with the latter the survivorship agreement in question although there was no relation of kinship between them but only that of master and servant, nullifies the assumption that Stephenson was the exclusive owner of the bank account. In the absence, then, of clear proof to the contrary, we must give full faith and credit to the certificate of deposit which recites in effect that the funds in question belonged to Edgar Stephenson and Ana Rivera; that they were joint (and several) owners thereof; and that either of them could withdraw any part or the whole of said account during the lifetime of both, and the balance, if any, upon the death of either, belonged to the survivor. 17 xxx xxx xxx In Macam v. Gatmaitan, 18 it was held: xxx xxx xxx This Court is of the opinion that Exhibit C is an aleatory contract whereby, according to article 1790 of the Civil Code, one of the parties or both reciprocally bind themselves to give or do something as an equivalent for that which the other party is to give or do in case of the occurrence of an event which is uncertain or will happen at an indeterminate time. As already stated, Leonarda was the owner of the house and Juana of the Buick automobile and most of the furniture. By virtue of Exhibit C, Juana would become the owner of the house in case Leonarda died first, and Leonarda would become the owner of the automobile and the furniture if Juana were

to die first. In this manner Leonarda and Juana reciprocally assigned their respective property to one another conditioned upon who might die first, the time of death determining the event upon which the acquisition of such right by the one or the other depended. This contract, as any other contract, is binding upon the parties thereto. Inasmuch as Leonarda had died before Juana, the latter thereupon acquired the ownership of the house, in the same manner as Leonarda would have acquired the ownership of the automobile and of the furniture if Juana had died first. 19 xxx xxx xxx There is no showing that the funds exclusively belonged to one party, and hence it must be presumed to be conjugal, having been acquired during the existence of the marita. relations. 20 Neither is the survivorship agreement a donation inter vivos, for obvious reasons, because it was to take effect after the death of one party. Secondly, it is not a donation between the spouses because it involved no conveyance of a spouse's own properties to the other. It is also our opinion that the agreement involves no modification petition of the conjugal partnership, as held by the Court of Appeals, 21 by "mere stipulation" 22 and that it is no "cloak" 23 to circumvent the law on conjugal property relations. Certainly, the spouses are not prohibited by law to invest conjugal property, say, by way of a joint and several bank account, more commonly denominated in banking parlance as an "and/or" account. In the case at bar, when the spouses Vitug opened savings account No. 35342-038, they merely put what rightfully belonged to them in a moneymaking venture. They did not dispose of it in favor of the other, which would have arguably been sanctionable as a prohibited donation. And since the funds were conjugal, it can not be said that one spouse could have pressured the other in placing his or her deposits in the money pool. The validity of the contract seems debatable by reason of its "survivor-take-all" feature, but in reality, that contract imposed a mere obligation with a term, the term being death. Such agreements are permitted by the Civil Code. 24 Under Article 2010 of the Code: ART. 2010. By an aleatory contract, one of the parties or both reciprocally bind themselves to give or to do something in consideration of what the other shall give or do upon the happening of an event which is uncertain, or which is to occur at an indeterminate time. Under the aforequoted provision, the fulfillment of an aleatory contract depends on either the happening of an event which is (1) "uncertain," (2) "which is to occur at an indeterminate time." A survivorship agreement, the sale of a sweepstake ticket, a transaction stipulating on the value of currency, and insurance have been held to fall

under the first category, while a contract for life annuity or pension under Article 2021, et sequentia, has been categorized under the second. 25 In either case, the element of risk is present. In the case at bar, the risk was the death of one party and survivorship of the other. However, as we have warned: xxx xxx xxx But although the survivorship agreement is per se not contrary to law its operation or effect may be violative of the law. For instance, if it be shown in a given case that such agreement is a mere cloak to hide an inofficious donation, to transfer property in fraud of creditors, or to defeat the legitime of a forced heir, it may be assailed and annulled upon such grounds. No such vice has been imputed and established against the agreement involved in this case. 26 xxx xxx xxx There is no demonstration here that the survivorship agreement had been executed for such unlawful purposes, or, as held by the respondent court, in order to frustrate our laws on wills, donations, and conjugal partnership. The conclusion is accordingly unavoidable that Mrs. Vitug having predeceased her husband, the latter has acquired upon her death a vested right over the amounts under savings account No. 35342-038 of the Bank of America. Insofar as the respondent court ordered their inclusion in the inventory of assets left by Mrs. Vitug, we hold that the court was in error. Being the separate property of petitioner, it forms no more part of the estate of the deceased. WHEREFORE, the decision of the respondent appellate court, dated June 29, 1987, and its resolution, dated February 9, 1988, are SET ASIDE. No costs. SO ORDERED. Melencio-Herrera (Chairperson), Paras, Padilla and Regalado JJ., concur.

2 Kapunan, Santiago, M., J., ponente; Puno Reynato S. and Marigomen Alfredo, JJ., concurring. 3 Rollo, 21. 4 Id., 22. 5 Id. 6 Judge (now Justice of the Court of Appeals) Asaali S. Isnani presiding. 7 Rollo, 23. 8 Id., 26. 9 Now, Article 87 of the Family Code. 10 Rollo, 28-29. 11 73 Phil. 546 (1942). 12 64 Phil. 187 (1937). 13 CIVIL CODE, Art. 2010. 14 III TOLENTINO, CIVIL CODE OF THE PHILIPPINES 26 (1973 ed.), citing 1 GOMEZ 53. 15 See CIVIL CODE, supra., arts. 793, 794, 930. 16 Supra. 17 Supra., 547. 18 Supra. 19 Supra., 190-191. 20 CIVIL CODE, supra, art. 160. 21 In the words of the Appellate Court: "Since private respondent and his late wife did not enter into a marriage settlement before marriage, their property relationship was that of conjugal partnership governed by the Civil Code. The system of conjugal

Footnotes 1 Corona v. Court of Appeals, No. 59821, August 30, 1982, 116 SCRA 316.

partnership prohibits, as already mentioned, donation between the spouses during the marriage, except that which takes effect after the death of the donor, in which case, the donation shall comply with the formalities of a will (Arts. 133, 728, 805). To allow the prohibited donation by giving it a cloak of aleatory contract would sanction a (modification) of a marriage settlement during marriage by a mere stipulation. As mandated by Art. 52, the nature, consequences and incidents of marriage, which is not a mere contract but an inviolable social institution are governed by law, and not subject to stipulation." 22 Id. 23 Id. 24 CIVIL CODE, supra., art. 1193. 25 V PARAS, CIVIL CODE OF THE PHILIPPINES, 782 (1986 ed.) 26 Rivera, supra, 548. Montinola vs. Herbosa

the last page, all this, in the presence of the three attesting witnesses after telling that it was his last will and that the said three witnesses signed their names on the last page after the attestation clause in his presence and in the presence of each other. The oppositors did not submit any evidence. The learned trial court found and declared Exhibit "A" to be a holographic will; that it was in the handwriting of the testator and that although at the time it was executed and at the time of the testator's death, holographic wills were not permitted by law still, because at the time of the hearing and when the case was to be decided the new Civil Code was already in force, which Code permitted the execution of holographic wills, under a liberal view, and to carry out the intention of the testator which according to the trial court is the controlling factor and may override any defect in form, said trial court by order dated January 24, 1952, admitted to probate Exhibit "A", as the Last Will and Testament of Father Sancho Abadia. The oppositors are appealing from that decision; and because only questions of law are involved in the appeal, the case was certified to us by the Court of Appeals. The new Civil Code (Republic Act No. 386) under article 810 thereof provides that a person may execute a holographic will which must be entirely written, dated and signed by the testator himself and need not be witnessed. It is a fact, however, that at the time that Exhibit "A" was executed in 1923 and at the time that Father Abadia died in 1943, holographic wills were not permitted, and the law at the time imposed certain requirements for the execution of wills, such as numbering correlatively each page (not folio or sheet) in letters and signing on the left hand margin by the testator and by the three attesting witnesses, requirements which were not complied with in Exhibit "A" because the back pages of the first two folios of the will were not signed by any one, not even by the testator and were not numbered, and as to the three front pages, they were signed only by the testator. Interpreting and applying this requirement this Court in the case of In re Estate of Saguinsin, 41 Phil., 875, 879, referring to the failure of the testator and his witnesses to sign on the left hand margin of every page, said: ". . . This defect is radical and totally vitiates the testament. It is not enough that the signatures guaranteeing authenticity should appear upon two folios or leaves; three pages having been written on, the authenticity of all three of them should be guaranteed by the signature of the alleged testatrix and her witnesses." And in the case of Aspe vs. Prieto, 46 Phil., 700, referring to the same requirement, this Court declared: "From an examination of the document in question, it appears that the left margins of the six pages of the document are signed only by Ventura Prieto. The noncompliance with section 2 of Act No. 2645 by the attesting witnesses who omitted to sign with the testator at the left margin of each of the five pages of the document alleged to be the will of Ventura Prieto, is a fatal defect that constitutes an obstacle to its probate." What is the law to apply to the probate of Exh. "A"? May we apply the provisions of the new Civil Code which now allows holographic wills, like Exhibit "A" which provisions were invoked by the appellee- petitioner and applied by the lower court? But article 795 of this same new Civil Code expressly provides: "The validity of a will as to its form depends upon the observance of the law in force at the time it is made."

In re: Will and Testament of the deceased REVEREND SANCHO ABADIA. SEVERINA A. VDA. DE ENRIQUEZ, ET AL., petitioners-appellees, vs. MIGUEL ABADIA, ET AL., oppositors-appellants. 1954 Aug 9 En Banc G.R. No. L-7188 DECISION MONTEMAYOR, J.: On September 6, 1923, Father Sancho Abadia, parish priest of Talisay, Cebu, executed a document purporting to be his Last Will and Testament now marked Exhibit "A". Resident of the City of Cebu, he died on January 14, 1943, in the municipality of Aloguinsan, Cebu, where he was an evacue. He left properties estimated at P8,000 in value. On October 2, 1946, one Andres Enriquez, one of the legatees in Exhibit "A", filed a petition for its probate in the Court of First Instance of Cebu. Some cousins and nephews who would inherit the estate of the deceased if he left no will, filed opposition. During the hearing one of the attesting witnesses, the other two being dead, testified without contradiction that in his presence and in the presence of his co-witnesses, Father Sancho wrote out in longhand Exhibit "A" in Spanish which the testator spoke and understood; that he (testator) signed on he left hand margin of the front page of each of the three folios or sheets of which the document is composed, and numbered the same with Arabic numerals, and finally signed his name at the end of his writing at

The above provision is but an expression or statement of the weight of authority to the effect that the validity of a will is to be judged not by the law inforce at the time of the testator's death or at the time the supposed will is presented in court for probate or when the petition is decided by the court but at the time the instrument was executed. One reason in support of the rule is that although the will operates upon and after the death of the testator, the wishes of the testator about the disposition of his estate among his heirs and among the legatees is given solemn expression at the time the will is executed, and in reality, the legacy or bequest then becomes a completed act. This ruling has been laid down by this court in the case of In re Will of Riosa, 39 Phil., 23. It is a wholesome doctrine and should be followed. Of course, there is the view that the intention of the testator should be the ruling and controlling factor and that all adequate remedies and interpretations should be resorted to in order to carry out said intention, and that when statutes passed after the execution of the will and after the death of the testator lessen the formalities required by law for the execution of wills, said subsequent statutes should be applied so as to validate wills defectively executed according to the law in force at the time of execution. However, we should not forget that from the day of the death of the testator, if he leaves a will, the title of the legatees and devisees under it becomes a vested right, protected under the due process clause of the constitution against a subsequent change in the statute adding new legal requirements of execution of wills which would invalidate such a will. By parity of reasoning, when one executes a will which is invalid for failure to observe and follow the legal requirements at the time of its execution then upon his death he should be regarded and declared as having died intestate, and his heirs will then inherit by intestate succession, and no subsequent law with more liberal requirements or which dispenses with such requirements as to execution should be allowed to validate a defective will and thereby divest the heirs of their vested rights in the estate by intestate succession. The general rule is that the Legislature can not validate void wills (57 Am. Jur., Wills, Sec. 231, pp. 192-193). In view of the foregoing, the order appealed from is reversed, and Exhibit "A" is denied probate. With costs. Paras, C.J., Pablo, Bengzon, Padilla, Reyes, A., Jugo, Bautista Angelo, Labrador, Concepcion and Reyes J.B.L., JJ., concur.

The issue which this appeal presents is whether in the Philippine Islands the law existing on the date of the execution of a will, or the law existing at the death of the testator, controls. Jose Riosa died on April 17, 1917. He left a will made in the month of January, 1908, in which he disposed of an estate valued at more than P35,000. The will was duly executed in accordance with the law then in force, namely, section 618 of the Code of Civil Procedure. The will was not executed in accordance with Act No. 2645, amendatory of said section 618, prescribing certain additional formalities for the signing and attestation of wills, in force on and after July 1, 1916. In other words, the will was in writing, signed by the testator, and attested and subscribed by three credible witnesses in the presence of the testator and of each other; but was not signed by the testator and the witnesses on the left margin of each and every page, nor did the attestation state these facts. The new law, therefore, went into effect after the making of the will and before the death of the testator, without the testator having left a will that conforms to the new requirements. Section 618 of the Code of Civil Procedure reads: No will, except as provided in the preceding section, shall be valid to pass any estate, real or personal, nor charge or affect the same, unless it be in writing and signed by the testator, or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of each other. The attestation shall state the fact that the testator signed the will, or caused it to be signed by some other person, at his express direction, in the presence of three witnesses, and that they attested and subscribed it in his presence and in the presence 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. Act No. 2645 has amended section 618 of the Code of Civil Procedure so as to make said section read as follows: SEC. 618. Requisites of will. 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 written in the language or dialect known by the testator and signed by him, or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of each other. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each, and every page thereof, on the left margin, and said pages shall be numbered correlatively in letters placed on the upper part of each sheet. The attestation shall state the number of sheets or pages used, upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of three witnesses, and the

G.R. No. L-14074

November 7, 1918

In the matter of the probation of the will of Jose Riosa. MARCELINO CASAS, applicant-appellant, Vicente de Vera for petitioner-appellant.

MALCOLM, J.:

latter witnessed and signed the will and all pages thereof in the presence of the testator and of each other. This court has heretofore held in a decision handed down by the Chief Justice, as to a will made after the date Act No. 2645 went into effect, that it must comply with the provisions of this law. (Caraig vs Tatlonghari, R. G. No. 12558, dated March 23, 1918 [not published].) The court has further held in a decision handed down by Justice Torres, as to will executed by a testator whose death took place prior to the operative date of Act No. 2645, that the amendatory act is inapplicable. (Bona vs. Briones, [1918], 38 Phil., 276.) The instant appeal presents an entirely different question. The will was execute prior to the enactment of Act No. 2645 and the death occurred after the enactment of this law. There is a clear cleavage of authority among the cases and the text-writers, as to the effect of a change in the statutes prescribing the formalities necessary to be observed in the execution of a will, when such change is made intermediate to the execution of a will and the death of a testator. (See generally 40 Cyc., 1076. and any textbook on Wills, and Lane's Appeal from Probate [1889], 57 Conn., 182.) The rule laid down by the courts in many jurisdictions is that the statutes in force at the testator's death are controlling, and that a will not executed in conformity with such statutes is invalid, although its execution was sufficient at the time it was made. The reasons assigned for applying the later statute are the following: "As until the death of the testator the paper executed by him, expressing his wishes, is not a will, but a mere inchoate act which may or may not be a will, the law in force at the testator's death applies and controls the proof of the will." (Sutton vs. Chenault [1855], 18 Ga., 1.) Were we to accept the foregoing proposition and the reasons assigned for it, it would logically result that the will of Jose Riosa would have to be held invalid. The rule prevailing in many other jurisdictions is that the validity of the execution of a will must be tested by the statutes in force at the time of its execution and that statutes subsequently enacted have no retrospective effect. This doctrine is believed to be supported by the weight of authority. It was the old English view; in Downs (or Downing) vs. Townsend (Ambler, 280), Lord Hardwicke is reported to have said that "the general rule as to testaments is, that the time of the testament, and not the testator's death, is regarded." It is also the modern view, including among other decisions one of the Supreme Court of Vermont from which State many of the sections of the Code if Civil Procedure of the Philippine Islands relating to wills are taken. (Giddings vs. Turgeon [1886], 58 Vt., 103.) Of the numerous decisions of divergent tendencies, the opinion by the learned Justice Sharswood (Taylor vs. Mitchell [1868], 57 Pa. St., 209) is regarded to be the best considered. In this opinion is found the following: Retrospective laws generally if not universally work injustice, and ought to be so construed only when the mandate of the legislature is imperative. When a testator makes a will, formally executed according to the requirements of the law existing at the time of its execution, it would unjustly disappoint his lawful right of disposition to apply to it a rule subsequently enacted, though before his death.

While it is true that every one is presumed to know the law, the maxim in fact is inapplicable to such a case; for he would have an equal right to presume that no new law would affect his past act, and rest satisfied in security on that presumption. . . . It is true, that every will is ambulatory until the death of the testator, and the disposition made by it does not actually take effect until then. General words apply to the property of which the testator dies possessed, and he retains the power of revocation as long as he lives. The act of bequeathing or devising, however, takes place when the will is executed, though to go into effect at a future time. A third view, somewhat larger in conception than the preceding one, finding support in the States of Alabama and New York, is that statutes relating to the execution of wills, when they increase the necessary formalities, should be construed so as not to impair the validity of a will already made and, when they lessen the formalities required, should be construed so as to aid wills defectively executed according to the law in force at the time of their making (Hoffman vs. Hoffman, [1855], 26 Ala., 535; Price vs. Brown, 1 Bradf., Surr. N.Y., 252.) This court is given the opportunity to choose between the three rules above described. Our selection, under such circumstances, should naturally depend more on reason than on technicality. Above all, we cannot lose sight of the fact that the testator has provided in detail for the disposition of his property and that his desires should be respected by the courts. Justice is a powerful pleader for the second and third rules on the subject. The plausible reasoning of the authorities which back the first proposition is, we think, fallacious. The act of bequeathing or devising is something more than inchoate or ambulatory. In reality, it becomes a completed act when the will is executed and attested according to the law, although it does not take effect on the property until a future time.lawphil.net It is, of course, a general rule of statutory construction, as this court has said, that "all statutes are to be construed as having only a prospective operation unless the purpose and intention of the Legislature to give them a retrospective effect is expressly declared or is necessarily implied from the language used. In every case of doubt, the doubt must be resolved against the restrospective effect." (Montilla vs. Corporacion de PP. Agustinos [1913], 24 Phil., 220. See also Chew Heong vs. U.S. [1884], 112 U.S., 536; U.S. vs American Sugar Ref. Co. [1906], 202 U.S., 563.) Statute law, as found in the Civil Code, is corroborative; article 3 thereof provides that "laws shall not have a retroactive effect, unless therein otherwise prescribed." The language of Act No. 2645 gives no indication of retrospective effect. Such, likewise, has been the uniform tendency of the Supreme Court of the Philippine Islands on cases having special application to testamentary succession. (Abello vs. Kock de Monaterio [1904], 3 Phil., 558; Timbol vs. Manalo [1906], 6 Phil., 254; Bona vs. Briones, supra; In the Matter of the Probation of the Will of Bibiana Diquia [1918], R. G. No. 13176, 1 concerning the language of the Will. See also section 617, Code of Civil Procedure.) The strongest argument against our accepting the first two rules comes out of section 634 of the Code of Civil Procedure which, in negative terms, provides that a

will shall be disallowed in either of five cases, the first being "if not executed and attested as in this Act provided." Act No. 2645 has, of course, become part and parcel of the Code of Civil Procedure. The will in question is admittedly not executed and attested as provided by the Code of Civil Procedure as amended. Nevertheless, it is proper to observe that the general principle in the law of wills inserts itself even within the provisions of said section 634. Our statute announces a positive rule for the transference of property which must be complied with as completed act at the time of the execution, so far as the act of the testator is concerned, as to all testaments made subsequent to the enactment of Act No. 2645, but is not effective as to testaments made antecedent to that date. To answer the question with which we began this decision, we adopt as our own the second rule, particularly as established by the Supreme Court of Pennsylvania. The will of Jose Riosa is valid. The order of the Court of First Instance for the Province of Albay of December 29, 1917, disallowing the will of Jose Riosa, is reversed, and the record shall be returned to the lower court with direction to admit the said will to probate, without special findings as to costs. So ordered. Arellano, C.J., Torres, Johnson, Street, Avancea and Fisher, JJ., concur.

Judicial District in Civil Case No. 14802-I between the same parties and (2) Resolution dated June 3, 1977 denying plaintiffs-appellants' motion for reconsideration. As gathered from the records, the factual background of this case is as follows: The land in question is the Eastern portion with an area of Four Hundred Thirty Six (436) square meters of that parcel of residential land situated in Barrio Dulig (now Magsaysay), Municipality of Labrador, Pangasinan actually covered by Transfer Certificate of Title No. 82275 (Exhibit A) issued in the name of Sulpicia Jimenez. The entire parcel of land with an area of 2,932 square meters, formerly belonged to Fermin Jimenez. Fermin Jimenez has two (2) sons named Fortunato and Carlos Jimenez. This Fortunato Jimenez who predeceased his father has only one child, the petitioner Sulpicia Jimenez. After the death of Fermin Jimenez, the entire parcel of land was registered under Act 496 in the name of Carlos Jimenez and Sulpicia Jimenez (uncle and niece) in equal shares pro-indiviso. As a result of the registration case Original Certificate of Title No. 50933 (Exhibit 8) was issued on February 28, 1933, in the names of Carlos Jimenez and Sulpicia Jimenez, in equal shares proindiviso. Carlos Jimenez died on July 9, 1936 and his illegitimate daughter, Melecia Cayabyab, also known as Melecia Jimenez, took possession of the eastern portion of the property consisting of 436 square meters.

Footnotes
1

Decided October 26, 1918, still unpublished.

G.R. No. L-46364 April 6, 1990 SULPICIA JIMENEZ and TORIBIO MATIAS, petitioners, vs. VICENTE FERNANDEZ alias HOSPICIO FERNANDEZ and TEODORA GRADO, respondents. Antonio E. Bengzon III for petitioners. Agustin U. Cruz for private respondents.

On January 20, 1944, Melecia Jimenez sold said 436 square meter-portion of the property to Edilberto Cagampan and defendant Teodora Grado executed a contract entitled "Exchange of Real Properties" whereby the former transferred said 436 square meter-portion to the latter, who has been in occupation since. On August 29, 1969, plaintiff Sulpicia Jimenez executed an affidavit adjudicating unto herself the other half of the property appertaining to Carlos Jimenez, upon manifestation that she is the only heir of her deceased uncle. Consequently Transfer Certificate of Title No. 82275 was issued on October 1, 1969 in petitioner's name alone over the entire 2,932 square meter property. On April 1, 1970, Sulpicia Jimenez, joined by her husband, instituted the present action for the recovery of the eastern portion of the property consisting of 436 square meters occupied by defendant Teodora Grado and her son. After trial on the merits, the lower court rendered judgment, the dispositive portion of which reads:

PARAS, J.: Before Us is a petition for review on certiorari of the following Decision and Resolution 2 of the Honorable Court of Appeals: (1) Decision, dated March 1, 1977 in C.A.-G.R. No. 49178-R entitled "Sulpicia Jimenez, et al., v. Vicente Fernandez, et al." affirming in toto the judgment of the Court of First Instance of Pangasinan, Third
1

WHEREFORE, decision is hereby rendered dismissing the complaint and holding the defendant, Teodora Grado, the absolute owner of the land in question; ordering the plaintiffs to pay to the defendant the amount of P500.00 as damages, as attorney's fees, and to pay the costs of suit.

SO ORDERED. (Rollo, p. 20) Petitioner appealed the above judgment to the respondent Court of Appeals and on March 1, 1977, respondent Court of Appeals rendered a decision affirming the same in toto. Said decision was rendered by a special division of five (5) justices, with the Hon. Lourdes San Diego, dissenting. Petitioners within the reglementary period granted by the Honorable Court of Appeals, filed therewith a motion for reconsideration. But said motion for reconsideration was denied by the Court of Appeals in its resolution dated June 3, 1977. In their appeal to the respondent Court of Appeals from the aforequoted decision of the trial court, herein petitioner raised the following assignments of error to wit: ASSIGNMENTS OF ERROR I THE LOWER COURT ERRED IN NOT DECLARING THAT MELECIA CAYABYAB, ALSO KNOWN AS MELECIA JIMENEZ, IS NOT THE DAUGHTER OF CARLOS JIMENEZ. II THE LOWER COURT ERRED IN NOT DECLARING THAT MELECIA CAYABYAB, ALSO KNOWN AS MELECIA JIMENEZ, HAS NO RIGHT TO SELL THE LAND IN QUESTION TO EDILBERTO CAGAMPAN. III THE LOWER COURT ERRED IN NOT DECLARING THAT EDILBERTO CAGAMPAN DID NOT BECOME THE OWNER OF THE LAND IN QUESTION BY VIRTUE OF THE DEED OF SALE (EXH. "1") EXECUTED BY MELECIA CAYABYAB, ALIAS MELECIA JIMENEZ, IN HIS FAVOR. IV THE LOWER COURT ERRED IN NOT DECLARING THAT TEODORA GRADO DID NOT BECOME THE OWNER OF THE LAND IN QUESTION BY VIRTUE OF THE DEED OF EXCHANGE (EXH. "7") EXECUTED BY HER AND EDILBERTO CAGAMPAN. V

THE LOWER COURT ERRED IN NOT DECLARING THAT THE TITLE OF APPELLANT SULPICIA JIMENEZ OVER THE LAND IN QUESTION CAN NOT BE DEFEATED BY THE ADVERSE OPEN AND NOTORIOUS POSSESSION OF APPELLEE TEODORA GRADO. VI THE LOWER COURT ERRED IN DECLARING THAT THE APPELLEE TEODORA GRADO IS THE ABSOLUTE OWNER OF THE LAND IN QUESTION IN THE LIGHT OF THE DECISION OF THE SUPREME COURT IN THE CASE OF LOURDES ARCUINO, ET AL., V. RUFINA APARIS AND CASIANO PURAY, G.R. NO. L23424, PROMULGATED JANUARY 31, 1968, WHICH CASE IS NOT APPLICABLE TO THE CASE AT BAR. VII THE LOWER COURT ERRED IN DISMISSING THE COMPLAINT AND ORDERING THE APPELLANTS TO PAY THE APPELLEES THE SUM OF P500.00 AS ATTORNEYS FEES PLUS THE COSTS. From the foregoing, this petition for review was filed. We find merit in the petition. From the start the respondent court erred in not declaring that Melecia Jimenez Cayabyab also known as Melecia Jimenez, is not the daughter of Carlos Jimenez and therefore, had no right over the property in question. Respondents failed to present concrete evidence to prove that Melecia Cayabyab was really the daughter of Carlos Jimenez. Nonetheless, assuming for the sake of argument that Melecia Cayabyab was the illegitimate daughter of Carlos Jimenez there can be no question that Melecia Cayabyab had no right to succeed to the estate of Carlos Jimenez and could not have validly acquired, nor legally transferred to Edilberto Cagampan that portion of the property subject of this petition. It is well-settled in this jurisdiction that the rights to the succession are transmitted from the moment of the death of the decedent (Art. 777, Civil Code). Moreover, Art. 2263 of the Civil Code provides as follows: Rights to the inheritance of a person who died with or without a will, before the effectivity of this Code, shall be governed by the Civil Code of 1889, by other previous laws, and by the Rules of Court . . . (Rollo, p. 17) Thus, since Carlos Jimenez, owner of one-half pro-indiviso portion of that parcel of land then covered by Original Certificate of title No. 50933, died on July 9, 1936

(Exhibit "F") way before the effectivity of the Civil Code of the Philippines, the successional rights pertaining to his estate must be determined in accordance with the Civil Code of 1889. Citing the case of Cid v. Burnaman (24 SCRA 434) wherein this Court categorically held that: To be an heir under the rules of Civil Code of 1889 (which was the law in force when Carlos Jimenez died and which should be the governing law in so far as the right to inherit from his estate was concerned), a child must be either a child legitimate, legitimated, or adopted, or else an acknowledged natural child for illegitimate not natural are disqualified to inherit. (Civil Code of 1889, Art. 807, 935) Even assuming that Melecia Cayabyab was born out of the common-law-relationship between her mother (Maria Cayabyab) and Carlos Jimenez, she could not even be considered an acknowledged natural child because Carlos Jimenez was then legally married to Susana Abalos and therefore not qualified to marry Maria Cayabyab and consequently Melecia Cayabyab was an illegitimate spurious child and not entitled to any successional rights in so far as the estate of Carlos Jimenez was concerned. Melecia Cayabyab in the absence of any voluntary conveyance to her by Carlos Jimenez or Sulpicia Jimenez of the litigated portion of the land could not even legally transfer the parcel of land to Edilberto Cagampan who accordingly, could not also legally transfer the same to herein private respondents. Analyzing the case before Us in this manner, We can immediately discern another error in the decision of the respondent court, which is that the said court sustained and made applicable to the case at bar the ruling in the case of Arcuino, et al., v. Aparis and Puray, No. L-23424, January 31, 1968, 22 SCRA 407, wherein We held that: . . . it is true that the lands registered under the Torrens System may not be acquired by prescription but plaintiffs herein are not the registered owners. They merely claim to have acquired by succession, their alleged title or interest in lot No. 355. At any rate plaintiffs herein are guilty of laches. The respondent court relying on the Arcuino case, concluded that respondents had acquired the property under litigation by prescription. We cannot agree with such conclusion, because there is one very marked and important difference between the case at bar and that of the Arcuino case, and that is, that since 1933 petitioner Sulpicia Jimenez was a title holder, the property then being registered in her and her uncle Carlos Jimenez' name. In the Arcuino case, this Supreme Court held. "(I)t is true that lands registered under the Torrens System may not be acquired by prescription but plaintiffs herein are not the registered owners." (Rollo, p. 38) Even in the said cited case the principle of imprescriptibility of Torrens Titles was respected.

Melecia Cayabyab's possession or of her predecessors-in-interest would be unavailing against the petitioner Sulpicia Jimenez who was the holder pro-indiviso with Carlos Jimenez of the Torrens Certificate of Title covering a tract of land which includes the portion now in question, from February 28, 1933, when the Original Certificate of Title No. 50933 (Exhibit 8) was issued. No possession by any person of any portion of the land covered by said original certificate of titles, could defeat the title of the registered owner of the land covered by the certificate of title. (Benin v. Tuason, L-26127, June 28, 1974, 57 SCRA 531) Sulpicia's title over her one-half undivided property remained good and continued to be good when she segregated it into a new title (T.C.T No. 82275, Exhibit "A") in 1969. Sulpicia's ownership over her one-half of the land and which is the land in dispute was always covered by a Torrens title, and therefore, no amount of possession thereof by the respondents, could ever defeat her proprietary rights thereon. It is apparent, that the right of plaintiff (now petitioner) to institute this action to recover possession of the portion of the land in question based on the Torrens Title of Sulpicia Jimenez, T.C.T. No. 82275 (Exhibit "A") is imprescriptible and not barred under the doctrine of laches. (J.M. Tuason & Co. v. Macalindong, L-15398, December 29, 1962, Francisco v. Cruz, et al., 43 O.G. 5105) Rollo, p. 39) The respondent Court of Appeals declared the petitioner Sulpicia Jimenez guilty of laches and citing the ruling in the case of Heirs of Lacamen v. Heirs of Laruan (65 SCRA 605), held that, since petitioner Sulpicia Jimenez executed her Affidavit of SelfAdjudication only in 1969, she lost the right to recover possession of the parcel of land subject of the litigation. In this instance, again We rule for the petitioner. There is no absolute rule as to what constitutes laches or staleness of demand; each case is to be determined according to its particular circumstances. The question of laches is addressed to the sound discretion of the court and since laches is an equitable doctrine, its application is controlled by equitable considerations. It cannot be worked to defeat justice or to perpetrate fraud and injustice. It would be rank injustice and patently inequitous to deprive the lawful heirs of their rightful inheritance. Petitioner Sulpicia Jimenez is entitled to the relief prayed for, declaring her to be the sole and absolute owner of the land in question with right to its possession and enjoyment. Since her uncle Carlos Jimenez died in 1936, his pro-indiviso share in the properties then owned in co-ownership with his niece Sulpicia descended by intestacy to Sulpicia Jimenez alone because Carlos died without any issue or other heirs. After all, the professed objective of Act No. 496, otherwise known as the Land Registration Act or the law which established the Torrens System of Land Registration in the Philippines is that the stability of the landholding system in the Philippines depends on the confidence of the people in the titles covering the properties. And to this end, this Court has invariably upheld the indefeasibility of the Torrens Title and in, among others, J.M. Tuason and Co., Inc. v. Macalindong (6 SCRA 938), held that "the right of the appellee to file an action to recover possession based on its Torrens Title is imprescriptible and not barred under the doctrine of laches.

WHEREFORE, the Petition for Review is hereby GRANTED. The Decision and Resolution dated March 1, 1977 and June 3, 1977 in CA G.R. No. L-49178-R are SET ASIDE. SO ORDERED. Padilla, Sarmiento and Regalado, JJ., concur.Melencio-Herrera, J., took no part. Footnotes 1 & 2 Penned by Justice Ameurfina Melencio-Herrera, and concurred in by Justices Jose G. Bautista, Mariano V. Agcaoili and Rafael C. Climaco. Justice Lourdes P. San Diego, dissenting G.R. No. L-22595 November 1, 1927

with the laws of his Turkish nationality, for which reason they are void as being in violation or article 10 of the Civil Code which, among other things, provides the following: Nevertheless, legal and testamentary successions, in respect to the order of succession as well as to the amount of the successional rights and the intrinsic validity of their provisions, shall be regulated by the national law of the person whose succession is in question, whatever may be the nature of the property or the country in which it may be situated. But the fact is that the oppositor did not prove that said testimentary dispositions are not in accordance with the Turkish laws, inasmuch as he did not present any evidence showing what the Turkish laws are on the matter, and in the absence of evidence on such laws, they are presumed to be the same as those of the Philippines. (Lim and Lim vs. Collector of Customs, 36 Phil., 472.) It has not been proved in these proceedings what the Turkish laws are. He, himself, acknowledges it when he desires to be given an opportunity to present evidence on this point; so much so that he assigns as an error of the court in not having deferred the approval of the scheme of partition until the receipt of certain testimony requested regarding the Turkish laws on the matter. The refusal to give the oppositor another opportunity to prove such laws does not constitute an error. It is discretionary with the trial court, and, taking into consideration that the oppositor was granted ample opportunity to introduce competent evidence, we find no abuse of discretion on the part of the court in this particular. There is, therefore, no evidence in the record that the national law of the testator Joseph G. Brimo was violated in the testamentary dispositions in question which, not being contrary to our laws in force, must be complied with and executed. lawphil.net Therefore, the approval of the scheme of partition in this respect was not erroneous. In regard to the first assignment of error which deals with the exclusion of the herein appellant as a legatee, inasmuch as he is one of the persons designated as such in will, it must be taken into consideration that such exclusion is based on the last part of the second clause of the will, which says: Second. I like desire to state that although by law, I am a Turkish citizen, this citizenship having been conferred upon me by conquest and not by free choice, nor by nationality and, on the other hand, having resided for a considerable length of time in the Philippine Islands where I succeeded in acquiring all of the property that I now possess, it is my wish that the distribution of my property and everything in connection with this, my will, be made and disposed of in accordance with the laws in force in the Philippine islands, requesting all of my relatives to respect this wish, otherwise, I annul and cancel beforehand whatever disposition found in this will favorable to the person or persons who fail to comply with this request.

Testate Estate of Joseph G. Brimo, JUAN MICIANO, administrator, petitionerappellee, vs. ANDRE BRIMO, opponent-appellant. Ross, Lawrence and Selph for appellant. Camus and Delgado for appellee.

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

The institution of legatees in this will is conditional, and the condition is that the instituted legatees must respect the testator's will to distribute his property, not in accordance with the laws of his nationality, but in accordance with the laws of the Philippines. If this condition as it is expressed were legal and valid, any legatee who fails to comply with it, as the herein oppositor who, by his attitude in these proceedings has not respected the will of the testator, as expressed, is prevented from receiving his legacy. The fact is, however, that the said condition is void, being contrary to law, for article 792 of the civil Code provides the following: Impossible conditions and those contrary to law or good morals shall be considered as not imposed and shall not prejudice the heir or legatee in any manner whatsoever, even should the testator otherwise provide. And said condition is contrary to law because it expressly ignores the testator's national law when, according to article 10 of the civil Code above quoted, such national law of the testator is the one to govern his testamentary dispositions. Said condition then, in the light of the legal provisions above cited, is considered unwritten, and the institution of legatees in said will is unconditional and consequently valid and effective even as to the herein oppositor. It results from all this that the second clause of the will regarding the law which shall govern it, and to the condition imposed upon the legatees, is null and void, being contrary to law. All of the remaining clauses of said will with all their dispositions and requests are perfectly valid and effective it not appearing that said clauses are contrary to the testator's national law. Therefore, the orders appealed from are modified and it is directed that the distribution of this estate be made in such a manner as to include the herein appellant Andre Brimo as one of the legatees, and the scheme of partition submitted by the judicial administrator is approved in all other respects, without any pronouncement as to costs. So ordered. Street, Malcolm, Avancea, Villamor and Ostrand, JJ., concur. POLLY CAYETANO, petitioner, vs. HON. TOMAS T. LEONIDAS, in his capacity as the Presiding Judge of Branch XXXVIII, Court of First Instance of Manila and NENITA CAMPOS PAGUIA, respondents.

1984 May 30 1st Division G.R. No. L-54919 D E C I S I O N

GUTIERREZ, JR., J.:

This is a petition for review on certiorari, seeking to annul the order of the respondent judge of the Court of First Instance of Manila, Branch XXXVIII, which admitted to and allowed the probate of the last will and testament of Adoracion C. Campos, after an ex-parte presentation of evidence by herein private respondent.

On January 31, 1977, Adoracion C. Campos died, leaving her father, petitioner Hermogenes Campos and her sisters, private respondent Nenita C. Paguia, Remedios C. Lopez and Marieta C. Medina as the surviving heirs. As Hermogenes Campos was the only compulsory heir, he executed an Affidavit of Adjudication under Rule 74, Section I of the Rules of Court whereby he adjudicated unto himself the ownership of the entire estate of the deceased Adoracion Campos.

Eleven months after, on November 25, 1977, Nenita C. Paguia filed a petition for the reprobate of a will of the deceased, Adoracion Campos, which was allegedly executed in the United States and for her appointment as administratrix of the estate of the deceased testatrix.

In her petition, Nenita alleged that the testatrix was an American citizen at the time of her death and was a permanent resident of 4633 Ditman Street, Philadelphia, Pennsylvania, U.S.A.; that the testatrix died in Manila on January 31, 1977 while temporarily residing with her sister at 2167 Leveriza, Malate, Manila; that during her lifetime, the testatrix made her last will and testament on July 10, 1975, according to the laws of Pennsylvania, U.S.A., nominating Wilfredo Barzaga of New Jersey as executor; that after the testatrix' death, her last will and testament was presented, probated, allowed, and registered with the Registry of Wills at the County of Philadelphia, U.S.A., that Clement L. McLaughlin, the administrator who was appointed after Dr. Barzaga had declined and waived his appointment as executor in favor of the former, is also a resident of Philadelphia, U.S.A., and that therefore, there is an urgent need for the appointment of an administratrix to administer and eventually distribute the properties of the estate located in the Philippines.

On January 11, 1978, an opposition to the reprobate of the will was filed by herein petitioner alleging among other things, that he has every reason to believe that the will in question is a forgery; that the intrinsic provisions of the will are null and void; and that even if pertinent American laws on intrinsic provisions are invoked, the same could not apply inasmuch as they would work injustice and injury to him.

Another manifestation was filed by the petitioner on April 14, 1979, confirming the withdrawal of his opposition, acknowledging the same to be his voluntary act and deed.

On December 1, 1978, however, the petitioner through his counsel, Atty. Franco Loyola, filed a Motion to Dismiss Opposition (With Waiver of Rights or Interests) stating that he "has been able to verify the veracity thereof (of the will) and now confirms the same to be truly the probated will of his daughter Adoracion." Hence, an ex-parte presentation of evidence for the reprobate of the questioned will was made.

On May 25, 1979, Hermogenes Campos filed a petition for relief, praying that the order allowing the will be set aside on the ground that the withdrawal of his opposition to the same was secured through fraudulent means. According to him, the "Motion to Dismiss Opposition" was inserted among the papers which he signed in connection with two Deeds of Conditional Sales which he executed with the Construction and Development Corporation of the Philippines (CDCP). He also alleged that the lawyer who filed the withdrawal of the opposition was not his counsel-of-record in the special proceedings case.

On January 10, 1979, the respondent judge issued an order to wit:

The petition for relief was set for hearing but the petitioner failed to appear. He made several motions for postponement until the hearing was set on May 29, 1980.

"At the hearing, it has been satisfactorily established that Adoracion C. Campos, in her lifetime, was a citizen of the United States of America with a permanent residence at 4633 Ditman Street, Philadelphia, PA 19124, (Exhibit D); that when alive, Adoracion C. Campos executed a Last Will and Testament in the county of Philadelphia, Pennsylvania, U.S.A., according to the laws thereat (Exhibits E-3 to E-3b); that while in temporary sojourn in the Philippines, Adoracion C. Campos died in the City of Manila (Exhibit C) leaving property both in the Philippines and in the United States of America; that the Last Will and Testament of the late Adoracion C. Campos was admitted and granted probate by the Orphan's Court Division of the Court of Common Pleas, the probate court of the Commonwealth of Pennsylvania, County of Philadelphia, U.S.A., and letters of administration were issued in favor of Clement J. McLaughlin, all in accordance with the laws of the said foreign country on procedure and allowance of wills (Exhibits E to E-10); and that the petitioner is not suffering from any disqualification which would render her unfit as administratrix of the estate in the Philippines of the late Adoracion C. Campos.

On May 18, 1980, petitioner filed another motion entitled "Motion to Vacate and/or Set Aside the Order of January 10, 1979, and/or dismiss the case for lack of jurisdiction. In this motion, the notice of hearing provided:

"Please include this motion in your calendar for hearing on May 29, 1980 at 8:30 in the morning for submission for reconsideration and resolution of the Honorable Court. Until this Motion is resolved, may I also request for the future setting of the case for hearing on the Oppositor's motion to set aside previously filed."

"WHEREFORE, the Last Will and Testament of the late Adoracion C. Campos is hereby admitted to and allowed probate in the Philippines, and Nenita Campos Paguia is hereby appointed Administratrix of the estate of said decedent; let Letters of Administration with the Will annexed issue in favor of said Administratrix upon her filing of a bond in the amount of P5,000.00 conditioned under the provisions of Section I, Rule 81 of the Rules of Court.

The hearing of May 29, 1980 was re-set by the court for June 19, 1980. When the case was called for hearing on this date, the counsel for petitioner tried to argue his motion to vacate instead of adducing evidence in support of the petition for relief. Thus, the respondent judge issued an order dismissing the petition for relief for failure to present evidence in support thereof. Petitioner filed a motion for reconsideration but the same was denied. In the same order, respondent judge also denied the motion to vacate for lack of merit. Hence, this petition.

Meanwhile, on June 6, 1982, petitioner Hermogenes Campos died and left a will, which, incidentally has been questioned by the respondent, his children and forced

heirs as, on its face patently null and void, and a fabrication, appointing Polly Cayetano as the executrix of his last will and testament. Cayetano, therefore, filed a motion to substitute herself as petitioner in the instant case which was granted by the court on September 13, 1982.

"5) He acquired no jurisdiction over the testate case, the fact that the Testator at the time of death was a usual resident of Dasmarias, Cavite, consequently Cavite Court of First Instance has exclusive jurisdiction over the case (De Borja vs. Tan, G.R. No. L-7792, July 1955)."

A motion to dismiss the petition on the ground that the rights of the petitioner Hermogenes Campos merged upon his death with the rights of the respondent and her sisters, only remaining children and forced heirs was denied on September 12, 1983.

The first two issues raised by the petitioner are anchored on the allegation that the respondent judge acted with grave abuse of discretion when he allowed the withdrawal of the petitioner's opposition to the reprobate of the will.

Petitioner Cayetano persists with the allegations that the respondent judge acted without or in excess of his jurisdiction when:

"1) He ruled the petitioner lost his standing in court deprived the Right to Notice (sic) upon the filing of the Motion to Dismiss opposition with waiver of rights or interests against the estate of deceased Adoracion C. Campos, thus, paving the way for the ex-parte hearing of the petition for the probate of decedent will.

We find no grave abuse of discretion on the part of the respondent judge. No proof was adduced to support petitioner's contention that the motion to withdraw was secured through fraudulent means and that Atty. Franco Loyola was not his counsel of record. The records show that after the filing of the contested motion, the petitioner at a later date, filed a manifestation wherein he confirmed that the Motion to Dismiss Opposition was his voluntary act and deed. Moreover, at the time the motion was filed, the petitioner's former counsel, Atty. Jose P. Lagrosa had long withdrawn from the case and had been substituted by Atty. Franco Loyola who in turn filed the motion. The present petitioner cannot, therefore, maintain that the old man's attorney of record was Atty. Lagrosa at the time of filing the motion. Since the withdrawal was in order, the respondent judge acted correctly in hearing the probate of the will exparte, there being no other opposition to the same.

"2) He ruled that petitioner can waive, renounce or repudiate (not made in a public or authenticated instrument), or by way of a petition presented to the court but by way of a motion presented prior to an order for the distribution of the estate - the law especially providing that repudiation of an inheritance must be presented, within 30 days after it has issued an order for the distribution of the estate in accordance with the rules of Court.

The third issue raised deals with the validity of the provisions of the will. As a general rule, the probate court's authority is limited only to the extrinsic validity of the will, the due execution thereof, the testatrix's testamentary capacity and the compliance with the requisites or solemnities prescribed by law. The intrinsic validity of the will normally comes only after the court has declared that the will has been duly authenticated. However, where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue. (Maninang v. Court of Appeals, 114 SCRA 478).

"3) He ruled that the right of a forced heir to his legitime can be divested by a decree admitting a will to probate in which no provision is made for the forced heir in complete disregard of Law of Succession. In the case at bar, the petitioner maintains that since the respondent judge allowed the reprobate of Adoracion's will, Hermogenes C. Campos was divested of his legitime which was reserved by the law for him. "4) He denied petitioner's petition for Relief on the ground that no evidence was adduced to support the Petition for Relief when no Notice nor hearing was set to afford petitioner to prove the merit of his petition - a denial of the due process and a grave abuse of discretion amounting to lack of jurisdiction.

This contention is without merit.

Although on its face, the will appeared to have preterited the petitioner and thus, the respondent judge should have denied its reprobate outright, the private respondents have sufficiently established that Adoracion was, at the time of her death, an American citizen and a permanent resident of Philadelphia, Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and 1039 of the Civil Code which respectively provide:

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

Art. 16 par. (2). xxx xxx xxx

xxx

xxx

xxx "The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and under the law of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic validity of the provision of the will and the amount of successional rights are to be determined under Texas law, the Philippine Law on legitimes cannot be applied to the testacy of Amos G. Bellis."

"However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found."

Art. 1039.

"Capacity to succeed is governed by the law of the nation of the decedent."

As regards the alleged absence of notice of hearing for the petition for relief, the records will bear the fact that what was repeatedly scheduled for hearing on separate dates until June 19, 1980 was the petitioner's petition for relief and not his motion to vacate the order of January 10, 1979. There is no reason why the petitioner should have been led to believe otherwise. The court even admonished the petitioner's failing to adduce evidence when his petition for relief was repeatedly set for hearing. There was no denial of due process. The fact that he requested "for the future setting of the case for hearing . . ." did not mean that at the next hearing, the motion to vacate would be heard and given preference in lieu of the petition for relief. Furthermore, such request should be embodied in a motion and not in a mere notice of hearing.

the law which governs Adoracion Campo's will is the law of Pennsylvania, U.S.A., which is the national law of the decedent. Although the parties admit that the Pennsylvania law does not provide for legitimes and that all the estate may be given away by the testatrix to a complete stranger, the petitioner argues that such law should not apply because it would be contrary to the sound and established public policy and would run counter to the specific provisions of Philippine Law.

Finally, we find the contention of the petition as to the issue of jurisdiction utterly devoid of merit. Under Rule 73, Section 1, of the Rules of Court, it is provided that:

It is a settled rule that as regards the intrinsic validity of the provisions of the will, as provided for by Article 16 (2) and 1039 of the Civil Code, the national law of the decedent must apply. This was squarely applied in the case of Bellis v. Bellis (20 SCRA 358) wherein we ruled:

"SECTION 1. Where estate of deceased persons settled. - If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of First Instance in the province in which he resided at the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance of any province in which he had estate. The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the place of residence of

the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record."

Therefore, the settlement of the estate of Adoracion Campos was correctly filed with the Court of First Instance of Manila where she had an estate since it was alleged and proven the Adoracion at the time of her death was a citizen and permanent resident of Pennsylvania, United States of America an not a "usual resident of Cavite" as alleged by the petitioner. Moreover, petitioner is now estopped from questioning the jurisdiction of the probate court in the petition for relief. It is a settled rule that a party cannot invoke the jurisdiction of a court to secure affirmative relief, against his opponent and after failing to obtain such relief, repudiate or question that same jurisdiction. (See Saulog Transit, Inc. v. Hon. Manuel Lazaro, et al., G.R. No. 63284, April 4, 1984).

WHEREFORE, the petition for certiorari and prohibition is hereby dismissed for lack of merit.

SO ORDERED. Melencio-Herrera, Plana, Relova and De la Fuente, JJ., concur. Teehankee, J., (Chairman), took no part.