G.R. No. L-770 April 27, 1948

80 Phil 353

ANGEL T. LIMJOCO, petitioner, vs.

INTESTATE ESTATE OF PEDRO O. FRAGRANTE, deceased, respondent.

Angel Limjoco, Jr. and Delfin L. Gonzales for petitioner. Bienvenido A. Tan for respondent.

HILADO, J.:

Under date of May 21, 1946, the Public Service Commission, through Deputy Commissioner Fidel Ibañez, rendered its decision in case No. 4572 of Pedro O. Fragante, as applicant for a certificate of public convenience to install, maintain and operate an ice plant in San Juan, Rizal, whereby said commission held that the evidence therein showed that the public interest and convenience will be promoted in a proper and suitable manner "by authorizing the operation and maintenance of another ice plant of two and one-half (2-½) tons in the municipality of San Juan; that the original applicant Pedro O. Fragante was a Filipino Citizen at the time of his death; and that his intestate estate is financially capable of maintaining the proposed service". The commission, therefore, overruled the opposition filed in the case and ordered "that under the provisions of section 15 of Commonwealth Act No. 146, as amended a certificate of public convenience be issued to the Intestate Estate of the deceased Pedro Fragante, authorizing said Intestate Estate through its Special or Judicial Administrator, appointed by the proper court of competent jurisdiction, to maintain and operate an ice plant with a daily productive capacity of two and one-half (2-1/2) tons in the Municipality of San Juan and to sell the ice produced from said plant in the said Municipality of San Juan and in the Municipality of Mandaluyong, Rizal, and in Quezon City", subject to the conditions therein set forth in detail (petitioner's brief, pp. 33-34).

Petitioner makes four assignments of error in his brief as follows:

1. The decision of the Public Service Commission is not in accordance with law.

2. The decision of the Public Service Commission is not reasonably supported by evidence.

3. The Public Service Commission erred in not giving petitioner and the Ice and Cold Storage Industries of the Philippines, Inc., as existing operators, a reasonable opportunity to meet the increased demand.

4. The decision of the Public Service Commission is an unwarranted departure from its announced policy with respect to the establishment and operation of ice plant. (Pp. 1-2, petitioner's brief.)

In his argument petitioner contends that it was error on the part of the commission to allow the substitution of the legal representative of the estate of Pedro O. Fragante for the latter as party applicant in the case then pending before the commission, and in subsequently granting to said estate the certificate applied for, which is said to be in contravention of law.

If Pedro O. Fragante had not died, there can be no question that he would have had the right to prosecute his application before the commission to its final conclusion. No one would have denied

him that right. As declared by the commission in its decision, he had invested in the ice plant in question P 35,000, and from what the commission said regarding his other properties and business, he would certainly have been financially able to maintain and operate said plant had he not died. His transportation business alone was netting him about P1,440 a month. He was a Filipino citizen and continued to be such till his demise. The commission declared in its decision, in view of the evidence before it, that his estate was financially able to maintain and operate the ice plant. The aforesaid right of Pedro O. Fragante to prosecute said application to its conclusion was one which by its nature did not lapse through his death. Hence, it constitutes a part of the assets of his estate, for which a right was property despite the possibility that in the end the commission might have denied application, although under the facts of the case, the commission granted the application in view of the financial ability of the estate to maintain and operate the ice plant. Petitioner, in his memorandum of March 19, 1947, admits (page 3) that the certificate of public convenience once granted "as a rule, should descend to his estate as an asset". Such certificate would certainly be property, and the right to acquire such a certificate, by complying with the requisites of the law, belonged to the decedent in his lifetime, and survived to his estate and judicial administrator after his death.

If Pedro O. Fragrante had in his lifetime secured an option to buy a piece of land and during the life of the option he died, if the option had been given him in the ordinary course of business and not out of special consideration for his person, there would be no doubt that said option and the right to exercise it would have survived to his estate and legal representatives. In such a case there would also be the possibility of failure to acquire the property should he or his estate or legal representative fail to comply with the conditions of the option. In the case at bar Pedro O. Fragrante's undoubted right to apply for and acquire the desired certificate of public convenience — the evidence established that the public needed the ice plant — was under the law conditioned only upon the requisite citizenship and economic ability to maintain and operate the service. Of course, such right to acquire or obtain such certificate of public convenience was subject to failure to secure its objective through nonfulfillment of the legal conditions, but the situation here is no different from the legal standpoint from that of the option in the illustration just given.

Rule 88, section 2, provides that the executor or administrator may bring or defend actions, among other cases, for the protection of the property or rights of the deceased which survive, and it says that such actions may be brought or defended "in the right of the deceased".

Rule 82, section 1, paragraph (a), mentions among the duties of the executor or administrator, the making of an inventory of all goods, chattels, rights, credits, and estate of the deceased which shall come to his possession or knowledge, or to the possession of any other person for him.

In his commentaries on the Rules of Court (Volume II, 2nd ed., pages 366, 367) the present chief Justice of this Court draws the following conclusion from the decisions cited by him:

Therefore, unless otherwise expressly provided by law, any action affecting the property or rights (emphasis supplied) of a deceased person which may be brought by or against him if he were alive, may likewise be instituted and prosecuted by or against the administrator, unless the action is for recovery of money, debt or interest thereon, or unless, by its very nature, it cannot survive, because death extinguishes the right . . . .

It is true that a proceeding upon the application for a certificate of public convenience before the Public Service Commission is not an "action". But the foregoing provisions and citations go to prove that the decedent's rights which by their nature are not extinguished by death go to make up a part and parcel of the assets of his estate which, being placed under the control and management of the executor or administrator, can not be exercised but by him in representation of the estate for the benefit of the creditors, devisees or legatees, if any, and the heirs of the decedent. And if the right

involved happens to consist in the prosecution of an unfinished proceeding upon an application for a certificate of public convenience of the deceased before the Public Service Commission, it is but logical that the legal representative be empowered and entitled in behalf of the estate to make the right effective in that proceeding.

Manresa (Vol. III, 6th ed., p. 11) says that No. 10 of article 334 and article 336 of the Civil Code, respectively, consider as immovable and movable things rights which are not material. The same eminent commentator says in the cited volume (p. 45) that article 336 of the Civil Code has been deficiently drafted in that it is not sufficiently expressive of all incorporeal rights which are also property for juridical purposes.

Corpus Juris (Vol. 50, p. 737) states that in the broad sense of the term, property includes, among other things, "an option", and "the certificate of the railroad commission permitting the operation of a bus line", and on page 748 of the same volume we read:

However, these terms (real property, as estate or interest) have also been declared to include every species of title, inchoate or complete, and embrace rights which lie in contract, whether executory or executed. (Emphasis supplied.)

Another important question raised by petitioner is whether the estate of Pedro O. Fragrante is a "person" within the meaning of the Public Service Act.

Words and Phrases, First Series, (Vol. 6, p, 5325), states the following doctrine in the jurisdiction of the State of Indiana:

As the estate of the decedent is in law regarded as a person, a forgery committed after the death of the man whose name purports to be signed to the instrument may be prosecuted as with the intent to defraud the estate. Billings vs. State, 107 Ind., 54, 55, 6 N. E. 914, 7 N. E. 763, 57 Am. Rep. 77.

The Supreme Court of Indiana in the decision cited above had before it a case of forgery committed after the death of one Morgan for the purpose of defrauding his estate. The objection was urged that the information did not aver that the forgery was committed with the intent to defraud any person. The Court, per Elliott, J., disposed of this objection as follows:

. . . The reason advanced in support of this proposition is that the law does not regard the estate of a decedent as a person. This intention (contention) cannot prevail. The estate of the decedent is a person in legal contemplation. "The word "person" says Mr. Abbot, "in its legal signification, is a generic term, and includes artificial as well as natural persons," 2 Abb. Dict. 271; Douglas vs. Pacific, etc. Co., 4 Cal. 304; Planters', etc., Bank vs. Andrews, 8 Port. (Ala.) 404. It said in another work that 'persons are of two kinds: natural and artificial. A natural person is a human being. Artificial persons include (1) a collection or succession of natural persons forming a corporation; (2) a collection of property to which the law attributes the capacity of having rights and duties. The latter class of artificial persons is recognized only to a limited extent in our law. "Examples are the estate of a bankrupt or deceased person." 2 Rapalje & L. Law Dict. 954. Our own cases inferentially recognize the correctness of the definition given by the authors from whom we have quoted, for they declare that it is sufficient, in pleading a claim against a decedent's estate, to designate the defendant as the estate of the deceased person, naming him. Ginn vs. Collins, 43 Ind. 271. Unless we accept this definition as correct, there would be a failure of justice in cases where, as here, the forgery is committed after the death of a person whose name is forged; and this is a result to be avoided if it can be done consistent with principle. We perceive no difficulty in avoiding

such a result; for, to our minds, it seems reasonable that the estate of a decedent should be regarded as an artificial person. It is the creation of law for the purpose of enabling a disposition of the assets to be properly made, and, although natural persons as heirs, devises, or creditors, have an interest in the property, the artificial creature is a distinct legal entity. The interest which natural persons have in it is not complete until there has been a due administration; and one who forges the name of the decedent to an instrument purporting to be a promissory note must be regarded as having intended to defraud the estate of the decedent, and not the natural persons having diverse interests in it, since ha cannot be presumed to have known who those persons were, or what was the nature of their respective interest. The fraudulent intent is against the artificial person, — the estate — and not the natural persons who have direct or contingent interest in it. (107 Ind. 54, 55, 6 N.E. 914-915.)

In the instant case there would also be a failure of justice unless the estate of Pedro O. Fragrante is considered a "person", for quashing of the proceedings for no other reason than his death would entail prejudicial results to his investment amounting to P35,000.00 as found by the commission, not counting the expenses and disbursements which the proceeding can be presumed to have occasioned him during his lifetime, let alone those defrayed by the estate thereafter. In this jurisdiction there are ample precedents to show that the estate of a deceased person is also considered as having legal personality independent of their heirs. Among the most recent cases may be mentioned that of "Estate of Mota vs. Concepcion, 56 Phil., 712, 717, wherein the principal plaintiff was the estate of the deceased Lazaro Mota, and this Court gave judgment in favor of said estate along with the other plaintiffs in these words:

. . . the judgment appealed from must be affirmed so far as it holds that defendants Concepcion and Whitaker are indebted to he plaintiffs in the amount of P245,804.69 . . . .

Under the regime of the Civil Code and before the enactment of the Code of Civil Procedure, the heirs of a deceased person were considered in contemplation of law as the continuation of his personality by virtue of the provision of article 661 of the first Code that the heirs succeed to all the rights and obligations of the decedent by the mere fact of his death. It was so held by this Court in Barrios vs. Dolor, 2 Phil., 44, 46. However, after the enactment of the Code of Civil Procedure, article 661 of the Civil Code was abrogated, as held in Suiliong & Co. vs. Chio-Taysan, 12 Phil., 13, 22. In that case, as well as in many others decided by this Court after the innovations introduced by the Code of Civil Procedure in the matter of estates of deceased persons, it has been the constant doctrine that it is the estate or the mass of property, rights and assets left by the decedent, instead of the heirs directly, that becomes vested and charged with his rights and obligations which survive after his demise.

The heirs were formerly considered as the continuation of the decedent's personality simply by legal fiction, for they might not have been flesh and blood — the reason was one in the nature of a legal exigency derived from the principle that the heirs succeeded to the rights and obligations of the decedent. Under the present legal system, such rights and obligations as survive after death have to be exercised and fulfilled only by the estate of the deceased. And if the same legal fiction were not indulged, there would be no juridical basis for the estate, represented by the executor or administrator, to exercise those rights and to fulfill those obligations of the deceased. The reason and purpose for indulging the fiction is identical and the same in both cases. This is why according to the Supreme Court of Indiana in Billings vs. State, supra, citing 2 Rapalje & L. Dictionary, 954, among the artificial persons recognized by law figures "a collection of property to which the law attributes the capacity of having rights and duties", as for instance, the estate of a bankrupt or deceased person.

Petitioner raises the decisive question of whether or not the estate of Pedro O. Fragrante can be considered a "citizen of the Philippines" within the meaning of section 16 of the Public Service Act, as amended, particularly the proviso thereof expressly and categorically limiting the power of the commission to issue certificates of public convenience or certificates of public convenience and necessity "only to citizens of the Philippines or of the United States or to corporations, copartnerships, associations, or joint-stock companies constituted and organized under the laws of the Philippines", and the further proviso that sixty per centum of the stock or paid-up capital of such entities must belong entirely to citizens of the Philippines or of the United States.

Within the Philosophy of the present legal system, the underlying reason for the legal fiction by which, for certain purposes, the estate of the deceased person is considered a "person" is the avoidance of injustice or prejudice resulting from the impossibility of exercising such legal rights and fulfilling such legal obligations of the decedent as survived after his death unless the fiction is indulged. Substantially the same reason is assigned to support the same rule in the jurisdiction of the State of Indiana, as announced in Billings vs. State, supra, when the Supreme Court of said State said:

. . . It seems reasonable that the estate of a decedent should be regarded as an artificial person. it is the creation of law for the purpose of enabling a disposition of the assets to be properly made . . . .

Within the framework and principles of the constitution itself, to cite just one example, under the bill of rights it seems clear that while the civil rights guaranteed therein in the majority of cases relate to natural persons, the term "person" used in section 1 (1) and (2) must be deemed to include artificial or juridical persons, for otherwise these latter would be without the constitutional guarantee against being deprived of property without due process of law, or the immunity from unreasonable searches and seizures. We take it that it was the intendment of the framers to include artificial or juridical, no less than natural, persons in these constitutional immunities and in others of similar nature. Among these artificial or juridical persons figure estates of deceased persons. Hence, we hold that within the framework of the Constitution, the estate of Pedro O. Fragrante should be considered an artificial or juridical person for the purposes of the settlement and distribution of his estate which, of course, include the exercise during the judicial administration thereof of those rights and the fulfillment of those obligations of his which survived after his death. One of those rights was the one involved in his pending application before the Public Service Commission in the instant case, consisting in the prosecution of said application to its final conclusion. As stated above, an injustice would ensue from the opposite course.

How about the point of citizenship? If by legal fiction his personality is considered extended so that any debts or obligations left by, and surviving, him may be paid, and any surviving rights may be exercised for the benefit of his creditors and heirs, respectively, we find no sound and cogent reason for denying the application of the same fiction to his citizenship, and for not considering it as likewise extended for the purposes of the aforesaid unfinished proceeding before the Public Service Commission. The outcome of said proceeding, if successful, would in the end inure to the benefit of the same creditors and the heirs. Even in that event petitioner could not allege any prejudice in the legal sense, any more than he could have done if Fragrante had lived longer and obtained the desired certificate. The fiction of such extension of his citizenship is grounded upon the same principle, and motivated by the same reason, as the fiction of the extension of personality. The fiction is made necessary to avoid the injustice of subjecting his estate, creditors and heirs, solely by reason of his death to the loss of the investment amounting to P35,000, which he has already made in the ice plant, not counting the other expenses occasioned by the instant proceeding, from the Public Service Commission of this Court.

We can perceive no valid reason for holding that within the intent of the constitution (Article IV), its provisions on Philippine citizenship exclude the legal principle of extension above adverted to. If for reasons already stated our law indulges the fiction of extension of personality, if for such reasons the estate of Pedro O. Fragrante should be considered an artificial or juridical person herein, we can find no justification for refusing to declare a like fiction as to the extension of his citizenship for the purposes of this proceeding.

Pedro O. Fragrante was a Filipino citizen, and as such, if he had lived, in view of the evidence of record, he would have obtained from the commission the certificate for which he was applying. The situation has suffered but one change, and that is, his death. His estate was that of a Filipino citizen. And its economic ability to appropriately and adequately operate and maintain the service of an ice plant was the same that it received from the decedent himself. In the absence of a contrary showing, which does not exist here, his heirs may be assumed to be also Filipino citizens; and if they are not, there is the simple expedient of revoking the certificate or enjoining them from inheriting it.

Upon the whole, we are of the opinion that for the purposes of the prosecution of said case No. 4572 of the Public Service Commission to its final conclusion, both the personality and citizenship of Pedro O. Fragrante must be deemed extended, within the meaning and intent of the Public Service Act, as amended, in harmony with the constitution: it is so adjudged and decreed.

Decision affirmed, without costs. So ordered.

Moran, C.J., Pablo, Bengzon, Briones, Padilla and Tuason, JJ., concur. Paras, J., I hereby certify that Mr. Justice Feria voted with the majority.

G.R. No. L-5064 February 27, 1953

92 Phil 721

BIENVENIDO A. IBARLE, plaintiff-appellant, vs.

ESPERANZA M. PO, defendant-appellant.

Quirico del Mar for appellant. Daniel P. Tumulak and Conchita F. Miel appellee.

TUASON, J.:

This action commenced in the Court of First Instance of Cebu to annul a deed of sale conveying to the defendant, in consideration of P1,700, one undivided half of a parcel of land which previously had been sold, along with the other half, by the same vendor to the plaintiff's grantors. judgment was against the plaintiff.

The case was submitted for decision upon an agreed statement of facts, the pertinent parts of which are thus summarized in the appealed decision:

1st. — That Leonard j. Winstanley and Catalina Navarro were husband and wife, the former having died on June 6, 1946 leaving heir the surviving spouse and some minor children;

2nd. — hat upon the death of L.J. Winstanley, he left a parcel of land described under Transfer Certificate of title No. 2391 of the Registry of Deeds of the Province of Cebu;

3rd. — That the above mentioned property was a conjugal property;

4th. — That on April 15, 1946, the surviving spouse Catalina Navarro Vda. de Winstanley sold the entire parcel of land to the spouses Maria Canoy, alleging among other things, that she needed money for the support of her children;

5th. — That on May 24, 1947, the spouses Maria Canoy and Roberto Canoy sold the same parcel of land to the plaintiff in this case named Bienvenido A. Ebarle;

6th. — That the two deeds of sale referred to above were not registered and have never been registered up to the date;

7th. — That on January 17, 1948 surviving spouse Catalina Navarro Vda. de Winstanley, after her appointment as guardian of her children by this court (Special proceeding no. 212-R) sold one-half of the land mentioned above to Esperanza M. Po, defendant in the instant case, which portion belongs to the children of the above named spouses.

As stated by the trial Judge, the sole question for determination is the validity of the sale to Esperanza M. Po, the last purchaser. This question in turn depends upon the validity of the prior ale to Maria Canoy and Roberto Canoy.

Article 657 of the old Civil Code provides: "The rights to the succession of a person are transmitted from the moment of his death." in a slightly different language, this article is incorporated in the new Civil Code as article 777.

Manresa, commending on article 657 of the Civil Code of Spain, says:

The moment of death is the determining factor when the heirs acquire a definite right to the inheritance, whether such right be pure or contingent. It is immaterial whether a short or long period of time lapses between the death of the predecessor and the entry into possession of the property of the inheritance because the right is always deemed to be retroactive from the moment of death. (5 Manresa, 317.)

The above provision and comment make it clear that when Catalina Navarro Vda. de Winstanley sold the entire parcel to the Canoy spouses, one-half of it already belonged to the seller's children. No formal or judicial declaration being needed to confirm the children's title, it follows that the first sale was null and void in so far as it included the children's share.

On the other hand, the sale to the defendant having been made by authority of the competent court was undeniably legal and effective. The fact that it has not been recorded is of no consequence. If registration were necessary, still the non-registration would not avail the plaintiff because it was due to no other cause than his own opposition.

The decision will be affirmed subject to the reservation, made in said decision, of the right of the plaintitff and/or the Canoy spouses to bring such action against Catalina Navarro Vda. de Winstanley as may be appropriate for such damages as they may have incurred by reason of the voiding of the sale in their favor.

Paras, C.J., Feria, Pablo, Bengzon, Padilla, Montemayor, Reyes, Jugo, Bautista Angelo and Labrador, JJ.,concur.

G.R. No. L-43082 June 18, 1937

64 Phil 353

PABLO LORENZO, as trustee of the estate of Thomas Hanley, deceased, plaintiff-appellant, vs.

JUAN POSADAS, JR., Collector of Internal Revenue, defendant-appellant.

Pablo Lorenzo and Delfin Joven for plaintiff-appellant. Office of the Solicitor-General Hilado for defendant-appellant.

LAUREL, J.:

On October 4, 1932, the plaintiff Pablo Lorenzo, in his capacity as trustee of the estate of Thomas Hanley, deceased, brought this action in the Court of First Instance of Zamboanga against the defendant, Juan Posadas, Jr., then the Collector of Internal Revenue, for the refund of the amount of P2,052.74, paid by the plaintiff as inheritance tax on the estate of the deceased, and for the collection of interst thereon at the rate of 6 per cent per annum, computed from September 15, 1932, the date when the aforesaid tax was [paid under protest. The defendant set up a counterclaim for P1,191.27 alleged to be interest due on the tax in question and which was not included in the original assessment. From the decision of the Court of First Instance of Zamboanga dismissing both the plaintiff's complaint and the defendant's counterclaim, both parties appealed to this court.

It appears that on May 27, 1922, one Thomas Hanley died in Zamboanga, Zamboanga, leaving a will (Exhibit 5) and considerable amount of real and personal properties. On june 14, 1922, proceedings for the probate of his will and the settlement and distribution of his estate were begun in the Court of First Instance of Zamboanga. The will was admitted to probate. Said will provides, among other things, as follows:

4. I direct that any money left by me be given to my nephew Matthew Hanley.

5. I direct that all real estate owned by me at the time of my death be not sold or otherwise disposed of for a period of ten (10) years after my death, and that the same be handled and managed by the executors, and proceeds thereof to be given to my nephew, Matthew Hanley, at Castlemore, Ballaghaderine, County of Rosecommon, Ireland, and that he be directed that the same be used only for the education of my brother's children and their descendants.

6. I direct that ten (10) years after my death my property be given to the above mentioned Matthew Hanley to be disposed of in the way he thinks most advantageous.

x x x x x x x x x

8. I state at this time I have one brother living, named Malachi Hanley, and that my nephew, Matthew Hanley, is a son of my said brother, Malachi Hanley.

The Court of First Instance of Zamboanga considered it proper for the best interests of ther estate to appoint a trustee to administer the real properties which, under the will, were to pass to Matthew Hanley ten years after the two executors named in the will, was, on March 8, 1924, appointed

trustee. Moore took his oath of office and gave bond on March 10, 1924. He acted as trustee until February 29, 1932, when he resigned and the plaintiff herein was appointed in his stead.

During the incumbency of the plaintiff as trustee, the defendant Collector of Internal Revenue, alleging that the estate left by the deceased at the time of his death consisted of realty valued at P27,920 and personalty valued at P1,465, and allowing a deduction of P480.81, assessed against the estate an inheritance tax in the amount of P1,434.24 which, together with the penalties for deliquency in payment consisting of a 1 per cent monthly interest from July 1, 1931 to the date of payment and a surcharge of 25 per cent on the tax, amounted to P2,052.74. On March 15, 1932, the defendant filed a motion in the testamentary proceedings pending before the Court of First Instance of Zamboanga (Special proceedings No. 302) praying that the trustee, plaintiff herein, be ordered to pay to the Government the said sum of P2,052.74. The motion was granted. On September 15, 1932, the plaintiff paid said amount under protest, notifying the defendant at the same time that unless the amount was promptly refunded suit would be brought for its recovery. The defendant overruled the plaintiff's protest and refused to refund the said amount hausted, plaintiff went to court with the result herein above indicated.

In his appeal, plaintiff contends that the lower court erred:

I. In holding that the real property of Thomas Hanley, deceased, passed to his instituted heir, Matthew Hanley, from the moment of the death of the former, and that from the time, the latter became the owner thereof.

II. In holding, in effect, that there was deliquency in the payment of inheritance tax due on the estate of said deceased.

III. In holding that the inheritance tax in question be based upon the value of the estate upon the death of the testator, and not, as it should have been held, upon the value thereof at the expiration of the period of ten years after which, according to the testator's will, the property could be and was to be delivered to the instituted heir.

IV. In not allowing as lawful deductions, in the determination of the net amount of the estate subject to said tax, the amounts allowed by the court as compensation to the "trustees" and paid to them from the decedent's estate.

V. In not rendering judgment in favor of the plaintiff and in denying his motion for new trial.

The defendant-appellant contradicts the theories of the plaintiff and assigns the following error besides:

The lower court erred in not ordering the plaintiff to pay to the defendant the sum of P1,191.27, representing part of the interest at the rate of 1 per cent per month from April 10, 1924, to June 30, 1931, which the plaintiff had failed to pay on the inheritance tax assessed by the defendant against the estate of Thomas Hanley.

The following are the principal questions to be decided by this court in this appeal: (a) When does the inheritance tax accrue and when must it be satisfied? (b) Should the inheritance tax be computed on the basis of the value of the estate at the time of the testator's death, or on its value ten years later? (c) In determining the net value of the estate subject to tax, is it proper to deduct the compensation due to trustees? (d) What law governs the case at bar? Should the provisions of Act No. 3606 favorable to the tax-payer be given retroactive effect? (e) Has there been deliquency in the payment of the inheritance tax? If so, should the additional interest claimed by the defendant in his

appeal be paid by the estate? Other points of incidental importance, raised by the parties in their briefs, will be touched upon in the course of this opinion.

(a) The accrual of the inheritance tax is distinct from the obligation to pay the same. Section 1536 as amended, of the Administrative Code, imposes the tax upon "every transmission by virtue of inheritance, devise, bequest, giftmortis causa, or advance in anticipation of inheritance,devise, or bequest." The tax therefore is upon transmission or the transfer or devolution of property of a decedent, made effective by his death. (61 C. J., p. 1592.) It is in reality an excise or privilege tax imposed on the right to succeed to, receive, or take property by or under a will or the intestacy law, or deed, grant, or gift to become operative at or after death. Acording to article 657 of the Civil Code, "the rights to the succession of a person are transmitted from the moment of his death." "In other words", said Arellano, C. J., ". . . the heirs succeed immediately to all of the property of the deceased ancestor. The property belongs to the heirs at the moment of the death of the ancestor as completely as if the ancestor had executed and delivered to them a deed for the same before his death." (Bondad vs. Bondad, 34 Phil., 232. See also, Mijares vs. Nery, 3 Phil., 195; Suilong & Co., vs. Chio-Taysan, 12 Phil., 13; Lubrico vs. Arbado, 12 Phil., 391; Innocencio vs. Gat-Pandan, 14 Phil., 491; Aliasas vs.Alcantara, 16 Phil., 489; Ilustre vs. Alaras Frondosa, 17 Phil., 321; Malahacan vs. Ignacio, 19 Phil., 434; Bowa vs. Briones, 38 Phil., 27; Osario vs. Osario & Yuchausti Steamship Co., 41 Phil., 531; Fule vs. Fule, 46 Phil., 317; Dais vs. Court of First Instance of Capiz, 51 Phil., 396; Baun vs. Heirs of Baun, 53 Phil., 654.) Plaintiff, however, asserts that while article 657 of the Civil Code is applicable to testate as well as intestate succession, it operates only in so far as forced heirs are concerned. But the language of article 657 of the Civil Code is broad and makes no distinction between different classes of heirs. That article does not speak of forced heirs; it does not even use the word "heir". It speaks of the rights of succession and the transmission thereof from the moment of death. The provision of section 625 of the Code of Civil Procedure regarding the authentication and probate of a will as a necessary condition to effect transmission of property does not affect the general rule laid down in article 657 of the Civil Code. The authentication of a will implies its due execution but once probated and allowed the transmission is effective as of the death of the testator in accordance with article 657 of the Civil Code. Whatever may be the time when actual transmission of the inheritance takes place, succession takes place in any event at the moment of the decedent's death. The time when the heirs legally succeed to the inheritance may differ from the time when the heirs actually receive such inheritance. "Poco importa", says Manresa commenting on article 657 of the Civil Code, "que desde el falleimiento del causante, hasta que el heredero o legatario entre en posesion de los bienes de la herencia o del legado, transcurra mucho o poco tiempo, pues la adquisicion ha de retrotraerse al momento de la muerte, y asi lo ordena el articulo 989, que debe considerarse como complemento del presente." (5 Manresa, 305; see also, art. 440, par. 1, Civil Code.) Thomas Hanley having died on May 27, 1922, the inheritance tax accrued as of the date.

From the fact, however, that Thomas Hanley died on May 27, 1922, it does not follow that the obligation to pay the tax arose as of the date. The time for the payment on inheritance tax is clearly fixed by section 1544 of the Revised Administrative Code as amended by Act No. 3031, in relation to section 1543 of the same Code. The two sections follow:

SEC. 1543. Exemption of certain acquisitions and transmissions. — The following shall not be taxed:

(a) The merger of the usufruct in the owner of the naked title.

(b) The transmission or delivery of the inheritance or legacy by the fiduciary heir or legatee to the trustees.

(c) The transmission from the first heir, legatee, or donee in favor of another beneficiary, in accordance with the desire of the predecessor.

In the last two cases, if the scale of taxation appropriate to the new beneficiary is greater than that paid by the first, the former must pay the difference.

SEC. 1544. When tax to be paid. — The tax fixed in this article shall be paid:

(a) In the second and third cases of the next preceding section, before entrance into possession of the property.

(b) In other cases, within the six months subsequent to the death of the predecessor; but if judicial testamentary or intestate proceedings shall be instituted prior to the expiration of said period, the payment shall be made by the executor or administrator before delivering to each beneficiary his share.

If the tax is not paid within the time hereinbefore prescribed, interest at the rate of twelve per centum per annum shall be added as part of the tax; and to the tax and interest due and unpaid within ten days after the date of notice and demand thereof by the collector, there shall be further added a surcharge of twenty-five per centum.

A certified of all letters testamentary or of admisitration shall be furnished the Collector of Internal Revenue by the Clerk of Court within thirty days after their issuance.

It should be observed in passing that the word "trustee", appearing in subsection (b) of section 1543, should read "fideicommissary" or "cestui que trust". There was an obvious mistake in translation from the Spanish to the English version.

The instant case does fall under subsection (a), but under subsection (b), of section 1544 above-quoted, as there is here no fiduciary heirs, first heirs, legatee or donee. Under the subsection, the tax should have been paid before the delivery of the properties in question to P. J. M. Moore as trustee on March 10, 1924.

(b) The plaintiff contends that the estate of Thomas Hanley, in so far as the real properties are concerned, did not and could not legally pass to the instituted heir, Matthew Hanley, until after the expiration of ten years from the death of the testator on May 27, 1922 and, that the inheritance tax should be based on the value of the estate in 1932, or ten years after the testator's death. The plaintiff introduced evidence tending to show that in 1932 the real properties in question had a reasonable value of only P5,787. This amount added to the value of the personal property left by the deceased, which the plaintiff admits is P1,465, would generate an inheritance tax which, excluding deductions, interest and surcharge, would amount only to about P169.52.

If death is the generating source from which the power of the estate to impose inheritance taxes takes its being and if, upon the death of the decedent, succession takes place and the right of the estate to tax vests instantly, the tax should be measured by the vlaue of the estate as it stood at the time of the decedent's death, regardless of any subsequent contingency value of any subsequent increase or decrease in value. (61 C. J., pp. 1692, 1693; 26 R. C. L., p. 232; Blakemore and Bancroft, Inheritance Taxes, p. 137. See also Knowlton vs. Moore, 178 U.S., 41; 20 Sup. Ct. Rep., 747; 44 Law. ed., 969.) "The right of the state to an inheritance tax accrues at the moment of death, and hence is ordinarily measured as to any beneficiary by the value at that time of such property as passes to him. Subsequent appreciation or depriciation is immaterial." (Ross, Inheritance Taxation, p. 72.)

Our attention is directed to the statement of the rule in Cyclopedia of Law of and Procedure (vol. 37, pp. 1574, 1575) that, in the case of contingent remainders, taxation is postponed until the estate vests in possession or the contingency is settled. This rule was formerly followed in New York and has been adopted in Illinois, Minnesota, Massachusetts, Ohio, Pennsylvania and Wisconsin. This rule, horever, is by no means entirely satisfactory either to the estate or to those interested in the property (26 R. C. L., p. 231.). Realizing, perhaps, the defects of its anterior system, we find upon examination of cases and authorities that New York has varied and now requires the immediate appraisal of the postponed estate at its clear market value and the payment forthwith of the tax on its out of the corpus of the estate transferred. (In re Vanderbilt, 172 N. Y., 69; 69 N. E., 782; In re Huber, 86 N. Y. App. Div., 458; 83 N. Y. Supp., 769; Estate of Tracy, 179 N. Y., 501; 72 N. Y., 519; Estate of Brez, 172 N. Y., 609; 64 N. E., 958; Estate of Post, 85 App. Div., 611; 82 N. Y. Supp., 1079. Vide also, Saltoun vs. Lord Advocate, 1 Peter. Sc. App., 970; 3 Macq. H. L., 659; 23 Eng. Rul. Cas., 888.) California adheres to this new rule (Stats. 1905, sec. 5, p. 343).

But whatever may be the rule in other jurisdictions, we hold that a transmission by inheritance is taxable at the time of the predecessor's death, notwithstanding the postponement of the actual possession or enjoyment of the estate by the beneficiary, and the tax measured by the value of the property transmitted at that time regardless of its appreciation or depreciation.

(c) Certain items are required by law to be deducted from the appraised gross in arriving at the net value of the estate on which the inheritance tax is to be computed (sec. 1539, Revised Administrative Code). In the case at bar, the defendant and the trial court allowed a deduction of only P480.81. This sum represents the expenses and disbursements of the executors until March 10, 1924, among which were their fees and the proven debts of the deceased. The plaintiff contends that the compensation and fees of the trustees, which aggregate P1,187.28 (Exhibits C, AA, EE, PP, HH, JJ, LL, NN, OO), should also be deducted under section 1539 of the Revised Administrative Code which provides, in part, as follows: "In order to determine the net sum which must bear the tax, when an inheritance is concerned, there shall be deducted, in case of a resident, . . . the judicial expenses of the testamentary or intestate proceedings, . . . ."

A trustee, no doubt, is entitled to receive a fair compensation for his services (Barney vs. Saunders, 16 How., 535; 14 Law. ed., 1047). But from this it does not follow that the compensation due him may lawfully be deducted in arriving at the net value of the estate subject to tax. There is no statute in the Philippines which requires trustees' commissions to be deducted in determining the net value of the estate subject to inheritance tax (61 C. J., p. 1705). Furthermore, though a testamentary trust has been created, it does not appear that the testator intended that the duties of his executors and trustees should be separated. (Ibid.; In re Vanneck's Estate, 161 N. Y. Supp., 893; 175 App. Div., 363; In re Collard's Estate, 161 N. Y. Supp., 455.) On the contrary, in paragraph 5 of his will, the testator expressed the desire that his real estate be handled and managed by his executors until the expiration of the period of ten years therein provided. Judicial expenses are expenses of administration (61 C. J., p. 1705) but, in State vs. Hennepin County Probate Court (112 N. W., 878; 101 Minn., 485), it was said: ". . . The compensation of a trustee, earned, not in the administration of the estate, but in the management thereof for the benefit of the legatees or devises, does not come properly within the class or reason for exempting administration expenses. . . . Service rendered in that behalf have no reference to closing the estate for the purpose of a distribution thereof to those entitled to it, and are not required or essential to the perfection of the rights of the heirs or legatees. . . . Trusts . . . of the character of that here before the court, are created for the the benefit of those to whom the property ultimately passes, are of voluntary creation, and intended for the preservation of the estate. No sound reason is given to support the contention that such expenses should be taken into consideration in fixing the value of the estate for the purpose of this tax."

(d) The defendant levied and assessed the inheritance tax due from the estate of Thomas Hanley under the provisions of section 1544 of the Revised Administrative Code, as amended by section 3

of Act No. 3606. But Act No. 3606 went into effect on January 1, 1930. It, therefore, was not the law in force when the testator died on May 27, 1922. The law at the time was section 1544 above-mentioned, as amended by Act No. 3031, which took effect on March 9, 1922.

It is well-settled that inheritance taxation is governed by the statute in force at the time of the death of the decedent (26 R. C. L., p. 206; 4 Cooley on Taxation, 4th ed., p. 3461). The taxpayer can not foresee and ought not to be required to guess the outcome of pending measures. Of course, a tax statute may be made retroactive in its operation. Liability for taxes under retroactive legislation has been "one of the incidents of social life." (Seattle vs. Kelleher, 195 U. S., 360; 49 Law. ed., 232 Sup. Ct. Rep., 44.) But legislative intent that a tax statute should operate retroactively should be perfectly clear. (Scwab vs. Doyle, 42 Sup. Ct. Rep., 491; Smietanka vs. First Trust & Savings Bank, 257 U. S., 602; Stockdale vs. Insurance Co., 20 Wall., 323; Lunch vs. Turrish, 247 U. S., 221.) "A statute should be considered as prospective in its operation, whether it enacts, amends, or repeals an inheritance tax, unless the language of the statute clearly demands or expresses that it shall have a retroactive effect, . . . ." (61 C. J., P. 1602.) Though the last paragraph of section 5 of Regulations No. 65 of the Department of Finance makes section 3 of Act No. 3606, amending section 1544 of the Revised Administrative Code, applicable to all estates the inheritance taxes due from which have not been paid, Act No. 3606 itself contains no provisions indicating legislative intent to give it retroactive effect. No such effect can begiven the statute by this court.

The defendant Collector of Internal Revenue maintains, however, that certain provisions of Act No. 3606 are more favorable to the taxpayer than those of Act No. 3031, that said provisions are penal in nature and, therefore, should operate retroactively in conformity with the provisions of article 22 of the Revised Penal Code. This is the reason why he applied Act No. 3606 instead of Act No. 3031. Indeed, under Act No. 3606, (1) the surcharge of 25 per cent is based on the tax only, instead of on both the tax and the interest, as provided for in Act No. 3031, and (2) the taxpayer is allowed twenty days from notice and demand by rthe Collector of Internal Revenue within which to pay the tax, instead of ten days only as required by the old law.

Properly speaking, a statute is penal when it imposes punishment for an offense committed against the state which, under the Constitution, the Executive has the power to pardon. In common use, however, this sense has been enlarged to include within the term "penal statutes" all status which command or prohibit certain acts, and establish penalties for their violation, and even those which, without expressly prohibiting certain acts, impose a penalty upon their commission (59 C. J., p. 1110). Revenue laws, generally, which impose taxes collected by the means ordinarily resorted to for the collection of taxes are not classed as penal laws, although there are authorities to the contrary. (See Sutherland, Statutory Construction, 361; Twine Co. vs. Worthington, 141 U. S., 468; 12 Sup. Ct., 55; Rice vs. U. S., 4 C. C. A., 104; 53 Fed., 910; Com. vs. Standard Oil Co., 101 Pa. St., 150; State vs. Wheeler, 44 P., 430; 25 Nev. 143.) Article 22 of the Revised Penal Code is not applicable to the case at bar, and in the absence of clear legislative intent, we cannot give Act No. 3606 a retroactive effect.

(e) The plaintiff correctly states that the liability to pay a tax may arise at a certain time and the tax may be paid within another given time. As stated by this court, "the mere failure to pay one's tax does not render one delinqent until and unless the entire period has eplased within which the taxpayer is authorized by law to make such payment without being subjected to the payment of penalties for fasilure to pay his taxes within the prescribed period." (U. S. vs. Labadan, 26 Phil., 239.)

The defendant maintains that it was the duty of the executor to pay the inheritance tax before the delivery of the decedent's property to the trustee. Stated otherwise, the defendant contends that delivery to the trustee was delivery to the cestui que trust, the beneficiery in this case, within the

meaning of the first paragraph of subsection (b) of section 1544 of the Revised Administrative Code. This contention is well taken and is sustained. The appointment of P. J. M. Moore as trustee was made by the trial court in conformity with the wishes of the testator as expressed in his will. It is true that the word "trust" is not mentioned or used in the will but the intention to create one is clear. No particular or technical words are required to create a testamentary trust (69 C. J., p. 711). The words "trust" and "trustee", though apt for the purpose, are not necessary. In fact, the use of these two words is not conclusive on the question that a trust is created (69 C. J., p. 714). "To create a trust by will the testator must indicate in the will his intention so to do by using language sufficient to separate the legal from the equitable estate, and with sufficient certainty designate the beneficiaries, their interest in the ttrust, the purpose or object of the trust, and the property or subject matter thereof. Stated otherwise, to constitute a valid testamentary trust there must be a concurrence of three circumstances: (1) Sufficient words to raise a trust; (2) a definite subject; (3) a certain or ascertain object; statutes in some jurisdictions expressly or in effect so providing." (69 C. J., pp. 705,706.) There is no doubt that the testator intended to create a trust. He ordered in his will that certain of his properties be kept together undisposed during a fixed period, for a stated purpose. The probate court certainly exercised sound judgment in appointment a trustee to carry into effect the provisions of the will (see sec. 582, Code of Civil Procedure).

P. J. M. Moore became trustee on March 10, 1924. On that date trust estate vested in him (sec. 582 in relation to sec. 590, Code of Civil Procedure). The mere fact that the estate of the deceased was placed in trust did not remove it from the operation of our inheritance tax laws or exempt it from the payment of the inheritance tax. The corresponding inheritance tax should have been paid on or before March 10, 1924, to escape the penalties of the laws. This is so for the reason already stated that the delivery of the estate to the trustee was in esse delivery of the same estate to the cestui que trust, the beneficiary in this case. A trustee is but an instrument or agent for thecestui que trust (Shelton vs. King, 299 U. S., 90; 33 Sup. Ct. Rep., 689; 57 Law. ed., 1086). When Moore accepted the trust and took possesson of the trust estate he thereby admitted that the estate belonged not to him but to hiscestui que trust (Tolentino vs. Vitug, 39 Phil.,126, cited in 65 C. J., p. 692, n. 63). He did not acquire any beneficial interest in the estate. He took such legal estate only as the proper execution of the trust required (65 C. J., p. 528) and, his estate ceased upon the fulfillment of the testator's wishes. The estate then vested absolutely in the beneficiary (65 C. J., p. 542).

The highest considerations of public policy also justify the conclusion we have reached. Were we to hold that the payment of the tax could be postponed or delayed by the creation of a trust of the type at hand, the result would be plainly disastrous. Testators may provide, as Thomas Hanley has provided, that their estates be not delivered to their beneficiaries until after the lapse of a certain period of time. In the case at bar, the period is ten years. In other cases, the trust may last for fifty years, or for a longer period which does not offend the rule against petuities. The collection of the tax would then be left to the will of a private individual. The mere suggestion of this result is a sufficient warning against the accpetance of the essential to the very exeistence of government. (Dobbins vs. Erie Country, 16 Pet., 435; 10 Law. ed., 1022; Kirkland vs. Hotchkiss, 100 U. S., 491; 25 Law. ed., 558; Lane County vs. Oregon, 7 Wall., 71; 19 Law. ed., 101; Union Refrigerator Transit Co. vs. Kentucky, 199 U. S., 194; 26 Sup. Ct. Rep., 36; 50 Law. ed., 150; Charles River Bridge vs. Warren Bridge, 11 Pet., 420; 9 Law. ed., 773.) The obligation to pay taxes rests not upon the privileges enjoyed by, or the protection afforded to, a citizen by the government but upon the necessity of money for the support of the state (Dobbins vs. Erie Country, supra). For this reason, no one is allowed to object to or resist the payment of taxes solely because no personal benefit to him can be pointed out. (Thomas vs. Gay, 169 U. S., 264; 18 Sup. Ct. Rep., 340; 43 Law. ed., 740.) While courts will not enlarge, by construction, the government's power of taxation (Bromley vs. McCaughn, 280 U. S., 124; 74 Law. ed., 226; 50 Sup. Ct. Rep., 46) they also will not place upon tax laws so loose a construction as to permit evasions on merely fanciful and insubstantial distictions. (U. S. vs. Watts, 1 Bond., 580; Fed. Cas. No. 16,653; U. S. vs. Wigglesirth, 2 Story, 369; Fed. Cas. No.

16,690, followed in Froelich & Kuttner vs. Collector of Customs, 18 Phil., 461, 481; Castle Bros., Wolf & Sons vs. McCoy, 21 Phil., 300; Muñoz & Co. vs. Hord, 12 Phil., 624; Hongkong & Shanghai Banking Corporation vs. Rafferty, 39 Phil., 145; Luzon Stevedoring Co. vs. Trinidad, 43 Phil., 803.) When proper, a tax statute should be construed to avoid the possibilities of tax evasion. Construed this way, the statute, without resulting in injustice to the taxpayer, becomes fair to the government.

That taxes must be collected promptly is a policy deeply intrenched in our tax system. Thus, no court is allowed to grant injunction to restrain the collection of any internal revenue tax ( sec. 1578, Revised Administrative Code; Sarasola vs. Trinidad, 40 Phil., 252). In the case of Lim Co Chui vs. Posadas (47 Phil., 461), this court had occassion to demonstrate trenchment adherence to this policy of the law. It held that "the fact that on account of riots directed against the Chinese on October 18, 19, and 20, 1924, they were prevented from praying their internal revenue taxes on time and by mutual agreement closed their homes and stores and remained therein, does not authorize the Collector of Internal Revenue to extend the time prescribed for the payment of the taxes or to accept them without the additional penalty of twenty five per cent." (Syllabus, No. 3.)

". . . It is of the utmost importance," said the Supreme Court of the United States, ". . . that the modes adopted to enforce the taxes levied should be interfered with as little as possible. Any delay in the proceedings of the officers, upon whom the duty is developed of collecting the taxes, may derange the operations of government, and thereby, cause serious detriment to the public." (Dows vs. Chicago, 11 Wall., 108; 20 Law. ed., 65, 66; Churchill and Tait vs. Rafferty, 32 Phil., 580.)

It results that the estate which plaintiff represents has been delinquent in the payment of inheritance tax and, therefore, liable for the payment of interest and surcharge provided by law in such cases.

The delinquency in payment occurred on March 10, 1924, the date when Moore became trustee. The interest due should be computed from that date and it is error on the part of the defendant to compute it one month later. The provisions cases is mandatory (see and cf. Lim Co Chui vs. Posadas, supra), and neither the Collector of Internal Revenuen or this court may remit or decrease such interest, no matter how heavily it may burden the taxpayer.

To the tax and interest due and unpaid within ten days after the date of notice and demand thereof by the Collector of Internal Revenue, a surcharge of twenty-five per centum should be added (sec. 1544, subsec. (b), par. 2, Revised Administrative Code). Demand was made by the Deputy Collector of Internal Revenue upon Moore in a communiction dated October 16, 1931 (Exhibit 29). The date fixed for the payment of the tax and interest was November 30, 1931. November 30 being an official holiday, the tenth day fell on December 1, 1931. As the tax and interest due were not paid on that date, the estate became liable for the payment of the surcharge.

In view of the foregoing, it becomes unnecessary for us to discuss the fifth error assigned by the plaintiff in his brief.

We shall now compute the tax, together with the interest and surcharge due from the estate of Thomas Hanley inaccordance with the conclusions we have reached.

At the time of his death, the deceased left real properties valued at P27,920 and personal properties worth P1,465, or a total of P29,385. Deducting from this amount the sum of P480.81, representing allowable deductions under secftion 1539 of the Revised Administrative Code, we have P28,904.19 as the net value of the estate subject to inheritance tax.

The primary tax, according to section 1536, subsection (c), of the Revised Administrative Code, should be imposed at the rate of one per centum upon the first ten thousand pesos and two per

centum upon the amount by which the share exceed thirty thousand pesos, plus an additional two hundred per centum. One per centum of ten thousand pesos is P100. Two per centum of P18,904.19 is P378.08. Adding to these two sums an additional two hundred per centum, or P965.16, we have as primary tax, correctly computed by the defendant, the sum of P1,434.24.

To the primary tax thus computed should be added the sums collectible under section 1544 of the Revised Administrative Code. First should be added P1,465.31 which stands for interest at the rate of twelve per centum per annum from March 10, 1924, the date of delinquency, to September 15, 1932, the date of payment under protest, a period covering 8 years, 6 months and 5 days. To the tax and interest thus computed should be added the sum of P724.88, representing a surhcarge of 25 per cent on both the tax and interest, and also P10, the compromise sum fixed by the defendant (Exh. 29), giving a grand total of P3,634.43.

As the plaintiff has already paid the sum of P2,052.74, only the sums of P1,581.69 is legally due from the estate. This last sum is P390.42 more than the amount demanded by the defendant in his counterclaim. But, as we cannot give the defendant more than what he claims, we must hold that the plaintiff is liable only in the sum of P1,191.27 the amount stated in the counterclaim.

The judgment of the lower court is accordingly modified, with costs against the plaintiff in both instances. So ordered.

Avanceña, C.J., Abad Santos, Imperial, Diaz and Concepcion, JJ., concur. Villa-Real, J., concurs.

G.R. No. L-4067 November 29, 1951

90 Phil 489

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner, vs.

JULIANA LACUESTA, ET AL., respondents.

Elviro L. Peralta and Hermenegildo A. Prieto for petitioner. Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.

PARAS, C.J.:

This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado dated January 3, 1943. The will is written in the Ilocano dialect and contains the following attestation clause:

We, the undersigned, by these presents to declare that the foregoing testament of Antero Mercado was signed by himself and also by us below his name and of this attestation clause and that of the left margin of the three pages thereof. Page three the continuation of this attestation clause; this will is written in Ilocano dialect which is spoken and understood by the testator, and it bears the corresponding number in letter which compose of three pages and all them were signed in the presence of the testator and witnesses, and the witnesses in the presence of the testator and all and each and every one of us witnesses.

In testimony, whereof, we sign this statement, this the third day of January, one thousand nine hundred forty three, (1943) A.D.

(Sgd.) NUMERIANO EVANGELISTA (Sgd.) "ROSENDA CORTES

(Sgd.) BIBIANA ILLEGIBLE

The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero Mercado, followed below by "A reugo del testator" and the name of Florentino Javier. Antero Mercado is alleged to have written a cross immediately after his name. The Court of Appeals, reversing the judgement of the Court of First Instance of Ilocos Norte, ruled that the attestation clause failed (1) to certify that the will was signed on all the left margins of the three pages and at the end of the will by Atty. Florentino Javier at the express request of the testator in the presence of the testator and each and every one of the witnesses; (2) to certify that after the signing of the name of the testator by Atty. Javier at the former's request said testator has written a cross at the end of his name and on the left margin of the three pages of which the will consists and at the end thereof; (3) to certify that the three witnesses signed the will in all the pages thereon in the presence of the testator and of each other.

In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado caused Atty. Florentino Javier to write the testator's name under his express direction, as required by section 618 of the Code of Civil Procedure. The herein petitioner (who is appealing by way of certiorari from the decision of the Court of Appeals) argues, however, that there is no need for such

recital because the cross written by the testator after his name is a sufficient signature and the signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is that the cross is as much a signature as a thumbmark, the latter having been held sufficient by this Court in the cases of De Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.

It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado or even one of the ways by which he signed his name. After mature reflection, we are not prepared to liken the mere sign of the cross to a thumbmark, and the reason is obvious. The cross cannot and does not have the trustworthiness of a thumbmark.

What has been said makes it unnecessary for us to determine there is a sufficient recital in the attestation clause as to the signing of the will by the testator in the presence of the witnesses, and by the latter in the presence of the testator and of each other.

Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So ordered.

Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista Angelo, JJ., concur.

G.R. No. L-5971 February 27, 1911

18 Phil 450

BEATRIZ NERA, ET AL., plaintiffs-appellees, vs.

NARCISA RIMANDO, defendant-appellant.

Valerio Fontanilla and Andres Asprer for appellant. Anacleto Diaz for appellees.

CARSON, J.:

The only question raised by the evidence in this case as to the due execution of the instrument propounded as a will in the court below, is whether one of the subscribing witnesses was present in the small room where it was executed at the time when the testator and the other subscribing witnesses attached their signatures; or whether at that time he was outside, some eight or ten feet away, in a large room connecting with the smaller room by a doorway, across which was hung a curtain which made it impossible for one in the outside room to see the testator and the other subscribing witnesses in the act of attaching their signatures to the instrument.

A majority of the members of the court is of opinion that this subscribing witness was in the small room with the testator and the other subscribing witnesses at the time when they attached their signatures to the instrument, and this finding, of course, disposes of the appeal and necessitates the affirmance of the decree admitting the document to probate as the last will and testament of the deceased.

The trial judge does not appear to have considered the determination of this question of fact of vital importance in the determination of this case, as he was of opinion that under the doctrine laid down in the case of Jaboneta vs. Gustilo (5 Phil. Rep., 541) the alleged fact that one of the subscribing witnesses was in the outer room when the testator and the other describing witnesses signed the instrument in the inner room, had it been proven, would not be sufficient in itself to invalidate the execution of the will. But we are unanimously of opinion that had this subscribing witness been proven to have been in the outer room at the time when the testator and the other subscribing witnesses attached their signatures to the instrument in the inner room, it would have been invalid as a will, the attaching of those signatures under circumstances not being done "in the presence" of the witness in the outer room. This because the line of vision from this witness to the testator and the other subscribing witnesses would necessarily have been impeded by the curtain separating the inner from the outer one "at the moment of inscription of each signature."

In the case just cited, on which the trial court relied, we held that:

The true test of presence of the testator and the witnesses in the execution of a will is not whether they actually saw each other sign, but whether they might have been seen each other sign, had they chosen to do so, considering their mental and physical condition and position with relation to each other at the moment of inscription of each signature.

But it is especially to be noted that the position of the parties with relation to each other at the moment of the subscription of each signature, must be such that they may see each other sign if

they choose to do so. This, of course, does not mean that the testator and the subscribing witnesses may be held to have executed the instrument in the presence of each other if it appears that they would not have been able to see each other sign at that moment, without changing their relative positions or existing conditions. The evidence in the case relied upon by the trial judge discloses that "at the moment when the witness Javellana signed the document he was actually and physically present and in such position with relation to Jaboneta that he could see everything that took place by merely casting his eyes in the proper direction and without any physical obstruction to prevent his doing so." And the decision merely laid down the doctrine that the question whether the testator and the subscribing witnesses to an alleged will sign the instrument in the presence of each other does not depend upon proof of the fact that their eyes were actually cast upon the paper at the moment of its subscription by each of them, but that at that moment existing conditions and their position with relation to each other were such that by merely casting the eyes in the proper direction they could have seen each other sign. To extend the doctrine further would open the door to the possibility of all manner of fraud, substitution, and the like, and would defeat the purpose for which this particular condition is prescribed in the code as one of the requisites in the execution of a will.

The decree entered by the court below admitting the instrument propounded therein to probate as the last will and testament of Pedro Rimando, deceased, is affirmed with costs of this instance against the appellant.

Arellano, C. J., Mapa, Moreland and Trent, JJ., concur.

G.R. No. L-21755 December 29, 1924

73 Phil 153

In the matter of the testate estate of Antonio Mojal, deceased. FILOMENA NAYVE, petitioner-appellee,

vs. LEONA MOJAL and LUCIANA AGUILAR, opponents-appellants.

Manuel M. Calleja for appellants. Felix U. Calleja for appellee.

ROMUALDEZ, J.:

This is a proceeding for the probate of the will of the deceased Antonio Mojal instituted by his surviving spouse, Filomena Nayve. The probate is opposed by Leona Mojal and Luciana Aguilar, sister and niece, respectively, of the deceased.

The Court of First Instance of Albay, which tried the case, overruled the objections to the will, and ordered the probate thereof, holding that the document in controversy was the last will and testament of Antonio Mojal, executed in accordance with law. From this judgment the opponents appeal, assigning error to the decree of the court allowing the will to probate and overruling their opposition.

The will in question, Exhibit A, is composed of four sheets with written matter on only side of each, that is, four pages written on four sheets. The four sides or pages containing written matter are paged "Pag. 1," "Pag. 2," "Pag. 3," "Pag. 4," successively. Each of the first two sides or pages, which was issued, was signed by the testator and the three witnesses on the margin, left side of the reader. On the third page actually used, the signatures of the three witnesses appear also on the margin, left side of the reader, but the signature of the testator is not on the margin, but about the middle of the page, at the end of the will and before the attestation clause. On the fourth page, the signatures of the witnesses do not appear on the margin, but at the bottom of the attestation clause, it being the signature of the testator that is on the margin, left side of the reader.

The defects attributed to the will are:

(a) The fact of not having been signed by the testator and the witnesses on each and every sheet on the left margin; (b) the fact of the sheets of the document not being paged with letters; (c) the fact that the attestation clause does not state the number of sheets or pages actually used of the will; and (d) the fact that the testator does not appear to have signed all the sheets in the presence of the three witnesses, and the latter to have attested and signed all the sheets in the presence of the testator and of each other.

As to the signatures on the margin, it is true, as above stated, that the third page actually used was signed by the testator, not on the left margin, as it was by the witnesses, but about the middle of the page and the end of the will; and that the fourth page was signed by the witnesses, not on the left

margin, as it was by the testator, but about the middle of the page and at the end of the attestation clause.

In this respect the holding of this court in the case of Avera vs. Garcia and Rodriguez (42 Phil., 145), is applicable, wherein the will in question was signed by the testator and the witnesses, not on the left, but right, margin. The rule laid down in that case is that the document contained the necessary signatures on each page, whereby each page of the will was authenticated and safeguarded against any possible alteration. In that case, the validity of the will was sustained, and consequently it was allowed to probate.

Applying that doctrine to the instant case, we hold that, as each and every page used of the will bears the signatures of the testator and the witnesses, the fact that said signatures do not all appear on the left margin of each page does not detract from the validity of the will. lawphi1.net

Turning to the second defect alleged, that is to say, the fact that the sheets of the document are not paged with letters, suffice it to cite the case of Unson vs. Abella (43 Phil., 494), where this court held that paging with Arabic numerals and not with letters, as in the case before us, is within the spirit of the law and is just as valid as paging with letters.

As to the proposition that the attestation clause does not state the number of sheets or pages of the will, which is the third defect assigned, it must be noted that the last paragraph of the will here in question and the attestation clause, coming next to it, are of the following tenor:

In witness whereof, I set my hand unto this will here in the town of Camalig, Albay, Philippine Islands, this 26th day of November, nineteen hundred and eighteen, composed of four sheets, including the next:

ANTONIO MOJAL

(Signed and declared by the testator Don Antonio Mojal to be his last will and testament in the presence of each of us, and at the request of said testator Don Antonio Mojal, we signed this will in the presence of each other and of the testator.)

PEDRO CARO SILVERIO MORCO ZOILO MASINAS

As may be seen, the number of sheets is stated in said last paragraph of the will. It is true that in the case of Uy Coque vs. Navas L. Sioca (43 Phil., 405), it was held that the attestation clause must state the number of sheets or pages composing the will; but when, as in the case before us, such fact, while it is not stated in the attestation clause, appears at the end of the will proper, so that no proof aliunde is necessary of the number of the sheets of the will, then there can be no doubt that it complies with the intention of the law that the number of sheets of which the will is composed be shown by the document itself, to prevent the number of the sheets of the will from being unduly increased or decreased.

With regard to the last defect pointed out, namely, that the testator does not appear to have signed on all the sheets of the will in the presence of the three witnesses, and the latter to have attested and signed on all the sheets in the presence of the testator and of each other, it must be noted that in the attestation clause above set out it is said that the testator signed the will "in the presence of

each of the witnesses" and the latter signed "in the presence of each other and of the testator." So that, as to whether the testator and the attesting witnesses saw each other sign the will, such a requirement was clearly and sufficiently complied with. What is not stated in this clause is whether the testator and the witnesses signed all the sheets of the will.

The act of the testator and the witnesses seeing reciprocally the signing of the will is one which cannot be proven by the mere exhibition of the will unless it is stated in the document. And this fact is expressly stated in the attestation clause now before us. But the fact of the testator and the witnesses having signed all the sheets of the will may be proven by the mere examination of the document, although it does not say anything about this, and if that is the fact, as it is in the instant case, the danger of fraud in this respect, which is what the law tries to avoid, does not exist.

Therefore, as in the instant case the fact that the testator and the witnesses signed each and every page of the will is proven by the mere examination of the signatures in the will, the omission to expressly state such evident fact does not invalidate the will nor prevent its probate.

The order appealed from is affirmed with the costs against the appellants. So ordered.

Johnson, Malcolm, and Villamor, JJ., concur.

G.R. No. L-18979 June 30, 1964

11 SCRA 422

IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTE. CELSO ICASIANO, petitioner-appellee,

vs. NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.

Jose W. Diokno for petitioner-appellee. Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano. Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.

REYES, J.B.L., J.:

Appeal from an order of the Court of First Instance of Manila admitting to probate the document and its duplicate, marked as Exhibits "A" and "A-1", as the true last will and testament of Josefa Villacorte, deceased, and appointing as executor Celso Icasiano, the person named therein as such.

This special proceeding was begun on October 2, 1958 by a petition for the allowance and admission to probate of the original, Exhibit "A" as the alleged will of Josefa Villacorte, deceased, and for the appointment of petitioner Celso Icasiano as executor thereof.

The court set the proving of the alleged will for November 8, 1958, and caused notice thereof to be published for three (3) successive weeks, previous to the time appointed, in the newspaper "Manila chronicle", and also caused personal service of copies thereof upon the known heirs.

On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her opposition; and on November 10, 1958, she petitioned to have herself appointed as a special administrator, to which proponent objected. Hence, on November 18, 1958, the court issued an order appointing the Philippine Trust Company as special administrator.1äw phï1.ñët

On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a manifestation adopting as his own Natividad's opposition to the probate of the alleged will.

On March 19, 1959, the petitioner proponent commenced the introduction of his evidence; but on June 1, 1959, he filed a motion for the admission of an amended and supplemental petition, alleging that the decedent left a will executed in duplicate with all the legal requirements, and that he was, on that date, submitting the signed duplicate (Exhibit "A-1"), which he allegedly found only on or about May 26, 1959. On June 17, 1959, oppositors Natividad Icasiano de Gomez and Enrique Icasiano filed their joint opposition to the admission of the amended and supplemental petition, but by order of July 20, 1959, the court admitted said petition, and on July 30, 1959, oppositor Natividad Icasiano filed her amended opposition. Thereafter, the parties presented their respective evidence, and after several hearings the court issued the order admitting the will and its duplicate to probate. From this order, the oppositors appealed directly to this Court, the amount involved being over P200,000.00, on the ground that the same is contrary to law and the evidence.

The evidence presented for the petitioner is to the effect that Josefa Villacorte died in the City of Manila on September 12, 1958; that on June 2, 1956, the late Josefa Villacorte executed a last will

and testament in duplicate at the house of her daughter Mrs. Felisa Icasiano at Pedro Guevara Street, Manila, published before and attested by three instrumental witnesses, namely: attorneys Justo P. Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that the will was acknowledged by the testatrix and by the said three instrumental witnesses on the same date before attorney Jose Oyengco Ong, Notary Public in and for the City of Manila; and that the will was actually prepared by attorney Fermin Samson, who was also present during the execution and signing of the decedent's last will and testament, together with former Governor Emilio Rustia of Bulacan, Judge Ramon Icasiano and a little girl. Of the said three instrumental witnesses to the execution of the decedent's last will and testament, attorneys Torres and Natividad were in the Philippines at the time of the hearing, and both testified as to the due execution and authenticity of the said will. So did the Notary Public before whom the will was acknowledged by the testatrix and attesting witnesses, and also attorneys Fermin Samson, who actually prepared the document. The latter also testified upon cross examination that he prepared one original and two copies of Josefa Villacorte last will and testament at his house in Baliuag, Bulacan, but he brought only one original and one signed copy to Manila, retaining one unsigned copy in Bulacan.

The records show that the original of the will, which was surrendered simultaneously with the filing of the petition and marked as Exhibit "A" consists of five pages, and while signed at the end and in every page, it does not contain the signature of one of the attesting witnesses, Atty. Jose V. Natividad, on page three (3) thereof; but the duplicate copy attached to the amended and supplemental petition and marked as Exhibit "A-1" is signed by the testatrix and her three attesting witnesses in each and every page.

The testimony presented by the proponents of the will tends to show that the original of the will and its duplicate were subscribed at the end and on the left margin of each and every page thereof by the testatrix herself and attested and subscribed by the three mentioned witnesses in the testatrix's presence and in that of one another as witnesses (except for the missing signature of attorney Natividad on page three (3) of the original); that pages of the original and duplicate of said will were duly numbered; that the attestation clause thereof contains all the facts required by law to be recited therein and is signed by the aforesaid attesting witnesses; that the will is written in the language known to and spoken by the testatrix that the attestation clause is in a language also known to and spoken by the witnesses; that the will was executed on one single occasion in duplicate copies; and that both the original and the duplicate copies were duly acknowledged before Notary Public Jose Oyengco of Manila on the same date June 2, 1956.

Witness Natividad who testified on his failure to sign page three (3) of the original, admits that he may have lifted two pages instead of one when he signed the same, but affirmed that page three (3) was signed in his presence.

Oppositors-appellants in turn introduced expert testimony to the effect that the signatures of the testatrix in the duplicate (Exhibit "A-1") are not genuine nor were they written or affixed on the same occasion as the original, and further aver that granting that the documents were genuine, they were executed through mistake and with undue influence and pressure because the testatrix was deceived into adopting as her last will and testament the wishes of those who will stand to benefit from the provisions of the will, as may be inferred from the facts and circumstances surrounding the execution of the will and the provisions and dispositions thereof, whereby proponents-appellees stand to profit from properties held by them as attorneys-in-fact of the deceased and not enumerated or mentioned therein, while oppositors-appellants are enjoined not to look for other properties not mentioned in the will, and not to oppose the probate of it, on penalty of forfeiting their share in the portion of free disposal.

We have examined the record and are satisfied, as the trial court was, that the testatrix signed both original and duplicate copies (Exhibits "A" and "A-1", respectively) of the will spontaneously, on the same in the presence of the three attesting witnesses, the notary public who acknowledged the will; and Atty. Samson, who actually prepared the documents; that the will and its duplicate were executed in Tagalog, a language known to and spoken by both the testator and the witnesses, and read to and by the testatrix and Atty. Fermin Samson, together before they were actually signed; that the attestation clause is also in a language known to and spoken by the testatrix and the witnesses. The opinion of expert for oppositors, Mr. Felipe Logan, that the signatures of the testatrix appearing in the duplicate original were not written by the same had which wrote the signatures in the original will leaves us unconvinced, not merely because it is directly contradicted by expert Martin Ramos for the proponents, but principally because of the paucity of the standards used by him to support the conclusion that the differences between the standard and questioned signatures are beyond the writer's range of normal scriptural variation. The expert has, in fact, used as standards only three other signatures of the testatrix besides those affixed to the original of the testament (Exh. A); and we feel that with so few standards the expert's opinion and the signatures in the duplicate could not be those of the testatrix becomes extremely hazardous. This is particularly so since the comparison charts Nos. 3 and 4 fail to show convincingly that the are radical differences that would justify the charge of forgery, taking into account the advanced age of the testatrix, the evident variability of her signatures, and the effect of writing fatigue, the duplicate being signed right the original. These, factors were not discussed by the expert.

Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned signatures does not appear reliable, considering the standard and challenged writings were affixed to different kinds of paper, with different surfaces and reflecting power. On the whole, therefore, we do not find the testimony of the oppositor's expert sufficient to overcome that of the notary and the two instrumental witnesses, Torres and Natividad (Dr. Diy being in the United States during the trial, did not testify).

Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs are more favored than others is proof of neither (see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronal, 45 Phil. 216). Diversity of apportionment is the usual reason for making a testament; otherwise, the decedent might as well die intestate. The testamentary dispositions that the heirs should not inquire into other property and that they should respect the distribution made in the will, under penalty of forfeiture of their shares in the free part do not suffice to prove fraud or undue influence. They appear motivated by the desire to prevent prolonged litigation which, as shown by ordinary experience, often results in a sizeable portion of the estate being diverted into the hands of non-heirs and speculators. Whether these clauses are valid or not is a matter to be litigated on another occassion. It is also well to note that, as remarked by the Court of Appeals in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud and undue influence are mutually repugnant and exclude each other; their joining as grounds for opposing probate shows absence of definite evidence against the validity of the will.

On the question of law, we hold that the inadvertent failure of one witness to affix his signature to one page of a testament, due to the simultaneous lifting of two pages in the course of signing, is not per se sufficient to justify denial of probate. Impossibility of substitution of this page is assured not only the fact that the testatrix and two other witnesses did sign the defective page, but also by its bearing the coincident imprint of the seal of the notary public before whom the testament was ratified by testatrix and all three witnesses. The law should not be so strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she had no control, where the purpose of the law to guarantee the identity of the testament and its component pages is sufficiently attained, no intentional or deliberate deviation existed, and the evidence on record attests to the full observance of the statutory requisites. Otherwise, as stated

in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration) "witnesses may sabotage the will by muddling or bungling it or the attestation clause".

That the failure of witness Natividad to sign page three (3) was entirely through pure oversight is shown by his own testimony as well as by the duplicate copy of the will, which bears a complete set of signatures in every page. The text of the attestation clause and the acknowledgment before the Notary Public likewise evidence that no one was aware of the defect at the time.

This would not be the first time that this Court departs from a strict and literal application of the statutory requirements, where the purposes of the law are otherwise satisfied. Thus, despite the literal tenor of the law, this Court has held that a testament, with the only page signed at its foot by testator and witnesses, but not in the left margin, could nevertheless be probated (Abangan vs. Abangan, 41 Phil. 476); and that despite the requirement for the correlative lettering of the pages of a will, the failure to make the first page either by letters or numbers is not a fatal defect (Lopez vs. Liboro, 81 Phil. 429). These precedents exemplify the Court's policy to require satisfaction of the legal requirements in order to guard against fraud and bid faith but without undue or unnecessary curtailment of the testamentary privilege.

The appellants also argue that since the original of the will is in existence and available, the duplicate (Exh. A-1) is not entitled to probate. Since they opposed probate of original because it lacked one signature in its third page, it is easily discerned that oppositors-appellants run here into a dilemma; if the original is defective and invalid, then in law there is no other will but the duly signed carbon duplicate (Exh. A-1), and the same is probatable. If the original is valid and can be probated, then the objection to the signed duplicate need not be considered, being superfluous and irrelevant. At any rate, said duplicate, Exhibit A-1, serves to prove that the omission of one signature in the third page of the original testament was inadvertent and not intentional.

That the carbon duplicate, Exhibit A-1, was produced and admitted without a new publication does not affect the jurisdiction of the probate court, already conferred by the original publication of the petition for probate. The amended petition did not substantially alter the one first filed, but merely supplemented it by disclosing the existence of the duplicate, and no showing is made that new interests were involved (the contents of Exhibit A and A-1 are admittedly identical); and appellants were duly notified of the proposed amendment. It is nowhere proved or claimed that the amendment deprived the appellants of any substantial right, and we see no error in admitting the amended petition.

IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with costs against appellants.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Paredes, Regala and Makalintal, JJ., concur. Barrera and Dizon, JJ., took no part.

G.R. No. L-32213 November 26, 1973

54 SCRA 31

AGAPITA N. CRUZ, petitioner, vs.

HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of First Instance of Cebu, and MANUEL B. LUGAY, respondents.

Paul G. Gorrez for petitioner.

Mario D. Ortiz for respondent Manuel B. Lugay.

ESGUERRA, J.:

Petition to review on certiorari the judgment of the Court First Instance of Cebu allowing the probate of the last will a testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said decease opposed the allowance of the will (Exhibit "E"), alleging the will was executed through fraud, deceit, misrepresentation and undue influence; that the said instrument was execute without the testator having been fully informed of the content thereof, particularly as to what properties he was disposing and that the supposed last will and testament was not executed in accordance with law. Notwithstanding her objection, the Court allowed the probate of the said last will and testament Hence this appeal by certiorari which was given due course.

The only question presented for determination, on which the decision of the case hinges, is whether the supposed last will and testament of Valente Z. Cruz (Exhibit "E") was executed in accordance with law, particularly Articles 805 and 806 of the new Civil Code, the first requiring at least three credible witnesses to attest and subscribe to the will, and the second requiring the testator and the witnesses to acknowledge the will before a notary public.

Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr. Francisco Pañares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the Notary Public before whom the will was supposed to have been acknowledged. Reduced to simpler terms, the question was attested and subscribed by at least three credible witnesses in the presence of the testator and of each other, considering that the three attesting witnesses must appear before the notary public to acknowledge the same. As the third witness is the notary public himself, petitioner argues that the result is that only two witnesses appeared before the notary public to acknowledge the will. On the other hand, private respondent-appellee, Manuel B. Lugay, who is the supposed executor of the will, following the reasoning of the trial court, maintains that there is substantial compliance with the legal requirement of having at least three attesting witnesses even if the notary public acted as one of them, bolstering up his stand with 57 American Jurisprudence, p. 227 which, insofar as pertinent, reads as follows:

It is said that there are, practical reasons for upholding a will as against the purely technical reason that one of the witnesses required by law signed as certifying to an acknowledgment of the testator's signature under oath rather than as attesting the execution of the instrument.

After weighing the merits of the conflicting claims of the parties, We are inclined to sustain that of the appellant that the last will and testament in question was not executed in accordance with law. The notary public before whom the will was acknowledged cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the will. To acknowledge before means to avow (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100 Phil. 239, 247); to own as genuine, to assent, to admit; and "before" means in front or preceding in space or ahead of. (The New Webster Encyclopedic Dictionary of the English Language, p. 72; Funk & Wagnalls New Standard Dictionary of the English Language, p. 252; Webster's New International Dictionary 2d. p. 245.) Consequently, if the third witness were the notary public himself, he would have to avow assent, or admit his having signed the will in front of himself. This cannot be done because he cannot split his personality into two so that one will appear before the other to acknowledge his participation in the making of the will. To permit such a situation to obtain would be sanctioning a sheer absurdity.

Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral arrangement Balinon v. De Leon, 50 0. G. 583.) That function would defeated if the notary public were one of the attesting instrumental witnesses. For them he would be interested sustaining the validity of the will as it directly involves him and the validity of his own act. It would place him in inconsistent position and the very purpose of acknowledgment, which is to minimize fraud (Report of Code Commission p. 106-107), would be thwarted.

Admittedly, there are American precedents holding that notary public may, in addition, act as a witness to the executive of the document he has notarized. (Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his signing merely as notary in a will nonetheless makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback, 122 So. 496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 A. 721;See also Trenwith v. Smallwood, 15 So. 1030). But these authorities do not serve the purpose of the law in this jurisdiction or are not decisive of the issue herein because the notaries public and witnesses referred to aforecited cases merely acted as instrumental, subscribing attesting witnesses, and not as acknowledging witnesses. He the notary public acted not only as attesting witness but also acknowledging witness, a situation not envisaged by Article 805 of the Civil Code which reads:

ART. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will or file another with the office of the Clerk of Court. [Emphasis supplied]

To allow the notary public to act as third witness, or one the attesting and acknowledging witnesses, would have the effect of having only two attesting witnesses to the will which would be in contravention of the provisions of Article 80 be requiring at least three credible witnesses to act as such and of Article 806 which requires that the testator and the required number of witnesses must appear before the notary public to acknowledge the will. The result would be, as has been said, that only two witnesses appeared before the notary public for or that purpose. In the circumstances, the law would not be duly in observed.

FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate of the last will and testament of Valente Z. Cruz (Exhibit "E") is declared not valid and hereby set aside.

Cost against the appellee.

Makalintal, C.J., Castro, Teehankee, Makasiar and Muñoz Palma, JJ., concur.

G.R. No. L-38338 January 28, 1985

134 SCRA 245

IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND BIBIANA ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS DE JESUS, petitioners,

vs. ANDRES R. DE JESUS, JR., respondent.

Raul S. Sison Law Office for petitioners.

Rafael Dinglasan, Jr. for heir M. Roxas.

Ledesma, Guytingco Velasco and Associates for Ledesa and A. R. de Jesus.

GUTIERREZ, JR., J.:

This is a petition for certiorari to set aside the order of respondent Hon. Jose C. Colayco, Presiding Judge Court of First Instance of Manila, Branch XXI disallowing the probate of the holographic Will of the deceased Bibiana Roxas de Jesus.

The antecedent facts which led to the filing of this petition are undisputed.

After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus, Special Proceeding No. 81503 entitled "In the Matter of the Intestate Estate of Andres G. de Jesus and Bibiana Roxas de Jesus" was filed by petitioner Simeon R. Roxas, the brother of the deceased Bibiana Roxas de Jesus.

On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator. After Letters of Administration had been granted to the petitioner, he delivered to the lower court a document purporting to be the holographic Will of the deceased Bibiana Roxas de Jesus. On May 26, 1973, respondent Judge Jose Colayco set the hearing of the probate of the holographic Win on July 21, 1973.

Petitioner Simeon R. Roxas testified that after his appointment as administrator, he found a notebook belonging to the deceased Bibiana R. de Jesus and that on pages 21, 22, 23 and 24 thereof, a letter-win addressed to her children and entirely written and signed in the handwriting of the deceased Bibiana R. de Jesus was found. The will is dated "FEB./61 " and states: "This is my win which I want to be respected although it is not written by a lawyer. ...

The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro Roxas de Jesus and Manuel Roxas de Jesus who likewise testified that the letter dated "FEB./61 " is the holographic Will of their deceased mother, Bibiana R. de Jesus. Both recognized the handwriting of their mother and positively Identified her signature. They further testified that their deceased mother understood English, the language in which the holographic Will is written, and that the date "FEB./61 " was the date when said Will was executed by their mother.

Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate" assailing the purported holographic Will of Bibiana R. de Jesus because a it was not executed in accordance with

law, (b) it was executed through force, intimidation and/or under duress, undue influence and improper pressure, and (c) the alleged testatrix acted by mistake and/or did not intend, nor could have intended the said Will to be her last Will and testament at the time of its execution.

On August 24, 1973, respondent Judge Jose C. Colayco issued an order allowing the probate of the holographic Will which he found to have been duly executed in accordance with law.

Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging inter alia that the alleged holographic Will of the deceased Bibiana R. de Jesus was not dated as required by Article 810 of the Civil Code. She contends that the law requires that the Will should contain the day, month and year of its execution and that this should be strictly complied with.

On December 10, 1973, respondent Judge Colayco reconsidered his earlier order and disallowed the probate of the holographic Will on the ground that the word "dated" has generally been held to include the month, day, and year. The dispositive portion of the order reads:

WHEREFORE, the document purporting to be the holographic Will of Bibiana Roxas de Jesus, is hereby disallowed for not having been executed as required by the law. The order of August 24, 1973 is hereby set aside.

The only issue is whether or not the date "FEB./61 " appearing on the holographic Will of the deceased Bibiana Roxas de Jesus is a valid compliance with the Article 810 of the Civil Code which reads:

ART. 810. A person may execute a holographic will which 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.

The petitioners contend that while Article 685 of the Spanish Civil Code and Article 688 of the Old Civil Code require the testator to state in his holographic Win the "year, month, and day of its execution," the present Civil Code omitted the phrase Año mes y dia and simply requires that the holographic Will should be dated. The petitioners submit that the liberal construction of the holographic Will should prevail.

Respondent Luz Henson on the other hand submits that the purported holographic Will is void for non-compliance with Article 810 of the New Civil Code in that the date must contain the year, month, and day of its execution. The respondent contends that Article 810 of the Civil Code was patterned after Section 1277 of the California Code and Section 1588 of the Louisiana Code whose Supreme Courts had consistently ruled that the required date includes the year, month, and day, and that if any of these is wanting, the holographic Will is invalid. The respondent further contends that the petitioner cannot plead liberal construction of Article 810 of the Civil Code because statutes prescribing the formalities to be observed in the execution of holographic Wills are strictly construed.

We agree with the petitioner.

This will not be the first time that this Court departs from a strict and literal application of the statutory requirements regarding the due execution of Wills. We should not overlook the liberal trend of the Civil Code in the manner of execution of Wills, the purpose of which, in case of doubt is to prevent intestacy —

The underlying and fundamental objectives permeating the provisions of the law on wigs in this Project consists in the liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing his last wishes, but with sufficien safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator.

This objective is in accord with the modem tendency with respect to the formalities in the execution of wills. (Report of the Code Commission, p. 103)

In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v. Bustos (27 SCRA 327) he emphasized that:

xxx xxx xxx

... The law has a tender regard for the will of the testator expressed in his last will and testament on the ground that any disposition made by the testator is better than that which the law can make. For this reason, intestate succession is nothing more than a disposition based upon the presumed will of the decedent.

Thus, the prevailing policy is to require satisfaction of the legal requirements in order to guard against fraud and bad faith but without undue or unnecessary curtailment of testamentary privilege Icasiano v. Icasiano, 11 SCRA 422). If a Will has been executed in substantial compliance with the formalities of the law, and the possibility of bad faith and fraud in the exercise thereof is obviated, said Win should be admitted to probate (Rey v. Cartagena 56 Phil. 282). Thus,

xxx xxx xxx

... More than anything else, the facts and circumstances of record are to be considered in the application of any given rule. If the surrounding circumstances point to a regular execution of the wilt and the instrument appears to have been executed substantially in accordance with the requirements of the law, the inclination should, in the absence of any suggestion of bad faith, forgery or fraud, lean towards its admission to probate, although the document may suffer from some imperfection of language, or other non-essential defect. ... (Leynez v. Leynez 68 Phil. 745).

If the testator, in executing his Will, attempts to comply with all the requisites, although compliance is not literal, it is sufficient if the objective or purpose sought to be accomplished by such requisite is actually attained by the form followed by the testator.

The purpose of the solemnities surrounding the execution of Wills has been expounded by this Court in Abangan v. Abanga 40 Phil. 476, where we ruled that:

The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. ...

In particular, a complete date is required to provide against such contingencies as that of two competing Wills executed on the same day, or of a testator becoming insane on the day on which a Will was executed (Velasco v. Lopez, 1 Phil. 720). There is no such contingency in this case.

We have carefully reviewed the records of this case and found no evidence of bad faith and fraud in its execution nor was there any substitution of Wins and Testaments. There is no question that the holographic Will of the deceased Bibiana Roxas de Jesus was entirely written, dated, and signed by the testatrix herself and in a language known to her. There is also no question as to its genuineness and due execution. All the children of the testatrix agree on the genuineness of the holographic Will of their mother and that she had the testamentary capacity at the time of the execution of said Will. The objection interposed by the oppositor-respondent Luz Henson is that the holographic Will is fatally defective because the date "FEB./61 " appearing on the holographic Will is not sufficient compliance with Article 810 of the Civil Code. This objection is too technical to be entertained.

As a general rule, the "date" in a holographic Will should include the day, month, and year of its execution. However, when as in the case at bar, there is no appearance of fraud, bad faith, undue influence and pressure and the authenticity of the Will is established and the only issue is whether or not the date "FEB./61" appearing on the holographic Will is a valid compliance with Article 810 of the Civil Code, probate of the holographic Will should be allowed under the principle of substantial compliance.

WHEREFORE, the instant petition is GRANTED. The order appealed from is REVERSED and SET ASIDE and the order allowing the probate of the holographic Will of the deceased Bibiana Roxas de Jesus is reinstated.

SO ORDERED.

Teehankee (Chairman), Melencio-Herrera, Plana, Relova and De la Fuente, JJ., concur.

G.R. No. L-12190 August 30, 1958

109 Phil 509

TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E. GAN, petitioner-appellant,

vs. ILDEFONSO YAP, oppositor-appellee.

Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for appellant. Arturo M. Tolentino for appellee.

BENGZON, J.:

On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of Santo Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila.

On March 17, 1952, Fausto E. Gan initiated them proceedings in the Manila court of first instance with a petition for the probate of a holographic will allegedly executed by the deceased, substantially in these words:

Nobyembre 5, 1951.

Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay nagsasalaysay na ang aking kayamanan sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking mga kamag-anakang sumusunod:

Vicente Esguerra, Sr. .............................................

5 Bahagi

Fausto E. Gan .........................................................

2 Bahagi

Rosario E. Gan .........................................................

2 Bahagi

Filomena Alto ..........................................................

1 Bahagi

Beatriz Alto ..............................................................

1 Bahagi

At ang aking lahat ng ibang kayamanan sa Maynila at iba panglugar ay aking ipinamamana sa aking asawang si Idelfonso D. Yap sa kondisyong siya'y magpapagawa ng isang Health Center na nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa bayan ng Pulilan, Bulacan, na nakaukit ang aking pangalang Felicidad Esguerra-Alto. At kung ito ay may kakulangan man ay bahala na ang aking asawa ang magpuno upang matupad ang aking kagustuhan.

(Lagda) Felicidad E. Alto-Yap.

Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not left any will, nor executed any testament during her lifetime.

After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose, Judge,1 refused to probate the alleged will. A seventy-page motion for reconsideration failed. Hence this appeal.

The will itself was not presented. Petitioner tried to establish its contents and due execution by the statements in open court of Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan Jimenez, whose testimonies may be summarized as follows:

Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first cousin, Vicente Esguerra, her desire to make a will. She confided however that it would be useless if her husband discovered or knew about it. Vicente consulted with Fausto E. Gan, nephew of Felicidad, who was then preparing for the bar examinations. The latter replied it could be done without any witness, provided the document was entirely in her handwriting, signed and dated by her. Vicente Esguerra lost no time in transmitting the information, and on the strength of it, in the morning of November 5, 1951, in her residence at Juan Luna Street, Manila, Felicidad wrote, signed and dated a holographic will substantially of the tenor above transcribed, in the presence of her niece, Felina Esguerra (daughter of Vicente), who was invited to read it. In the afternoon of that day, Felicidad was visited by a distant relative, Primitivo Reyes, and she allowed him to read the will in the presence of Felina Esguerra, who again read it.

Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan Jimenez, a niece. To these she showed the will, again in the presence of Felina Esguerra, who read it for the third time.

When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last illness, she entrusted the said will, which was contained in a purse, to Felina Esguerra. But a few hours later, Ildefonso Yap, her husband, asked Felina for the purse: and being afraid of him by reason of his well-known violent temper, she delivered it to him. Thereafter, in the same day, Ildefonso Yap returned the purse to Felina, only to demand it the next day shortly before the death of Felicidad. Again, Felina handed it to him but not before she had taken the purse to the toilet, opened it and read the will for the last time.2

From the oppositor's proof it appears that Felicidad Esguerra had been suffering from heart disease for several years before her death; that she had been treated by prominent physicians, Dr. Agerico Sison, Dr. Agustin Liboro and others; that in May 1950 husband and wife journeyed to the United States wherein for several weeks she was treated for the disease; that thereafter she felt well and after visiting interesting places, the couple returned to this country in August 1950. However, her ailment recurred, she suffered several attacks, the most serious of which happened in the early morning of the first Monday of November 1951 (Nov. 5). The whole household was surprised and alarmed, even the teachers of the Harvardian Colleges occupying the lower floors and of by the Yap spouses. Physician's help was hurriedly called, and Dr. Tanjuaquio arrived at about 8:00 a.m., found the patient hardly breathing, lying in bed, her head held high by her husband. Injections and oxygen were administered. Following the doctor's advice the patient stayed in bed, and did nothing the whole day, her husband and her personal attendant, Mrs. Bantique, constantly at her side. These two persons swore that Mrs. Felicidad Esguerra Yap made no will, and could have made no will on that day.

The trial judge refused to credit the petitioner's evidence for several reasons, the most important of which were these: (a) if according to his evidence, the decedent wanted to keep her will a secret, so that her husband would not know it, it is strange she executed it in the presence of Felina Esguerra, knowing as she did that witnesses were unnecessary; (b) in the absence of a showing that Felina was a confidant of the decedent it is hard to believe that the latter would have allowed the former to see and read the will several times; (c) it is improbable that the decedent would have permitted Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte to read her will, when she precisely wanted its contents to remain a secret during her lifetime; (d) it is also improbable that her purpose being to conceal the will from her husband she would carry it around, even to the hospital, in her purse which could for one reason or another be opened by her husband; (e) if it is true that the husband demanded the purse from Felina in the U.S.T. Hospital and that the will was there, it is hard to believe that he returned it without destroying the will, the theory of the petitioner being precisely that the will was executed behind his back for fear he will destroy it.

In the face of these improbabilities, the trial judge had to accept the oppositor's evidence that Felicidad did not and could not have executed such holographic will.

In this appeal, the major portion of appellant's brief discussed the testimony of the oppositor and of his witnesses in a vigorous effort to discredit them. It appears that the same arguments, or most of them, were presented in the motion to reconsider; but they failed to induce the court a quo to change its mind. The oppositor's brief, on the other hand, aptly answers the criticisms. We deem it unnecessary to go over the same matters, because in our opinion the case should be decided not on the weakness of the opposition but on the strength of the evidence of the petitioner, who has the burden of proof.

The Spanish Civil Code permitted the execution of holographic wills along with other forms. The Code of Civil Procedure (Act 190) approved August 7, 1901, adopted only one form, thereby repealing the other forms, including holographic wills.

The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "A person may execute a holographic will which 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."

This is indeed a radical departure from the form and solemnities provided for wills under Act 190, which for fifty years (from 1901 to 1950) required wills to be subscribed by the testator and three credible witnesses in each andevery page; such witnesses to attest to the number of sheets used and to the fact that the testator signed in their presence and that they signed in the presence of the testator and of each other.

The object of such requirements it has been said, is to close the door against bad faith and fraud, to prevent substitution of wills, to guarantee their truth and authencity (Abangan vs. Abangan, 40 Phil., 476) and to avoid those who have no right to succeed the testator would succeed him and be benefited with the probate of same. (Mendoza vs. Pilapil, 40 Off. Gaz., 1855). However, formal imperfections may be brushed aside when authenticity of the instrument is duly proved. (Rodriguez vs Yap, 40 Off. Gaz. 1st Supp. No. 3 p. 194.)

Authenticity and due execution is the dominant requirements to be fulfilled when such will is submitted to the courts for allowance. For that purpose the testimony of one of the subscribing witnesses would be sufficient if there is no opposition (Sec. 5, Rule 77). If there is, the three must testify, if available. (Cabang vs. Delfinado, 34 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742). From the testimony of such witnesses (and of other additional witnesses) the court may form its

opinion as to the genuineness and authenticity of the testament, and the circumstances its due execution.

Now, in the matter of holographic wills, no such guaranties of truth and veracity are demanded, since as stated, they need no witnesses; provided however, that they are "entirely written, dated, and signed by the hand of the testator himself." The law, it is reasonable to suppose, regards the document itself as material proof of authenticity, and as its own safeguard, since it could at any time, be demonstrated to be — or not to be — in the hands of the testator himself. "In the probate of a holographic will" says the New Civil Code, "it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three such witnesses shall be required. In the absence of any such witnesses, (familiar with decedent's handwriting) and if the court deem it necessary, expert testimony may be resorted to."

The witnesses so presented do not need to have seen the execution of the holographic will. They may be mistaken in their opinion of the handwriting, or they may deliberately lie in affirming it is in the testator's hand. However, the oppositor may present other witnesses who also know the testator's handwriting, or some expert witnesses, who after comparing the will with other writings or letters of the deceased, have come to the conclusion that such will has not been written by the hand of the deceased. (Sec. 50, Rule 123). And the court, in view of such contradictory testimony may use its own visual sense, and decide in the face of the document, whether the will submitted to it has indeed been written by the testator.

Obviously, when the will itself is not submitted, these means of opposition, and of assessing the evidence are not available. And then the only guaranty of authenticity3 — the testator's handwriting — has disappeared.

Therefore, the question presents itself, may a holographic will be probated upon the testimony of witnesses who have allegedly seen it and who declare that it was in the handwriting of the testator? How can the oppositor prove that such document was not in the testator's handwriting? His witnesses who know testator's handwriting have not examined it. His experts can not testify, because there is no way to compare the alleged testament with other documents admittedly, or proven to be, in the testator's hand. The oppositor will, therefore, be caught between the upper millstone of his lack of knowledge of the will or the form thereof, and the nether millstone of his inability to prove its falsity. Again the proponent's witnesses may be honest and truthful; but they may have been shown a faked document, and having no interest to check the authenticity thereof have taken no pains to examine and compare. Or they may be perjurers boldly testifying, in the knowledge that none could convict them of perjury, because no one could prove that they have not "been shown" a document which they believed was in the handwriting of the deceased. Of course, the competency of such perjured witnesses to testify as to the handwriting could be tested by exhibiting to them other writings sufficiently similar to those written by the deceased; but what witness or lawyer would not foresee such a move and prepare for it? His knowledge of the handwriting established, the witness (or witnesses) could simply stick to his statement: he has seen and read a document which he believed was in the deceased's handwriting. And the court and the oppositor would practically be at the mercy of such witness (or witnesses) not only as to the execution, but also as to the contents of the will. Does the law permit such a situation?

The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of a lost or destroyed will by secondary — evidence the testimony of witnesses, in lieu of the original document. Yet such Rules could not have contemplated holographic wills which could not then be validly made here. (See also Sec. 46, Rule 123; Art. 830-New Civil Code.)

Could Rule 77 be extended, by analogy, to holographic wills?

Spanish commentators agree that one of the greatest objections to the holographic will is that it may be lost or stolen4 — an implied admission that such loss or theft renders it useless..

This must be so, because the Civil Code requires it to be protocoled and presented to the judge, (Art. 689) who shall subscribe it and require its identity to be established by the three witnesses who depose that they have no reasonable doubt that the will was written by the testator (Art. 691). And if the judge considers that the identity of the will has been proven he shall order that it be filed (Art. 693). All these, imply presentation of the will itself. Art. 692 bears the same implication, to a greater degree. It requires that the surviving spouse and the legitimate ascendants and descendants be summoned so that they may make "any statement they may desire to submit with respect to the authenticity of the will." As it is universally admitted that the holographic will is usually done by the testator and by himself alone, to prevent others from knowing either its execution or its contents, the above article 692 could not have the idea of simply permitting such relatives to state whether they know of the will, but whetherin the face of the document itself they think the testator wrote it. Obviously, this they can't do unless the will itself is presented to the Court and to them.

Undoubtedly, the intention of the law is to give the near relatives the choice of either complying with the will if they think it authentic, or to oppose it, if they think it spurious.5 Such purpose is frustrated when the document is not presented for their examination. If it be argued that such choice is not essential, because anyway the relatives may oppose, the answer is that their opposition will be at a distinct disadvantage, and they have the right and privilegeto comply with the will, if genuine, a right which they should not be denied by withholding inspection thereof from them.

We find confirmation of these ideas--about exhibition of the document itself--in the decision of the Supreme Court of Spain of June 5, 1925, which denied protocolization or probate to a document containing testamentary dispositions in the handwriting of the deceased, but apparently mutilated, the signature and some words having been torn from it. Even in the face of allegations and testimonial evidence (which was controverted), ascribing the mutilation to the opponents of the will. The aforesaid tribunal declared that, in accordance with the provision of the Civil Code (Spanish) the will itself, whole and unmutilated, must be presented; otherwise, it shall produce no effect.

Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del articulo 688 del Codigo civil, que para que sea valido el testamento olografo debera estar escrito todo el y firmado por testador, con expression del año, mes y dia en que se otorque, resulta evidente que para la validez y eficacia de esos testamentos, no basta la demostracion mas o menos cumplida de que cuando se otorgaron se Ilenaron todos esos requisitos, sino que de la expresada redaccion el precepto legal, y por el tiempo en que el verbo se emplea, se desprende la necesidad de que el documento se encuentre en dichas condiciones en el momento de ser presentado a la Autoridad competente, para au adveracion y protocolizacion; y como consecuencia ineludible de ello, forzoso es affirmar que el de autos carece de validez y aficacia, por no estarfirmado por el testador, cualquiera que sea la causa de la falta de firma, y sin perjuicio de las acciones que puedan ejercitar los perjudicados, bien para pedir indemnizacion por el perjuicio a la persona culpable, si la hubiere, o su castigo en via criminal si procediere, por constituir dicha omision un defecto insubsanable . . . .

This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the basis of the Spanish Civil Code provisions on the matter.6

PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V, ley 15--E depues que los herederos e sus fijos ovieren esta manda, fasta ... annos muestrenla al obispo de la tierra, o al juez fasta VI meses y el obispo o el juez tomen otros tales tres escritos, que fuesen fechos por su mano daquel que fizo la manda; e por aquellos escriptos, si semjara la letra de la manda, sea confirmada la manda. E depues que todo esto fuere connoscido, el obispo o el juez, o otras testimonios confirmen el escripto de la manda otra vez, y en esta manera vala la manda. (Art. 689, Scaevola--Codigo Civil.)

(According to the Fuero above, the will itself must be compared with specimens of the testators handwriting.)

All of which can only mean: the courts will not distribute the property of the deceased in accordance with his holographic will, unless they are shown his handwriting and signature.7

Parenthetically, it may be added that even the French Civil Law considers the loss of the holographic will to be fatal. (Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz Cruz, 1946, Tomo V, page 555).

Taking all the above circumstances together, we reach the conclusion that the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will.8

Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this opinion as a Rule of Court for the allowance of such holographic wills. We hesitate, however, to make this Rule decisive of this controversy, simultaneously with its promulgation. Anyway, decision of the appeal may rest on the sufficiency, rather the insufficiency, of the evidence presented by petitioner Fausto E. Gan.

At this point, before proceeding further, it might be convenient to explain why, unlike holographic wills, ordinary wills may be proved by testimonial evidence when lost or destroyed. The difference lies in the nature of the wills. In the first, the only guarantee of authenticity is the handwriting itself; in the second, the testimony of the subscribing or instrumental witnesses (and of the notary, now). The loss of the holographic will entails the loss of the only medium of proof; if the ordinary will is lost, the subscribing witnesses are available to authenticate.

In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary) deliberately to lie. And then their lies could be checked and exposed, their whereabouts and acts on the particular day, the likelihood that they would be called by the testator, their intimacy with the testator, etc. And if they were intimates or trusted friends of the testator they are not likely to end themselves to any fraudulent scheme to distort his wishes. Last but not least, they can not receive anything on account of the will.

Whereas in the case of holographic wills, if oral testimony were admissible9 only one man could engineer the fraud this way: after making a clever or passable imitation of the handwriting and signature of the deceased, he may contrive to let three honest and credible witnesses see and read the forgery; and the latter, having no interest, could easily fall for it, and in court they would in all good faith affirm its genuineness and authenticity. The will having been lost — the forger may have purposely destroyed it in an "accident" — the oppositors have no way to expose the trick and the error, because the document itself is not at hand. And considering that the holographic will may consist of two or three pages, and only one of them need be signed, the substitution of the unsigned pages, which may be the most important ones, may go undetected.

If testimonial evidence of holographic wills be permitted, one more objectionable feature — feasibility of forgery — would be added to the several objections to this kind of wills listed by Castan, Sanchez Roman and Valverde and other well-known Spanish Commentators and teachers of Civil Law.10

One more fundamental difference: in the case of a lost will, the three subscribing witnesses would be testifying to a fact which they saw, namely the act of the testator of subscribing the will; whereas in the case of a lost holographic will, the witnesses would testify as to their opinion of the handwriting which they allegedly saw, an opinion which can not be tested in court, nor directly contradicted by the oppositors, because the handwriting itself is not at hand.

Turning now to the evidence presented by the petitioner, we find ourselves sharing the trial judge's disbelief. In addition to the dubious circumstances described in the appealed decision, we find it hard to believe that the deceased should show her will precisely to relatives who had received nothing from it: Socorro Olarte and Primitivo Reyes. These could pester her into amending her will to give them a share, or threaten to reveal its execution to her husband Ildefonso Yap. And this leads to another point: if she wanted so much to conceal the will from her husband, why did she not entrust it to her beneficiaries? Opportunity to do so was not lacking: for instance, her husband's trip to Davao, a few days after the alleged execution of the will.

In fine, even if oral testimony were admissible to establish and probate a lost holographic will, we think the evidence submitted by herein petitioner is so tainted with improbabilities and inconsistencies that it fails to measure up to that "clear and distinct" proof required by Rule 77, sec. 6.11

Wherefore, the rejection of the alleged will must be sustained.

Judgment affirmed, with costs against petitioner.

Paras, C. J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes, J. B. L., Endencia and Felix, JJ., concur.

G.R. No. L-58509 December 7, 1982

119 SCRA 16

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA deceased, MARCELA RODELAS, petitioner-appellant,

vs. AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor.

Luciano A. Joson for petitioner-appellant.

Cesar Paralejo for oppositor-appellee.

RELOVA, J.:

This case was certified to this Tribunal by the Court of Appeals for final determination pursuant to Section 3, Rule 50 of the Rules of Court.

As found by the Court of Appeals:

... On January 11, 1977, appellant filed a petition with the Court of First Instance of Rizal for the probate of the holographic will of Ricardo B. Bonilla and the issuance of letters testamentary in her favor. The petition, docketed as Sp. Proc. No. 8432, was opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes Expedita Bonilla Frias and Ephraim Bonilla on the following grounds:

(1) Appellant was estopped from claiming that the deceased left a will by failing to produce the will within twenty days of the death of the testator as required by Rule 75, section 2 of the Rules of Court;

(2) The alleged copy of the alleged holographic will did not contain a disposition of property after death and was not intended to take effect after death, and therefore it was not a will

(3) The alleged hollographic will itself,and not an alleged copy thereof, must be produced, otherwise it would produce no effect, as held in Gam v. Yap, 104 Phil. 509; and

(4 ) The deceased did not leave any will, holographic or otherwise, executed and attested as required by law.

The appellees likewise moved for the consolidation of the case with another case Sp. Proc. No, 8275). Their motion was granted by the court in an order dated April 4, 1977.

On November 13, 1978, following the consolidation of the cases, the appellees moved again to dismiss the petition for the probate of the will. They argued that:

(1) The alleged holographic was not a last will but merely an instruction as to the management and improvement of the schools and colleges founded by decedent Ricardo B. Bonilla; and

(2) Lost or destroyed holographic wills cannot be proved by secondary evidence unlike ordinary wills.

Upon opposition of the appellant, the motion to dismiss was denied by the court in its order of February 23, 1979.

The appellees then filed a motion for reconsideration on the ground that the order was contrary to law and settled pronouncements and rulings of the Supreme Court, to which the appellant in turn filed an opposition. On July 23, 1979, the court set aside its order of February 23, 1979 and dismissed the petition for the probate of the will of Ricardo B. Bonilla. The court said:

... It is our considered opinion that once the original copy of the holographic will is lost, a copy thereof cannot stand in lieu of the original.

In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in the matter of holographic wills the law, it is reasonable to suppose, regards the document itself as the material proof of authenticity of said wills.

MOREOVER, this Court notes that the alleged holographic will was executed on January 25, 1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the lapse of more than 14 years from the time of the execution of the will to the death of the decedent, the fact that the original of the will could not be located shows to our mind that the decedent had discarded before his death his allegedly missing Holographic Will.

Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in which it is contended that the dismissal of appellant's petition is contrary to law and well-settled jurisprudence.

On July 7, 1980, appellees moved to forward the case to this Court on the ground that the appeal does not involve question of fact and alleged that the trial court committed the following assigned errors:

I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY THEREOF;

II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL;

III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.

The only question here is whether a holographic will which was lost or cannot be found can be proved by means of a photostatic copy. Pursuant to Article 811 of the Civil Code, probate of

holographic wills is the allowance of the will by the court after its due execution has been proved. The probate may be uncontested or not. If uncontested, at least one Identifying witness is required and, if no witness is available, experts may be resorted to. If contested, at least three Identifying witnesses are required. However, if the holographic will has been lost or destroyed and no other copy is available, the will can not be probated because the best and only evidence is the handwriting of the testator in said will. It is necessary that there be a comparison between sample handwritten statements of the testator and the handwritten will. But, a photostatic copy or xerox copy of the holographic will may be allowed because comparison can be made with the standard writings of the testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that "the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court," Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be admitted because then the authenticity of the handwriting of the deceased can be determined by the probate court.

WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's motion for reconsideration dated August 9, 1979, of the Order dated July 23, 1979, dismissing her petition to approve the will of the late Ricardo B. Bonilla, is hereby SET ASIDE.

SO ORDERED.

Teehankee, Actg. C.J., Melencio-Herrera, Plana, Vasquez and Gutierrez, Jr., JJ., concur.

G.R. No. L-14003 August 5, 1960

109 Phil 142

FEDERICO AZAOLA, petitioner-appellant, vs.

CESARIO SINGSON, oppositor-appellee.

F. Lavides and L.B. Alcuaz for appellant. Vicente J. Cuna and P.S. Singson for appellee.

REYES, J.B.L., J.:

This appeal, taken on points of law from a decision rendered on 15 January 1958 by the Court of First Instance of Quezon City in its Special Proceedings No. Q-2640, involves the determination of the quantity of evidence required for the probate of a holographic will.

The established facts are thus summarized in the decision appealed from (Rec. App. pp. 22-24):

"Briefly speaking, the following facts were established by the petitioner; that on September 9, 1957, Fortunata S. Vda. de Yance died at 13 Luskot, Quezon City, known to be the last residence of said testatrix; that Francisco Azaola, petitioner herein for probate of the holographic will, submitted the said holographic will (Exh. C) whereby Maria Milagros Azaola was made the sole heir as against the nephew of deceased Cesario Singson; that witness Francisco Azaola testified that he saw the holographic will (Exh. C) one month, more or less, before the death of the testatrix, as the same was handed to him and his wife; that the witness testified also that he recognized all the signatures appearing in the holographic will (Exh. C) as the handwriting of the testatrix and to reinforce said statement, witness presented the mortgage (Exh. E), the special power of the attorney (Exh. F), and the general power of attorney (Exh. F-1), besides the deeds of sale (Exhs. G and G-1) including an affidavit (Exh. G-2), and that there were further exhibited in court two residence certificates (Exhs. H and H-1) to show the signatures of the testatrix, for comparison purposes; that said witness, Azaola, testified that the penmanship appearing in the aforesaid documentary evidence is in the handwriting of the testatrix as well as the signatures appearing in the aforesaid documentary evidence is in the handwriting of the testatrix as well as the signatures appearing therein are the signatures of the testatrix; that said witness, in answer to a question of his counsel admitted that the holographic will was handed to him by the testatrix. "apparently it must have been written by her" (t.s.n., p. 11). However, on page 16 on the same transcript of the stenographic notes, when the same witness was asked by counsel if he was familiar with the penmanship and handwriting of the deceased Fortunata Vda. de Yance, he answered positively in the affirmative and when he was asked again whether the penmanship referred to in the previous answer as appearing in the holographic will (Exh. C) was hers (testatrix'), he answered, "I would definitely say it is hers"; that it was also established in the proceedings that the assessed value of the property of the deceased in Luskot, Quezon City, is in the amount of P7,000.00.

The opposition to the probate was on the ground that (1) the execution of the will was procured by undue and improper pressure and influence on the part of the petitioner and his wife, and (2) that the testatrix did not seriously intend the instrument to be her last will, and that the same was actually

written either on the 5th or 6th day of August 1957 and not on November 20, 1956 as appears on the will.

The probate was denied on the ground that under Article 811 of the Civil Code, the proponent must present three witnesses who could declare that the will and the signature are in the writing of the testatrix, the probate being contested; and because the lone witness presented by the proponent "did not prove sufficiently that the body of the will was written in the handwriting of the testatrix."

The proponent appealed, urging: first, that he was not bound to produce more than one witness because the will's authenticity was not questioned; and second, that Article 811 does not mandatorily require the production of three witnesses to identify the handwriting and signature of a holographic will, even if its authenticity should be denied by the adverse party.

Article 811 of the Civil Code of the Philippines is to the following effect:

ART. 811. In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required.

In the absence of any competent witnesses referred to in the preceding paragraph, and if the court deems it necessary, expert testimony may be resorted to. (691a).

We agree with the appellant that since the authenticity of the will was not contested, he was not required to produce more than one witness; but even if the genuineness of the holographic will were contested, we are of the opinion that Article 811 of our present Civil Code can not be interpreted as to require the compulsory presentation of three witnesses to identify the handwriting of the testator, under penalty of having the probate denied. Since no witness may have been present at the execution of a holographic will, none being required by law (Art. 810, new Civil Code), it becomes obvious that the existence of witness possessing the requisite qualifications is a matter beyond the control of the proponent. For it is not merely a question of finding and producing any three witnesses; they must be witnesses "who know the handwriting and signature of the testator" and who can declare (truthfully, of course, even if the law does not so express) "that the will and the signature are in the handwriting of the testator". There may be no available witness of the testator's hand; or even if so familiarized, the witnesses may be unwilling to give a positive opinion. Compliance with the rule of paragraph 1 of Article 811 may thus become an impossibility. That is evidently the reason why the second paragraph of Article 811 prescribes that —

in the absence of any competent witness referred to in the preceding paragraph, and if the court deems it necessary, expert testimony may be resorted to.

As can be seen, the law foresees the possibility that no qualified witness may be found (or what amounts to the same thing, that no competent witness may be willing to testify to the authenticity of the will), and provides for resort to expert evidence to supply the deficiency.

It may be true that the rule of this article (requiring that three witnesses be presented if the will is contested and only one if no contest is had) was derived from the rule established for ordinary testaments (cf. Cabang vs. Delfinado, 45 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742). But it can not be ignored that the requirement can be considered mandatory only in the case of ordinary testaments, precisely because the presence of at least three witnesses at the execution of ordinary wills is made by law essential to their validity (Art. 805). Where the will is holographic, no witness

need be present (Art. 10), and the rule requiring production of three witnesses must be deemed merely permissive if absurd results are to be avoided.

Again, under Article 811, the resort to expert evidence is conditioned by the words "if the Court deem it necessary", which reveal that what the law deems essential is that the Court should be convinced of the will's authenticity. Where the prescribed number of witnesses is produced and the court is convinced by their testimony that the ill is genuine, it may consider it unnecessary to call for expert evidence. On the other hand, if no competent witness is available, or none of those produced is convincing, the Court may still, and in fact it should, resort to handwriting experts. The duty of the Court, in fine, is to exhaust all available lines of inquiry, for the state is as much interested as the proponent that the true intention of the testator be carried into effect.

Commenting on analogous provisions of Article 691 of the Spanish Civil Code of 1889, the noted Commentator, Mucuis Scaevola (Vol. 12, 2nd Ed., p.421), sagely remarks:

La manera como esta concebida la redaccion del ultimo apartado de dicho precepto induce la conclusion de que siempre o por lo menos, en la mayor parte de los casos, el Juez debe acudir al criterio pericial para que le ilustre acerca de la autenticidad del testamento olografo, aunque ya esten insertas en los autos del expediente las declaraciones testificales. La prudencia con que el Juez debe de proceder en resoluciones de transcendencia asi lo exige, y la indole delicada y peligrosa del testamento olografo lo hace necesario para mayor garantia de todos los interes comprometidos en aquel.

En efecto, el cotejo pericial de letras puede ser una confirmacion facultativa del dicho profano de los testigos y un modo de desvanecer las ultimas dudas que pudieran ocurrir al Juez acerca de la autenticidad que trata de averigaur y declarar. Para eso se ha escrito la frase del citado ultimo apartado, (siempre que el Juez lo estime conveniente), haya habido o no testigos y dudaran o no estos respecto de los extremos por que son preguntados.

El arbitrio judicial en este caso debe formarse con independencia de los sucesos y de su significacion, para responder debidamente de las resoluciones que haya de dictar.

And because the law leaves it to the trial court if experts are still needed, no unfavourable inference can be drawn from a party's failure to offer expert evidence, until and unless the court expresses dissatisfaction with the testimony of the lay witnesses.

Our conclusion is that the rule of the first paragraph of Article 811 of the Civil Code is merely directory and is not mandatory.

Considering, however, that this is the first occasion in which this Court has been called upon to construe the import of said article, the interest of justice would be better served, in our opinion, by giving the parties ample opportunity to adduce additional evidence, including expert witnesses, should the Court deem them necessary.

In view of the foregoing, the decision appealed from is set aside, and the records ordered remanded to the Court of origin, with instructions to hold a new trial in conformity with this opinion. But evidence already on record shall not be retaken. No costs.

Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Barrera and Gutierrez David, JJ., concur.

G.R. No. L-2538 September 21, 1951

90 Phil 37

Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA. DE MOLO, petitioner-appellee,

vs. LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants.

Claro M. Recto and Serafin C. Dizon for appellants. Delgado & Flores for appellee.

BAUTISTA ANGELO, J.:

This is an appeal from an order of the Court of First Instance of Rizal admitting to probate the last will and testament of the deceased Mariano Molo y Legaspi executed on August 17, 1918. The oppositors-appellants brought the case on appeal to this Court for the reason that the value of the properties involved exceeds P50,000.

Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay, province of Rizal, without leaving any forced heir either in the descending or ascending line. He was survived, however, by his wife, the herein petitioner Juana Juan Vda. de Molo, and by his nieces and nephew, the oppositors-appellants, Luz Gliceria and Cornelio, all surnamed Molo, who were the legitimate children of Candido Molo y Legaspi, deceased brother of the testator. Mariano Molo y Legaspi left two wills, one executed on August 17, 1918, (Exhibit A) and another executed on June 20, 1939. (Exhibit I). The later will executed in 1918.

On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court of First Instance of Rizal a petition, which was docketed as special proceeding No. 8022 seeking the probate of the will executed by the deceased on June 20, 1939. There being no opposition, the will was probated. However, upon petition filed by the herein oppositors, the order of the court admitting the will to probate was set aside and the case was reopened. After hearing, at which both parties presented their evidence, the court rendered decision denying the probate of said will on the ground that the petitioner failed to prove that the same was executed in accordance with law.

In view of the disallowance of the will executed on June 20, 1939, the widow on February 24, 1944, filed another petition for the probate of the will executed by the deceased on August 17, 1918, which was docketed as special proceeding No. 56, in the same court. Again, the same oppositors filed an opposition to the petition based on three grounds: (1) that petitioner is now estopped from seeking the probate of the will of 1918; (2) that said will has not been executed in the manner required by law and (3) that the will has been subsequently revoked. But before the second petition could be heard, the battle for liberation came and the records of the case were destroyed. Consequently, a petition for reconstitution was filed, but the same was found to be impossible because neither petitioner nor oppositors could produce the copies required for its reconstitution. As a result, petitioner filed a new petition on September 14, 1946, similar to the one destroyed, to which the oppositors filed an opposition based on the same grounds as those contained in their former opposition. Then, the case was set for trial, and on May 28, 1948, the court issued an order admitting the will to probate already stated in the early part of this decision. From this order the oppositors appealed assigning six errors, to wit.

I. The probate court erred in not holding that the present petitioner voluntarily and deliberately frustrated the probate of the will dated June 20, 1939, in special proceeding No. 8022, in order to enable her to obtain the probate of another alleged will of Molo dated 191.

II. The court a quo erred in not holding that the petitioner is now estopped from seeking the probate of Molo's alleged will of 1918.

III. The lower court erred in not holding that petitioner herein has come to court with "unclean hands" and as such is not entitled to relief.

IV. The probate court erred in not holding that Molo's alleged will of August 17, 1918 was not executed in the manner required by law.

V. The probate court erred in not holding that the alleged will of 1918 was deliberately revoked by Molo himself.

VI. The lower court erred in not holding that Molo's will of 1918 was subsequently revoked by the decedent's will of 1939.

In their first assignment of error, counsel for oppositors contend that the probate court erred in not holding that the petitioner voluntarily and deliberately frustrated the probate of the will dated June 20, 1939, in order to enable her to obtain the probate of the will executed by the deceased on August 17, 1918, pointing out certain facts and circumstances with their opinion indicate that petitioner connived with the witness Canuto Perez in an effort to defeat and frustrate the probate of the 1939 will because of her knowledge that said will intrinsically defective in that "the one and only testamentory disposition thereof was a "disposicion captatoria". These circumstances, counsel for the appellants contend, constitute a series of steps deliberately taken by petitioner with a view to insuring the realization of her plan of securing the probate of the 1918 will which she believed would better safeguard her right to inherit from the decease.

These imputations of fraud and bad faith allegedly committed in connection with special proceedings No. 8022, now closed and terminated, are vigorously met by counsel for petitioner who contends that to raise them in these proceedings which are entirely new and distinct and completely independent from the other is improper and unfair as they find no support whatsoever in any evidence submitted by the parties in this case. They are merely based on the presumptions and conjectures not supported by any proof. For this reason, counsel, contends, the lower court was justified in disregarding them and in passing them sub silentio in its decision.

A careful examination of the evidence available in this case seems to justify this contention. There is indeed no evidence which may justify the insinuation that petitioner had deliberately intended to frustrate the probate of the 1939 will of the deceased to enable her to seek the probate of another will other than a mere conjecture drawn from the apparently unexpected testimony of Canuto Perez that he went out of the room to answer an urgent call of nature when Artemio Reyes was signing the will and the failure of petitioner later to impeach the character of said witness in spite of the opportunity given her by the court to do so. Apart from this insufficiency of evidence, the record discloses that this failure has been explained by petitioner when she informed the court that she was unable to impeach the character of her witness Canuto Perez because of her inability to find witnesses who may impeach him, and this explanation stands uncontradicted. Whether this explanation is satisfactory or not, it is not now, for us to determine. It is an incident that comes within the province of the former case. The failure of petitioner to present the testimony of Artemio Reyes at the hearing has also been explained, and it appears that petitioner has filed because his whereabouts could not be found. Whether this is true or not is also for this Court to determine. It is

likewise within the province and function of the court in the former case. And the unfairness of this imputation becomes more glaring when we stock of the developments that had taken place in these proceedings which show in bold relief the true nature of the conduct, behavior and character of the petitioner so bitterly assailed and held in disrepute by the oppositors.

It should be recalled that the first petition for the probate of the will executed on June 20, 1939, was filed on February 7, 1941, by the petitioner. There being no opposition, the will was probated. Subsequently, however, upon petition of the herein oppositors, the order of the court admitting said will to probate was set aside, over the vigorous opposition of the herein petitioner, and the case was reopened. The reopening was ordered because of the strong opposition of the oppositors who contended that he will had not been executed as required by law. After the evidence of both parties had been presented, the oppositors filed an extensive memorandum wherein they reiterated their view that the will should be denied probate. And on the strenght of this opposition, the court disallowed the will.

If petitioner then knew that the 1939 will was inherently defective and would make the testamentary disposition in her favor invalid and ineffective, because it is a "disposicion captatoria", which knowledge she may easily acquire through consultation with a lawyer, there was no need her to go through the order of filing the petition for the probate of the will. She could accomplish her desire by merely suppressing the will or tearing or destroying it, and then take steps leading to the probate of the will executed in 1918. But for her conscience was clear and bade her to take the only proper step possible under the circumstances, which is to institute the necessary proceedings for the probate of the 1939 will. This she did and the will was admitted to probate. But then the unexpected happened. Over her vigorous opposition, the herein appellants filed a petition for reopening, and over her vigorous objection, the same was granted and the case was reopened. Her motion for reconsideration was denied. Is it her fault that the case was reopened? Is it her fault that the order admitting the will to probate was set aside? That was a contingency which petitioner never expected. Had appellants not filed their opposition to the probate of the will and had they limited their objection to the intrinsic validity of said will, their plan to defeat the will and secure the intestacy of the deceased would have perhaps been accomplished. But they failed in their strategy. If said will was denied probate it is due to their own effort. It is now unfair to impute bad faith petitioner simply because she exerted every effort to protect her own interest and prevent the intestacy of the deceased to happen.

Having reached the foregoing conclusions, it is obvious that the court did not commit the second and third errors imputed to it by the counsel for appellants. Indeed, petitioner cannot be considered guilty or estoppel which would prevent her from seeking the probate of the 1918 will simply because of her effort to obtain the allowance of the 1939 will has failed considering that in both the 1918 and 1939 wills she was in by her husband as his universal heir. Nor can she be charged with bad faith far having done so because of her desire to prevent the intestacy of her husband. She cannot be blamed being zealous in protecting her interest.

The next contention of appellants refers to the revocatory clause contained in 1939 will of the deceased which was denied probate. They contend that, notwithstanding the disallowance of said will, the revocatory clause is valid and still has the effect of nullifying the prior of 1918.

Counsel for petitioner meets this argument by invoking the doctrine laid down in the case of Samson vs. Naval, (41 Phil., 838). He contends that the facts involved in that case are on all fours with the facts of this case. Hence, the doctrine is that case is here controlling.

There is merit in this contention. We have carefully read the facts involved in the Samson case we are indeed impressed by their striking similarity with the facts of this case. We do not need to recite

here what those facts are; it is enough to point out that they contain many points and circumstances in common. No reason, therefore, is seen by the doctrine laid down in that case (which we quote hereunder) should not apply and control the present case.

A subsequent will, containing a clause revoking a previous will, having been disallowed, for the reason that it was not executed in conformity with the provisions of section 618 of the Code of Civil Procedure as to the making of wills, cannot produce the effect of annulling the previous will, inasmuch as said revocatory clause is void. (41 Phil., 838.)

Apropos of this question, counsel for oppositors make the remark that, while they do not disagree with the soundness of the ruling laid down in the Samson case, there is reason to abandon said ruling because it is archaic or antiquated and runs counter to the modern trend prevailing in American jurisprudence. They maintain that said ruling is no longer controlling but merely represents the point of view of the minority and should, therefore, be abandoned, more so if we consider the fact that section 623 of our Code of Civil Procedure, which governs the revocation of wills, is of American origin and as such should follow the prevailing trend of the majority view in the United States. A long line of authorities is cited in support of this contention. And these authorities hold the view, that "an express revocation is immediately effective upon the execution of the subsequent will, and does not require that it first undergo the formality of a probate proceeding". (p. 63, appellants' brief .

While they are many cases which uphold the view entertained by counsel for oppositors, and that view appears to be in controlling the states where the decisions had been promulgated, however, we are reluctant to fall in line with the assertion that is now the prevailing view in the United States. In the search we have made of American authorities on the subject, we found ourselves in a pool of conflicting opinions perhaps because of the peculiar provisions contained in the statutes adopted by each State in the subject of revocation of wills. But the impression we gathered from a review and the study of the pertinent authorities is that the doctrine laid down in the Samson case is still a good law. On page 328 of the American Jurisprudence Vol. 57, which is a revision Published in 1948, we found the following passages which in our opinion truly reflect the present trend of American jurisprudence on this matter affecting the revocation of wills:

SEC. 471. Observance of Formalities in Execution of Instrument. — Ordinarily, statutes which permit the revocation of a will by another writing provide that to be effective as a revocation, the writing must be executed with the same formalities which are required to be observed in the execution of a will. Accordingly, where, under the statutes, attestation is necessary to the making of a valid will, an unattested non testamentary writing is not effective to revoke a prior will. It has been held that a writing fails as a revoking instrument where it is not executed with the formalities requisite for the execution of a will, even though it is inscribed on the will itself, although it may effect a revocation by cancellation or obliteration of the words of the will. A testator cannot reserve to himself the power to modify a will by a written instrument subsequently prepared but not executed in the manner required for a will.

SEC, 472. Subsequent Unexecuted, Invalid, or Ineffective Will or Codicil. — A will which is invalid because of the incapacity of the testator, or of undue influence can have no effect whatever as a revoking will. Moreover, a will is not revoked by the unexecuted draft of a later one. Nor is a will revoked by a defectively executed will or codicil, even though the latter contains a clause expressly revoking the former will, in a jurisdiction where it is provided by a controlling statute that no writing other than a testamentary instrument is sufficient to revoke a will, for the simple reason that there is no revoking will. Similarly where the statute provides that a will may be revoked by a subsequent will or other writing executed with the same

formalities as are required in the execution of wills, a defectively executed will does not revoke a prior will, since it cannot be said that there is a writing which complies with the statute. Moreover, a will or codicil which, on account of the manner in which it is executed, is sufficient to pass only personally does not affect dispositions of real estate made by a former will, even though it may expressly purport to do so. The intent of the testator to revoke is immaterial, if he has not complied with the statute. (57 Am. Jur., 328, 329.)

We find the same opinion in the American Law Reports, Annotated, edited in 1939. On page 1400, Volume 123, there appear many authorities on the "application of rules where second will is invalid", among which a typical one is the following:

It is universally agreed that where the second will is invalid on account of not being executed in accordance with the provisions of the statute, or where the testator who has not sufficient mental capacity to make a will or the will is procured through undue influence, or the such, in other words, where the second will is really no will, it does not revoke the first will or affect it in any manner. Mort vs. Baker University (193-5) 229 Mo. App., 632, 78 S.W. (2d), 498.

These treaties cannot be mistaken. They uphold the view on which the ruling in the Samson case is predicated. They reflect the opinion that this ruling is sound and good and for this reason, we see no justification for abondoning it as now suggested by counsel for the oppositors.

It is true that our law on the matter (sec. 623, Code Civil Procedure) provides that a will may be some will, codicil, or other writing executed as proved in case of wills" but it cannot be said that the 1939 will should be regarded, not as a will within the meaning of said word, but as "other writing executed as provided in the case of wills", simply because it was denied probate. And even if it be regarded as any other writing within the meaning of said clause, there is authority for holding that unless said writing is admitted to probate, it cannot have the effect of revocation. (See 57 Am. Jur. pp. 329-330).

But counsel for oppositors contemned that, regardless of said revocatory clause, said will of 1918 cannot still be given effect because of the presumption that it was deliberately revoked by the testator himself. The oppositors contend that the testator, after executing the 1939 will, and with full knowledge of the recovatory clause contained said will, himself deliberately destroyed the original of the 1918 will, and for that reason the will submitted by petitioner for probate in these proceedings is only a duplicate of said original.

There is no evidence which may directly indicate that the testator deliberately destroyed the original of the 1918 will because of his knowledge of the revocatory clause contained in the will he executed in 1939. The only evidence we have is that when the first will was executed in 1918, Juan Salcedo, who prepared it, gave the original and copies to the testator himself and apparently they remained in his possession until he executed his second will in 1939. And when the 1939 will was denied probate on November 29, 1943, and petitioner was asked by her attorney to look for another will, she found the duplicate copy (Exhibit A) among the papers or files of the testator. She did not find the original.

If it can be inferred that the testator deliberately destroyed the 1918 will because of his knowledge of the revocatory clause of the 1939 will, and it is true that he gave a duplicate copy thereof to his wife, the herein petitioner, the most logical step for the testator to take is to recall said duplicate copy in order that it may likewise be destroyed. But this was not done as shown by the fact that said duplicate copy remained in the possession of petitioner. It is possible that because of the long lapse of twenty-one (21) years since the first will was executed, the original of the will had been misplaced or lost, and forgetting that there was a copy, the testator deemed it wise to execute another will containing exactly the same testamentary dispositions. Whatever may be the conclusion we may draw from this chain of

circumstances, the stubborn fact is that there is no direct evidence of voluntary or deliberate destruction of the first will by the testator. This matter cannot be inference or conjectur.

Granting for the sake of argument that the earlier will was voluntarily destroyed by the testator after the execution of the second will, which revoked the first, could there be any doubt, under this theory, that said earlier will was destroyed by the testator in the honest belief that it was no longer necessary because he had expressly revoked it in his will of 1939? In other words, can we not say that the destruction of the earlier will was but the necessary consequence of the testator's belief that the revocatory clause contained in the subsequent will was valid and the latter would be given effect? If such is the case, then it is our opinion that the earlier will can still be admitted to probate under the principle of "dependent relative revocation".

This doctrine is known as that of dependent relative revocation, and is usually applied where the testator cancels or destroys a will or executes an instrument intended to revoke a will with a present intention to make a new testamentary disposition as a substitute for the old, and the new disposition is not made or, if made, fails of effect for same reason. The doctrine is n limited to the existence of some other document, however, and has been applied where a will was destroyed as a consequence of a mistake of law. . . . (68 C.J.P. 799).

The rule is established that where the act of destruction is connected with the making of another will so as fairly to raise the inference that the testator meant the revocation of the old to depend upon the efficacy of a new disposition intended to be substituted, the revocation will be conditional and dependent upon the efficacy of the new disposition; and if, for any reason, the new will intended to be made as a substitute is inoperative, the revocation fails and the original will remains in full force. (Gardner, pp. 232, 233.)

This is the doctrine of dependent relative revocation. The failure of a new testamentary disposition upon whose validity the revocation depends, is equivalent to the non-fulfillment of a suspensive conditions, and hence prevents the revocation of the original will. But a mere intent to make at some time a will in the place of that destroyed will not render the destruction conditional. It must appear that the revocation is dependent upon the valid execution of a new will. (1 Alexander, p. 751; Gardner, p. 253.)

We hold therefore, that even in the supposition that the destruction of the original will by the testator could be presumed from the failure of the petitioner to produce it in court, such destruction cannot have the effect of defeating the prior will of 1918 because of the fact that it is founded on the mistaken belief that the will of 1939 has been validly executed and would be given due effect. The theory on which this principle is predicated is that the testator did not intend to die intestate. And this intention is clearly manifest when he executed two wills on two different occasion and instituted his wife as his universal heir. There can therefore be no mistake as to his intention of dying testate.

The remaining question to be determined refers to the sufficiency of the evidence to prove the due execution of the will.

The will in question was attested, as required by law, by three witnesses, Lorenzo Morales, Rufino Enriquez, and Angel Cuenca. The first two witnesses died before the commencement of the present proceedings. So the only instrumental witness available was Angel Cuenca and under our law and precedents, his testimony is sufficient to prove the due execution of the will. However, petitioner presented not only the testimony of Cuenca but placed on the witness stand Juan Salcedo, the notary public who prepared and notarized the will upon the express desire and instruction of the testator, The testimony of these witnesses shows that the will had been executed in the manner required by law. We have read their testimony and we were impressed by their readiness and sincerity. We are convinced that they told the truth.

Wherefore, the order appealed from is hereby affirmed, with costs against the appellants. 1âwphïl.nêt Paras, C.J. Feria, Pablo Bengzon, Tuason and Jugo JJ.,

G.R. No. L-26306 April 27, 1988

106 Phil 59

TESTATE ESTATE OF THE LATE GREGORIO VENTURA MARIA VENTURA, executrix- appellant, MIGUEL VENTURA and JUANA CARDONA, heirs-appellants,

vs. GREGORIA VENTURA and HER HUSBAND, EXEQUIEL VICTORIO, MERCEDES VENTURA and

HER HUSBAND, PEDRO D. CORPUZ, oppositors-appellees.

PARAS, J.:

This is an appeal from the order of the Court of First Instance of Nueva Ecija, Guimba, Branch V in Special Proceedings No. 812, Testate of the late Gregorio Venture, dated October 5, 1965, removing the appellant Maria Ventura as executrix and administratrix of the estate of the late Gregorio Ventura, and in her place appointing the appellees Mercedes Ventura and Gregoria Ventura as joint administratrices of the estate. (Record on Appeal, pp. 120-131.)

Appellant Maria Ventura is the illegitimate daughter of the deceased Gregorio Ventura while Miguel Ventura and Juana Cardona are his son and saving spouse who are also the brother and mother of Maria Ventura. On the other hand, appellees Mercedes and Gregoria Ventura are the deceased's legitimate children with his former wife, the late Paulina Simpliciano (Record on Appeal, p. 122) but the paternity of appellees was denied by the deceased in his will (Record on Appeal, p. 4).

On December 14,1953, Gregorio Ventura filed a petition for the probate of his will which did not include the appellees and the petition was docketed as Special Proceedings No. 812 (Record on Appeal, pp. 1-3). In the said will, the appellant Maria Ventura, although an illegitimate child, was named and appointed by the testator to be the executrix of his will and the administratrix of his estate (Record on Appeal, p. 7).

In due course, said will was admitted to probate on January 14,1954 (Record on Appeal, pp. 8-10). Gregorio Ventura died on September 26,1955. On October 10, 1955, the appellant Maria Ventura filed a motion for her appointment as executrix and for the issuance of letters testamentary in her favor (Record on Appeal, pp. 10-11). On October 17, 1955, Maria Ventura was appointed executrix and the corresponding letters testamentary was issued in her favor (Record on Appeal, pp. 11-12).

On or about July 26, 1956, Maria Ventura submitted an inventory of the estate of Gregorio Ventura (Record on Appeal, pp. 12-20).

On June 17,1960, she filed her accounts of administration for the years 1955 to 1960, inclusive. (Record on Appeal, pp. 20-27). Said account of administration was opposed by the spouses Mercedes Ventura and Pedro Corpuz on July 25, 1960 (Record on Appeal, pp. 27-33) and by Exequiel Victorio and Gregoria Ventura on August 5,1963 (Record on Appeal, pp. 46-50). Both oppositions assailed the veracity of the report as not reflecting the true income of the estate and the expenses which allegedly are not administration expenses. But on January 25, 1961, Maria Ventura filed a motion to hold in abeyance the approval of the accounts of administration or to have their approval without the opposition of the spouses Mercedes Ventura and Pedro Corpuz and Gregoria

Ventura and Exequiel Victorio on the ground that the question of the paternity of Mercedes Ventura and Gregoria Ventura is still pending final determination before the Supreme Court and that should they be adjudged the adulterous children of testator, as claimed, they are not entitled to inherit nor to oppose the approval of the counts of administration (Record on Appeals, pp. 33-36). Spouses Mercedes Ventura and Pedro Corpuz filed on February 2, 1961 their opposition to the motion to hold in abeyance the approval of the accounts of administration on the ground that Mercedes and Gregoria Ventura had already been declared by the Court of First Instance in Civil Cases No. 1064 and 1476, which cases are supposed to be pending before the Supreme Court, as the legitimate children of Gregorio Ventura, hence, they have reason to protect their interest (Record on Appeal, pp. 36-39). On February 9,1961, the motion to hold in abeyance the approval of the accounts was denied (Record on Appeal, pp. 39-40).

It appears that on July 12, 1963, the Court set the case for pre-trial on August 7, 1963 in connection with the accounts of the executrix Maria Ventura dated June 17, 1960 and the Motion to Annul Provision of Will dated July 14,1962 of Mercedes Ventura (Record on Appeal, p. 45).

On October 22, 1963, four motions were filed by Mercedes Ventura and Gregoria Ventura, namely: (1) motion to remove the executrix Maria Ventura which was supplemented on April 27, 1965; (2) motion to require her to deposit the harvest of palay of the property under administration in a bonded warehouse; (3) motion to render an accounting of the proceeds and expenses of Administration; and (4) motion to require her to include in the inventory of the estate certain excluded properties (Record on Appeal, pp. 50-53; 71). An opposition to said motions was filed by the heirs Juana Cardona and Miguel Ventura and by the executrix Maria Ventura herself (Record on Appeal, pp. 56-61; 61-70 and 71).

On motion of counsel for Exequiel Victorio and Gregoria Ventura the joint motions to require an Up-to-date Accounting and to Require Executrix Ventura to Include Excluded Properties in Her Inventory were ordered withdrawn (Order dated February 2, 1965, Record on Appeal, p. 73). The other two motions were however set for hearing.

The grounds of aforesaid joint motions to remove the executrix Maria Ventura are: (1) that she is grossly incompetent; (2) that she has maliciously and purposely concealed certain properties of the estate in the inventory; (3) that she is merely an illegitimate daughter who can have no harmonious relations with the appellees; (4) that the executrix has neglected to render her accounts and failed to comply with the Order of the Court of December 12, 1963, requiring her to file her accounts of administration for the years 1961 to 1963 (Record on Appeal, pp. 70 and 75-76) and the Order of June 11, 1964, reiterating aforesaid Order of December 12, 1963 (Record on Appeal, p. 76); and (5) that she is with permanent physical defect hindering her from efficiently performing her duties as an executrix (Record on Appeal, pp. 50-53 and 74-79).

On May 17, 1965, the executrix Maria Ventura finally submitted her accounts of administration covering the period 1961 to 1965 (Record on Appeal, pp. 79-84) which were again opposed by the spouses Exequiel Victorio and Gregoria Ventura on September 21, 1965 and by the spouses Mercedes Ventura and Pedro Corpuz on September 29, 1965 (Record on Appeal, pp. 106-120). On June 2, 1965, the executrix filed her supplemental opposition to the aforesaid four motions, and prayed that the joint supplemental motion to remove the executrix be denied or held in abeyance until after the status of Mercedes and Gregoria Ventura as heirs of the testator is finally decided (Record on Appeal, pp. 85-1 01). On June 3, 1965, the Court, finding that the estate taxes have not been paid, ordered the administratrix to pay the same within thirty (30) days. On September 13, 1965, the lower court denied the suspension of the proceedings and deferred the resolution of the joint motion to remove executrix Maria Ventura until after the examination of the physical fitness of said executrix to undertake her duties as such. Also, it ordered the deposit of all palay to be

harvested in the next agricultural year and subsequent years to be deposited in a bonded warehouse to be selected by the Court and the palay so deposited shall not be withdrawn without the express permission of the Court (Record on Appeal, pp. 103-105). On September 21, 1965, spouses Exequiel Victorio and Gregoria Ventura filed their opposition to the accounts of administration of Maria Ventura dated May 17, 1965, while that of spouses Mercedes Ventura and Pedro Corpuz was filed on September 29, 1965, both oppositions alleging among others that said accounts do not reflect the true and actual income of the estate and that the expenses reported thereunder are fake, exhorbitant and speculative (Record on Appeal, pp. 106-120).

On October 5, 1965, the court a quo, finding that the executrix Maria Ventura has squandered the funds of the estate, was inefficient and incompetent, has failed to comply with the orders of the Court in the matter of presenting up-to-date statements of accounts and neglected to pay the real estate taxes of the estate, rendered the questioned decision, the dispositive portion of which reads:

WHEREFORE, Maria Ventura is hereby removed as executrix and administratrix of the estate and in her place Mercedes Ventura and Gregoria Ventura are hereby appointed joint a tratrices of the estate upon filing by each of them of a bond of P 7,000.00. Let letters of administration be issued to Mercedes Ventura and Gregoria Ventura upon their qualification.

IT IS SO ORDERED.

(Record on Appeal pp. 120-131).

Hence, this appeal.

In their brief, appellants Maria Ventura and spouses Juana Cardona and Miguel Ventura assign the following errors allegedly committed by the probate court:

ASSIGNMENT OF ERRORS

I

The lower court erred in ordering the removal of Maria Ventura as executrix and administratrix of the will and estate of the deceased Gregorio Ventura without giving her full opportunity to be heard and to present all her evidence.

II

The lower court erred in finding that the executrix Maria Ventura had squandered and dissipated the funds of the estate under her administration.

III

The lower court erred in finding that the executrix Maria Ventura was inefficient and incompetent.

IV

That, considering the circumtances surrounding the case, the lower court erred in finding that the failure of Maria Ventura to submit her periodical account had justified her removal as executrix.

V

The lower court erred in considering as an established fact that the appellees Mercedes Ventura and Gregoria Ventura are the legitimate daughters of the deceased Gregorio Ventura.

VI

The lower court erred in finding that the devises and bequests in favor of Maria Ventura and Miguel Ventura as specified in paragraph 8 of the last Will and Testament of the late Gregorio Ventura have ipso facto been annulled.

VII

The lower court erred in allowing the appellees Mercedes Ventura and Gregoria Ventura to intervene in the hearing of the accounts of administration submitted by the executrix Maria Ventura and/or in not suspending the hearing of the said accounts until the said appellees have finally established their status as legitimate children of the deceased Gregorio Ventura.

VIII

The lower court erred in appointing (even without a proper petition for appointment and much less a hearing on the appointment of) the appellees Mercedes Ventura and Gregoria Ventura who have an adverse interest as joint administratrices of the estate of the deceased Gregorio Ventura.

IX

The lower court erred in not appointing the surviving widow, Juana Cardona, or Miguel Ventura, as administratrix of the estate of Gregorio Ventura in case the removal of Maria Ventura as executrix and administratrix thereof is legally justified.

X

Considering that there are in fact two (2) factions representing opposite interests in the estate, the lower court erred in not appointing Juana Cardona, or Miguel Ventura, as one of the two (2) administratrices.' (Joint Brief for the Appellants, pp. 1-4)

On July 19,1967, Atty. Arturo Tolentino (representing appellees Mercedes Ventura and Pedro Corpuz) and Atty. Jose J. Francisco (representing Gregoria and Exequiel Victoria), having failed to submit their respective briefs within the period for the purpose, which expired on July 2 and May 29,1967, respectively, the Supreme Court Resolved to consider this case submitted for decision WITHOUT SAID APPELLEES' BRIEF (Rollo, p. 152).

The crucial issue in this case is whether or not the removal of Maria Ventura as executrix is legally justified. This issue has, however, become moot and academic in view of the decision of this Court in related cases.

At the outset, it is worthy to note that aside from the instant special proceedings, there are two other civil cases involving the estate of the deceased Gregoria Ventura, namely, Civil Cases Nos. 1064 and 1476. Civil Case No. 1064 was filed on December 2, 1952 by herein appellee Gregoria Ventura in the Court of First Instance of Nueva Ecija, Branch I, against the other appellees herein Mercedes Ventura and their father, Gregorio Ventura. Later Mercedes Ventura joined cause with Gregoria Ventura. (Record on Appeal, p. 95). Gregoria and Mercedes Ventura claimed that they are the legitimate children of Gregorio Ventura and his wife Paulina Simpliciano, who died in 1943, and asked that one-half of the properties described in the complaint be declared as the share of their mother in the conjugal partnership, with them as the only forced heirs of their mother Paulina (Joint Brief for the Appellants, pp. 53-68).

Subsequently, Civil Case No. 1476 was filed by Alipio, Eufracia and Juliana, all surnamed Simpliciano, against Gregorio Ventura and the two sisters, Mercedes and Gregoria Ventura, before the Court of First Instance of Nueva Ecija, Branch I. They alleged that as the only children of Modesto Simpliciano, sole brother of Paulina Simpliciano, they, instead of Mercedes and Gregoria Ventura, whom they claimed are adulterous children of Paulina with another man, Teodoro Ventura and as such are not entitled to inherit from her, are the ones who should inherit the share of Paulina Simpliciano in the conjugal Partnership with Gregorio Ventura (Joint Brief For The Appealant,pp.69-79)

It appears that on November 4, 1959, after a joint hearing of Civil Cases Nos. 1064 and 1476, the lower court rendered its judgment, the dispositive portion of which reads as follows:

WHEREFORE, judgment is hereby rendered declaring Mercedes Ventura and Gregoria Ventura to be the ligitimate daughters of Paulina Simpliciano and Gregorio Ventura; declaring that as such ligitimate daughters of Paulina Simpliciano they are entitled to 1/2 of the properties described in paragraph six of the complaint; ordering the defendant Maria Ventura, as administratrix of the estate of Gregorio Ventura to pay to Mercedes Ventura and Gregorio Ventura the amount of P 19,074.09 which shall be divided equally between Mercedes and Gregoria Ventura declaring Mercedes Ventura and Pedro Corpuz are the exclusive owners of the property describe in the certificate of Title Nos. T-1102, 212, T-1213, T-1214, Exhibits 32, 33, 34 and 35, respectively; ordering Mercedes Ventura and Pedro D. Corpuz to pay to the conjugal partnership of Gregorio Ventura and Paulina Simpliciano the sum of P100,000.00, one-half of which shall pertain to the estate of Gregorio Ventura and the other half to the estate of Paulina Simpliciano to whom Mercedes and Gregoria Ventura have succeeded, to be divided between Mercedes and Gregoria in equal parts; and dismissing Civil Case No. 1476. The parties are urged to arrive at an amicable partition of the properties herein adjudicated within twenty days from receipt of this decision. Upon their failure to do so, the Court shall appoint commissioners to divide the properties in accordance with the terms of the decision. Without pronouncements as to costs. (Emphasis supplied). (Joint Brief for the Appellants, pp. 3738.)

Thereafter, on July 14, 1962, Mercedes Ventura filed a motion to annul the provisions of the will of the deceased Gregorio Ventura in Special Proceedings No. 812, which motion was opposed by Miguel Ventura and Juana Cardona and later by Maria Ventura. They claimed that the decision dated November 4,1959 in Civil Cases Nos. 1064 and 1476 was not yet final.

On February 26,1964, the court annulled the institution of the heirs in the probated will of Gregorio Ventura. The motion for reconsideration of the aforesaid order filed by executrix Maria Ventura was denied on June 11, 1964.

Accordingly, Maria Ventura appealed the February 26, 1964 and June 11, 1964 orders of the probate court in Special Proceedings No. 812 before the Supreme Court and was docketed as G.R. No. L-23878. On May 27,1977, this Court, through then Associate Justice Antonio P. Barredo, ruled, as follows:

And so, acting on appellees' motion to dismiss appeal, it is Our considered opinion that the decision in Civil Cases Nos.1064 and 1476 declaring that appellees Mercedes and Gregoria Ventura are the ligimate children of the deceased Gregorio Ventura and his wife, Paulina Simpliciano, and as such are entitled to the annulment of the institution of heirs made in the probated will of said deceased became final and executory upon the finality of the order, approving ther partition directed in the decision in question. We need not indulge in any discussion as to whether or not, as of the time the orders here in question were issued by the trial court said decision had the nature of an interlocutory order only. To be sure, in the case of Miranda, aforementioned, the opinion of the majority of the Court may well be invoked against appellant's pose. In any event, even if the Court were minded to modify again Miranda and go back to Fuentebella and Zaldariaga — and it is not, as of now — there can be no question that the approval by the trial court in Civil Cases Nos. 1064 and 1476 of the partition report of the commissioners appointed for the purpose, one of whom, Emmanuel Mariano, is the husband of appellant, put a definite end to those cases, leaving nothing else to be done in the trial court. That order of approval is an appealable one, and inasmuch as no appeal has been taken from the same, it is beyond dispute that the decision in controversy has already become final and executory in all respects. Hence, the case at bar has become moot and academic. (Ventura vs. Ventura, 77 SCRA 159, May 27,1977)

Under Article 854 of the Civil Code, "the pretention 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," and as a result, intestacy follows, thereby rendering the previous appointment of Maria Ventura as executrix moot and academic. This would now necessitate the appointment of another administrator, under the following provision:

Section 6, Rule 78 of the Rules of Court:

When and to whom letters of administration granted.-If no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate, a petition shall be granted:

(a) To the surviving husband or wife, as the case may be or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve;"

xxx xxx xxx

In the case at bar, the surviving spouse of the deceased Gregorio Ventura is Juana Cardona while the next of kin are: Mercedes and Gregoria Ventura and Maria and Miguel Ventura. The "next of kin"

has been defined as those persons who are entitled under the statute of distribution to the decedent's property (Cooper vs. Cooper, 43 Ind. A. 620, 88 NE 341). It is generally said that "the nearest of kin, whose interest in the estate is more preponderant, is preferred in the choice of administrator. 'Among members of a class the strongest ground for preference is the amount or preponderance of interest. As between next of kin, the nearest of kin is to be preferred." (Cabanas, et al. vs. Enage et al., 40 Off. Gaz. 12 Suppl. 227; citing 12 Am. Jur. Sec. 77, p. 416, cited in Francisco Vicente J., The Revised Rules of Court in the Philippines, Vol. V-B 1970 Ed., p. 23).

As decided by the lower court and sustained by the Supreme Court, Mercedes and Gregoria Ventura are the legitimate children of Gregorio Ventura and his wife, the late Paulina Simpliciano. Therefore, as the nearest of kin of Gregorio Ventura they are entitled to preference over the illegitimate children of Gregorio Ventura, namely: Maria and Miguel Ventura. Hence, under the aforestated preference provided in Section 6 of Rule 78, the person or persons to be appointed administrator are Juana Cardona, as the surviving spouse, or Mercedes and Gregoria Ventura as nearest of kin, or Juana Cardona and Mercedes and Gregoria Ventura in the discretion of the Court, in order to represent both interests.

PREMISES CONSIDERED, the appeal interposed by appellants Maria Ventura, Juana Cardona and Miguel Ventura is hereby DISMISSED.

SO ORDERED.

Padilla and Sarmiento, JJ., concur.

[G.R. No. L-5405. January 31, 1956.]

98 Phil 249

ERNESTO M. GUEVARA, Petitioner, vs. ROSARIO GUEVARA and PEDRO C. QUINTO, Respondents.

D E C I S I O N

CONCEPCION, J.:

This is a petition for review by certiorari of a decision of the Court of Appeals. The pertinent facts are set forth in said decision, from which we quote: chanroblesvirtuallawlibrary

“This case being the sequel to, and aftermath of, a previous litigation between the parties that reached the Supreme Court, through the former Court of Appeals, it becomes necessary to restate the essential antecedent facts to view the issues in proper perspective. For this purpose, it is important to recall that on August 26, 1931, Victorino L. Guevara, a resident of Bayambang, Pangasinan, executed a will (Exhibit A), distributing assorted movables and a residential lot among his children, Rosario and Ernesto Guevara, and his stepchildren, Vivencio, Eduvigis, Dionista, Candida, and Pio Guevara. To his second wife Augustia Posadas, the testator bequeathed, in addition to various movables, a portion of 25 hectares to be taken out of a 259 odd hectare parcel outlined in Plan Psu-68618, plus another five (5) hectares in settlement of her widow’s usufruct. The balance of the 259 odd hectares he distributed as follows: chanroblesvirtuallawlibrary

100 hectares reserved for disposal during the testator’s lifetime and for payment of his debts and family expenses;

108.0854 hectares to his legitimate son Ernesto Guevara, including therein 43.2342 hectares by way of mejora;

21.6171 hectares to ‘mi hija natural reconocida Rosario Guevara.’

Ernesto Guevara was appointed executor without bond.

On July 12, 1933, the same testator executed a deed of sale in favor of Ernesto Guevara, conveying to the latter the southern half of the 259-hectare lot heretofore mentioned, and expressly recognized Ernesto Guevara as owner of the northern half.

Prior to this sale, on November 1, 1932, Victorino and his son Ernesto had jointly applied for registration of the big parcel (case No. 15174), but in view of the sale from the former to the latter, the decree was issued in the name of Ernesto Guevara exclusively and for the whole tract, a certificate of title (No. 51691 of Pangasinan) being issued in his sole name on October 12, 1933.

Fifteen days previously, i.e., on September 27, 1933, Victorino Guevara died, but his will was not filed for probate. About four years later, Rosario Guevara, claiming to be a recognized natural child of the deceased Victorino, and on the assumption that he had died intestate, brought suit against Ernesto Guevara to recover 423,492 square meters of the tract covered by certificate of title No. 51691 as the portion that should correspond to her (Rosario) by way of legitime.

The case reached the former Court of Appeals in due course and was decided in Rosario Guevara’s favor (Exhibit E); chan roble svirtualawlibrarybut upon certiorari, the Supreme Court modified the judgment in December, 1943, as follows (Exhibit F);

‘Wherefore, that part of the decision of the Court of Appeals which declares in effect that notwithstanding exhibit 2 and the issuance of original certificate of title No. 51691 in the name of Ernesto M. Guevara, one-half of the land described in said certificate of title belongs to the estate of Victorino L. Guevara and the other half to Ernesto M. Guevara in consideration of the latter’s assumption of the obligation to pay all the debts of the deceased, is hereby affirmed; chan roblesvirtualawlibrarybut the judgment of said court insofar as it awarded any relief to the Respondent Rosario Guevara in this action is hereby reversed and set aside, and the parties are hereby ordered to present the document Exhibit A to the proper court for probate in accordance with law, without prejudice to such action as the provincial fiscal of Pangasinan may take against the responsible party or parties under section 4 of Rule 76. After the said document is approved and allowed by the court as the last will and testament of the deceased Victorino L. Guevara, the heirs and legatees herein named may take such action, judicial or extrajudicial, as may be necessary to partition the estate of the testator, taking into consideration the pronouncements made in part II of this opinion. No finding as to costs in any of the three instances.’ (Appellant’s Brief, pp. 13-14.)

Claiming to act pursuant to the foregoing decision, Rosario Guevara commenced on October 5, 1945, special proceedings No. 2646 in the Court of First Instance of Pangasinan for the probate of the will of Victorino Guevara. In paragraph 10 of the petition, it was alleged: chanroblesvirtuallawlibrary

‘10. Que dicho testamento, o sus disposiciones testamentarias, ha sido de jure revocado, o revocados, en cuanto a la parcela de terreno de 259 hectareas descrita en dicho testamento, por haber el testador enajenado o dispuesto intervivos de la misma en la forma mencionada en las tres decisiones supra-mencionadas; chan roblesvirtualawlibraryy que la solicitante pide la legalizacion de dicho testamento tan solo para los efectos del reconocimiento de hija natural hecha en dicho testamento a favor de la demandante y en obediencia al mandato de la Corte Suprema en su decision supra.’ (Record on Appeal, p. 5.)

Notice of the petition having been duly published pursuant to Rule of Court 77, section 4, Ernesto Guevara appeared and opposed the probate. Pedro L. Quinto, counsel for Rosario in the former litigation, was allowed to intervene in view of his duly recorded attorney’s lien.

On January 31, 1946, Ernesto Guevara, through counsel, filed a motion to dismiss the petition on the grounds that (a) the petition itself alleged that the will was revoked; chan roblesvirtualawlibrary(b) that ‘whatever right to probate the parties may have has already prescribed’ (Record on Appeal, p. 14); chan roblesvirtualawlibraryand (c) that the purpose of the probate was solely to have Petitioner Rosario declared an acknowledged natural child of the deceased.

By order of December 9, 1946, Judge Sotero Rodas denied the motion to dismiss; chan roble svirtualawlibrarybut upon motion of reconsideration, Judge Mañalac of the same court, on June 23, 1937, reconsidered and set aside the previous resolution and ordered the petition dismissed on the ground that Rosario Guevara’s petition did not ask for the probate in toto of the will, contrary to the order of the Supreme Court; chan roblesvirtualawlibrarythat her right to petition for the probate of the testament of Victorino L. Guevara had prescribed; chan roblesvirtualawlibraryand that her action for judicial declaration of acknowledgment had likewise prescribed.

An amended petition for the probate of the will in toto and another petition to reconsider the previous order were subsequently denied; chan roblesvirtualawlibrarythe former on the ground that there was a radical change of theory from that embodied in the original petition, and the second for the same reasons stated in the order of June 23, 1947. Rosario L. Guevara and Pedro L. Quinto thereupon brought the case on appeal to this Court, assigning no less than twenty (20) alleged errors committed by the court below.” (Guevara vs. Guevara, C.A. — G. R. No. 5416-R, promulgated December 26, 1951; chan roble svirtualawlibrarysee Appendix to brief for the Petitioner-Appellant, pp. 1-6.)

The dispositive part of the decision of the Court of Appeals reads as follows: chanroblesvirtuallawlibrary

“The order of dismissal of the petition for probate is reversed and the court of origin ordered to reinstate the petition, and to hear and decide whether the will of Victorino Guevara, deceased, should be allowed to probate. Costs against Appellees in both instances.” (Ibid.)

In his appeal therefrom, Petitioner Ernesto M. Guevara raises the following questions, to wit:chanroble svirtuallawlibrary (a) Did Respondents herein duly perfect their appeal from the decision of the Court of First Instance of Pangasinan? (b) Did the Court of Appeals have jurisdiction to entertain said appeal? (c) Is the petition for probate of the alleged will of the deceased Victorino L. Guevara barred by the statute of limitations?

(1) With reference to the first question, Petitioner has submitted the following statement 1 of the steps taken since June 23, 1947, date of the resolution of Judge Mañalac, dismissing the petition for probate of the last will and testament of Victoriano L. Guevara:chanr oblesvirtuallawlibrary

“June 23, 1947 —

Date of Resolution appealed from.

July 14, 1947 —

Date of Joint Petition for Reconsideration filed by Appellants.

July 25, 1947 —

Date of Amended petition for probate of will.

July 25, 1947 —

Motion for admission of Amended Petition.

August 2, 1947 —

Appellants’ motion to postpone hearing on petition for reconsideration and motion for admission of Amended Petition.

August 10, 1947 —

Appellants’ urgent motion for continuance of hearing on joint petition for Reconsideration as well as Motion to Admit Amended Petition.

August 25, 1947 —

Motion for extension of time to file memorandum.

September 1, 1947 —

Memorandum for Appellants submitted.

October 7, 1947 —

Memorandum for Appellee submitted.

October 14, 1947 —

Appellants’ petition for ten (10) days to file reply memorandum.

November 1, 1947 —

Appellants’ petition to file reply memorandum on or before November 9, 1947.

November 8, 1947 —

Appellants’ petition for extension to file reply memorandum.

November 18, 1947 —

Verified reply of Appellant Rosario Guevara.

November 24, 1947 —

Reply memorandum of Pedro C. Quinto filed.

January 12, 1948 —

Court denies both petitions of July 14 and 25, 1947.

January 24, 1948 —

Notice of appeal to Supreme Court and petition for thirty (30) days’ extension by AppellantRosario Guevara.

January 29, 1948 —

Order granting petition for extension.

February 1, 1948 —

Another notice of appeal to Supreme Court and motion for thirty (30) days extension byAppellant Rosario Guevara.

February 28, 1948 —

Appellants’ ex-parte petition for further extension.

March 6, 1948 —

Original joint Record on Appeal filed. (This was so defective and incomplete it consisted of mere disjointed sheets of paper intercalated with one another and was a mere token record on appeal.)

March 8, 1948 —

Another joint petition for reconsideration of Appellants.

March 11, 1948 —

Appellee’s objection to record on appeal.

March 17, 1948 —

Verified reply of Appellants to objection.

March 18, 1948 —

Appellee’s objection to joint petition for reconsideration.

June 19, 1948 —

Appellants’ memorandum in support of the joint petition for reconsideration.

July 23, 1948 —

Order of denial of Joint Petition and disapproving original record on appeal as incomplete and giving Appellants within 10 days from notice.

July 26, 1948 —

Amended Notice of Appeal to the Court of Appeals instead of to the Supreme Court.

July 28 and 29, 1948 —

Appellants received copy of order of July 23, 1948.

August 1, 1948 —

Petition for five (5) days extension to file amended Record on Appeal filed by Appellant Pedro C. Quinto.

August 10, 1948 —

Appellants’ Joint Petition for last extension of two (2) days.

August 10, 1948 —

Filing of amended joint record on appeal. (This is also again so defective and incomplete as to constitute another mere token record on appeal as required by the Rules.)

August 24, 1948 —

Appellants’ petition for ten (10) days period to reply to objection, if any was to be filed.

August 27, 1948 —

Appellee’s objection to amended record on appeal.

September 8, 1948 —

Appellants’ reply to objection.

October 20, 1948 —

Court order sustaining objection and gives Appellants fifteen (15) days from notice to redraft record on appeal.

November 3, 1948 —

Appellants’ joint petition to reconsider order of disapproval of Amended Record on Appeal.

November 3, 1948 —

Appellants file re-amended joint record on appeal. (This again disregarded the orders of the court regarding the contents of the record on appeal.).

November 22, 1948 —

Appellee objected to approval of re-amended joint record on appeal and prayed that order appealed from be declared final.

March 22, 1949 —

Court sustains Appellee’s objection to record on appeal denying petition for reconsideration and Appellants given fifteen (15) days from notice to satisfy requirements of court’s previous order.

April 8, 1949 —

Appellants file in Supreme Court petition for certiorari and mandamus attacking order of June 23, 1947.

April 11, 1949 —

Appellant Quinto’s petition for fifteen (15) days extension to file Re-amended Record on Appeal.

April 12, 1949 —

Supreme Court denies petition off-hand.

April 16, 1949 —

Appellant Rosario Guevara’s motion for fifteen (15) days extension for the same purpose.

April 21, 1949 —

Court granted extension prayed for to expire May 1, 1948.

April 21, 1949 —

Second Re-Amended Record on Appeal filed.

June 11, 1949 —

Appellee’s opposition to ‘Second Re-Amended Record on Appeal’.

June 29, 1949 —

Appellants’ joint notice of hearing on Second Re-Amended Record on Appeal for July 12, 1949.

July 10, 1949 —

Appellants’ joint reply to opposition.

July 12, 1949 —

Action on record on appeal deferred on petition of Atty. Quinto.

September 3, 1949 —

Appellant Quinto’s notice of hearing on Second Re-Amended Record on Appeal for September 28, 1949.

September 28, 1949 —

Order of court approving same.

December 8, 1949 —

Clerk of lower court sends records to appellate court.

December 10, 1949 —

Appellant Quinto’s motion ex-parte to have records sent up to appellate court.”

(Petitioner-Appellant’s Brief, pp. 41-47.)

Based upon the foregoing, Oppositor and Appellee Ernesto M. Guevara filed, with the Court of Appeals, a motion praying that the appeal be dismissed:chanroble svirtuallawlibrary

“(a) Because due to the Appellant’s many and repeated dilatory tactics, the prosecution of their appeal has been unduly and unreasonably delayed for a period which should strike anyone as totally without justification. The resolution appealed from was dictated by the lower court on June 23, 1947, so that a period of over two (2) years and nine (9) months until the date of this writing has elapsed, thus establishing a record-holding delay which should not be sanctioned by the Courts as prejudicial to the administration of justice.

“(b) Because Appellants, in violation of Rule 48, section 3, did not diligently prosecute their appeal by failing to have the record sent up to this Honorable Court within thirty (30) days from the time their Second Re-amended Record on Appeal was approved on September 28, 1949; chan roblesvirtualawlibraryand it was only so transmitted on December 8, 1949, that is after the lapse of two (2) months and ten (10) days.

“(c) Because, at any rate, the first Amended Joint Record on Appeal was filed beyond the extension granted by the Court and, consequently, the Appellants’ right to appeal has lapsed.” (Exhibit A, pp. 1-2).

The Court of Appeals denied said motion to dismiss for the following reasons:chanroble svirtuallawlibrary

“A preliminary question was posed by the Appellee who prayed for the dismissal of the appeal on the ground that Petitioners-Appellants had unreasonably delayed the perfection of the appeal, as the Second Re-amended Joint Record on Appeal was not certified to this Court until December, 1949. After considering the voluminous record, and the arguments of both parties, we are of the opinion that both parties have contributed to the delay with lengthy memoranda, and repeated motions and objections. Moreover, the points in question are important enough to deserve adequate consideration upon the merits. Wherefore, the motion to dismiss the appeal should be and is hereby, overruled and denied.” (Appendix to Brief for the Petitioner-Appellant, pp. 6- 7.)

It is urged by Petitioner herein that Respondents’ appeal from the decision of the Court of First Instance of Pangasinan had not been duly perfected because: chanroblesvirtuallawlibrary (a) the original of the record on appeal did not comply with the Rules of Court; chan roblesvirtualawlibrary(b) the record on appeal was filed after the lapse of the reglementary period; chan roblesvirtualawlibrary(c) there has been an unprecedented delay in the filing of a satisfactory record on appeal; chan

roblesvirtualawlibraryand (d) the appeal should be deemed abandoned for violation of Rule 48, section 3, of the Rules of Court.

The first ground is predicated upon the fact that, instead of transcribing the motions, petitions, orders and resolutions incorporated in the original record on appeal, Respondents herein merely attached to the original copy of said record on appeal, filed with the Court of First Instance of Pangasinan, their own copies of said motions, petitions, orders and resolutions. Accordingly, the copy of said record on appeal furnished to Petitioner herein did not contain or enclose the aforementioned parts of the record. It appears, however, that the Respondentswere given several extensions of time within which to comply with the pertinent provisions of the Rules of Court and that Respondents eventually did so. There being no question about the authority of the court of first instance to grant said extensions of time, it is clear that the first ground, relied upon by Petitioner herein, is untenable.

In support of the second ground, it is alleged: chanroblesvirtuallawlibrary (a) that the original record on appeal was filed by Pedro C. Quinto only, and does not inure to the benefit of Rosario Guevara; chan roblesvirtualawlibraryand (b) thatRespondents had lost their right to appeal by the lapse of the reglementary period. As regards the first proposition, Petitioner asserts that Respondent Pedro C. Quinto had withdrawn his appearance as counsel for Respondent Rosario Guevara; chan roblesvirtualawlibrarythat Quinto had, thereafter, intervened in the case in his own behalf, in order to enforce his attorney’s lien, as former counsel for Rosario Guevara; chan roblesvirtualawlibrarythat, consequently, the original record on appeal and the petitions for extension of time to file an amended record on appeal, filed by Pedro C. Quinto, were good only insofar as he is concerned, and cannot profit Rosario Guevara, she having ceased to be his client long before the filing of said original record on appeal and petitions for extension of time; chan roblesvirtualawlibrarythat this interest in the case arises from his rights as former attorney forRespondent Rosario Guevara, and, as such, is subordinate to, and dependent upon, the interest therein of said Rosario Guevara and the success of her claim therein; chan roble svirtualawlibraryand that, her appeal not having been duly perfected, his appeal must be deemed to have no legal effect. There is no merit in this pretense, for it appears, at the foot of said record on appeal, that Pedro C. Quinto had filed the same, “for himself as Appellant and in behalf of Rosario Guevara, who authorized him to perfect the appeal for both Appellants,” and that similar statements were made in the body and at the foot of said petitions for extension of time. It is clear, therefore, that the aforementioned record on appeal and motions should be deemed submitted, also, byRespondent Rosario Guevara. The position then held by Pedro C. Quinto, as special prosecutor in the office of the Solicitor General, did not nullify his aforesaid acts on behalf of Rosario Guevara. Besides, said acts would seem to have been performed by him, more

as attorney-in- fact than as counsel for Rosario Guevara, and this merely in connection with the perfection of her appeal. We do not find therein anything objectionable, either legally or morally, in the light of the circumstances surrounding the case.

The second proposition is based upon the following reasons: chanroblesvirtuallawlibrary

(a) The aforementioned record on appeal and motions for extension of time filed by Quinto on behalf of Rosario Guevara did not inure to her benefit, for which reason the reglementary period to appeal had expired before the perfection of her appeal. For the reasons already adverted to, this argument is clearly untenable.

(b) The petition for reconsideration filed by Respondents on July 14, 1947, did not suspend the running of the period to perfect the record on appeal, because said petition did not comply with the provisions of Rule 37, section 1, of the Rules of Court, reading as follows: chanroblesvirtuallawlibrary

“Within thirty days after notice of the judgment in an action, the aggrieved party may move the trial court to set aside the judgment end grant a new trial for one or more of the following causes materially affecting the substantial rights of said party:chanroblesvirtuallawlibrary

(a) Fraud, accident, mistake or excusable negligence which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights;

(b) Newly discovered evidence, which he could not, with reasonable diligence, have discovered, and produced at the trial, and which if presented would probably alter the result;

(c) Because excessive damages have been awarded, or the evidence was insufficient to justify the decision, or it is against the law.”

Said petition for reconsideration appears, however, to be predicated, in effect, upon the ground that the evidence is insufficient to justify the decision of the court of first instance, and that said decision is contrary to law. It partakes, therefore, of the nature of a motion for new trial, stating specifically the reasons in support thereof, and, hence, it suspended the period to appeal until the determination of said motion.

Relative to the alleged unprecedented delay in the filing of a satisfactory record on appeal, we agree with the finding of the Court of Appeals to the effect that the delay was due to the acts of the Respondents, as well as of the Petitioner herein, for both had asked several postponements and extensions of time, filed memoranda and reply memoranda, and raised or provoked a number of other issues or incidents which necessarily delayed the perfection of the appeal. Obviously, Petitioner should not be allowed to profit by said delay, to which he had actively contributed. 1

Lastly, Petitioner maintains that, although the record on appeal had been approved on September 28, 1949, it was not forwarded to the Court of Appeals until December 8, 1949. Section 3 of Rule 48 of the Rules of Court provides:chanroblesvirtuallawlibrary

“If the record on appeal is not received by the Court of Appeals within thirty days after the approval thereof, the Appellee may, upon notice to the Appellant, move the court to grant an order directing the clerk of the lower court forthwith to transmit such record on appeal or to declare the same abandoned for failure to prosecute.”

Considering that Respondents herein were not notified of the approval of the record on appeal until December 8, 1949, on which date the record on appeal was forwarded to the Court of Appeals, and that the aforementioned provision of the Rules of Court does impose upon said court the mandatory duty to

declare the appeal abandoned for failure to prosecute, we believe that no error was committed in giving due course to the appeal and that the same has been duly perfected.

(2) Did the Court of Appeals have jurisdiction to try the case, on appeal from the decision of the court of first instance? Petitioner maintains the negative, upon the ground that the appeal involved only questions of law. This is not correct, for the very motion for reconsideration adverted to above, indicated that the appeal raised some issues of fact, such as, for instance, whether or not the will in question was in the possession of Respondent Rosario Guevara and whether Respondent Quinto had been authorized by her to perfect the appeal on her behalf. At any rate, the case is now before us and, upon examination of the record and consideration of all the issues therein raised, we are of the opinion that, had the appeal been forwarded directly to this Court, we would have disposed of it in the manner set forth in the decision of the Court of Appeals, the review of which is sought by herein Appellant.

(3) The last question for determination in this case is whether or not the petition for probate of the will of Victorino L. Guevara is barred by the statute of limitations, considering that the testator died on September 27, 1933, and that the petition for probate of said will was filed twelve (12) years later, or, to be exact, on October 5, 1945. The Court of Appeals resolved the question in the negative, upon the following grounds:chanroblesvirtuallawlibrary

“We are of the opinion that the Court below was in error when it declared that the petition for probate of the will of Victorino Guevara was barred by prescription. The provision of Article 756 of the old Civil Code (1042 of the New) and of Rule 76 of the Rules of Court, reiterating those of the old Code of Civil Procedure (Act 190), point out that the presentation of a decedent’s will to the competent court has always been deemed by our law as more of a duty than a right, and the neglect of such obligation carries with it the corresponding penalty and it is inconsistent with that policy that the court should refuse to admit wills to probate, without inquiry into their validity. The authority given to testators to dispose freely of a portion of their estate would be imperfectly safeguarded, unless adequate measures were provided by the state to assure that the wishes of the deceased would be carried out. Because the decedent may no longer act to have his testamentary dispositions duly executed, the state authority must take over the opposite vigilance and supervision, so that free testamentary disposition does not remain a delusion and a dream. This was expressly recognized by the Supreme Court in its previous decision, G. R. No. 48840 (Exhibit E) when it said:chanroblesvirtuallawlibrary

‘ cralaw We hold that under section 1 of Rule 74, in relation to Rule 76, if the decedent left a will and no debts and the heirs and legatees desire to make an extrajudicial partition of the estate, they must first present that will to the court for probate and divide the estate in accordance with the will. They may not disregard the provisions of the will unless those provisions are contrary to law. Neither may they do away with the presentation of the will to the court for probate, because such suppression of the will is contrary to law and public policy. The law enjoins the probate of the will and public policy requires it, because unless the will is probated and notice thereof given to the whole world, the right of a person to dispose of his property by will may be rendered nugatory, as is attempted to be done in the instant case. Absent legatees and devisees, or such of them as may have no knowledge of the will, could be cheated of their inheritance thru the collusion of some of the heirs who might agree to the partition of the estate among themselves to the exclusion of others.’ (Italics supplied)

“In holding the statute of limitations applicable to the probate of wills, the court below failed to notice that its doctrine was destructive of the right of testamentary disposition and violative of the owner’s right to control his property within the legal limits. The appealed order in fact leaves wills at the mercy and whim of custodians and heirs interested in their suppression. The lower court would in effect abdicate the tutelary power that passed to the Republic from the former sovereigns, that ‘potestad

suprema que en mi reside para velar por el puntual cumplimiento de las ultimas voluntades’, asserted as one of the royal prerogatives in the ‘Real Cedula’ of March 18, 1776.

“It is not without purpose that Rule of Court 77 prescribes that any ‘person interested in the estate may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed’. Taken from the Code of Procedure of California, this provision has been interpreted as meaning that the statute of limitations has no application to probate of wills. In the case of In re Hume’s Estate, 179 Calif. 338, 176 Pac. 681, the California Supreme Court ruled that:chanroblesvirtuallawlibrary

‘The chapter of the Code relating to the probate of wills does not provide for opposition to such probate on the ground of the bar of the statute of limitations, but, in effect, excludes it from the category of grounds allowed as a basis for such opposition. Section 1299 declares that any person interested in the estate ‘may at any time after the death of the testator, petition the court having jurisdiction to have the will proved.’ This implies that there is no arbitrary time limit.’

As additional reasons, the same Court stated: chanroblesvirtuallawlibrary

‘ cralaw Section 1317 declares:chanroble svirtuallawlibrary If the court is satisfied, upon the proof taken or from the facts found by the jury that the will was duly executed and that the will testator at the time of its execution was of sound and disposing mind and not acting under duress menace fraud, or undue influence, a certificate of the proof and the facts found, signed by the judge and attested by the seal of the court, must be attached to the will.’

‘This excludes the bar of the statute of limitation from consideration as one of the matters which may be shown in opposition to the probate. This is further emphasized by section 1341, which, in substance, declares that, if upon the verdict of the jury the facts mentioned in section 1317 as aforesaid appear to be established, the court ‘must’ admit the will to probate. Section 1314 thus makes it imperative that the court shall admit the will to probate if the execution is proven and the grounds of opposition authorized by section 1312 are not established. This clearly implies that no grounds of opposition other than those enumerated in section 1312 may be set up, and it leaves no place for the application of the statute of limitations.

‘It is further to be observed that, notwithstanding the positive and comprehensive language of sections 343 and 369, if taken literally, there can be no doubt that they cannot apply to all special proceedings of a civil nature. Proceedings for a change of name, or in arbitration, or for voluntary dissolution of a corporation, or for guardianship, or for a married woman to become a sole trader, are all within the definition of the phrase, and each is enumerated, classed, and defined as such proceeding by the Code. If the statute of limitations applied, it would begin to run against such proceedings as soon as the right to institute them accrued. Yet from the very nature of these proceedings it is obvious that neither of them could be subject to such limitation.

‘This construction of these Code provisions is confirmed by the long-continued and uniform practice and the universal understanding of the bench and bar of the state on the subject.’

x x x x x x x x x

‘Action to quiet title frequently involve wills of persons who have died many years before the action was begun. The section contemplates that such a will, although not yet probated, may be construed in the action and may be afterwards probated, and it clearly shows that the Legislature did not understand that the right to probate such will would be barred if the testator had died more than four years before the petition for probate was filed.

‘This uniform practice and understanding of the bench and bar, and of the legislative department of the state also, is a strong argument to the effect that the statute of limitations does not apply to such proceedings. The authorities on the effect of such long acquiescence are numerous.’

“The Statute of Limitations upon which the court below has relied, sections 38 to 50 of the old Code of Civil Procedure, Act 190, undertakes to fix limits for the filing of ‘civil actions’, but none for ‘special proceedings’ of which probate is admittedly one. The distinction is not purely verbal, but based on differences that make the limitation to ‘actions’ inapplicable to ‘special proceedings’. In this regard, the Supreme Court of New York has adequately remarked (In re Canfield’s Will, 300 NYS 502): chanroble svirtuallawlibrary

‘A Respondent in a private proceeding owes no legal duty or obligation to the proponent as such, wherefore it is impossible for him to violate such non-existent obligation. Furthermore such a proceeding is not instituted for the vindication of any personal right to the proponent. The subject-matter is therefore wholly absent which could give rise to any ‘cause of action’ against any Respondent therein.

‘The primary purpose of the proceeding is not to establish the existence of the right of any living person, but to determine whether or not the decedent has performed the acts specified by the pertinent statutes which are the essential prerequisites to personal direction of the mode of devolution of his property on death. There is no legal but merely a moral duty resting upon a proponent to attempt to validate the wishes of the departed, and he may and frequently does receive no personal benefit from the performance of the act.

‘One of the most fundamental conceptions of probate law, is that it is the duty of the court to effectuate, in so far as may be compatible with the public interest, the devolutionary wishes of a deceased person (Matter of Watson’s Will, 262 N.Y. 284, 294, 186 N.E. 787; chan roble svirtualawlibraryMatter of Marriman’s Estate, 124 Misc. 320, 325, 208 N.Y.S. 672; chan roblesvirtualawlibraryFoley, S. affirmed 217 App. Div. 733, 216 N.Y.S. 842; chan

roblesvirtualawlibraryMatter of Lensman’s Estate, 137 Misc. 77, 78, 243 N.Y.S. 126, Henderson, S., Matter of Drake’s Estate, 160 Misc. 587, 598, 290 N.Y.S. 581). To that end, the court is, in effect, an additional party to every litigation affecting the disposal of the assets of the deceased. Matter of Van Valkenburgh’s Estate, 164 Misc. 295, 296, 298 N.Y.S. 219. A determination, therefore, that the mere non-action of a person upon whom no legal duty rested in this regard, could have the effect of subverting the wishes of one who was no longer able to protect his own unquestionable rights, would strike at the very foundation of all conceptions of justice as administered in probate courts.’

“These decisions are of high persuasive value (Cu vs. Republic, G. R. L-3018, July 18, 1951); chan roblesvirtualawlibrarythey represent the trend of authority (57 Am. Jur. 585), and enable us to conclude that reason and precedent reject the applicability of the Statute of Limitations to probate proceedings, because these are not exclusively established in the interest of the surviving heirs, but primarily for the protection of the testator’s expressed wishes, that are entitled to respect as an effect of his ownership and right of disposition. If the probate of validly executed wills is required by public policy, as declared by the Supreme Court in the previous case, G.R. 48840 (Exhibit E), the state could not have intended the statute of limitations to defeat that policy.

“It is true, as ruled by the trial court, that the rights of parties ‘should not be left hanging in uncertainty for periods of time far in excess of the maximum period of ten years allowed by law’; chan roblesvirtualawlibrarybut the obvious remedy is for the other interested persons to petition for the production of the will and for its probate, or to inflict upon the guilty party the penalties prescribed by Rule 76 or declare the unworthiness of the heir under the Civil Code for concealing or suppressing the testament; chan roblesvirtualawlibrarybut not to dismiss the petition for probate, however belatedly submitted, and thereby refuse sanction to testamentary dispositions executed with all the formalities prescribed by law, incidentally prejudicing also those testamentary

heirs who do not happen to be successors ab intestato. That in this particular case the appealed rule may not work injustice would not excuse its adoption as a general norm applicable to all cases.

“It is likewise reasonable to assume that if the Supreme Court had considered the ten-year limitation applicable to probate proceedings, it would not have ordered the parties on December 29, 1943 ‘to present the document Exhibit A to the proper court for probate in accordance with law’, because the ten years from the death of the testator expired in September of that same year, two months before the decision. It is safe to assume that the high Court would not order a useless step. The reasoning that the phrase ‘in accordance with law’ was a qualification signifying ‘if still legally possible’, appears to be far-fetched and unjustified. The plain import of the words employed by the high Court is that the probate should follow the procedure provided for the purpose.”

x x x x x x x x x

“The other reasons advanced by the court a quo in support of its order dismissing the petition are also untenable. The allegation contained in paragraph 10 of the original petition, that ‘the will, or its testamentary dispositions, had been de jure revoked in so far as the parcel of 259 hectares described in said will’ is concerned, does not justify the finding that the probate would be pointless. What is alleged is a partial revocation, only as to the parcel of land affected; chan roblesvirtualawlibrarybut as previously shown, the will disposed of other property besides that one. And even granting that the next allegation to the effect that Plaintiff sought to probate ‘only for the purposes of her acknowledgment as natural child in said will’, constitutes an averment that the will had been fully revoked, the same would at the most constitute a conclusion or inference that the lower court was not bound to admit. Because the Appellant claimed or believed that the revocation of the will as to the large parcel of land, constituted a total revocation of the testament is no reason why the court should concur in the same belief or conclusion, especially when the will itself, appended to the petition, showed that there were other properties and other heirs or legatees, and the trial court had before it the decision of the Supreme Court ordering the filing of the will for its probate because, as stated in its decision, such a step was enjoined by law and public policy. Moreover, the defect, if any, incurred in failing to ask for the probate in toto of the will, was subsequently cured and corrected in the amended petition, where not only the objectionable statements were eliminated, but others added indicating the existence of a partible estate.

“Assuming that the original petition violated the order of the Supreme Court in so far as it did not ask for the allowance of the entire will, the court below erred in dismissing the petition, for it thereby sanctioned further disobedience to the order of the superior court. Once again, it must be repeated that the order of dismissal failed to take into account that the case involved not only the interests of Rosario Guevara, and those of the Appellee Ernesto Guevara and the other legatees, but specially the express desires of the testator; chan roble svirtualawlibraryand that the protection and defense of the latter developed upon the court itself, since no one else made any move to enforce them.

“Even if the other heirs had failed to show interest in the case (a fact not properly inferable from their non-intervention in the case, because the order of publication of the petition only called for those interested to ‘appear to contest the allowance’ and not to support it) (Rec. on App., p. 7), and even if the other heirs had already received their shares, the order refusing the probate remains indefensible. If the other heirs were not interested, there remained the wishes of the testator to be supported and protected, if validly expressed. If the heirs had distributed the estate, the distribution was illegal and improper unless the will be first probated. The Supreme Court so ruled in its previous decision (G. R. 48840) heretofore quoted.

‘Even if the decedent left no debts and nobody raises any question as to the authenticity and due execution of the will, none of the heirs may sue for the partition of the estate in accordance with that will without first securing its allowance or probate by the court:chanroblesvirtuallawlibrary first, because the law expressly provides that ‘no will shall pass either real or personal estate unless it is proved and allowed in the proper court; chan roblesvirtualawlibraryand, second, because the probate of a will, which is a proceeding in rem, cannot be dispensed with and substituted by any other proceeding, judicial or extrajudicial, without offending against public policy designed to effectuate the testator’s right to dispose of his property by will in accordance with law and to protect the rights of the heirs and legatees under the will thru the means provided by law, among which are the publication and the personal notices to each and all of said heirs and legatees. Nor may the court approve and allow the will presented in evidence in such an action for partition, which is one in personam, any more than it could decree the registration under the Torrens system of the land involved in an ordinary action for revindicacion or partition.’

“From whatever angle the case is viewed, a hearing on the allowance of the will is unavoidable. The persistent, albeit obnoxious, attempts of Rosario Guevara to sidetrack the will are not remedied by dismissing the petition for probate of will, and allowing Ernesto to retain a greater interest than that intended by the testator.” (Appendix to brief for thePetitioner-Appellant, pp. 7-15, 17-20.)

We are fully in accord with these findings which we adopt as ours.

In view of the foregoing, the decision appealed from is hereby affirmed, with the costs of this instance against the Petitioner.

Padilla, Reyes, A., Jugo, Bautista Angelo and Labrador, JJ., concur.

G.R. No. L-29300 June 21, 1978

83 SCRA 676

PEDRO D. H. GALLANOSA, CORAZON GRECIA-GALLONOSA and ADOLFO FORTAJADA, the deceased Pedro Gallanosa being substituted by his legal heirs, namely his above-named widow and his children, ISIDRO GALLANOSA and LEDY GALLANOSA, and grandchildren

named IMELDA TECLA GALLANOSA and ROSARIO BRIGIDA GALLANOSA, children of the late SIKATUNA GALLANOSA, son of Pedro D.H. GALLONOSA, petitioners,

vs. HON. UBALDO Y. ARCANGEL, Judge of Branch I of the Court of First Instance of Sorsogon and FLORENTINO G. HITOSIS, CASIANO G. HITOSIS, TEOTIMO G. HITOSIS, VICTORIO G.

HITOSIS, EMILIA G. HITOSIS VDA. DE CRUZ, JOAQUIN R. HITOSIS VDA. DE CRUZ, JOAQUIN R. HITOSIS, FLORENTINO R. HITOSIS, VIRGINIA R. MITOSIS, DEBORAH R. HITOSIS,

EDILBERTO R. HITOSIS, LEONOR R. HITOSIS, NORMA R. HITOSIS-VILLANUEVA, LEONCIO R. HITOSIS, minors ANGEL R. HITOSIS and RODOLFO R. HITOSIS, represented by their legal guardian and mother LOURDES RELUCIO VDA. DE HITOSIS, PETRONA HITOSIS-BALBIDO,

MODESTO HITOSIS-GACILO, CLETO HITOSIS, AGUSTIN HITOSIS-FORTES, TOMASA HITOSIS-BANARES VDA. DE BORRAS, CONRADA HITOSIS-BANARES FRANCHE,

RESTITUTO HITOSIS-BANARES, DAMIAN HITOSIS-BANARES, FIDEL HITOSIS-BANARES, SUSANA HITOSIS-BANARES RODRIGUEZ, JOSE HITOSIS, LOLITA HITOSIS-BANEGA, minors

MILAGROS HITOSIS-BANEGA, ALICIA HITOSIS-BANEGA AND ELISA HITOSIS-BANEGA, represented by their legal guardian and father ERNESTO BANEGA, FELICITAS HITOSIS-

PENAFLOR, GENOVEVA HITOSIS-ADRIATICO, MANUEL HITOSIS, PEDRO HITOSIS, LIBRATA HITOSIS-BALMES, JUANITA HITOSIS-GABITO VDA. DE GABAS, MAURA HITOSIS-GABITO

VDA. DE GANOLA and LEONA HITOSIS-GABITO GAMBA, respondents.

Haile Frivaldo for petitioners.

Joaquin R Mitosis for private respondents.

AQUINO, J.:

In this special civil action of certiorari, filed on July 29, 1968, the petitioners seek to annul the orders of respondent Judge dated May 3 trial June 17, 1968, wherein he reconsidered his order of January 10, 1968, dismissing, on the ground of prescription, the complaint in Civil Case No. 2233 of the Court of First Instance of Sorsogon.

The case involves the sixty-one parcels of land in Sorsogon left by Florentino Hitosis, with an estimated value of P50,000, trial claims for damages exceeding one million pesos. The undisputed facts are as follows:

1. Florentino Hitosis executed a will in the Bicol dialect on June 19, 1938 when he was eighty years old. He died on May 26, 1939 at Irosin, Sorsogon. A childless widower, he as survived by his brother, Leon Hitosis. His other brothers, named Juan, Tito (Juancito), Leoncio (Aloncio) trial Apolonio and only sister, Teodora, were all dead.

2. On June 24, 1939 a petition for the probate of his will was filed in the Court of First Instance of Sorsogon (Special Proceeding No. 3171). The notice of hearing was duly published. In that will, Florentino bequeathed his one-half share in the conjugal estate to his second wife, Tecla Dollentas, and, should Tecla predecease him, as was the case, his one-half share would be assigned to the spouses Pedro Gallanosa and Corazon Grecia, the reason being that Pedro, Tecla's son by her first marriage, grew up under the care of Florentino; he had treated Pedro as his foster child, and Pedro has rendered services to Florentino and Tecla. Florentino likewise bequeathed his separate properties consisting of three parcels of abaca land and parcel of riceland to his protege (sasacuyang ataman), Adolfo Fortajada, a minor.

3. Opposition to the probate of the will was registered by the testator's legal heirs, namely, his surviving brother, Leon, trial his nephews trial nieces. After a hearing, wherein the oppositors did not present any evidence in support of their opposition, Judge Pablo S. Rivera, in his decision of October 27, 1939, admitted the will to probate and appointed Gallanosa as executor. Judge Rivera specifically found that the testator executed his last will "gozando de buena salud y facultades mentales y no obrando en virtud de amenaza, fraude o influencia indebida."

4. On October 24, 1941, the testamentary heirs, the Gallanosa spouses trial Adolfo Fortajada, submitted a project of partition covering sixty-one parcels of land located in various parts of Sorsogon, large cattle trial several pieces of personal property which were distributed in accordance with Florentino's will. The heirs assumed the obligations of the estate amounting to P7,129.27 in the portion of P2,376.42 for Adolfo Fortajada and P4,752.85 for the Gallanosa spouses. The project of partition was approved by Judge Doroteo Amador in his order of March 13, 1943, thus confirming the heirs' possession of their respective shares. The testator's legal heirs did not appeal from the decree of probate trial from the order of partition trial distribution.

5. On February 20, 1952, Leon Hitosis trial the heirs of Florentino's deceased brothers trial sisters instituted an action in the Court of First Instance of Sorsogon against Pedro Gallanosa for the recovery of the said sixty-one parcels of land. They alleged that they, by themselves or through their predecessors-in-interest, had been in continuous possession of those lands en concepto de dueño trial that Gallanosa entered those lands in 1951 trial asserted ownership over the lands. They prayed that they be declared the owners of the lands trial that they be restored to the possession thereof. They also claimed damages (Civil Case No. 696).

6. Gallanosa moved to dismiss the above complaint for lack of cause of action trial on the ground of bar by the prior judgment in the probate proceeding. Judge Anatolio C. Mañalac dismiss the complaint on the ground of res judicata in his order of August 14, 1952 wherein he said:

It also appears that the plaintiffs and/or their predecessors-in-interest had intervened in the testate proceedings in Civil Case No. 3171 of this Court for- the purpose of contesting the probate of the will of (the) late Florentino Hitosis; trial had their opposition prospered trial the will denied of probate, the proceedings would have been converted into one of intestacy (Art. 960 Civil Code) and the settlement of the estate of the said deceased would have been made in accordance with the provisions of law governing legal or intestate succession ... , in which case the said plaintiffs, as the nearest of kin or legal heirs of said Florentino Mitosis, would have succeeded to the ownership and possession of the 61 parcels of land in question forming part of his estate (art. 1003, Civil Code).

However, the derision of the Court was adverse to them, when it their opposition trial ordered the probate of his will. From this decision (Annex K) legalizing the said will, the oppositors did not file any appeal within the period fixed by law, despite the fact

that they were duly notified thereof, so that the said decision had become final trial it now constitutes a bar to any action that the plaintiffs may institute for the purpose of a redetermination of their rights to inherit the properties of the late Florentino Hitosis.

In other words, the said decision of this Court in Civil Case special ) No. 3171, in which the herein plaintiffs or their predecessors-in-interest had intervened as parties oppositors, constitutes a final judicial determination of the issue that the said plaintiffs, as ordinary heirs, have no legal rights to succeed to any of the properties of the late Florentino Hitosis; consequently, their present claim to the ownership trial possession of the 61 parcels of land in question is without any legal merit or basis.

7. The plaintiffs did not appeal from that order of dismissal which should have set the matter at rest. But the same plaintiffs or oppositors to the probate of the will, trial their heirs, with a persistence befitting a more meritorious case, filed on September 21, 1967, or fifteen years after the dismissal of Civil Case No. 696 trial twenty-eight years after the probate of the will another action in the same court against the Gallanosa spouses trial Adolfo Fortajada for the "annulment" of the will of Florentino Hitosis trial and for the recovery of the same sixty-one parcels of land. They prayed for the appointment of a receiver.

8. As basis of their complaint, they alleged that the Gallanosa spouses, through fraud trial deceit, caused the execution trial simulation of the document purporting to be the last will trial testament of Florentino Hitosis. While in their 1952 complaint the game plaintiffs alleged that they were in possession of the lands in question, in their 1967 complaint they admitted that since 1939, or from the death of Florentino Hitosis, the defendants (now the petitioners) have been in possession of the disputed lands (Par. XIV of the complaint, p. 70, Rollo in Civil Case No. 555, Gubat Branch, which was transferred to Branch I in Sorsogon town where Special Proceeding No. 3171 trial Civil Case No. 696 were decided trial which was re-docketed as Civil Case No. 2233).

9. As already stated, that 1967 complaint, upon motion of the defendants, now the petitioners, was dismissed by respondent Judge. The plaintiffs filed a motion for reconsideration Respondent Judge. granted it trial set aside the order of dismissal. He denied defendants' motion for the reconsideration of his order setting aside that dismissal order.

The petitioners or the defendants below contend in this certiorari case that the lower court has no jurisdiction to set aside the 1939 decree of probate trial the 1952 order of dismissal in Civil Case No. 696 trial that it acted with grave abuse of discretion in not dismissing private respondents' 1967 complaint.

The issue is whether, under the facts set forth above, the private respondents have a cause of action the "annulment" of the will of Florentino Hitosis trial for the recovery of the sixty-one parcels of land adjudicated under that will to the petitioners.

We hold that the lower court committed a grave abuse of discretion in reconsideration its order of dismissal trial in ignoring the 1939 testamentary case trial the 1952 Civil Case No. 696 which is the same as the instant 1967 case.

A rudimentary knowledge of substantive law trial procedure is sufficient for an ordinary lawyer to conclude upon a causal perusal of the 1967 complaint that it is baseless trial unwarranted.

What the plaintiffs seek is the "annulment" of a last will trial testament duly probated in 1939 by the lower court itself. The proceeding is coupled with an action to recover the lands adjudicated to the

defendants by the same court in 1943 by virtue of the probated will, which action is a resuscitation of The complaint of the same parties that the same court dismissed in 1952.

It is evident from the allegations of the complaint trial from defendants' motion to dismiss that plaintiffs' 1967 action is barred by res judicata, a double-barrelled defense, trial by prescription, acquisitive trial extinctive, or by what are known in the jus civile trial the jus gentium as usucapio, longi temporis possesio and praescriptio (See Ramos vs. Ramos, L-19872, December 3, 1974, 61 SCRA 284).

Our procedural law does not sanction an action for the "annulment" of a will. In order that a will may take effect, it has to be probated, legalized or allowed in the proper testamentary proceeding. The probate of the will is mandatory (Art. 838, Civil Code; sec. 1, Rule 75, formerly sec. 1, Rule 76, Rules of Court; Guevara vs. Guevara, 74 Phil. 479; Guevara vs. Guevara, 98 Phil. 249).

The testamentary proceeding is a special proceeding for the settlement of the testator's estate. A special proceeding is distinct trial different from an ordinary action (Secs. 1 trial 2, Rule 2 trial sec. 1, Rule 72, Rules of Court).

We say that the defense of res judicata, as a ground for the dismissal of plaintiffs' 1967 complaint, is a two-pronged defense because (1) the 1939 trial 1943 decrees of probate trial distribution in Special Proceeding No. 3171 trial (2) the 1952 order of dismissal in Civil Case No. 696 of the lower court constitute bars by former judgment, Rule 39 of the Rules of Court provides:

SEC. 49. Effect of judgments. — The effect of a judgment or final order rendered by a court or judge of the Philippines, having jurisdiction to pronounce the judgment or order, may be as follows:

(a) In case of a judgment or order against a specific thing, or in respect to the probate of a will or the administration of the estate of a deceased person, or in respect to the personal, political, or legal condition or status of a particular person or his relationship to another, the judgment or order is conclusive upon the title to the thing the will or administration, or the condition, status or relationship of the person; however, the probate of a will or granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate;

(b) In other cases the judgment or 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 trial their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating of the same thing trial under the same title trial in the same capacity;

(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 which appears upon its face to have been so adjudged, or which was actually trial necessarily included therein or necessary thereto.

The 1939 decree of probate is conclusive as to the due execution or formal validity of the will (Sec. 625, Act 190, sec. 1, Rule 76, now sec. 1, Rule 75, Rules of Court; Last par. of art. 838, Civil Code).

That means that the testator was of sound trial disposing mind at the time when he executed the will and was not acting under duress, menace, fraud, or undue influence; that the will was signed by him in the presence of the required number of witnesses, and that the will is genuine trial is not a forgery.

Accordingly, these facts cannot again be questioned in a subsequent proceeding, not even in a criminal action for the forgery of the will. (3 Moran's Comments on the Rules of Court, 1970 Edition, p. 395; Manahan vs. Manahan, 58 Phil. 448).

After the finality of the allowance of a will, the issue as to the voluntariness of its execution cannot be raised anymore (Santos vs. De Buenaventura, L-22797, September 22, 1966, 18 SCRA 47).

In Austria vs. Ventenilla, 21 Phil. 180, a "petition for annulment of a will" was not entertained after the decree of probate had become final. That case is summarized as follows:

Wills; Probate; Alledged Fraudulent Will; Appeal.— V. died. His will was admitted to probate without objection. No appeal was taken from said order. It was admitted that due trial legal notice had been given to all parties. Fifteen months after the date of said order, a motion was presented in the lower court to have said will declared null and void, for the reason that fraud had been practised upon the deceased in the making of his will.

Held: That under section 625 of Act No. 190, the only time given parties who are displeased with the order admitting to probate a will, for an appeal is the time given for appeals in ordinary actions; but without deciding whether or not an order admitting a will to probate will be opened for fraud, after the time allowed for an appeal has expired, when no appeal is taken from an order probating a will, the heirs can not, in subsequent litigation in the same proceedings, raise questions relating to its due execution. The probate of a will is conclusive as to its due execution trial as to the testamentary capacity of The testator. (See Austria vs. Heirs of Ventenilla. 99 Phil. 1069).

On the other hand, the 1943 decree of adjudication rendered by the trial court in the testate proceeding for the settlement of the estate of Florentino Hitosis, having been rendered in a proceeding in rem, is under the abovequoted section 49(a), binding upon the whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estate of Johnson, 39 Phil. 156; De la Cerna vs. Potot, 120 Phil. 1361, 1364; McMaster vs. Hentry Reissmann & Co., 68 Phil. 142).

It is not only the 1939 probate proceeding that can be interposed as res judicata with respect to private respondents' complaint, The 1952 order of dismissal rendered by Judge Mañalac in Civil Case No. 696, a judgment in personam was an adjudication on the merits (Sec. 4, Rule 30, old Rules of Court). It constitutes a bar by former judgment under the aforequoted section 49(b) (Anticamara vs. Ong, L-29689. April 14, 1978).

The plaintiffs or private respondents did not even bother to ask for the annulment of the testamentary proceeding trial the proceeding in Civil Case No. 696. Obviously, they realized that the final adjudications in those cases have the binding force of res judicata and that there is no ground, nor is it timely, to ask for the nullification of the final orders trial judgments in those two cases.

It is a fundamental concept in the organization of every jural system, a principle of public policy, that, at the risk of occasional errors, judgments of courts should become final at some definite date fixed by law. Interest rei publicae ut finis sit litum. "The very object for which the courts were constituted was to put an end to controversies." (Dy Cay vs. Crossfield and O'Brien, 38 Phil. 521: Peñalosa vs. Tuason, 22 Phil, 303; De la Cerna vs. Potot, supra).

After the period for seeking relief from a final order or judgment under Rule 38 of the Rules of Court has expired, a final judgment or order can be set aside only on the grounds of (a) lack of jurisdiction

or lack of due process of law or (b) that the judgment was obtained by means of extrinsic or collateral fraud. In the latter case, the period for annulling the judgment is four years from the discovery of the fraud (2 Moran's Comments on the Rules of Court, 1970 Edition, pp. 245-246; Mauricio vs. Villanueva, 106 Phil. 1159).

To hurdle over the obstacle of prescription, the trial court, naively adopting the theory of plaintiffs' counsel, held that the action for the recovery of the lands had not prescribed because the rule in article 1410 of the Civil Code, that "the action or defense for the declaration of the inexistence of a contract does not prescribe", applies to wills.

That ruling is a glaring error. Article 1410 cannot possibly apply to last wills trial testaments. The trial court trial plaintiffs' counsel relied upon the case of Dingle vs. Guillermo, 48 0. G. 4410, allegedly decided by this Court, which cited the ruling in Tipton vs. Velasco, 6 Phil. 67, that mere lapse of time cannot give efficacy to voidcontracts, a ruling elevated to the category of a codal provision in article 1410. The Dingle case was decided by the Court of Appeals. Even the trial court did not take pains to verify the misrepresentation of plaintiffs' counsel that the Dingle case was decided by this Court. An elementary knowledge of civil law could have alerted the trial court to the egregious error of plaintiffs' counsel in arguing that article 1410 applies to wills.

WHEREFORE, the lower court's orders of May 3 trial June 17, 1968 are reversed trial set aside trial its order of dismissal dated January 10, 1968 is affirmed. Costs against the private respondents.

SO ORDERED.

Fernando (Chairman), Barredo, Antonio, and Santos, JJ., concur.

Concepcion, Jr., J., is on leave.

G.R. No. L-23079 February 27, 1970

31 SCRA 754

RUBEN AUSTRIA, CONSUELO AUSTRIA-BENTA and LAURO AUSTRIA MOZO, petitioners, vs.

HON. ANDRES REYES, Judge, Court of First Instance of Rizal, PERFECTO CRUZ, BENITA CRUZ-MENEZ ISAGANI CRUZ, ALBERTO CRUZ and LUZ CRUZ-SALONGA respondents.

Salonga, Ordoñez, Yap, Sicat and Associates for petitioners.

Ruben Austria for himself and co-petitioners.

De los Santos, De los Santos and De los Santos for respondent Perfecto Cruz.

Villareal, Almacen, Navarra and Amores for other respondents.

CASTRO, J.:

On July 7, 1956 Basilia Austria vda. de Cruz filed with the Court of First Instance of Rizal (Special Proceedings 2457) a petition for probate, ante mortem, of her last will and testament. The probate was opposed by the present petitioners Ruben Austria, Consuelo Austria-Benta and Lauro Austria Mozo, and still others who, like the petitioner, are nephews and nieces of Basilia. This opposition was, however, dismissed and the probate of the will allowed after due hearing.

The bulk of the estate of Basilia, admittedly, was destined under the will to pass on to the respondents Perfecto Cruz, Benita Cruz-Meñez, Isagani Cruz, Alberto Cruz, and Luz Cruz-Salonga, all of whom had been assumed and declared by Basilia as her own legally adopted children.

On April 23, 1959, more than two years after her will was allowed to probate, Basilia died. The respondent Perfecto Cruz was appointed executor without bond by the same court in accordance with the provisions of the decedent's will, notwithstanding the blocking attempt pursued by the petitioner Ruben Austria.

Finally, on November 5, 1959, the present petitioners filed in the same proceedings a petition in intervention for partition alleging in substance that they are the nearest of kin of Basilia, and that the five respondents Perfecto Cruz, et al., had not in fact been adopted by the decedent in accordance with law, in effect rendering these respondents mere strangers to the decedent and without any right to succeed as heirs.

Notwithstanding opposition by the respondent Perfecto Cruz, as executor of the estate, the court a quo allowed the petitioners' intervention by its order of December 22, 1959, couched in broad terms, as follows: "The Petition in Intervention for Partition filed by the above-named oppositors [Ruben Austria, et al.,] dated November 5, 1959 is hereby granted."

In the meantime, the contending sides debated the matter of authenticity or lack of it of the several adoption papers produced and presented by the respondents. On motion of the petitioners Ruben

Austria, et al., these documents were referred to the National Bureau of Investigation for examination and advice. N.B.I. report seems to bear out the genuineness of the documents, but the petitioners, evidently dissatisfied with the results, managed to obtain a preliminary opinion from a Constabulary questioned-document examiner whose views undermine the authenticity of the said documents. The petitioners Ruben Austria, et al., thus moved the lower court to refer the adoption papers to the Philippine Constabulary for further study. The petitioners likewise located former personnel of the court which appeared to have granted the questioned adoption, and obtained written depositions from two of them denying any knowledge of the pertinent adoption proceedings.

On February 6, 1963, more than three years after they were allowed to intervene, the petitioners Ruben Austria, let al., moved the lower court to set for hearing the matter of the genuineness of the adoption of the respondents Perfecto Cruz, et al., by the late Basilia. Before the date set by the court for hearing arrived, however, the respondent Benita Cruz-Meñez who entered an appearance separately from that of her brother Perfecto Cruz, filed on February 28, 1963 a motion asking the lower court, by way of alternative relief, to confine the petitioners' intervention, should it be permitted, to properties not disposed of in the will of the decedent.

On March 4, 1963, the lower court heard the respondent Benita's motion. Both sides subsequently submitted their respective memoranda, and finally, the lower court issued an order on June 4, 1963, delimiting the petitioners' intervention to the properties of the deceased which were not disposed of in the will.

The petitioners moved the lower court to reconsider this latest order, eliciting thereby an opposition, from the respondents. On October 25, 1963 the same court denied the petitioners' motion for reconsideration.

A second motion for reconsideration which set off a long exchange of memoranda from both sides, was summarily denied on April 21, 1964.

Hence this petition for certiorari, praying this Court to annul the orders of June 4 and October 25, 1963 and the order of April 21, 1964, all restricting petitioners' intervention to properties that were not included in the decedent's testamentary dispositions.

The uncontested premises are clear. Two interests are locked in dispute over the bulk of the estate of the deceased. Arrayed on one side are the petitioners Ruben Austria, Consuelo Austria-Benta and Lauro Austria Mozo, three of a number of nephews and nieces who are concededly the nearest surviving blood relatives of the decedent. On the other side are the respondents brothers and sisters, Perfecto Cruz, Benita Cruz-Meñez, Isagani Cruz, Alberto Cruz and Luz Cruz-Salonga, all of whom heirs in the will of the deceased Basilia, and all of whom claim kinship with the decedent by virtue of legal adoption. At the heart of the controversy is Basilia's last will — immaculate in its extrinsic validity since it bears the imprimatur of duly conducted probate proceedings.

The complaint in intervention filed in the lower court assails the legality of the tie which the respondent Perfecto Cruz and his brothers and sisters claim to have with the decedent. The lower court had, however, assumed, by its orders in question, that the validity or invalidity of the adoption is not material nor decisive on the efficacy of the institution of heirs; for, even if the adoption in question were spurious, the respondents Perfecto Cruz, et al., will nevertheless succeed not as compulsory heirs but as testamentary heirs instituted in Basilia's will. This ruling apparently finds support in article, 842 of the Civil Code which reads:

One who has no compulsory heirs may dispose of by will all his estate or any part of it in favor of any person having capacity to succeed.

One 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.

The lower court must have assumed that since the petitioners nephews and niece are not compulsory heirs, they do not possess that interest which can be prejudiced by a free-wheeling testamentary disposition. The petitioners' interest is confined to properties, if any, that have not been disposed of in the will, for to that extent intestate succession can take place and the question of the veracity of the adoption acquires relevance.

The petitioners nephews and niece, upon the other hand, insist that the entire estate should descend to them by intestacy by reason of the intrinsic nullity of the institution of heirs embodied in the decedent's will. They have thus raised squarely the issue of whether or not such institution of heirs would retain efficacy in the event there exists proof that the adoption of the same heirs by the decedent is false.

The petitioners cite, as the controlling rule, article 850 of the Civil Code which reads:

The statement of a false cause for the institution of an heir shall be considered as not written, unless it appears from the will that the testator would not have made such institution if he had known the falsity of such cause.

Coming closer to the center of the controversy, the petitioners have called the attention of the lower court and this Court to the following pertinent portions of the will of the deceased which recite:

III

Ang aking mga sapilitang tagapagmana (herederos forzosos) ay ang aking itinuturing na mga anak na tunay (Hijos legalmente adoptados) na sina Perfecto, Alberto, Luz, Benita at Isagani, na pawang may apelyidong Cruz.

xxx xxx xxx

Kung ako ay bawian ng Dios ng buhay, ay aking ipinamamana ang aking mga ari-ariang maiiwan, sa kaparaanang sumusunod:

A.—Aking ipinamamana sa aking nabanggit na limang anak na sina Perfecto, Alberto, Luz, Benita at Isagani, na pawang may apelyidong Cruz, na parepareho ang kaparti ng bawa't isa at walang lamangan (en partes iguales), bilang kanilang sapilitang mana (legiti[ma]), ang kalahati (½) ng aking kaparti sa lahat ng aming ari-ariang gananciales ng aking yumaong asawang Pedro Cruz na napapaloob sa Actuacion Especial No. 640 ng Hukumang Unang Dulugan ng Rizal at itinutukoy sa No. 1 ng parafo IV ng testamentong ito, ang kalahati (½) ng mga lagay na lupa at palaisdaan na nasa Obando at Polo, Bulacan, na namana ko sa aking yumaong ama na si Calixto Austria, at ang kalahati (½) ng ilang lagay na lupa na nasa Tinejeros, Malabon, Rizal, na aking namana sa yumao kong kapatid na si Fausto Austria.

The tenor of the language used, the petitioners argue, gives rise to the inference that the late Basilia was deceived into believing that she was legally bound to bequeath one-half of her entire estate to the respondents Perfecto Cruz, et al. as the latter's legitime. The petitioners further contend that had the deceased known the adoption to be spurious, she would not have instituted the respondents at all — the basis of the institution being solely her belief that they were compulsory heirs. Proof

therefore of the falsity of the adoption would cause a nullity of the institution of heirs and the opening of the estate wide to intestacy. Did the lower court then abuse its discretion or act in violation of the rights of the parties in barring the petitioners nephews and niece from registering their claim even to properties adjudicated by the decedent in her will?

Before the institution of heirs may be annulled under article 850 of the Civil Code, the following requisites must concur: First, the cause for the institution of heirs must be stated in the will; second, the cause must be shown to be false; and third, it must appear from the face of the will that the testator would not have made such institution if he had known the falsity of the cause.

The petitioners would have us imply, from the use of the terms, "sapilitang tagapagmana" (compulsory heirs) and "sapilitang mana" (legitime), that the impelling reason or cause for the institution of the respondents was the testatrix's belief that under the law she could not do otherwise. If this were indeed what prompted the testatrix in instituting the respondents, she did not make it known in her will. Surely if she was aware that succession to the legitime takes place by operation of law, independent of her own wishes, she would not have found it convenient to name her supposed compulsory heirs to their legitimes. Her express adoption of the rules on legitimes should very well indicate her complete agreement with that statutory scheme. But even this, like the petitioners' own proposition, is highly speculative of what was in the mind of the testatrix when she executed her will. One fact prevails, however, and it is that the decedent's will does not state in a specific or unequivocal manner the cause for such institution of heirs. We cannot annul the same on the basis of guesswork or uncertain implications.

And even if we should accept the petitioners' theory that the decedent instituted the respondents Perfecto Cruz, et al. solely because she believed that the law commanded her to do so, on the false assumption that her adoption of these respondents was valid, still such institution must stand.

Article 850 of the Civil Code, quoted above, is a positive injunction to ignore whatever false cause the testator may have written in his will for the institution of heirs. Such institution may be annulled only when one is satisfied, after an examination of the will, that the testator clearly would not have made the institution if he had known the cause for it to be false. Now, would the late Basilia have caused the revocation of the institution of heirs if she had known that she was mistaken in treating these heirs as her legally adopted children? Or would she have instituted them nonetheless?

The decedent's will, which alone should provide the answer, is mute on this point or at best is vague and uncertain. The phrases, "mga sapilitang tagapagmana" and "sapilitang mana," were borrowed from the language of the law on succession and were used, respectively, to describe the class of heirs instituted and the abstract object of the inheritance. They offer no absolute indication that the decedent would have willed her estate other than the way she did if she had known that she was not bound by law to make allowance for legitimes. Her disposition of the free portion of her estate (libre disposicion) which largely favored the respondent Perfecto Cruz, the latter's children, and the children of the respondent Benita Cruz, shows a perceptible inclination on her part to give to the respondents more than what she thought the law enjoined her to give to them. Compare this with the relatively small devise of land which the decedent had left for her blood relatives, including the petitioners Consuelo Austria-Benta and Lauro Mozo and the children of the petitioner Ruben Austria. Were we to exclude the respondents Perfecto Cruz, et al. from the inheritance, then the petitioners and the other nephews and nieces would succeed to the bulk of the testate by intestacy — a result which would subvert the clear wishes of the decedent.

Whatever doubts one entertains in his mind should be swept away by these explicit injunctions in the Civil Code: "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." 1

Testacy is favored and doubts are resolved on its side, especially where the will evinces an intention on the part of the testator to dispose of practically his whole estate,2 as was done in this case. Moreover, so compelling is the principle that intestacy should be avoided and the wishes of the testator allowed to prevail, that we could even vary the language of the will for the purpose of giving it effect.3 A probate court has found, by final judgment, that the late Basilia Austria Vda. de Cruz was possessed of testamentary capacity and her last will executed free from falsification, fraud, trickery or undue influence. In this situation, it becomes our duty to give full expression to her will.4

At all events, the legality of the adoption of the respondents by the testatrix can be assailed only in a separate action brought for that purpose, and cannot be the subject of a collateral attack.5

To the petitioners' charge that the lower court had no power to reverse its order of December 22, 1959, suffice it to state that, as borne by the records, the subsequent orders complained of served merely to clarify the first — an act which the court could legally do. Every court has the inherent power to amend and control its processes and orders so as to make them conformable to law and justices.6 That the court a quo has limited the extent of the petitioners' intervention is also within its

powers as articulated by the Rules of Court.7

ACCORDINGLY, the present petition is denied, at petitioners cost.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Fernando, Teehankee, Barredo and Villamor, JJ., concur.

G.R. No. L-24365 June 30, 1966

17 SCRA 590

IN THE MATTER OF THE INTESTATE ESTATE OF EDWARD E. CHRISTENSEN, deceased. ADOLFO C. AZNAR, executor and appellee,

vs. MARIA LUCY CHRISTENSEN DUNCAN, oppositor and appellant.

MARIA HELEN CHRISTENSEN, oppositor and appellee.

J. Salonga and L. M. Abellera for oppositor and appellee. Carlos Dominguez, Jr. for executor-appellee. M. R. Sotelo for appellant.

MAKALINTAL, J.:

Edward E. Christensen, a citizen of California with domicile in the Philippines, died leaving a will executed on March 5, 1951. The will was admitted to probate by the Court of First Instance of Davao in its decision of February 28, 1954. In that same decision the court declared that Maria Helen Christensen Garcia (hereinafter referred to as Helen Garcia) was a natural child of the deceased. The declaration was appealed to this Court, and was affirmed in its decision of February 14, 1958 (G.R. No. L-11484).

In another incident relative to the partition of the deceased's estate, the trial court approved the project submitted by the executor in accordance with the provisions of the will, which said court found to be valid under the law of California. Helen Garcia appealed from the order of approval, and this Court, on January 31, 1963, reversed the same on the ground that the validity of the provisions of the will should be governed by Philippine law, and returned the case to the lower court with instructions that the partition be made as provided by said law (G.R. No. L-16749).

On October 29, 1964, the Court of First Instance of Davao issued an order approving the project of partition submitted by the executor, dated June 30, 1964, wherein the properties of the estate were divided equally between Maria Lucy Christensen Duncan (named in the will as Maria Lucy Christensen Daney, and hereinafter referred to as merely Lucy Duncan), whom the testator had expressly recognized in his will as his daughter (natural) and Helen Garcia, who had been judicially declared as such after his death. The said order was based on the proposition that since Helen Garcia had been preterited in the will the institution of Lucy Duncan as heir was annulled, and hence the properties passed to both of them as if the deceased had died intestate, saving only the legacies left in favor of certain other persons, which legacies have been duly approved by the lower court and distributed to the legatees.

The case is once more before us on appeal, this time by Lucy Duncan, on the sole question of whether the estate, after deducting the legacies, should pertain to her and to Helen Garcia in equal shares, or whether the inheritance of Lucy Duncan as instituted heir should be merely reduced to the extent necessary to cover the legitime of Helen Garcia, equivalent to 1/4 of the entire estate.

The will of Edward E. Christensen contains, among others, the following clauses which are pertinent to the issue in this case:

3. I declare ... that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN (Now Mrs. Bernard Daney), who was born in the Philippines about twenty-eight years ago, who is now residing at No. 665 Rodger Young Village, Los Angeles, California, U.S.A.

4. I further declare that I now have no living ascendants, and no descendants except my above-named daughter, MARIA LUCY CHRISTENSEN DANEY.

x x x x x x x x x

7. I give, devise, and bequeath unto MARIA HELEN CHRISTENSEN, now married to Eduardo Garcia, about eighteen years of age and who, notwithstanding the fact that she was baptized Christensen, is not in any way related to me, nor has she been at any time adopted by me, and who, from all information I have now resides in Egpit, Digos, Davao, Philippines, the sum of THREE THOUSAND SIX HUNDRED PESOS (P3,600.00), Philippine Currency, the same to be deposited in trust for the said Maria Helen Christensen with the Davao Branch of the Philippine National Bank, and paid to her at the rate of One Hundred Pesos (P100.00), Philippine Currency per month until the principal thereof as well as any interest which may have accrued thereon, is exhausted.

x x x x x x x x x

12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said MARIA LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney) now residing, as aforesaid, at No. 665 Rodger Young Village, Los Angeles, California, U.S.A., all the income from the rest, remainder, and residue of my property and estate, real, personal and/or mixed, of whatsoever kind or character, and wheresoever situated, of which I may be possessed at my death and which may have come to me from any source whatsoever, during her lifetime; Provided, however, that should the said MARIA LUCY CHRISTENSEN DANEY at anytime prior to her decease having living issue, then and in that event, the life interest herein given shall terminate, and if so terminated, then I give, devise, and bequeath to my daughter, the said MARIA LUCY CHRISTENSEN DANEY the rest, remainder and residue of my property with the same force and effect as if I had originally so given, devised and bequeathed it to her; and provided, further, that should the said MARIA LUCY CHRISTENSEN DANEY die without living issue, then, and in that event, I give, devise and bequeath all the rest, remainder and residue of my property one-half (1/2) to my well-beloved sister, Mrs. CARRIE LOUISE C. BORTON, now residing at No. 2124, Twentieth Street, Bakersfield, California, U.S.A., and one-half (1/2) to the children of my deceased brother, JOSEPH C. CHRISTENSEN, namely: Mrs. Carol F. Ruggaver, of Los Angeles, California, U.S.A., and Joseph Raymond Christensen, of Manhattan Beach, California, U.S.A., share and share alike, the share of any of the three above named who may predecease me, to go in equal parts to the descendants of the deceased; and, provided further, that should my sister Mrs. Carol Louise C. Borton die before my own decease, then, and in that event, the share of my estate devised to her herein I give, devise and bequeath to her children, Elizabeth Borton de Treviño, of Mexico City Mexico; Barbara Borton Philips, of Bakersfield, California, U.S.A., and Richard Borton, of Bakersfield, California, U.S.A., or to the heirs of any of them who may die before my own decease, share and share alike.

The trial court ruled, and appellee now maintains, that there has been preterition of Helen Garcia, a compulsory heir in the direct line, resulting in the annulment of the institution of heir pursuant to Article 854 of the Civil Code, which provides:

ART. 854. 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.

On the other hand, appellant contends that this is not a case of preterition, but is governed by Article 906 of the Civil Code, which says: "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." Appellant also suggests that considering the provisions of the will whereby the testator expressly denied his relationship with Helen Garcia, but left to her a legacy nevertheless although less than the amount of her legitime, she was in effect defectively disinherited within the meaning of Article 918, which reads:

ART. 918. Disinheritance without a specification of the cause, or for a cause the truth of which, if contradicted, is not proved, or which is not one of those set forth in this Code, shall annul the institution of heirs insofar as it may prejudice the person disinherited; but the devices and legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitimate.

Thus, according to appellant, under both Article 906 and 918, Helen Garcia is entitled only to her legitime, and not to a share of the estate equal that of Lucy Duncan as if the succession were intestate.

Article 854 is a reproduction of Article 814 of the Spanish Civil Code; and Article 906 of Article 815. Commenting on Article 815, Manresa explains:

Como dice Goyena, en el caso de pretericion puede presumirse ignorancia o falta de memoria en el testador; en el de dejar algo al heredero forzoso no. Este no se encuentra plivado totalmente de su legitima: ha recibido por cualquir titulo una porcion de los bienes hereditarios, porcion que no alcanza a completar la legitima, pero que influeye poderosamente en el animo del legislador para decidirle a adoptar una solucion bien diferente de la señalada para el caso de pretericion.

El testador no ha olvidado por completo al heredero forzoso; le ha dejado bienes; pero haciendo un calculo equivocado, ha repartido en favor de extraños o en favor de otros legitimarios por via de legado donacion o mejora mayor cantidad de la que la ley de consentia disponer. El heredero forzoso no puede perder su legitima, pero tampoco puede pedir mas que la misma. De aqui su derecho a reclamar solamente lo que le falta; al complemento de la porcion que forzosamente la corresponde.

... Dejar el testador por cualquier titulo, equivale a disponer en testamento por titulo de herencia legado o mejora, y en favor de legitimarios, de alguna cantidad o porcion de bienes menos que la legitima o igual a la misma. Tal sentido, que es el mas proprio en al articulo 815, no pugna tampoco con la doctrina de la ley.Cuando en el testamento se deja algo al heredero forzoso, la pretericion es incompleta: es mas formularia que real. Cuando en el testamento nada se deja el legitimario, hay verdadera pretericion. (6 Manresa, 7th Ed., 1951, p. 437.)

On the difference between preterition of a compulsory heir and the right to ask for completion of his legitime, Sanchez Roman says:

La desheredacion, como expresa, es siempre voluntaria; la pretericion puede serlo pero se presume involuntaria la omision en que consiste en cuanto olvida o no atiende el testador en

su testamento a la satisfaccion del derecho a la legitima del heredero forzoso preterido, prescindiendo absoluta y totalmente de el y no mencionandole en ninguna de sus disposiciones testamentarias, o no instituyendole en parte alguna de la herencia, ni por titulo de heredero ni por el de legatar o aunque le mencionara o nombrara sin dejarle mas o menos bienes. Si le dejara algunos, por pocos que sean e insuficientes para cubrir su legitima, ya no seria caso de pretericion, sino de complemento de aquella. El primer supuesto o de pretericion se regula por el articulo 814, y produce accion de nulidad de la institucion de heredero; y el segundo, o de complemento de legitima por el 815 y solo original la accion ad suplementum, para completar la legitima. (Sanchez Roman, Tomo VI, Vol. 2, p. 1131.)

Manresa defines preterition as the omission of the heir in the will, either by not naming him at all or, while mentioning him as father, son, etc., by not instituting him as heir without disinheriting him expressly, nor assigning to him some part of the properties. Manresa continues:

Se necesita pues (a) Que la omision se refiera a un heredero forzoso; (b) Que la omision sea completa; que el heredero forzoso nada reciba en el testamento.1äwphï1.ñët

x x x x x x x x x

B. Que la omision sea completa — Esta condicion se deduce del mismo Articulo 814 y resulta con evidencia al relacionar este articulo con el 815. El heredero forzoso a quien el testador deja algo por cualquier titulo en su testamento, no se halla propiamente omitido pues se le nombra y se le reconoce participacion en los bienes hereditarios. Podria discutirse en el Articulo 814 si era o no necesario que se reconociese el derecho del heredero como tal heredero, pero el articulo 815 desvanece esta duda. Aquel se ocupa de privacion completa o total, tacita este, de la privacion parcial. Los efectos deben ser y son, como veremos completamente distintos (6 Manresa, p. 428.)

La privacion de la legitima puede ser total o parcial.

Privar totalmente de la legitima es negarla en absoluto al legitimario, despojarle de ella por completo. A este caso se refiere el articulo 814. Privar parcialmente de la legitima, es menguarla o reducirla dejar al legitimario una porcion, menor que la que le corresponde. A este caso se refiere el articulo 815. El 813 sienta, pues, una regla general, y las consecuencias del que brantamiento de esta regla se determina en los articulos 814 y 815. (6 Manresa p. 418.)

Again Sanchez Roman:

QUE LA OMISSION SEA TOTAL. — Aunque el articulo 814 no consigna de modo expreso esta circunstancia de que la pretericion o falta de mencion e institucion o disposicion testamentaria a su favor, sea total, completa y absoluta, asi se deduce de no hacer distincion o salvedad alguna empleandola en terminos generales; pero sirve a confirmarlo de un modo indudable el siguiente articulo 815, al decir que el heredero forzoso a quien el testador haya dejado por cualquier titulo, menos de la legitima que la corresponda, podria pedir el complemento de la misma, lo cual ya no son el caso ni los efectos de la pretericion, que anula la institucion, sino simplemente los del suplemento necesario para cubrir su legitima. (Sanchez Roman — Tomo VI, Vol. 2.0 p. 1133.)

The question may be posed: In order that the right of a forced heir may be limited only to the completion of his legitime (instead of the annulment of the institution of heirs) is it necessary that

what has been left to him in the will "by any title," as by legacy, be granted to him in his capacity as heir, that is, a titulo de heredero? In other words, should he be recognized or referred to in the will as heir? This question is pertinent because in the will of the deceased Edward E. Christensen Helen Garcia is not mentioned as an heir — indeed her status as such is denied — but is given a legacy of P3,600.00.

While the classical view, pursuant to the Roman law, gave an affirmative answer to the question, according to both Manresa (6 Manresa 7th 3rd. 436) and Sanchez Roman (Tomo VI, Vol. 2.0 — p. 937), that view was changed by Article 645 of the "Proyecto de Codigo de 1851," later on copied in Article 906 of our own Code. Sanchez Roman, in the citation given above, comments as follows:

RESPECTO DEL COMPLEMENTO DE LA LEGITIMA. — Se inspira el Codigo en esta materia en la doctrina clasica del Derecho romano y patrio (2); pero con alguna racional modificacion. Concedian aquellos precedentes legales al heredero forzoso, a quien no se le dejaba por titulo de tal el completo de su legitima, la accion para invalidar la institucion hecha en el testamento y reclamar y obtener aquella mediante el ejercicio de la querella de inoficioso, y aun cuando resultara favorecido como donotario, por otro titulo que no fuera el de heredero, sino al honor de que se le privaba no dandole este caracter, y solo cuando era instituido heredero en parte o cantidad inferior a lo que le correspondiera por legitima, era cuando bastaba el ejercicio de la accion ad suplementum para completarla, sin necesidad de anular las otras instituciones de heredero o demas disposiciones contenidas en el testamento.

El Articulo 851 se aparta de este criterio estricto y se ajusta a la unica necesidad que le inspira cual es la de que se complete la legitima del heredero forzoso, a quien por cualquier titulo se haya dejado menos de lo que le corresponda, y se le otorga tan solo el derecho de pedir el complemento de la misma sin necesidad de que se anulen las disposiciones testamentarias, que se reduciran en lo que sean inoficiosas conforme al articulo 817, cuya interpretacion y sentido tienen ya en su apoyo la sancion de la jurisprudencia (3); siendo condicion precisa que lo que se hubiere dejado de menos de la legitima al heredero forzoso, lo haya sido en el testamento, o sea por disposicion del testador, segun lo revela el texto del articulo, "el heredero forzoso a quien el testador haya dejado, etc., esto es por titulo de legado o donacion mortis causa en el testamento y, no fuera de al. (Sanchez Roman, Tomo VI, Vol. 2.0 — p. 937.)

Manresa cites particularly three decisions of the Supreme Court of Spain dated January 16, 1895, May 25, 1917, and April 23, 1932, respectively. In each one of those cases the testator left to one who was a forced heir a legacy worth less than the legitime, but without referring to the legatee as an heir or even as a relative, and willed the rest of the estate to other persons. It was held that Article 815 applied, and the heir could not ask that the institution of heirs be annulled entirely, but only that the legitime be completed. (6 Manresa, pp. 438, 441.)

The foregoing solution is indeed more in consonance with the expressed wishes of the testator in the present case as may be gathered very clearly from the provisions of his will. He refused to acknowledge Helen Garcia as his natural daughter, and limited her share to a legacy of P3,600.00. The fact that she was subsequently declared judicially to possess such status is no reason to assume that had the judicial declaration come during his lifetime his subjective attitude towards her would have undergone any change and that he would have willed his estate equally to her and to Lucy Duncan, who alone was expressly recognized by him.

The decision of this Court in Neri, et al. v. Akutin, 74 Phil. 185, is cited by appellees in support of their theory of preterition. That decision is not here applicable, because it referred to a will where

"the testator left all his property by universal title to the children by his second marriage, and (that) without expressly disinheriting the children by his first marriage, he left nothing to them or, at least, some of them." In the case at bar the testator did not entirely omit oppositor-appellee Helen Garcia, but left her a legacy of P3,600.00.

The estate of the deceased Christensen upon his death consisted of 399 shares of stocks in the Christensen Plantation Company and a certain amount in cash. One-fourth (1/4) of said estate descended to Helen Garcia as her legitime. Since she became the owner of her share as of the moment of the death of the decedent (Arts. 774, 777, Civil Code), she is entitled to a corresponding portion of all the fruits or increments thereof subsequently accruing. These include the stock dividends on the corporate holdings. The contention of Lucy Duncan that all such dividends pertain to her according to the terms of the will cannot be sustained, for it would in effect impair the right of ownership of Helen Garcia with respect to her legitime.

One point deserves to be here mentioned, although no reference to it has been made in the brief for oppositor-appellant. It is the institution of substitute heirs to the estate bequeathed to Lucy Duncan in the event she should die without living issue. This substitution results in effect from the fact that under paragraph 12 of the will she is entitled only to the income from said estate, unless prior to her decease she should have living issue, in which event she would inherit in full ownership; otherwise the property will go to the other relatives of the testator named in the will. Without deciding this, point, since it is not one of the issues raised before us, we might call attention to the limitations imposed by law upon this kind of substitution, particularly that which says that it can never burden the legitime (Art. 864 Civil Code), which means that the legitime must descend to the heir concerned in fee simple.

Wherefore, the order of the trial court dated October 29, 1964, approving the project of partition as submitted by the executor-appellee, is hereby set aside; and the case is remanded with instructions to partition the hereditary estate anew as indicated in this decision, that is, by giving to oppositor-appellee Maria Helen Christensen Garcia no more than the portion corresponding to her as legitime, equivalent to one-fourth (1/4) of the hereditary estate, after deducting all debts and charges, which shall not include those imposed in the will of the decedent, in accordance with Article 908 of the Civil Code. Costs against appellees in this instance.

Concepcion, C.J., J.B.L. Reyes, Barrera, Dizon, Regala, J.P. Bengzon, Zaldivar and Sanchez, JJ., concur.

R E S O L U T I O N

July 30, 1967

MAKALINTAL, J.:

Oppositor-appellant has filed an ex-parte petition dated July 11, 1966, making reference to an alleged oversight and asking for the corresponding correction, in the last paragraph before the dispositive part of our decision, which reads as follows:

One point deserves to be here mentioned, although no reference to it has been made in the brief for oppositor-appellant. It is the institution of substituted heirs to the estate bequeathed to Lucy Duncan in the event she should die without living issue. This substitution results in effect from the fact that under paragraph 12 of the will she is entitled only to the income from said estate, unless prior to her decease she should have living issue, in which event she would inherit in full ownership; otherwise the property will go to the other relatives of the testator named in the will. Without deciding this

point, since it is not one of the issues raised before us, we might call attention to the limitations imposed by law upon this kind of substitution, particularly that which says that it can never burden the legitime (Art. 864, Civil Code), which means that the legitime must descend to the heir concerned in fee simple. (Decision, June 30, 1966, pages 14-15; emphasis ours).

Oppositor-appellant points out that the matter of substitution of heirs was taken up and discussed in her brief particularly in pages 28 and 32 thereof. This is indeed quite true, but the reference to and discussion of the rights of the substitute heirs (called American heirs in the brief) appears to be merely for the purpose of refuting the theory advanced by appellees and not for the purpose of having the rights of said heirs defined in so far as, under the terms of the will, they may affect the legitime of oppositor-appellant. This point of course was not and could hardly have been squarely raised as an issue inasmuch as the substitute heirs are not parties in this case. We have nevertheless called attention "to the limitations imposed by law upon this kind of substitution," because in the brief for oppositor-appellant, at page 45, she makes the conclusion "that the Last Will and Testament of Edward E. Christensen are valid under Philippine Law and must be given full force and effect;" and to give them full force and effect would precisely affect the legitime of oppositor-appellant.

Wherefore, the last paragraph before the dispositive part of our decision quoted above is amended by eliminating the following phrase in the first sentence: "although no reference to it has been made in the brief for oppositor-appellant."

Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur. Regala and Castro, JJ., took no part.

G.R. No. L-17818 January 25, 1967

19 SCRA 85

TIRSO T. REYES, as guardian of the minors Azucena Flordelis and Tirso, Jr., all surnamed Reyes y Barretto, plaintiffs-appellants,

vs. LUCIA MILAGROS BARRETTO-DATU, defendant-appellee.

Recto Law Office for plaintiff-appealant. Deogracias T. Reyes and Associates for defendant-appellee.

REYES, J.B.L., J.:

Direct appeal from a judgment of the Court of First Instance of Bulacan, in its Civil Case No. 1084, dismissing the complaint of appellant Tirso T. Reyes and ordering the same to deliver to the defendant-appellee, Lucia Milagros Barretto-Datu, the properties receivea by his deceasea wife under the terms of the will of the late Bibiano Barretto, consisting of lots in Manila, Rizal, Pampanga and Bulacan, valued at more than P200,000.

The decision appealed from sets the antecedents of the case to be as follows:

"This is an action to recover one-half share in the fishpond, located in the barrio of San Roque, Hagonoy, Bulacan, covered by Transfer Certificate of Title No. T-13734 of the Land Records of this Province, being the share of plaintiff's wards as minor heirs of the deceased Salud Barretto, widow of plaintiff Tirso Reyes, guardian of said minors."

It appears that Bibiano Barretto was married to Maria Gerardo. During their lifetime they acquired a vast estate, consisting of real properties in Manila, Pampanga, and Bulacan, covered by Transfer Certificates of Title Nos. 41423, 22443, 8858, 32989, 31046, 27285, 6277, 6500, 2057, 6501, 2991, 57403 and 12507/T-337.

When Bibiano Barretto died on February 18, 1936, in the City of Manila, he left his share of these properties in a will Salud Barretto, mother of plaintiff's wards, and Lucia Milagros Barretto and a small portion as legacies to his two sisters Rosa Barretto and Felisa Barretto and his nephew anä nieces® The usufruct oæ the fishponä situateä iî barrio Saî Roque¬ Hagonoy, Bulacan, above-mentioned, however, was reserved for his widow, Maria Gerardo® Iî the meantime¬ Maria Gerardo was appointeä administratrix. By virtue thereof, she prepared a project of partition, which was signed by her in her own behalf and as guardian of the minor Milagros Barretto. Said project of partition was approved by the Court of First Instance of Manila on November 22, 1939. The distribution of the estate and the delivery of the shares of the heirs followed forthwith. As a consequence, Salud Barretto took immediate possession of her share and secured the cancellation of the original certificates of title and the issuance of new titles in her own name.

Everything went well since then. Nobody was heard to complain of any irregularity in the distribution of the said estate until the widow, Maria Gerardo died on March 5, 1948. Upon her death, it was discovered that she had executed two wills, in the first of which, she instituted Salud and Milagros, both surnamed Barretto, as her heirs; and, in the second, she revoked the same and left all her properties in favor of Milagros Barretto alone. Thus, the later will was allowed and the first rejected. In rejecting the first will presented by Tirso Reyes, as guardian of the children of Salud Barretto, the

lower court held that Salud was not the daughter of the decedent Maria Gerardo by her husband Bibiano Barretto. This ruling was appealed to the Supreme Court, which affirmed the same.1

Having thus lost this fight for a share in the estate of Maria Gerardo, as a legitimate heir of Maria Gerardo, plaintiff now falls back upon the remnant of the estate of the deceased Bibiano Barretto, which was given in usufruct to his widow Maria Gerardo. Hence, this action for the recovery of one-half portion, thereof.

This action afforded the defendant an opportunity to set up her right of ownership, not only of the fishpond under litigation, but of all the other properties willed and delivered to Salud Barretto, for being a spurious heir, and not entitled to any share in the estate of Bibiano Barretto, thereby directly attacking the validity, not only of the project of partition, but of the decision of the court based thereon as well.

The defendant contends that the Project of Partition from which Salud acquired the fishpond in question is void ab initio and Salud Barretto did not acquire any valid title thereto, and that the court did not acquire any jurisdiction of the person of the defendant, who was then a minor.'

Finding for the defendant (now appellee), Milagros Barretto, the lower court declared the project of partition submitted in the proceedings for the settlement of the estate of Bibiano Barretto (Civil Case No. 49629 of the Court of First Instance of Manila) to be null and void ab initio (not merely voidable) because the distributee, Salud Barretto, predecessor of plaintiffs (now appellants), was not a daughter of the spouses Bibiano Barretto and Maria Gerardo. The nullity of the project of partition was decreed on the basis of Article 1081 of the Civil Code of 1889 (then in force) providing as follows: .

A partition in which a person was believed to be an heir, without being so, has been included, shall be null and void.

The court a quo further rejected the contention advanced by plaintiffs that since Bibiano Barretto was free to dispose of one-third (1/3) of his estate under the old Civil Code, his will was valid in favor of Salud Barretto (nee Lim Boco) to the extent, at least, of such free part. And it concluded that, as defendant Milagros was the only true heir of Bibiano Barretto, she was entitled to recover from Salud, and from the latter's children and successors, all the Properties received by her from Bibiano's estate, in view of the provisions of Article 1456 of the new Civil Code of the Philippines establishing that property acquired by fraud or mistake is held by its acquirer in implied trust for the real owner. Hence, as stated at the beginning of this opinion, the Court a quo not only dismissed the plaintiffs' complaint but ordered them to return the properties received under the project of partition previously mentioned as prayed for in defendant Milagros Barretto's counterclaim. However, it denied defendant's prayer for damages. Hence, this appeal interposed by both plaintiffs and defendant.

Plaintiffs-appellants correctly point out that Article 1081 of the old Civil Code has been misapplied to the present case by the court below. The reason is obvious: Salud Barretto admittedly had been instituted heir in the late Bibiano Barretto's last will and testament together with defendant Milagros; hence, the partition had between them could not be one such had with a party who was believed to be an heir without really being one, and was not null and void under said article. The legal precept (Article 1081) does not speak of children, or descendants, but ofheirs (without distinction between forced, voluntary or intestate ones), and the fact that Salud happened not to be a daughter of the testator does not preclude her being one of the heirs expressly named in his testament; for Bibiano Barretto was at liberty to assign the free portion of his estate to whomsoever he chose. While the

share (½) assigned to Salud impinged on the legitime of Milagros, Salud did not for that reason cease to be a testamentary heir of Bibiano Barretto.

Nor does the fact that Milagros was allotted in her father's will a share smaller than her legitime invalidate the institution of Salud as heir, since there was here no preterition, or total ommission of a forced heir. For this reason,Neri vs. Akutin, 72 Phil. 322, invoked by appellee, is not at all applicable, that case involving an instance of preterition or omission of children of the testator's former marriage.

Appellee contends that the partition in question was void as a compromise on the civil status of Salud in violation of Article 1814 of the old Civil Code. This view is erroneous, since a compromise presupposes the settlement of a controversy through mutual concessions of the parties (Civil Code of 1889, Article 1809; Civil Code of the Philippines, Art. 2028); and the condition of Salud as daughter of the testator Bibiano Barretto, while untrue, was at no time disputed during the settlement of the estate of the testator. There can be no compromise over issues not in dispute. And while a compromise over civil status is prohibited, the law nowhere forbids a settlement by the parties over the share that should correspond to a claimant to the estate.

At any rate, independently of a project of partition which, as its own name implies, is merely a proposal for distribution of the estate, that the court may accept or reject, it is the court alone that makes the distribution of the estate and determines the persons entitled thereto and the parts to which each is entitled (Camia vs. Reyes, 63 Phil. 629, 643; Act 190, Section 750; Rule 90, Rules of 1940; Rule 91, Revised Rules of Court), and it is that judicial decree of distribution, once final, that vests title in the distributees. If the decree was erroneous or not in conformity with law or the testament, the same should have been corrected by opportune appeal; but once it had become final, its binding effect is like that of any other judgment in rem, unless properly set aside for lack of jurisdiction or fraud.

It is thus apparent that where a court has validly issued a decree of distribution of the estate, and the same has become final, the validity or invalidity of the project of partition becomes irrelevant.

It is, however, argued for the appellee that since the court's distribution of the estate of the late Bibiano Barretto was predicated on the project of partition executed by Salud Barretto and the widow, Maria Gerardo (who signed for herself and as guardian of the minor Milagros Barretto), and since no evidence was taken of the filiation of the heirs, nor were any findings of fact or law made, the decree of distribution can have no greater validity than that of the basic partition, and must stand or fall with it, being in the nature of a judgment by consent, based on a compromise. Saminiada vs. Mata, 92 Phil. 426, is invoked in support of the proposition. That case is authority for the proposition that a judgment by compromise may be set aside on the ground of mistake or fraud, upon petition filed in due time, where petition for "relief was filed before the compromise agreement a proceeding, was consummated" (cas. cit. at p. 436). In the case before us, however, the agreement of partition was not only ratified by the court's decree of distribution, but actually consummated, so much so that the titles in the name of the deceased were cancelled, and new certificates issued in favor of the heirs, long before the decree was attacked. Hence, Saminiada vs. Mata does not apply.

Moreover, the defendant-appellee's argument would be plausible if it were shown that the sole basis for the decree of distribution was the project of partition. But, in fact, even without it, the distribution could stand, since it was in conformity with the probated will of Bibiano Barretto, against the provisions whereof no objection had been made. In fact it was the court's duty to do so. Act 190, section 640, in force in 1939, provided: .

SEC. 640. Estate, How Administered. — When a will is thus allowed, the court shall grant letters testamentary, or letters of administration with the will annexed, and such letters

testamentary or of administration, shall extend to all the estate of the testator in the Philippine Islands. Such estate, after the payment of just debts and expenses of administration, shall be disposed of according to such will, so far as such will may operate upon it; and the residue, if any, shall be disposed of as is provided by law in cases of estates in these Islands belonging to persons who are inhabitants of another state or country. (Emphasis supplied)

That defendant Milagros Barretto was a minor at the time the probate court distributed the estate of her father in 1939 does not imply that the said court was without jurisdiction to enter the decree of distribution. Passing upon a like issue, this Court ruled in Ramos vs. Ortuzar, 89 Phil. Reports, pp. 741 and 742:

If we are to assume that Richard Hill and Marvin Hill did not formally intervene, still they would be concluded by the result of the proceedings, not only as to their civil status but as the distribution of the estate as well. As this Court has held in Manolo vs. Paredes, 47 Phil. 938, "The proceeding for probate is one in rem (40 Cyc., 1265) and the court acquires jurisdiction over all persons interested, through the publication of the notice prescribed by section 630 C.P.C.; and any order that any be entered therein is binding against all of them." (See also in re Estate of Johnson, 39 Phil. 156.) "A final order of distribution of the estate of a deceased person vests the title to the land of the estate in the distributees". (Santos vs. Roman Catholic Bishop of Nueva Caceres, 45 Phil. 895.) There is no reason why, by analogy, these salutary doctrines should not apply to intestate proceedings.

The only instance that we can think of in which a party interested in a probate proceeding may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence. Even then, the better practice to secure relief is reopening of the same case by proper motion within the reglementary period, instead of an independent action the effect of which, if successful, would be, as in the instant case, for another court or judge to throw out a decision or order already final and executed and reshuffle properties long ago distributed and disposed of.

It is well to observe, at this juncture, as this Court expressly declared in Reyes vs. Barretto Datu, 94 Phil. 446 (Am'd Rec. Appeal, pp. 156, 157), that:

... It is argued that Lucia Milagros Barretto was a minor when she signed the partition, and that Maria Gerardo was not her judicially appointed guardian. The claim is not true. Maria Gerardo signed as guardian of the minor. (Secs. 3 and 5, Rule 97, Rules of Court.) The mere statement in the project of partion that the guardianship proceedings of the minor Lucia Milagros Barretto are pending in the court, does not mean that the guardian had not yet been appointed; it meant that the guardianship proceedings had not yet been terminated, and as a guardianship proceedings begin with the appointment of a guardian, Maria Gerardo must have been already appointed when she signed the project of partition. There is, therefore, no irregularity or defect or error in the project of partition, apparent on the record of the testate proceedings, which shows that Maria Gerardo had no power or authority to sign the project of partition as guardian of the minor Lucia Milagros Barretto, and, consequently, no ground for the contention that the order approving the project of partition is absolutely null and void and may be attacked collaterally in these proceedings.

So that it is now incontestable that appellee Milagros Barretto was not only made a party by publication but actually appeared and participated in the proceedings through her guardian: she,

therefore, can not escape the jurisdiction of the Manila Court of First Instance which settled her father's estate.

Defendant-appellee further pleads that as her mother and guardian (Maria Gerardo) could not have ignored that the distributee Salud was not her child, the act of said widow in agreeing to the oft-cited partition and distribution was a fraud on appellees rights and entitles her to relief. In the first place, there is no evidence that when the estate of Bibiano Barretto was judicially settled and distributed appellants' predecessor, Salud Lim Boco Barretto to, knew that she was not Bibiano's child: so that if fraud was committed, it was the widow, Maria Gerardo, who was solely responsible, and neither Salud nor her minor children, appellants herein, can be held liable therefor. In the second placegranting that there was such fraud, relief therefrom can only be obtained within 4 years from its discovery, and the record shows that this period had elapsed long ago.

Because at the time of the distribution Milagros Barretto was only 16 years old (Exhibit 24), she became of age five years later, in 1944. On that year, her cause of action accrued to contest on the ground of fraud the court decree distributing her father's estate and the four-year period of limitation started to run, to expire in 1948 (Section 43, Act. 190). In fact, conceding that Milagros only became aware of the true facts in 1946 (Appellee's Brief, p. 27), her action still became extinct in 1950. Clearly, therefore, the action was already barred when in August 31, 1956 she filed her counterclaim in this case contesting the decree of distribution of Bibiano Barretto's estate.

In order to evade the statute of limitations, Milagros Barretto introduced evidence that appellant Tirso Reyes had induced her to delay filing action by verbally promising to reconvey the properties received by his deceased wife, Salud. There is no reliable evidence of the alleged promise, which rests exclusively on the oral assertions of Milagros herself and her counsel. In fact, the trial court made no mention of such promise in the decision under appeal. Even more: granting arguendo that the promise was made, the same can not bind the wards, the minor children of Salud, who are the real parties in interest. An abdicative waiver of rights by a guardian, being an act of disposition, and not of administration, can not bind his wards, being null and void as to them unless duly authorized by the proper court (Ledesma Hermanos vs. Castro, 55 Phil. 136, 142).

In resume, we hold (1) that the partition had between Salud and Milagros Barretto in the proceedings for the settlement of the estate of Bibiano Barretto duly approved by the Court of First Instance of Manila in 1939, in its Civil Case No. 49629, is not void for being contrary to either Article 1081 or 1814 of the, Civil Code of 1889; (2) that Milagros Barretto's action to contest said partition and decree of distribution is barred by the statute of limitations; and (3) that her claim that plaintiff-appellant guardian is a possessor in bad faith and should account for the fruits received from the properties inherited by Salud Barretto (nee Lim Boco) is legally untenable. It follows that the plaintiffs' action for partition of the fishpond described in the complaint should have been given due course.

Wherefore, the decision of the Court of First Instance of Bulacan now under appeal is reversed and set aside in so far as it orders plaintiff-appellant to reconvey to appellee Milagros Barretto Datu the properties enumeracted in said decision, and the same is affirmed in so far as it denies any right of said appellee to accounting. Let the records be returned to the court of origin, with instructions to proceed with the action for partition of the fishpond (Lot No. 4, Plan Psu-4709), covered by TCT No. T-13734 of the Office of the Register of Deeds of Bulacan, and for the accounting of the fruits thereof, as prayed for in the complaint No costs.

Concepcion, C.J., Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar, Sanchez and Castro, JJ., concur.

G.R. No. L-47931 June 27, 1941

72 Phil 546

Testamentaria del finado Rev. P. Eleuterio Pilapil. ADRIANO MENDOZA, solicitante y apelado, vs.

CALIXTO PILAPIL Y OTROS, opositores y apelantes.

D. Filemon Sotto y D. Numeriano G. Estenzo en representacion de los apelantes. Sres. Alonso y Alonso en representacion del apelado.

DIAZ, J.:

Las cuestiones principales que los opositores nos presentan para su resolucion, al apelar de la decision del Juzgado de Primera Instancia de Cebu, dictada en el expediente de testamentaria No. 407 de dicho Juzgado, pueden reducirse a las siguintes.

1.ª Si el Juzgado de Cebu podia nombrar el 4 de marzo de 1939, al apelado como administrador especial de los bienes relictos del finado P. Eleuterio Pilapil (expediente de testamentaria No. 407), estando como estaba entonces actuando como administrador de los mismos bienes desde el 7 de febrero de 1939, el apelante Calixto Pilapil, que promovio un dia antes, el Expediente de Intestado del mismo finado P. Eleuterio Pilapil, en dicho Juzgado (expediente No. 399, Juzgado de Cebu); y

2.ª Si procedia y procede la legalizacion como testamento o disposicion de ultima voluntad del finado P. Eleuterio Pilapil, del documento obrante en autos como Exhibit A que es un duplicado al carbon del Exhibit C.

Los hechos pertinentes que hay que tener en cuenta al resolver las cuestiones propuestas son, segun se desprenden de la decision apelada y de los mismos documentos que el Juzgado declaro ser testamento y ultima voluntad del finado P. Eleuterio Pilapil, los que a continuacion se relatan:

El P. Eleuterio Pilapil, siendo Cura de la parroquia de Mualboal de la Provincia de Cebu, fallecio en la ciudad de este nombre el 6 de diciembre de 1935. No habiendose presentado ningun testamento suyo despues de su muerte, por lo menos hasta principios de febrero de 1939, su hermano Calixto Pilapil promovio el dia 6 de dichos mes y ano,el expediente de intestado No. 399 para pedir que fuesenombrado administrador de los bienes relictos de el. Recibida a prueba la solicitud que habia presentado para elindicado fin, previas las publicaciones de los avisos presritos por la ley, y oyendo el Juzgado previamente a los quecomparecieron para oponerse a la misma, entre los cuales estaban el mismo apelado y Simeona Pilapil, el Juzgado se la concedio, nombrandole acto seguido administrador de dicho Intestado. A los pocos dias, o sea el 4 de marzo de 1939, el apelado promovio a su vez el expediente No. 407 de que antes se ha hecho mencion, para pedir la legalizacion como testamento del finado P. Eleuterio Pilapil, del Exhibit A que es el duplicado al carbon del Exhibit C. Hay entre las clausulas de dichos dos documentos, las que se insertan a continuacion por su pertinencia a las cuestiones planteadas y tambien por la importancia que tienen

Yo, Eleuterio Pilapil, Sacerdote de la Iglesia Catolica Apostolica Romana, de sesenta y ocho años de edad, natural de Liloan, actualmente, Cura Parroco de la Parroquia de Mualboal, Provincia de Cebu, I.F., gozando de salud y en PLENO USO DE MIS FACULTADES MENTALES, por la presente, publico, declaro y otorgo lo siguiente como MI TESTAMENTO Y ULTIMA VOLUNTAD:

ART. PRIMERO: Instituyo y nombro al Sr. Adriano Mendoza, mi sobrino politico, casado, mayor de edad y vecino del Municipio de Liloan, Provincia de Cebu, I.F., ALBACEA-EJECUTOR de este mi Testamento y Ultima Voluntad: Entendiendose, Que en case de imposibilidad, negligencia u otra causa con que se cohibe hacer cumplir este mi Testamento y Ultima Voluntad, mediante fianza, dispongo y ordeno que sea sustituido en el cargo de albacea-ejecutor de este mi Testamento y Ultima Voluntad, por mi Primo, Jose Cabatingan, casado, mayor de edad, residente del Municipiop de Mualboal, Provincia de Cebu, I.F., quien se encargara y hara que se cumplan estas mis siguientes disposiciones:

x x x x x x x x x

2.ª Dispongo y ordeno que este mi Testamento y Ultima Voluntad No se ventile en el Juzgado, toda vez que este Testamento y Ultima Voluntad, simplemente corrobora, afirma y asegura la legitimidad de los documentos de compraventa de mis bienes;

x x x x x x x x x

ART. SEGUNDO: Por la presente, hago constar que este Mi Testamento y Ultima Voluntad, que corrobora, afirma y asegura la legitimidad de documentos por mi otorgados a los compradores consta de dos articulos; contiene dieciseis disposiciones y esta escrito en tres paginas;

x x x x x x x x x

Cebu, Cebu, I.F., hoy dia 27 de noviembre de 1935.

(Firmado) ELEUTERIO PILAPIL Testador;

al final de los mismos (exhibits A y C), hay esta clausula de atestiguamiento:

Al que leyere:

SALUD,

Nosotros los que abajo firmamos, hacemos constar: Que el pre-inserto Testamento y Ultimo Voluntad, ha sido suscrito, declarado y jurado por el Testador, Rev. P. Eleuterio Pilapil en presencia de todos nosotros y a ruego de dicho Testador, firmamos cada uno de nosotros en presencia de nosotros, aqui en Cebu, Cebu, I.F., hoy dia 27 de noviembre de 1935.

(Firmados) WENCESLAO PILAPIL Testigo

MARCELO PILAPIL Testigo

EUGENIO K. PILAPIL Testigo

Los dos documentos, exhibits A y C, constan de tres paginas; y en el margen izquierdo de cada una de las dos primeras; aparecen las firmas que se ven al final del cuerpo principal de dichos documentos y de su clausula de atestiguamiento; y que son, segun las pruebas, firmas del finado P. Eleuterio Pilapil, y de los testigos Wenceslao Pilapil, Marcelo Pilapil y Eugenio K. Pilapil.

En el lugar de la fecha tanto de los dos documentos como de su clausula de atestiguamiento, aparece escrita la palabra "Cebu" sobre que se trato de raspar pero que aun puede verse que decia "Mualboal"; y aparecen tambien el guarismo "27" y el nombre de mas: "Noviembre", escrito este ultimo sobre una palabra raspada que aun puede verse tambien sin ninguna dificultad, por lo menos en el Exhibit A, que dice: "Octubre". En el ultimo parrafo de la pagina 2 cuya continuacion aparece en las dos primeras lineas de la pagina siguiente, (pagina 3), que es la ultima, hay la mencion expresa siguiente: "contiene dieciseis disposiciones y esta escrito en tres paginas". Al pie de las paginas (1) y (2) hay respectivamente estas notas: "Pase a la 2. pagina"; "pase a la 3. pagina". Y debe notarse que tanto en el uno como en el otro de los aludidos Exhibits A y C, no hay mas que dos articulos ("Art. Primero" y "Art. Segundo"), y dieceseis disposiciones.

Las razones en que los apelantes se apoyan para sostener que no procede la legalizacion de ninguna de los dos expresados documentos como testamento del finado P. Eleuterio Pilapil, son estas:

(a) Que contienen raspaduras y alteraciones que el apelado dejo de explicar;

(b) Que no se ha probado que el finado, — prescindimiento de lo que consta en los referidos documentos exhibits A y C —, era de edad competente para testar;

(c) Que tampoco se ha probado que el finado poseia el español que es el lenguaje en que aparecen escritos los referidos documentos;

(d) Que en una de las clausulas de dichos documentos hay la prohibicion de que se ventilen en losa Tribunales;

(e) Que ninguno de los dos se ha preparado, firmado y atestiguado de conformidad con las disposiciones del articulo 618 del Codigo de Procedimiento Civil.

Con respecto a la primera cuestion, debe decirse que, segun nos lo dice la misma Pieza de Apelacion de los apelantes, los dos expedientes Nos. 399 y 407 se promovieron en dos Salas distintas del Juzgado de Primera Instancia de Cebu. El primero fue promovido en la Sala III; y el ultimo, en la Sala II. Al enterarse el Juez de una de dichas Salas que habia una relacion directa entre unto y otro, dispuso que los dos se conociesen por un solo Juez; de ahi que ambos se consideraran como uno solo para evitar lo que el mencionado Juez dijo: "incompatibilidad en la administracion de los bienes de dicho difunto", refiriendose a; finado P. Eleuterio Pilapil.

Indudablemente no le falto razon al Juzgado de Cebu para nombrar administrador especial en el expediente No. 407, al apelado, porque en los documentos que alli se trataban de legalizar como testamento y disposicion de ultima voluntad del finado P. Eleuterio Pilapil, consta el encargo expreso de que lo fuese. Ademas, no habia ni hay ninguna ley que prohiba a los Tribunales que conocen de un expediente de testamentaria o de intestado, nombrar a mas de un administrador; y, en el caso de que se trata ocurrio que se dejo sin efecto el nombramiento del apelante como administrador, luego que se fundieron los dos referidos expedientes. Mas todavia; si el proposito de los apelantes al proponer la cuestion de que venimos hablando, es dejar sin efecto el nombramiento expedido a favor del apelado como administrador especial, vano es y vano ha de ser dicho proposito, porque el insistir en el equivale a estar apelando de una orden del Juzgado que nombra a

un administrador especial; y la ley no permite apelacion contra ordenes de dicha naturaleza. Es terminante la disposicion de ley que dice: "No se permitira la apelacion contra el nombramiento de dicho administrador especial". (Art. 660, Ley No. 190.)

En adicion a todo esto debe decirse que, si hubo algun error en el nombramiento del apelado como administrador especial, por la razon de que otro en propiedad ya estaba nombrado por el Juzgado, el error, si tal puede llamarse, no ha sido de tal naturaleza que haya causado perjuicio alguno a nadie, y menos a la Testamentaria del finado P. Eleuterio Pilapil.

Las raspaduras y alteraciones que se notan en los exhibits A y C constituyen unos hechos a los que ahora, por primera vez, y en esta instancia, se quiere llamr la atencion, cuando ello debio haberse hecho mientras la causa se hallaba todavia en el Juzgado de su procedencia. No podemos tenerlos en cuenta en el presente estado de las actuaciones porque, suponiendo que entonces ya existian, puede y debe decirse, aunque no lo dijo en terminos expresos el Juzgado de Cebu, que considero que no viciaban dichos documentos; pues es presuncion juris tantum que "todos los hechos relacionados con los puntos discutidos en un juicio fueron expuestos al juzgado y apreciados por el". (Art. 334, par. 16, Ley No. 190.) Y no lo viciaron en efecto, porque se desprende de las mismas circunstancias del caso, que se hicieron precisamente para poner las cosas en su verdadero lugar. Los dos exhibits A y C fueron preparados por el finado P. Eleuterio Pilapil en Mualboal donde era Cura Parroco, antes de ser transladado para ser tratado de su enfermedad que le causo la muerte, al Southern Islands Hospital de Cebu, donde murio. Fundandose el Juzgado en estos hechos que se probaron en juicio, declaro lo siguiente: "La intervencion de los tres testigos instrumentales del documento tuvo lugar de una manera casual, en ocasion en que los mismos fueron a visitarle a Eleuterio Pilapil que estaba enfermo en el Southern Islands Hospital, y alli el hoy finado les rogo que actuaran de testigos del documento que ya tenia entonces preparado".

Al prepararlos el, estando en Mualboal, no era mas que natural que expresase en los mismos que alli fueron preparados, y dejase en blanco la fecha pero sin dejar de poner el nombre del mes en que se pusieron en limpio, es decir, octubre de 1935.

Cuanto a la edad del testador y cuanto a si hablaba el espanol que es la lengua en que aparecen redactados los dos exhibits, o no, debe decirse que siendo sacerdote y Cura de la parroquia de Mualboal, Cebu, debe presumirse fundademente que tenia la edad competente para testar, y que entendia y hablada el espanol, pues, es de conocimiento general que para ser Cura de una parroquia, uno debe ser sacerdote, y para serlo, son necesarios muchos anos de estudio en seminarios donde se habla el español que es una lengua tan oficial como la inglesa. Por otra parte, no consta que se haya probado que el testador no entendia dicha lengua.

La disposicion del testador de que su "Testamento y Ultima Voluntad no se ventile en el Juzgado", no puede despojar a los Tribunales de su autoridad para determinar si su referido testamento es legalizable o no. No son las partes interesadas en un sentido u otro en un asunto, las que pueden conferir o quitar jurisdiccion y autoridad a los Trubunales para resolver y decidir lo que la misma ley quiere que se resuelva y se decida. Debe tenerse presente que la ley manda bajo pena, que se entreguen al Juzgado los testamentos otorgados por un testador, luego que este muera, por la persona a quien su custodia se haya encomendado, con el fin indudablemente de que se pueda determinar si procede su legalizacion y se pueda al propio tiempo disponer de sus bienes segun lo manda en los mismos; o si por el contrato, debe declararse muerto intestado, por no ser susceptible de legalizacion el que hubiese otorgado. (Arts. 626 al 631, Ley No. 190.) Ademas, no siendo abogado el testador, no es de extranar que haya consignado en su testamento la prohibicion de que, — usando sus mismas palabras —, "se ventile en el Juzgado".

Y cuanto a que los exhibits A y C no pueden ser legalizados porque no se prepararon ni se firmaron de conformidad con la ley, diciendose que sus paginas no estan numeradas con letras; y porque en su clausula de atestiguamiento no se expresa que los mismos fueron firmados por los tres testigos instrumentales, en presencia del testador, baste llamar la atencion al hecho de que al pie de la primera pagina hay en letras la nota que dice claramente: "Pase a la 2.ª pagina"; y al hecho de que, al pie de esta segunda pagina, hay esta otra nota: "Pase a la 3.ª pagina"; y baste llamar tambien la atencion a las dos primeras lineas de dicha tercera pagina que es la ultima, donde, para completar la disposicion que se encierra en el ultimo parrafo de la pagina anterior, o sea segunda, se dice lo siguiente:

. . . consta de dos articulos; contien dieciseis disposiciones y esta escrito en tres paginas,

lo cual concuerda fielmente con los verdaderos hechos tales como aparecen en los referidos dos exhibits, porque contienen efectivamente dos articulos y dieciseis disposiciones, y no mas, y no menos.

En la clausula de atestiguamiento en una y otra copia del Testamento objeto de cuestion, se afirma por los tres testigos instrumentales que la firmaron, que

el pre-inserto Testamento y Ultima Voluntad, ha sido suscrito, declarado y jurado por el Testador, Rev. P. Eleuterio Pilapil en presencia de todos nosotros;

y a renglon seguido, se afirma tambien por los mismos testigos que:

a ruego de dicho Testador, firmamos cada uno de nosotros, aqui en Cebu, Cebu, I.F., hoy dia 27 de noviembre de 1935.

La fraze "a ruego de dicho Testador", unida a la de que suscribio y firmo su testamento en presencia de los testigos instrumentales, permite y justifica la inferencia de que el testador estaba presente cuando los ultimos estamparon alli sus respectivas firmas.

El proposito de la ley al establecer las formalidades que se requieren su autenticidad, es indudablemente asegurar y garantizar su autenticidad contra la mala fe y el fraude, para evitar que aquellos que no tienen derecho a suceder al testador, le sucedan y salgan beneficiados con la legalizacion del mismo. Se ha cumplido dicho proposito en el caso de que se viene hablando porque, en el mismo cuerpo del testamento y en la mismo pagina donde aparece la clausula de atestiguamiento, o sea la tercera, se expresa que el testamento consta de tres paginas y porque cada una de las dos primeras lleva en parte la nota en letras, y en parte la y segunda paginas del mismo. Estos hechos excluyen evidentemente todo temor, toda sospecha, o todo asomo de duda de que se haya sustituido alguna de sus paginas con otra.

Algo mas que en el caso de Nayve contra Mojal y Aguilar (47 Jur. Fil., 160), que fue aclarada mediante la causa de Gumban contra Gorecho y otros (50 Jur. Fil., 31), hay en el presente caso porque alli no habia mas que las notas: "Pag. 1"; "Pag. 2"; "Pag. 3"; y "Pag. 4" en la cara respectiva de las cuatro paginas de que se compone, y en el presente hay los datos ya mencionados y hay ademas la constancia inserta en las dos primeras lineas de la tercera pagina de los exhibits A y C,

de que los mismos estan compuestos de tres paginas, y contienen dos articulos y dieciseis disposiciones.

Son por consiguiente de perfecta aplicacion al caso de que se trata lo que dijimos en las causas de Rodriguezcontra Yap, R.G. No. 45924, mayo 18, 1939; y Dichoso contra De Gorostiza (57 Jur. Fil., 456). Dijimos en dichas causas, respectivamente, lo siguiente:

La redaccion de la clausula de atestiguamiento en este testamento no esta tecnicamente libre de reparos, pero, es sustancialmente un cumplimiento de la ley.

Mantenemos el criterio de que debe exigirse el cumplimiento estricto de los requisitos substanciales del testamento, para asegurar su autenticidad, pero, al mismo tiempo creemos que no deben tenerse en cuenta defectos de forma que no pueden afectar a este fin y que, por otra part, de tenerse en cuenta, podrian frustrar la voluntad del testador. (Rodriguez contra Yap, supra.)

No debera permitirse que las formalidades legales obstaculicen el empleo de buen sentido comun en la consideracion de testamentos y que frustren los deseos de los difuntos solemnemente expresados en sus testamentos, en cuanto a cuyo otorgamiento no hay ni siquiera sombra de mala fe ni de fraude. (Dichosocontra De Gorostiza, supra.)

Por todo lo expuesto, hallando arreglada a derecho la decision apelada del Juzgado de Primera Instancia de Cebu, por la presente, la confirmamos, condenados a los apelantes a pagar las costas. Asi se ordena.

Avanceña, Pres., Diaz, Laurel, Moran y Horrilleno, MM., estan conformes.

G.R. No. 24168 September 22, 1925

47 Phil 938

FLORENCIO MANALO, as guardian of the minors Lazaro Mendieta and Daria Mendieta, petitioner,

vs. Honorable ISIDRO PAREDES, Judge of First Instance of Laguna, and PHILIPPINE FOOD

COMPANY,respondents.

Francisco, Lualhati and Lopez and Juan S. Rustia for petitioner. Claro M. Recto, Ross, Lawrence and Selph and Antonio T. Carrascoso, Jr., for respondents. J.E. Blanco for the intervenor Hidalgo.

VILLA-REAL, J.:

This is a proceeding for mandamus commenced originally in this court by Florencio Manalo, as guardian of the minors Lazaro and Daria Mendieta, for the issuance of a writ of mandamus addressed to the Honorable Isidro Paredes, Judge of the Court of First Instance of Laguna, and the Philippine Food Co., ordering the publication of the petition for the probate of the will of the deceased Francisco Villegas, case No. 4217 of the Court of First Instance of Laguna; and injunction commanding the respondent judge, Honorable Isidro Paredes, to suspend the proceedings in the registration case No. 954 of the Court of First Instance of Laguna, wherein the Philippine Food Co. is the applicant and the minors Lazaro and Daria Mendieta opponents, until the termination of the proceeding for the probate of the will of Francisco Villegas, in which said minors are named legatees of the land involved in said registration case.

On March 22, 1924, Laureana Hidalgo, surviving spouse of Francisco Villegas, filed with the Court of First Instance of Laguna an application for letters of administration of the estate left by her deceased husband, who, according to the application, died intestate (rec. No. 4031, file 1, of the Court of First Instance of Laguna).

In the course of said administration and on May 5, 1924, Justina Mendieta, Lazaro Mendieta, Daria Mendieta and Melecio Fule, supposed testamentary executor, through their attorney, Mr. Eusebio Lopez, filed a motion with the court, praying for the probate of the supposed will of Francisco Villegas, wherein most of his property was given as a legacy to said Justina Mendieta, the latter's children and the legitimate wife of the deceased Francisco Villegas (rec. No. 4031, file 1. fol. 47).

On August 8, 1924, Messrs. E.M. Lopez and V.F. Reyes, attorneys, on behalf of the executor Melecio Fule, filed a motion (Exhibit 3) wherein they stated that the attesting witnesses, Exequiel Evidente and Albino Villegas, had assured them that the supposed will had not been executed by Francisco Villegas in accordance with law, and that the executor Melecio Fule no longer took interest in the case (rec. No. 4031, fol. 116).

On June 5, 1924, having received an order of the court requiring her to produce the supposed will of Francisco Villegas, Justina Mendieta filed a motion wherein, among other things, she said:

That having learned of the aforesaid order of this court, I hereby freely and spontaneously state that I know not of any will executed by the deceased Francisco Villegas, except the one that I had had said deceased Francisco Villegas sign on January 18, 1924, which he signed

at my request and inducement in order that my children begotten by him might have a share in his estate, as said deceased did in fact sign said will only in my presence and compelled by the pressure exerted by me and for my aforesaid children. (Rec. No. 4031, file 1, fol. 70.)

Notwithstanding the foregoing motions, the court, on September 3, 1924, ordered the publication in the newspaperEl Debate, of Manila, of the application of Melecio Fule and of Justina Mendieta, Lazaro Mendieta, and Daria Mendieta for the probate of the supposed will of the deceased Francisco Villegas, setting said application for hearing on the 3rd day of October, 1924 (rec. No. 4031, file 1, fol. 192).

On September 5, 1924, Justina Mendieta, together with her children Lazaro Mendieta and Daria Mendieta, filed another application for the probate of the same will through their attorneys, Messrs. Azada and Veluz (rec. No. 4031, file 1, fol. 199), and on October 13, 1924, the same attorneys and Attorney Marcelino Lontok, on behalf of Justina Mendieta and her minor children, filed a motion for the appointment of a guardian ad litem for said minors (rec. No. 4031, file 2, fol. 117).

At the trial which was held October 16, 1924, the court below appointed Justina Mendieta, natural mother of said minors, as their guardian ad litem. Laureana Hidalgo entered her objection to the probate of the will (rec. No. 4031, file 2, fol. 136) and immediately the court proceeded to hear the evidence of the parties, each and everyone of the attesting witnesses of the supposed will, named Tomas Dizon, Albino Villegas, and Exequiel Evidente having testified, and the applicants having introduced Exhibits A, B, C, D, E, F, G, H, I, J, K, L, M, and N and the opponent Exhibits 1, 2, 3, and 4, the trial having been suspended thereafter, to be continued on October 24, 1924.

When the case was filed on October 24, 1924, for the continuation of the trial, Justina Mendieta, for herself and in her capacity as guardian ad litem of her minor children Lazaro Mendieta and Daria Mendieta, represented by their attorneys, Messrs. Marcelino Lontok and Marcial Azada, on the one hand, and Laureana Hidalgo, represented by her attorney, Mr. J.E. Blanco, on the other, submitted to the court an agreement wherein Justina Mendieta stated that she withdrew her application for the probate of the supposed will of the deceased Francisco Villegas on the ground that the evidence was insufficient to justify the probate of said will, and consequently, she prayed that said will be held not allowable to probate and that the deceased died intestate, without leaving any more heirs than his legitimate wife, Laureana Hidalgo, and his two adulterous children, Lazaro and Daria Mendieta, and that the property of the deceased be distributed in accordance with said agreement (rec. No. 4031, file 2, fol. 171).

By an order dated October 25, 1924, the court approved said stipulation and rendered judgment, holding that the supposed will of Francisco Villegas could not be probated, and awarding to the heirs of the deceased the estate left by Francisco Villegas in accordance with said agreement (rec. No. 4031, file 2, fol. 173). From this order no appeal has been taken.

On January 7, 1925, one Gelacio Malihan, who claimed to be first cousin of the deceased Francisco Villegas, filed with the court a new application for the probate of the same supposed will of the deceased Francisco Villegas (rec. No. 4217).

As may be seen from the facts above stated, the will, the probate of which is applied for in the petition dated January 7, 1925, is the same one that was the subject of the application of May 5, 1924, and of September 5, 1924. The only difference lies in that the first application was filed by Justina Mendieta and her minor children Lazaro Mendieta and Daria Mendieta and Melecio Fule, supposed testamentary executor, all represented by the attorney, Mr. Eusebio M. Lopez; the second by Justina Mendieta and her minor children Lazaro Mendieta and Daria Mendieta, represented by

the attorneys Messrs. Azada and Veluz; and the third and last by one Gelacio Malihan who claimed to be first cousin of the deceased Francisco Villegas.

The proceeding for the probate of a will is a proceeding in rem (40 Cyc., p. 1265), and the court acquires jurisdiction over all the persons interested through the publication of the notice prescribed by section 630 of the Code of Civil Procedure, and any order that may be entered is binding against all of them. Through the publication ordered by the Court of First Instance of Laguna of the application for the probate of the supposed will of Francisco Villegas, filed by Justina Mendieta and her minor children Lazaro and Daria Mendieta and Melecio Fule, testamentary executor, through their attorney, Mr. Eusebio Lopez, said court acquired jurisdiction over all such persons as were interested in the supposed will, including Gelacio Malihan. The court having tried said application for probate, hearing all the testimony of the attesting witnesses of the said supposed will, the applicant Justina Mendieta for herself and as guardian ad litem of her minor children, represented by their attorneys, Messrs. Marcelino Lontok and Marcial Azada, on the one hand, and Laureana Hidalgo, widow of Francisco Villegas, represented by her attorney, Jesus. E. Blanco, on the other, having submitted a stipulation wherein the former withdrew her application and the latter reserved certain rights over the estate left by Francisco Villegas in favor of Justina Mendieta and her minor children; and the court having approved said stipulation and declared that Francisco Villegas died intestate according to said agreement, all the parties became bound by said judgment; and if any of them or other persons interested were not satisfied with the court's decision, they had the remedy of appeal to correct any injustice that might have been committed, and cannot now through the special remedy ofmandamus, obtain a review of the proceeding upon a new application for the probate of the same will in order to compel the respondent judge to comply with his ministerial duty imposed by section 330 of the Code of Civil Procedure; because this remedy, being extraordinary, cannot be used in lieu of appeal, or writ of error (26 Cyc., 177; 18 R.C.L., par. 443); especially when the parties interested have agreed to disregard the testamentary provisions and divide the estate as they pleased, each of them taking what pertained to him (25 R.C.L., 359).

The first ground of the petition for mandamus is a consequence of the second and we need not deal with it.

As to the motion of the petitioner that the record of the proceeding be transmitted to the Attorney-General for investigation, in order to discover any irregularity or fraud that may have been committed, and to institute the proper proceeding against those who may be found guilty, this court will take no action unless specific charges are filed.

For all the foregoing, the petition for mandamus is denied with the costs against the petitioner. So ordered.

Avanceña, C.J., Johnson, Street, Malcolm, Villamor, Ostrand, Johns and Romualdez, JJ., concur.

G.R. No. L-29901 August 31, 1977

78 SCRA 412

IGNACIO FRIAS CHUA, DOMINADOR CHUA and REMEDIOS CHUA, petitioners, vs.

THE COURT OF FIRST INSTANCE OF NEGROS OCCIDENTAL, BRANCH V and SUSANA DE LA TORRE, in her capacity as Administratrix of the Intestate Estate of Consolacion de la

Torre, respondents.

Dominador G. Abaria and Primitivo Blanca for private respondent.

Rodrigo O. Delfinado for petitioners.

MARTIN, J.:

Petition for review of the decision of the respondent Court which dismissed the complaint of petitioners in Civil Case No. 7839-A, entitled "Ignacio Frias Chua, et al. vs. Susana de la Torre, Administratrix of the Intestate Estate of Consolacion de la Torre"

It appears that in the first marriage of Jose Frias Chua with Patricia S. Militar alias Sy Quio he sired three children, namely: Ignacio, Lorenzo and Manuel, all surnamed Frias Chua. When Patricia S. Militar died, Jose Frias Chua contracted a second marriage with Consolacion de la Torre with whom he had a child by the name of Juanita Frias Chua. Manuel Frias Chua died without leaving any issue. Then in 1929, Jose Frias Chua died intestate leaving his widow Consolacion de la Torre and his son Juanito Frias Chua of the second marriage and sons Ignacio Frias Chua and Lorenzo Frias Chua of his first marriage. In Intestate Proceeding No. 4816, the lower court issued an order dated January 15, 1931 1 adjudicating, among others, the one-half (1/2,) portion of Lot No. 399 and the sum of

P8,000.00 in favor of Jose Frias Chua's widow, Consolacion de la Torre, the other half of Lot No. 399 in favor of Juanito Frias Chua, his son in the second marriage; P3,000.00 in favor of Lorenze Frias chua; and P1,550.00 in favor of Ignacio Frias, Chua, his sons of the first marriage. By virtue of said adjudication, Transfer Certificate of Title No. TR-980 (14483) 2 dated April 28, 1932 was issued by the Register of Deeds in the names of Consolacion de la Torre and Juanito Frias Chua as owners pro-indiviso of Lot No. 399.

On February 27, 1952, Juanito Frias Chua of the second marriage died intestate without any issue. After his death, his mother Consolacion de la Torre succeeded to his pro-indivisio share of Lot No. 399. In a week's time or on March 6, 1952, Consolacion de la Torre executed a declaration of heirship adjudicating in her favor the pro-indiviso share of her son Juanito as a result of which Transfer Certificate of Title No. 31796 covering the whole Lot No. 399 was issued in her name. Then on March 5, 1966, Consolacion de la Torre died intestate leaving no direct heir either in the descending or ascending line except her brother and sisters.

In the "Intestate Estate of Consolacion de la Torre", docketed as Sp. Proc. No. 7839-A, the petitioners herein, Ignacio Frias Chua, of the first marriage and dominador and Remedios Chua, the supposed legitimate children of the deceased Lorenzo Frias Chua, also of the first marriage filed the complaint a quo 3 (subseqently segregated as a distinct suit and docketed as Civil Case No. 7839-A) on

May 11, 1966 before the respondent Court of First Instance of Negros Occidental, Branch V, praying that

the one-half (1/2) portion of Lot No. 399 which formerly belonged to Juanito Frias but which passed to Consolacion de la Torre upon the latter's death, be declaredas a reservable property for the reason that the lot in questionn was subject to reserval troncal pursuant to Article 981 of the New Civil Code, Private respondent as administratrix of the estate of individually the complaint of petitioners 4

On July 29, 1986, the respondent Court rendered a decision dismissing the complaint of petitioner. Hence this instant.

The pertinent provision of reserva troncal under the New Civil Code provides:

ART. 891. The ascendant who inheritts from his descendant any property which the latter may have acquired by gratuitous title from another ascendat, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and belong to the line from which said property came.

Persuant to the foregoing provision, in order that a property may be impressed with a reservable character the following requisites must exist, to wit: (1) that the property was acquired by a descendant from an asscendant or from a brother or sister by gratuitous title; (2) that said descendant died without an issue; (3) that the property is inherited by another ascendant by operation of law; and (4) that there are relatives within the third degree belonging to the line from which said property came. 5 In the case before Us, all of the foregoing requisites are present. Thus, as

borne out by the records, Juanoito Frias Chua of the second marriage died intestate in 1952; he died withour leaving any issue; his pro-indiviso of 1/2 share of Lot No. 399 was acquired by his mother, Consolacion de la Torre died, Juannnito Frias Chua who died intestate had relatives within the third degree. These relatives are Ignacio Frias Chua and Dominador Chua and Remidios Chua, the suppose legitimate children of the deceased Lorenzo Frias Chua, who are the petitioners herein.

The crux of the problem in instant petition is focused on the first requisit of reserva troncal — whether the property in question was acquired by Juanito Frias Chua from his father Jose Frias Chua, gratuitously or not. In resolving this point, the respondent Court said:

It appears from Exh. "3", which is part of Exh. "D", that the property in question was not acquired by Consolacion de la Torre and Juanito Frias Chua gratuitously but for a consideration, namely, that the legatees were to pay the interest and cost and other fees resulting from Civil Case No. 5300 of this Court. As such it is undeniable that the lot in question is not subject tot a reserva troncal, under Art. 891 of the New Civil Code, and as such the plaintiff's complaint must fail.

We are not prepared to sustain the respondent Court's conclusion that the lot in question is not subject to areserva troncal under Art. 891 of the New Civil Code. It is, As explained by Manresa which this Court quoted with approval in Cabardo v. Villanueva, 44 Phil. 186, "The transmission is gratuitous or by gratuitous title when the recipient does not give anything in return." It matters not whether the property transmitted be or be not subject to any prior charges; what is essential is that the transmission be made gratuitously, or by an act of mere liberality of the person making it, without imposing any obligation on the part of the recipient; and that the person receiving the property gives or does nothing in return; or, as ably put by an eminent Filipino commentator, 6 "the essential thing is that the person who transmits it does so gratuitously, from pure generosity, without requiring from the transferee any prestation." It is evident from the record that the transmission of the property in question to Juanito Frias Chua of the second marriage upon the death of his father Jose Frias Chua was by means of a hereditary succession and therefore gratuitous. It is true that there is the order (Exh. "D") of the probate Court in Intestate Proceeding No. 4816 which estates in express terms;

2. — Se adjudicada pro el presente a favor de Consolacion de la Torre, viuda, mayor de edad, y de su hiju, Juanito Frias Chua, menor de edad, todos residente de San Enrique, Negros Occidental, I.F.,como herederos del finado Jose Frias Chua Choo, estas propiadades:

14483

La parcela de terrenno concida por Lote No. 399 del Catsatro de la Carlota, Negros Occidental, de 191.954 metros cuadddrados y cubierto por el Certificado de Titulo No. 11759, en partes equales pro-indiviso; por con la obligscion de pagar a las Standard Oil Co. of New York la deuda de P3971.20, sus intereses, costas y demas gastos resultantes del asunto civil No. 5300de este jusgado

But the obligation of paying the Standard Oil Co. of New York the amount of P3,971.20 is imposed upon Consolacion de la Torre and Juanito Frias Chua not personally by the deceased Jose Frias Chua in his last will and testament but by an order of the court in the Testate Proceeding No.4816 dated January 15, 1931. As long as the transmission of the property to the heirs is free from any condition imposed by the deceased himself and the property is given out of pure generosity, itg is gratuitous. it does not matter if later the court orders one of the heirs, in this case Juanito Frias Chua, to pay the Standare oil co. of New York the amount of P3,971.20. This does not change the gratuitous nature of the transmission of the property to him. This being the case the lot in question is subject to reserva troncal under Art, 891 of the New Civil Code.

It is contented that the distribution of the shares of the estate of Jose Frias Chua to the respondent heirs or legatees was agreed upon by the heirs in their project of partition based on the last will and testament of Jose Frias Chua. But petitioners claim that the supposed Last Will and Testament of Jose Frias Chua was never probated. The fact that the will was not probated was admitted in paragraph 6 of the respondents' answer. 7 There is nothing mentioned in the decision of the trial court in Civil Case No. 7839 A which is the subject of the present appeal nor in the order of January 15, 1931 of the trial court in the Testate Estate Proceeding No. 4816 nor in the private respondent's brief, that the Last Will and Testament of Jose Frias Chua has ever been probated. With the foregoing, it is easy to deduce that if the Last Will and Testament has in fact been probated there would have been no need for the testamentary heirs to prepare a project of partition among themselves. The very will itself could be made the basis for the adjudication of the estate as in fact they did in their project of partition with Juanito Frias Chua getting one-half of Lot 399 by inheritance as a sone of the deceased Jose Frias Chua by the latter's second marriage.

According to the record, Juanito Frias Chua died on February 27, 1952 without any issue. After his death his mother Consolation de la Torre succeeded to his one-half pro-indiviso share of Lot 399. This was, however, subject to the condition that the property was reservable in character under Art. 891 of the Civil Code in favor of relatives within the third degree of Jose Frias Chua from whom the property came. These relatives are the petitioner herein.

It is claimed that the complaint of petitioners to recover the one-half portion of Lot 399 which originally belonged to Juanito Frias Chua has already prescribed when it was filed on May 11, 1966. We do not believe so. It must be remembered that the petitioners herein are claiming as reservees did not arise until the time the reservor, Consolacion de la Torre, died in March 1966. When the petitioners therefore filed their complaint to recover the one-half (1/2) portion of Lot 399, they were very much in time to do so.

IN VIEW OF THE FOREGOING, the decision appealed from is hereby set aside. The petitioners Ignacio Frias Chua, Dominador Chua and Remedios Chua are declared owners of 1/2 undivided

portion of Lot 399; and the Register of Deeds of Negros Occidental is hereby ordered to cancel. Transfer Certificate of Title No. 31796 covering Lot No. 399 issued in the name of Consolacion de la Torre and to issue a new Certificate of Title in the names of Consolacion de la Torre, 1/2 undivided portion; Ignacio Frias Chua, 1/4 undivided portion; and Dominador Chua and Remedios Chua, 1/4 undivided portion, of said lot. Without pronouncement as to costs.

SO ORDERED.

Teehankee (Chairman), Makasiar, Muñ;oz Palma, Fernandez and Guerrero, JJ., concur.

G.R. No. L-48840 December 29, 1943

74 Phil 479

ERNESTO M. GUEVARA, petitioner-appellant, vs.

ROSARIO GUEVARA and her husband PEDRO BUISON, respondent-appellees.

Primacias, Abad, Mencias & Castillo for appellant. Pedro C. Quinto for appellees.

OZAETA, J.:

Ernesto M. Guevarra and Rosario Guevara, ligitimate son and natural daughter, respectively, of the deceased Victorino L. Guevara, are litigating here over their inheritance from the latter. The action was commenced on November 12, 1937, by Rosario Guevara to recover from Ernesto Guevara what she claims to be her strict ligitime as an acknowledged natural daughter of the deceased — to wit, a portion of 423,492 square meters of a large parcel of land described in original certificate of title No. 51691 of the province of Pangasinan, issued in the name of Ernesto M. Guervara — and to order the latter to pay her P6,000 plus P2,000 a year as damages for withholding such legitime from her. The defendant answered the complaint contending that whatever right or rights the plaintiff might have had, had been barred by the operation of law.

It appears that on August 26, 1931, Victorino L. Guevara executed a will (exhibit A), apparently with all the formalities of the law, wherein he made the following bequests: To his stepdaughter Candida Guevara, a pair of earrings worth P150 and a gold chain worth P40; to his son Ernesto M. Guevara, a gold ring worth P180 and all the furniture, pictures, statues, and other religious objects found in the residence of the testator in Poblacion Sur, Bayambang, Pangasinan; "a mi hija Rosario Guevara," a pair of earrings worth P120; to his stepson Piuo Guevara, a ring worth P120; and to his wife by second marriage, Angustia Posadas, various pieces of jewelry worth P1,020.

He also made the following devises: "A mis hijos Rosario Guevara y Ernesto M. Guevara y a mis hijastros, Vivencio, Eduviges, Dionisia, Candida y Pio, apellidados Guevara," a residential lot with its improvements situate in the town of Bayambang, Pangasinan, having an area of 960 square meters and assessed at P540; to his wife Angustia Posadas he confirmed the donation propter nuptias theretofore made by him to her of a portion of 25 hectares of the large parcel of land of 259-odd hectares described in plan Psu-66618. He also devised to her a portion of 5 hectares of the same parcel of land by way of complete settlement of her usufructurary right.1aw phil.net

He set aside 100 hectares of the same parcel of land to be disposed of either by him during his lifetime or by his attorney-in-fact Ernesto M. Guevara in order to pay all his pending debts and to degray his expenses and those of his family us to the time of his death.

The remainder of said parcel of land his disposed of in the following manner:

(d). — Toda la porcion restante de mi terreno arriba descrito, de la extension superficial aproximada de ciento veintinueve (129) hectareas setenta (70) areas, y veiticinco (25)

centiares, con todas sus mejoras existentes en la misma, dejo y distribuyo, pro-indiviso, a mis siguientes herederos como sigue:

A mi hijo legitimo, Ernesto M. Guevara, ciento ocho (108) hectareas, ocho (8) areas y cincuenta y cuatro (54) centiareas, hacia la parte que colinda al Oeste de las cien (100) hectareas referidas en el inciso (a) de este parrafo del testamento, como su propiedad absoluta y exclusiva, en la cual extension superficial estan incluidas cuarenta y tres (43) hectareas, veintitres (23) areas y cuarenta y dos (42) centiareas que le doy en concepto de mejora.

A mi hija natural reconocida, Rosario Guevara, veintiun (21) hectareas, sesenta y un (61) areas y setenta y un (71) centiareas, que es la parte restante.

Duodecimo. — Nombro por la presente como Albacea Testamentario a mi hijo Ernesto M. Guevara, con relevacion de fianza. Y una vez legalizado este testamento, y en cuanto sea posible, es mi deseo, que los herederos y legatarios aqui nombrados se repartan extrajudicialmente mis bienes de conformidad con mis disposiciones arriba consignadas.

Subsequently, and on July 12, 1933, Victorino L. Guevarra executed whereby he conveyed to him the southern half of the large parcel of land of which he had theretofore disposed by the will above mentioned, inconsideration of the sum of P1 and other valuable considerations, among which were the payment of all his debts and obligations amounting to not less than P16,500, his maintenance up to his death, and the expenses of his last illness and funeral expenses. As to the northern half of the same parcel of land, he declared: "Hago constar tambien que reconozco a mi referido hijo Ernesto M. guevara como dueño de la mitad norte de la totalidad y conjunto de los referidos terrenos por haberlos comprado de su propio peculio del Sr. Rafael T. Puzon a quien habia vendido con anterioridad."

On September 27, 1933, final decree of registration was issued in land registration case No. 15174 of the Court of First Instance of Pangasinan, and pursuant thereto original certificate of title No. 51691 of the same province was issued on October 12 of the same year in favor of Ernesto M. Guevara over the whole parcel of land described in the deed of sale above referred to. The registration proceeding had been commenced on November 1, 1932, by Victorino L. Guevara and Ernesto M. Guevara as applicants, with Rosario, among others, as oppositor; but before the trial of the case Victorino L. Guevara withdrew as applicant and Rosario Guevara and her co-oppositors also withdrew their opposition, thereby facilitating the issuance of the title in the name of Ernesto M. Guevara alone.

On September 27, 1933, Victorino L. Guevarra died. His last will and testament, however, was never presented to the court for probate, nor has any administration proceeding ever been instituted for the settlement of his estate. Whether the various legatees mentioned in the will have received their respective legacies or have even been given due notice of the execution of said will and of the dispositions therein made in their favor, does not affirmatively appear from the record of this case. Ever since the death of Victorino L. Guevara, his only legitimate son Ernesto M. Guevara appears to have possessed the land adjudicated to him in the registration proceeding and to have disposed of various portions thereof for the purpose of paying the debts left by his father.

In the meantime Rosario Guevara, who appears to have had her father's last will and testament in her custody, did nothing judicially to invoke the testamentary dispositions made therein in her favor, whereby the testator acknowledged her as his natural daughter and, aside from certain legacies and bequests, devised to her a portion of 21.6171 hectares of the large parcel of land described in the will. But a little over four years after the testor's demise, she (assisted by her husband) commenced

the present action against Ernesto M. Guevara alone for the purpose hereinbefore indicated; and it was only during the trial of this case that she presented the will to the court, not for the purpose of having it probated but only to prove that the deceased Victirino L. Guevara had acknowledged her as his natural daughter. Upon that proof of acknowledgment she claimed her share of the inheritance from him, but on the theory or assumption that he died intestate, because the will had not been probated, for which reason, she asserted, the betterment therein made by the testator in favor of his legitimate son Ernesto M. Guevara should be disregarded. Both the trial court and the Court of appeals sustained that theory.

Two principal questions are before us for determination: (1) the legality of the procedure adopted by the plaintiff (respondent herein) Rosario Guevara; and (2) the efficacy of the deed of sale exhibit 2 and the effect of the certificate of title issued to the defendant (petitioner herein) Ernesto M. Guevara.

I

We cannot sanction the procedure adopted by the respondent Rosario Guevara, it being in our opinion in violation of procedural law and an attempt to circumvent and disregard the last will and testament of the decedent. The Code of Civil Procedure, which was in force up to the time this case was decided by the trial court, contains the following pertinent provisions:

Sec. 625. Allowance Necessary, and Conclusive as to Execution. — No will shall pass either the real or personal estate, unless it is proved and allowed in the Court of First Instance, or by appeal to the Supreme Court; and the allowance by the court of a will of real and personal estate shall be conclusive as to its due execution.

Sec. 626. Custodian of Will to Deliver. — The person who has the custody of a will shall, within thirty days after he knows of the death of the testator, deliver the will into the court which has jurisdiction, or to the executor named in the will.

Sec. 627. Executor to Present Will and Accept or Refuse Trust. — A person named as executor in a will, shall within thirty days after he knows of the death of the testor, or within thirty days after he knows that he is named executor, if he obtained such knowledge after knowing of the death of the testor, present such will to the court which has jurisdiction, unless the will has been otherwise returned to said court, and shall, within such period, signify to the court his acceptance of the trust, or make known in writing his refusal to accept it.

Sec. 628. Penalty. — A person who neglects any of the duties required in the two proceeding sections, unless he gives a satisfactory excuse to the court, shall be subject to a fine not exceeding one thousand dollars.

Sec. 629. Person Retaining Will may be Committed. — If a person having custody of a will after the death of the testator neglects without reasonable cause to deliver the same to the court having jurisdiction, after notice by the court so to do, he may be committed to the prison of the province by a warrant issued by the court, and there kept in close confinement until he delivers the will.

The foregoing provisions are now embodied in Rule 76 of the new Rules of Court, which took effect on July 1, 1940.

The proceeding for the probate of a will is one in rem, with notice by publication to the whole world and with personal notice to each of the known heirs, legatees, and devisees of the testator (section 630, C. c. P., and sections 3 and 4, Rule 77). Altho not contested (section 5, Rule 77), the due execution of the will and the fact that the testator at the time of its execution was of sound and disposing mind and not acting under duress, menace, and undue influence or fraud, must be proved to the satisfaction of the court, and only then may the will be legalized and given effect by means of a certificate of its allowance, signed by the judge and attested by the seal of the court; and when the will devises real property, attested copies thereof and of the certificate of allowance must be recorded in the register of deeds of the province in which the land lies. (Section 12, Rule 77, and section 624, C. C. P.)

It will readily be seen from the above provisions of the law that the presentation of a will to the court for probate is mandatory and its allowance by the court is essential and indispensable to its efficacy. To assure and compel the probate of will, the law punishes a person who neglects his duty to present it to the court with a fine not exceeding P2,000, and if he should persist in not presenting it, he may be committed to prision and kept there until he delivers the will.

The Court of Appeals took express notice of these requirements of the law and held that a will, unless probated, is ineffective. Nevertheless it sanctioned the procedure adopted by the respondent for the following reasons:

The majority of the Court is of the opinion that if this case is dismissed ordering the filing of testate proceedings, it would cause injustice, incovenience, delay, and much expense to the parties, and that therefore, it is preferable to leave them in the very status which they themselves have chosen, and to decide their controversy once and for all, since, in a similar case, the Supreme Court applied that same criterion (Leaño vs. Leaño, supra), which is now sanctioned by section 1 of Rule 74 of the Rules of Court. Besides, section 6 of Rule 124 provides that, if the procedure which the court ought to follow in the exercise of its jurisdiction is not specifically pointed out by the Rules of Court, any suitable process or mode of procedure may be adopted which appears most consistent to the spirit of the said Rules. Hence, we declare the action instituted by the plaintiff to be in accordance with law.

Let us look into the validity of these considerations. Section 1 of Rule 74 provides as follows:

Section 1. Extrajudicial settlement by agreement between heirs. — If the decedent left no debts and the heirs and legatees are all of age, or the minors are represented by their judicial guardians, the parties may, without securing letters of administration, divide the estate among themselves as they see fit by means of a public instrument filed in the office of the register of deeds, and should they disagree, they may do so in an ordinary action of partition. If there is only one heir or one legatee, he may adjudicate to himself the entire estate by means of an affidavit filed in the office of the register of deeds. It shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within two years after the death of the decedent.

That is a modification of section 596 of the Code of Civil Procedure, which reads as follows:

Sec. 596. Settlement of Certain Intestates Without Legal Proceedings. — Whenever all the heirs of a person who died intestate are of lawful age and legal capacity and there are no debts due from the estate, or all the debts have been paid the heirs may, by agreement duly executed in writing by all of them, and not otherwise, apportion and divide the estate among themselves, as they may see fit, without proceedings in court.

The implication is that by the omission of the word "intestate" and the use of the word "legatees" in section 1 of Rule 74, a summary extrajudicial settlement of a deceased person's estate, whether he died testate or intestate, may be made under the conditions specified. Even if we give retroactive effect to section 1 of Rule 74 and apply it here, as the Court of Appeals did, we do not believe it sanctions the nonpresentation of a will for probate and much less the nullification of such will thru the failure of its custodian to present it to the court for probate; for such a result is precisely what Rule 76 sedulously provides against. Section 1 of Rule 74 merely authorizes the extrajudicial or judicial partition of the estate of a decedent "without securing letter of administration." It does not say that in case the decedent left a will the heirs and legatees may divide the estate among themselves without the necessity of presenting the will to the court for probate. The petition to probate a will and the petition to issue letters of administration are two different things, altho both may be made in the same case. the allowance of a will precedes the issuance of letters testamentary or of administration (section 4, Rule 78). One can have a will probated without necessarily securing letters testamentary or of administration. We hold that under section 1 of Rule 74, in relation to Rule 76, if the decedent left a will and no debts and the heirs and legatees desire to make an extrajudicial partition of the estate, they must first present that will to the court for probate and divide the estate in accordance with the will. They may not disregard the provisions of the will unless those provisions are contrary to law. Neither may they so away with the presentation of the will to the court for probate, because such suppression of the will is contrary to law and public policy. The law enjoins the probate of the will and public policy requires it, because unless the will is probated and notice thereof given to the whole world, the right of a person to dispose of his property by will may be rendered nugatory, as is attempted to be done in the instant case. Absent legatees and devisees, or such of them as may have no knowledge of the will, could be cheated of their inheritance thru the collusion of some of the heirs who might agree to the partition of the estate among themselves to the exclusion of others.

In the instant case there is no showing that the various legatees other than the present litigants had received their respective legacies or that they had knowledge of the existence and of the provisions of the will. Their right under the will cannot be disregarded, nor may those rights be obliterated on account of the failure or refusal of the custodian of the will to present it to the court for probate.

Even if the decedent left no debts and nobdy raises any question as to the authenticity and due execution of the will, none of the heirs may sue for the partition of the estate in accordance with that will without first securing its allowance or probate by the court, first, because the law expressly provides that "no will shall pass either real or personal estate unless it is proved and allowed in the proper court"; and, second, because the probate of a will, which is a proceeding in rem, cannot be dispensed with the substituted by any other proceeding, judicial or extrajudicial, without offending against public policy designed to effectuate the testator's right to dispose of his property by will in accordance with law and to protect the rights of the heirs and legatees under the will thru the means provided by law, among which are the publication and the personal notices to each and all of said heirs and legatees. Nor may the court approve and allow the will presented in evidence in such an action for partition, which is one in personam, any more than it could decree the registration under the Torrens system of the land involved in an ordinary action for reinvindicacion or partition.

We therefore believe and so hold that section 1 of Rule 74, relied upon by the Court of Appeals, does not sanction the procedure adopted by the respondent.

The case of Leaño vs. Leaño (25 Phil., 180), cited by the Court of Appeals, like section 1 of Rule 74, sanctions the extrajudicial partition by the heirs of the properties left by a decedent, but not the nonpresentation of a will for probate. In that case one Paulina Ver executed a will on October 11, 1902, and died on November 1, 1902. Her will was presented for probate on November 10, 1902, and was approved and allowed by the Court on August 16, 1904. In the meantime, and on November 10, 1902, the heirs went ahead and divided the properties among themselves and some of them subsequently sold and disposed of their shares to third persons. It does not affirmatively

appear in the decision in that case that the partition made by the heirs was not in accordance with the will or that they in any way disregarded the will. In closing the case by its order dated September 1, 1911, the trial court validated the partition, and one of the heirs, Cunegunda Leaño, appealed. In deciding the appeal this Court said:

The principal assignment of error is that the lower court committed an error in deciding that the heirs and legatees of the estate of Dña. Paulina Ver had voluntarily divided the estate among themselves.

In resolving that question this Court said:

In view of the positive finding of the judge of the lower court that there had been a voluntary partition of the estate among the heirs and legatees, and in the absence of positive proof to the contrary, we must conclude that the lower court had some evidence to support its conclusion.

Thus it will be seen that as a matter of fact no question of law was raised and decided in that case. That decision cannot be relied upon as an authority for the unprecedented and unheard of procedure adopted by the respondent whereby she seeks to prove her status as an acknowledged natural child of the decedent by his will and attempts to nullify and circumvent the testamentary dispositions made by him by not presenting the will to the court for probate and by claiming her legitime as an acknowledged natural child on the basis of intestacy; and that in the face of express mandatory provisions of the law requiring her to present the will to the court for probate.

In the subsequent case of Riosa vs. Rocha (1926), 48 Phil. 737, this Court departed from the procedure sanctioned by the trial court and impliedly approved by this Court in the Leaño case, by holding that an extrajudicial partition is not proper in testate succession. In the Riosa case the Court, speaking thru Chief Justice Avanceña, held:

1. EXTRAJUDICIAL PARTITION; NOT PROPER IN TESTATE SUCCESSION. — Section 596 of the Code of Civil Procedure, authorizing the heirs of a person who dies intestate to make extrajudicial partition of the property of the deceased, without going into any court of justice, makes express reference to intestate succession, and therefore excludes testate succession.

2. ID.; EFFECTS OF; TESTATE SUCCESSION. — In the instant case, which is a testate succession, the heirs made an extrajudicial partition of the estate and at the same time instituted proceeding for the probate of the will and the administration of the estate. When the time came for making the partition, they submitted to the court the extrajudicial partition previously made by them, which the court approved. Held: That for the purposes of the reservation and the rights and obligations created thereby, in connection with the relatives benefited, the property must not be deemed transmitted to the heirs from the time the extrajudicial partition was made, but from the time said partition was approved by the court. (Syllabus.)

The Court of Appeals also cites section 6 of Rule 124, which provides that if the procedure which the court ought to follow in the exercise of its jurisdiction is not specifically pointed out by the Rules of Court, any suitable process for mode of proceeding may be adopted which appears most conformable to the spirit of the said Rules. That provision is not applicable here for the simple reason that the procedure which the court ought to follow in the exercise of its jurisdiction is specifically pointed out and prescribed in detail by Rules 74, 76, and 77 of the Rules of Court.

The Court of Appeals also said "that if this case is dismissed, ordering the filing of testate proceedings, it would cause injustice, inconvenience, delay, and much expense to the parties." We see no injustice in requiring the plaintiff not to violate but to comply with the law. On the contrary, an injustice might be committed against the other heirs and legatees mentioned in the will if the attempt of the plaintiff to nullify said will by not presenting it to the court for probate should be sanctioned. As to the inconvenience, delay, and expense, the plaintiff herself is to blame because she was the custodian of the will and she violated the duty imposed upon her by sections 2, 4, and 5 of Rule 76, which command her to deliver said will to the court on pain of a fine not exceeding P2,000 and of imprisonment for contempt of court. As for the defendant, he is not complaining of inconvenience, delay, and expense, but on the contrary he is insisting that the procedure prescribed by law be followed by the plaintiff.

Our conclusion is that the Court of Appeals erred in declaring the action instituted by the plaintiff to be in accordance with law. It also erred in awarding relief to the plaintiff in this action on the basis of intestacy of the decedent notwithstanding the proven existence of a will left by him and solely because said will has not been probated due to the failure of the plaintiff as custodian thereof to comply with the duty imposed upon her by the law.

It is apparent that the defendant Ernesto M. Guevara, who was named executor in said will, did not take any step to have it presented to the court for probate and did not signify his acceptance of the trust or refusal to accept it as required by section 3 of Rule 76 (formerly section 627 of the Code of Civil Procedure), because his contention is that said will, insofar as the large parcel of land in litigation is concerned, has been superseded by the deed of sale exhibit 2 and by the subsequent issuance of the Torrens certificate of title in his favor.

II

This brings us to the consideration of the second question, referring to the efficacy of the deed of sale exhibit 2 and the effect of the certificate of titled issued to the defendant Ernesto M. Guevara. So that the parties may not have litigated here in vain insofar as that question is concerned, we deem it proper to decide it now and obviate the necessity of a new action.

The deed of sale exhibit 2 executed by and between Victorino L. Guevara and Ernesto M. Guevara before a notary public on July 12, 1933, may be divided into two parts: (a) insofar as it disposes of and conveys to Ernesto M. Guevara the southern half of Victorino L. Guevara's hacienda of 259-odd hectares in consideration of P1 and other valuable considerations therein mentioned; and (b) insofar as it declares that Ernesto M. Guevara became the owner of the northern half of the same hacienda by repurchasing it with his own money from Rafael T. Puzon.

A. As to the conveyance of the southern half of the hacienda to Ernesto M. Guevara in consideration of the latter's assumption of the obligation to pay all the debts of the deceased, the Court of Appeals found it to be valid and efficacious because: "(a) it has not been proven that the charges imposed as a condition is [are] less than the value of the property; and (b) neither has it been proven that the defendant did not comply with the conditions imposed upon him in the deed of transfer." As a matter of fact the Court of Appeals found" "It appears that the defendant has been paying the debts left by his father. To accomplish this, he had to alienate considerable portions of the above-mentioned land. And we cannot brand such alienation as anomalous unless it is proven that they have exceeded the value of what he has acquired by virtue of the deed of July 12, 1933, and that of his corresponding share in the inheritance." The finding of the Court of Appeals on this aspect of the case is final and conclusive upon the respondent, who did not appeal therefrom.

B. With regard to the northern half of the hacienda, the findings of fact and of law made by the Court of Appeals are as follows:

The defendant has tried to prove that with his own money, he bought from Rafael Puzon one-half of the land in question, but the Court a quo, after considering the evidence, found it not proven; we hold that such conclusion is well founded. The acknowledgment by the deceased, Victorino L. Guevara, of the said transactions, which was inserted incidentally in the document of July 12, 1933, is clearly belied by the fact that the money paid to Rafael Puzon came from Silvestre P. Coquia, to whom Victorino L. Guevara had sold a parcel of land with the right of repurchase. The defendant, acting for his father, received the money and delivered it to Rafael Puzon to redeem the land in question, and instead of executing a deed of redemption in favor of Victorino L. Guevara, the latter executed a deed of sale in favor of the defendant.

The plaintiff avers that she withdrew her opposition to the registration of the land in the name of the defendant, because of the latter's promise that after paying all the debt of their father, he would deliver to her and to the widow their corresponding shares. As their father then was still alive, there was no reason to require the delivery of her share and that was why she did not insist on her opposition, trusting on the reliability and sincerity of her brother's promise. The evidence shows that such promise was really made. The registration of land under the Torrens system does not have the effect of altering the laws of succession, or the rights of partition between coparceners, joint tenants, and other cotenants nor does it change or affect in any other way any other rights and liabilities created by law and applicable to unregistered land (sec. 70, Land Registration Law). The plaintiff is not, then, in estoppel, nor can the doctrine of res judicata be invoked against her claim. Under these circumstances, she has the right to compel the defendant to deliver her corresponding share in the estate left by the deceased, Victorino L. Guevara.

In his tenth to fourteenth assignments of error the petitioner assails the foregoing findings of the Court of Appeals. But the findings of fact made by said court are final and not reviewable by us on certiorari. The Court of Appeals found that the money with which the petitioner repurchased the northern half of the land in question from Rafael Puzon was not his own but his father's, it being the proceeds of the sale of a parcel of land made by the latter to Silvestre P. Coquia. Said court also found that the respondent withdrew her opposition to the registration of the land in the name of the petitioner upon the latter's promise that after paying all the debts of their father he would deliver to her and to the widow their corresponding shares. From these facts, it results that the interested parties consented to the registration of the land in question in the name of Ernesto M. Guevara alone subject to the implied trust on account of which he is under obligation to deliver and convey to them their corresponding shares after all the debts of the original owner of said land had been paid. Such finding does not constitute a reversal of the decision and decree of registration, which merely confirmed the petitioner's title; and in the absence of any intervening innocent third party, the petitioner may be compelled to fulfill the promise by virtue of which he acquired his title. That is authorized by section 70 of the Land Registration Act, cited by the Court of Appeals, and by the decision of this Court in Severino vs. Severino, 44 Phil., 343, and the cases therein cited.

Upon this phase of the litigation, we affirm the finding of the Court of Appeals that the northern half of the land described in the will exhibit A and in original certificate of title No. 51691 still belongs to the estate of the deceased Victorino L. Guevara. In the event the petitioner Ernesto M. Guevara has alienated any portion thereof, he is under obligation to compensate the estate with an equivalent portion from the southern half of said land that has not yet been sold. In other words, to the estate of Victorino L. Guevara still belongs one half of the total area of the land described in said original certificate of title, to be taken from such portions as have not yet been sold by the petitioner, the

other half having been lawfully acquired by the latter in consideration of his assuming the obligation to pay all the debts of the deceased.

Wherefore, that part of the decision of the Court of Appeals which declares in effect that notwithstanding exhibit 2 and the issuance of original certificate of title No. 51691 in the name of Ernesto M. Guevara, one half of the land described in said certificate of title belongs to the estate of Victorino L. Guevara and the other half to Ernesto M. Guevara in consideration of the latter's assumption of the obligation to pay all the debts of the deceased, is hereby affirmed; but the judgment of said court insofar as it awards any relief to the respondent Rosario Guevara in this action is hereby reversed and set aside, and the parties herein are hereby ordered to present the document exhibit A to the proper court for probate in accordance with law, without prejudice to such action as the provincial fiscal of Pangasinan may take against the responsible party or parties under section 4 of Rule 76. After the said document is approved and allowed by the court as the last will and testament of the deceased Victorino L. Guevara, the heirs and legatees therein named may take such action, judicial or extrajudicial, as may be necessary to partition the estate of the testator, taking into consideration the pronouncements made in part II of this opinion. No finding as to costs in any of the three instances.

Yulo, C.J., and Hontiveros, 1 J., concur.

G.R. No. L-20374 October 11, 1923

45 Phil 216

In re of Dolores Coronel, deceased. LORENZO PECSON, applicant-appellee,

vs. AGUSTIN CORONEL, ET AL., opponents-appellants.

Fisher, DeWitt, Perkins and Brady for appellants. Ross and Lawrence and Guillermo Lualhati for appellee.

ROMUALDEZ, J.:

On November 28, 1922, the Court of First Instance of Pampanga probated as the last will and testament of Dolores Coronel, the document Exhibit A, which translated is as follows:

In the name of God, Amen:

I, Dolores Coronel, resident of Betis, Guagua, Pampanga, Philippine Islands, in the full exercise of my mental faculties, do hereby make my last will and testament, and revoke all former wills by me executed.

I direct and order that my body be buried in conformity with my social standing.

That having no forced heirs, I will all my properties, both movable and immovable, to my nephew, Lorenzo Pecson, who is married to my niece Angela Coronel, in consideration of the good services with he has rendered, and is rendering to me with good will and disinterestedness and to my full satisfaction.

I name and appoint my aforesaid nephew, Lorenzo Pecson, executor of all that is willed and ordained in this my will, without bond. Should he not be able to discharge his duties as such executor for any reason whatsoever, I name and appoint as substitute executor my grandson Victor Pecson, a native and resident of the town of Betis, without requiring him to give bond. 1awph!l.net

All my real and paraphernal property as well as my credits for I declare that I have no debts, are specified in an inventory.

In testimony whereof and as I do not know how to write my name, I have requested Vicente J. Francisco to write my name at the foot hereof and on the left margin of each of its sheet before me and all the undersigned witnesses this July 1, 1918.

VICENTE J. FRANCISCO "For the testatrix Dolores Coronel

The foregoing document was executed and declared by Dolores Coronel to be her last will and testament in our presence, and as the testatrix does not know how to write her name, she requested Vicente J. Francisco to sign her name under her express direction in our presence, at the foot, and on the left margin of each and every sheet, hereof. In testimony whereof, each of us signed these presents in the presence of others and of the testatrix at the foot hereof and on the margin of each and everyone of the two sheets of which this document is composed, which are numbered "one" and "two" on the upper part of the face thereof.

(Sgd.) "MAXIMO VERGARA SOTERO DUMAUAL MARCOS DE LOS SANTOS

MARIANO L. CRISOSTOMO PABLO BARTOLOME MARCOS DE LA CRUZ DAMIAN CRISOSTOMO

On the left margin of the two sheets of the will the following signatures also appear:

Mariano L. Crisostomo, Vicente J. Francisco for the testatrix Dolores Coronel, M. Vergara, Pablo Bartolome, Sotero Dumaual Crisostomo, Marcos de la Cruz, Marcos de los Santos.

The petitioner for the probate of the will is Lorenzo Pecson, husband of Angela Coronel, who is a niece of the deceased Dolores Coronel.

The opponents are: Eriberto Coronel, Tito Coronel, Julian Gozum, Cirila Santiago, widow of the deceased Macario Gozum, in her own behalf and that of her three minor children, Hilarion Coronel, Geronimo Coronel, Maria Coronel and her husband Eladio Gongco, Juana Bituin, widow of the deceased Hipolito Coronel, in her own behalf and that of her three children, Generosa, Maria, and Jose, all minors, Rosario Coronel, Agustin Coronel, Filomeno Coronel, Casimiro Coronel, Alejo Coronel, Maria Coronel, Severina Coronel, Serapia Coronel, Maria Juana de Ocampo, widow of the deceased Manuel Coronel, Dionisia Coronel, and her husband Pantaleon Gunlao.

The probate of this will is impugned on the following grounds: (a) That the proof does not that the document Exhibit A above copied contains the last will of Dolores Coronel, and (b) that the attestation clause is not in accordance with the provisions of section 618 of the Code of Civil Procedure, as amended by Act No. 2645.

These are the two principal questions which are debated in this case and which we will now examine separately.

As to the first, which is the one raised in the first assignment of error, the appellants argue: First, that it was improbable and exceptional that Dolores Coronel should dispose of her estate, as set forth in the document Exhibit A, her true being that the same be distributed among her blood relatives; and second, that if such will not expressed in fact, it was due to extraneous illegal influence.

Let us examine the first point.

The opponents contend that it was not, nor could it be, the will of the testatrix, because it is not natural nor usual that she should completely exclude her blood relatives from her vast estate, in order to will the same to one who is only a relative by affinity, there appearing no sufficient motive for such exclusion, inasmuch as until the death of Dolores Coronel, she maintained very cordial relations with the aforesaid relatives who had helped her in the management and direction of her

lands. It appears, however, from the testimony of Attorney Francisco (page 71, transcript of the stenographic notes) that Dolores Coronel revealed to him her suspicion against some of her nephews as having been accomplices in a robbery of which she had been a victim.

As to whether or not Lorenzo Pecson rendered services to Dolores Coronel, the opponents admit that he rendered them at least from the year 1914, although there is proof showing that he rendered such services long before that time.

The appellants emphasize the fact that family ties in this country are very strongly knit and that the exclusion of relative one's estate an exceptional case. It is true that ties of relationship in the Philippines are very strong, but we understand that cases of preterition of relatives from the inheritance are not rare. The liberty to dispose of one's estate by will when there are no forced heirs is rendered sacred by the civil Code in force in the Philippines since 1889. It is so provided in the first paragraph of article in the following terms:

Any person who was no forced heirs may dispose by will of all his property or any part of it in favor of any person qualified to acquire it.

Even ignoring the precedents of this legal precept, the Code embodying it has been in force in the Philippines for more than a quarter of a century, and for this reason it is not tenable to say that the excercise of the liberty thereby granted is necessarily exceptional, where it is not shown that the inhabitants of this country whose customs must have been take into consideration by the legislator in adopting this legal precept, are averse to such a liberty.

As to preference given to Lorenzo Pecson, it is not purely arbitrary, nor a caprice or a whim of the moment. The proof adduced by this appelle, although contradicted, shows by a preponderance of evidence that besides the services which the opponents admit had been rendered by him to Dolores Coronel since the year 1914, he had also rendered services prior to that time and was the administrator and manager of the affairs of said Dolores in the last years of her life. And that this was not a whim of the moment is shown by the fact that six years before the execution of the will in question, said Lorenzo Pecson was named and appointed by Dolores Coronel as her sole heir in the document Exhibit B, which, translated, is as follows:

1. That my present property was acquired by me by inheritance from my parents, but a great part thereof was acquired by me by my own efforts and exertions;

2. That I have made no inventory of my properties, but they can be seen in the title deeds in my possession and in the declarations of ownership;

3. That I institute Lorenzo Pecson, married to Angela Coronel, and a known resident of the town, my heir to succeed to all my properties;

4. That I appoint my said heir, Lorenzo Pecson, as executor, and, in his default, Victor Pecson, a resident of the same town;

5. That as to my burial and other things connected with the eternal rest of my soul, I leave them to the sound direction of the aforesaid Lorenzo Pecson;

6. That as I cannot write I requested Martin Pangilinan, a native and resident of this town, to write this will in accordance with my wishes and precise instructions.

In testimony whereof I had the said Martin Pangilinan write my name and surname, and affixed my mark between my name and surname, and don Francisco Dumaual, Don Mariano Sunglao, Don Sotero Dumaual, Don Marcos de la Cruz and Don Martin Pangilinan signed as witnesses, they having been present at the beginning of, during, and after, the execution of this my last will.

(Sgd.) "DOLORES CORONEL

Witnesses:

(Sgd.) "MARIANO SUNGLAO MARCOS DE LA CRUZ FRANCISCO DUMAUAL SOTERO DUMAUAL MARTIN PANGILINAN"

The appellants find in the testament Exhibit B something to support their contention that the intention of Dolores Coronel was to institute the said Pecson not as sole beneficiary, but simply as executor and distributor of all her estate among her heirs, for while Lorenzo Pecson's contention that he was appointed sold beneficiary is based on the fact that he enjoyed the confidence of Dolores Coronel in 1918 and administered all her property, he did not exclusively have this confidence and administration in the year 1912. Although such administration and confidence were enjoyed by Pecson always jointly with others and never exclusively, this fact does not show that the will of the testatrix was to appoint Pecson only as executor and distributor of her estate among the heirs, nor does it prevent her, the testatrix, from instituting him in 1912 or 1918 as sole beneficiary; nor does it constitute, lastly, a test for determining whether or not such institution in favor of Pecson was the true will of the testatrix.

We find, therefore, nothing strange in the preterition made by Dolores Coronel of her blood relatives, nor in the designation of Lorenzo Pecson as her sole beneficiary. Furthermore, although the institution of the beneficiary here would not seem the most usual and customary, still this would not be null per se.

In the absence of any statutory restriction every person possesses absolute dominion over his property, and may bestow it upon whomsoever he pleases without regard to natural or legal claim upon his bounty. If the testator possesses the requisite capacity to make a will, and the disposition of his property is not affected by fraud of undue influence, the will is not rendered invalid by the fact that it is unnatural, unreasonable, or unjust. Nothing can prevent the testator from making a will as eccentric, as injudicious, or as unjust as caprice, frivolity, or revenge can dictate. However, as has already been shown, the unreasonable or unjustice of a will may be considered on the question of testamentary capacity. (40 Cyc., 1079.)

The testamentary capacity of Dolores Coronel is not disputed in this case.

Passing to the second question, to wit, whether or not the true last will of Dolores Coronel was expressed in the testament Exhibit A, we will begin with expounding how the idea of making the aforesaid will here controverted was borne and carried out.

About the year 1916 or 1917, Dolores showed the document Exhibit B to Attorney Francisco who was then her legal adviser and who, considering that in order to make the expression of her last will more legally valid, though it necessary that the statement be prepared in conformity with the laws in force at time of the death of the testatrix, and observing that the will Exhibit B lacked the extrinsic

formalities required by Act No. 2645 enacted after its execution, advised Dolores Coronel that the will be remade. She followed the advice, and Attorney Francisco, after receiving her instructions, drew the will Exhibit A in accordance therewith, and brought it to the house of Dolores Coronel for its execution.

Pablo Bartolome read Exhibit A to Dolores Coronel in her presence and that of the witnesses and asked her whether the will was in accordance with her wishes. Dolores Coronel answer that it was, and requested her attorney, Mr. Francisco, to sign the will for her, which the attorney accordingly did in the presence of the witnesses, who in turn signed it before the testatrix and in the presence of each other.

Upon the filing of the motion for a rehearing on the first order allowing the probate of the will, the opponents presented an affidavit of Pablo Bartolome to the effect that, following instructions of Lorenzo Pecson, he had informed the testatrix that the contents of the will were that she entrusted Pecson with the distribution of all her property among the relatives of the said Dolores. But during the new trial Pablo Bartolome, in spite of being present in the court room on the day of the trial, was not introduced as a witness, without such an omission having been satisfactorily accounted for.

While it is true that the petitioner was bound to present Pablo Bartolome, being one of the witnesses who signed the will, at the second hearing when the probate was controverted, yet we cannot consider this point against the appellee for this was not raised in any of the assignments of error made by the appellants. (Art. 20, Rules of the Supreme Court.)

On the other hand, it was incumbent upon the opponents to present Pablo Bartolome to prove before the court the statement by him in his affidavit, since it was their duty to prove what they alleged, which was that Dolores Coronel had not understood the true contents of the will Exhibit A. Having suppressed, without explanation, the testimony of Pablo Bartolome, the presumption is against the opponents and that is, that such a testimony would have been adverse had it been produced at the hearing of the case before the court. (Sec 334, subsec. 5, Code of Civil Procedure.)

The opponents call our attention to the fourth clause of the document which says: "I name and appoint my aforesaid nephew, Lorenzo Pecson, executor of all that is willed and ordained in this my will, without bond. Should he not be able to discharge his duties as such executor for any reason whatsoever, I name and appoint as a substitute executor my grandson Victor Pecson, resident of the town of Betis, without requiring him to give bond," and contend that this clause is repugnant to the institution of Lorenzo Pecson as sole beneficiary of all her estate, for if such was the intention of the testatrix, there would have been no necessity of appointing an executor, nor any reason for designating a substitute in case that the first one should not be able to discharge his duties, and they perceived in this clause the idea which, according to them, was not expressed in the document, and which was that Pecson was simply to be a mere executor entrusted with the distribution to the estate among the relatives of the testatrix, and that should he not be able to do so, this duty would devolved upon his substitutes.

But it is not the sole duty of an executor to distribute the estate, which in estate succession, such as the instant case, has to be distributed with the intervention of the court. All executor has, besides, other duties and general and special powers intended for the preservation, defense, and liquidation of the estate so long as the same has not reached, by order of the court, the hands of those entitled thereto.

The fact that Dolores Coronel foresaw the necessity of an executor does not imply a negation of her desire to will all her estate to Lorenzo Pecson. It is to be noted, furthermore, that in the will, it was ordered that her body be given a burial in accordance with her social standing and she had a perfect

right to designate a person who should see to it that this order was complied with. One of the functions of an executor is the fulfillment of what is ordained in the will.

It is argued that the will of the testatrix was to will her estate to her blood relatives, for such was the promise made to Maria Coronel, whom Rosario Coronel tends to corroborate. We do not find such a promise to have been sufficiently proven, and much less to have been seriously made and coupled with a positive intention on the part of Dolores Coronel to fulfill the same. In the absence of sufficient proof of fraud, or undue influence, we cannot take such a promise into account, for even if such a promise was in fact made, Dolores Coronel could retract or forget it afterwards and dispose of her estate as she pleased. Wills themselves, which contain more than mere promises, are essentially revocable.

It is said that the true will of Dolores Coronel not expressed in the will can be inferred from the phrase used by Jose M. Reyes in his deposition when speaking of the purpose for which Lorenzo Pecson was to receive the estate, to wit:

in order that the latter might dispose of the estate in the most appropriate manner

Weight is given to this phrase from the circumstance that its author was requested by Attorney Francisco to explain the contents of Exhibit B and had acted as interpreter between Dolores Coronel and Attorney Francisco at their interviews previous to the preparation of Exhibit A, and had translated into the Pampango dialect this last document, and, lastly, was present at the execution of the will in question.

The disputed phrase "in order that the latter might dispose of the estate in the most appropriate manner" was used by the witness Reyes while sick in a hospital and testifying in the course of the taking of his deposition.

The appellants interpret the expression "dispose in the most appropriate manner" as meaning to say "distribute it among the heirs." Limiting ourselves to its meaning, the expression is a broad one, for the disposition may be effected in several and various ways, which may not necessarily be a "distribution among the heirs," and still be a "disposition in the most appropriate manner." "To dispose" is not the same as "to distribute."

To judge correctly the import of this phrase, the circumstances under which it was used must be taken into account in this particular instance. The witness Reyes, the author of the phrase, was not expressing his own original ideas when he used it, but was translating into Spanish what Dolores Coronel had told him. According to the facts, the said witness is not a Spaniard, that is to say, the Spanish language is not his native tongue, but, perhaps, the Pampango dialect. It is an admitted fact based on reason and experience that when a person translates from one language to another, it is easier for him to express with precision and accuracy when the version is from a foreign language to a native one than vice-versa. The witness Reyes translated from the Pampango dialect, which must be more familiar to him, to the Spanish language which is not his own tongue. And judging from the language used by him during his testimony in this case, it cannot be said that this witness masters the Spanish language. Thus is explained the fact that when asked to give the reason for the appointment of an executor in the will, he should say at the morning session that "Dolores Coronel did appoint Don Lorenzo Pecson and in his default, Victor Pecson, to act during her lifetime, but not after he death," which was explained at the afternoon session by saying "that Dolores Coronel did appoint Don Lorenzo Pecson executor of all her estate during his lifetime and that in his default, either through death or incapacity, Mr. Victor Pecson was appointed executor." Taking into account all the circumstances of this witness, there is ground to attribute his inaccuracy as to the discharge of the duties of an executor, not to ignorance of the elementary rule of law on the matter, for the

practice of which he was qualified, but to a non-mastery of the Spanish language. We find in this detail of translation made by the witness Reyes no sufficient reason to believe that the will expressed by Dolores Coronel at the said interview with Attorney Francisco was to appoint Lorenzo Pecson executor and mere distributor of her estate among her heirs.

As to whether or not the burden of proof was on the petitioner to establish that he was the sole legatee to the exclusion of the relatives of Dolores Coronel, we understand that it was not his duty to show the reasons which the testatrix may have had for excluding her relatives from her estate, giving preference to him. His duty was to prove that the will was voluntary and authentic and he, who alleges that the estate was willed to another, has the burden of proving his allegation.

Attorney Francisco is charged with having employed improper means of making Lorenzo Pecson appear in the will as sole beneficiary. However, after an examination of all the proceedings had, we cannot find anything in the behavior of this lawyer, relative to the preparation and execution of the will, that would justify an unfavorable conclusion as to his personal and professional conduct, nor that he should harbor any wrongful or fraudulent purpose.

We find nothing censurable in his conduct in advising Dolores Coronel to make a new will other than the last one, Exhibit B (in the drawing of which he does not appear to her intervened), so that the instrument might be executed with all the new formalities required by the laws then in force; nor in the preparation of the new will substantially in accordance with the old one; nor in the selection of attesting witnesses who were persons other than the relatives of Dolores Coronel. Knowing, as he did, that Dolores was excluding her blood relatives from the inheritance, in spite of her having been asked by him whether their exclusion was due to a mere inadvertence, there is a satisfactory explanation, compatible with honorable conduct, why said attorney should prescind from such relatives in the attesting of the will, to the end that no obstacle be placed in the way to the probating thereof.

The fact that this attorney should presume that Dolores was to ask him to sign the will for her and that he should prepare it containing this detail is not in itself fraudulent. There was in this case reason so to presume, and it appears that he asked her, through Pablo Bartolome, whom she wanted to sign the document in her stead.

No imputation can be made to this attorney of any interest in favoring Lorenzo Pecson in the will, because the latter was already his client at the execution of said will. Attorney Francisco denied this fact, which we cannot consider proven after examining the evidence.

The conduct observed by this attorney after the death of Dolores Coronel in connection with the attempted arrangement between Lorenzo Pecson and the opponents, does not, in our opinion, constitute any data leading to the conclusion that an heir different from the true one intended by the testatrix should have been fraudulently made to appear instituted in the will exhibit A. His attitude towards the opponents, as can be gathered from the proceedings and especially from his letter Exhibit D, does not show any perverse or fraudulent intent, but rather a conciliatory purpose. It is said that such a step was well calculated to prevent every possible opposition to the probate of the will. Even admitting that one of his objects in entering into such negotiations was to avoid every possible to the probate of the will, such object is not incompatible with good faith, nor does it necessarily justify the inference that the heir instituted in the instrument was not the one whom the testatrix wanted appointed.

The appellants find rather suspicious the interest shown by the said attorney in trying to persuade Lorenzo Pecson to give them some share of the estate. These negotiations were not carried out by

the attorney out of his own initiative, but at the instance of the same opponent, Agustin Coronel, made by the latter in his own behalf and that of his coopponents.

As to Lorenzo Pecson, we do not find in the record sufficient proof to believe that he should have tried, through fraud or any undue influence, to frustrate the alleged intention of the testatrix to leave her estate to her blood relatives. The opponents insinuate that Lorenzo Pecson employed Attorney Francisco to carry out his reproachable designs, but such depraved instrumentality was not proven, nor was it shown that said lawyer, or Lorenzo Pecson, should have contrived or put into execution any condemnable plan, nor that both should have conspired for illegal purposes at the time of the preparation and execution of the will Exhibit A.

Although Norberto Paras testified having heard, when the will was being read to Dolores Coronel, the provision whereby the estate was ordered distributed among the heirs, the preponderance of the evidence is to the effect that said Norberto Paras was not present at such reading of the will. Appellant do not insist on the probative force of the testimony of this witness, and do not oppose its being stricken out.

The data furnished by the case do not show, to our mind, that Dolores Coronel should have had the intention of giving her estate to her blood relatives instead of to Lorenzo Pecson at the time of the execution of the will Exhibit A, nor that fraud or whatever other illegal cause or undue influence should have intervened in the execution of said testament. Neither fraud nor evil is presumed and the record does not show either.

Turning to the second assignment of error, which is made to consist in the will having been probated in spite of the fact that the attestation clause was not in conformity with the provision of section 618 of the Code of Civil Procedure, as amended by Act No. 2645, let us examine the tenor of such clause which literally is as follows:

The foregoing document was executed and declared by Dolores Coronel to be her last will testament in our presence, and as testatrix does not know how to write her name, she requested Vicente J. Francisco to sign her name under her express direction in our presence at the foot and on the left margin of each and every sheet hereof. In testimony whereof, each of us signed these presents in the presence of others of the testatrix at the foot hereof and on the margin of each and everyone of the two pages of which this document is composed. These sheets are numbered correlatively with the words "one and "two on the upper part of the face thereof.

(Sgd.) "Maximo Vergara, Sotero Dumaual, Marcos de los Santos, Mariano L. Crisostomo, Pablo Bartolome, Marcos de la Cruz, Damian Crisostomo."

Appellants remark that it is not stated in this clause that the will was signed by the witnesses in the presence of the testatrix and of each other, as required by section 618 of the Code of Civil Procedure, as amended, which on this particular point provides the following:

The attestation shall state the number of sheets or pages used, upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of three witnesses, and the latter witnessed and signed the will and all pages thereof in the presence of the testator and of each other.

Stress is laid on the phrase used in the attestation clause above copied, to wit:

each of us signed in the presence of others.

Two interpretations can absolutely be given here to the expression "of others." One, that insinuated by the appellants, namely, that it is equivalent to "of other persons," and the other, that contended by the appellee, to wit, that the phrase should be held to mean "of the others," the article "the" having inadvertently been omitted.

Should the first interpretation prevail and "other persons" be taken to mean persons different from the attesting witnesses, then one of the solemnities required by law would be lacking. Should the second be adopted and "of others" construed as meaning the other witnesses to the will, then the law would have been complied with in this respect.

Including the concomitant words, the controverted phrase results thus: "each of us signed these presents in the presence of others and of the testatrix."

If we should omit the words "of others and," the expression would be reduced to "each of us signed these presents in the presence of the testatrix," and the statement that the witnesses signed each in the presence of the others would be lacking. But as a matter of fact, these words "of others and" are present. Then, what for are they there? Is it to say that the witnesses signed in the presence of other persons foreign to the execution of the will, which is completely useless and to no purpose in the case, or was it for some useful, rational, necessary object, such as that of making it appear that the witnesses signed the will each in the presence of the others? The first theory presupposes that the one who drew the will, who is Attorney Francisco, was an unreasonable man, which is an inadmissible hypothesis, being repugnant to the facts shown by the record. The second theory is the most obvious, logical and reasonable under the circumstances. It is true that the expression proved to be deficient. The deficiency may have been caused by the drawer of the will or by the typist. If by the typist, then it must be presumed to have been merely accidental. If by the drawer, it is explainable taking into account that Spanish is not only not the native language of the Filipinos, who, in general, still speak until nowadays their own dialects, but also that such language is not even the only official language since several years ago.

In Re will of Abangan (40 Phil., 476), this court said:

The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guarantee their truth and authenticity. Therefore the laws on this subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisite entirely unnecesary, useless and frustrative of the testator's last will, must be disregarded.

We believe it to be more reasonable to construe the disputed phrase "of others" as meaning "of the other witnesses," and that a grammatical or clerical error was committed consisting in the omission of the article "the".

Grammatical or clerical errors are not usually considered of vital importance when the intention is manifest in the will.

The court may correct clerical mistakes in writing, and disregard technical rules of grammar as to the construction of the language of the will when it becomes necessary for it to do so in order to effectuate the testators manifest intention as ascertained from the context of the will.

But unless a different construction is so required the ordinary rules of grammar should be adhered to in construing the will. (40 Cyc., 1404).

And we understand that in the present case the interpretation we adopt is imperative, being the most adequate and reasonable.

The case of In the matter of the estate of Geronima Uy Coque (43 Phil., 405), decided by this court and invoked by the appellants, refers so far as pertinent to the point herein at issue, to an attestation clause wherein the statement that the witnesses signed the will in the presence of each other is totally absent. In the case at bar, there is the expression "in the presence of others" whose reasonable interpretation is, as we have said, "in the presence of the other witnesses." We do not find any party between the present case and that of Re Estate of Geronima Uy Coque above cited.

Finally, we will take up the question submitted by the opponents as to the alleged insufficiency of the evidence to show that the attesting witnesses Damian Crisostomo and Sotero Dumaual were present at the execution of the will in controversy. Although this point is raised in the first assignment of error made by the appellants, and not in the second, it is discussed in this place because it refers to the very fact of attestation. However, we do not believe it necessary to analyze in detail the evidence of both parties on this particular point. The evidence leads us to the conclusion that the two witnesses aforementioned were present at the execution and signing of the will. Such is also the conclusion of the trial judge who, in this respect, states the following, in his decision:

As to the question of whether or not the testatrix and witnesses signed the document Exhibit A in accordance with the provisions of law on the matter, that is, whether or not the testatrix signed the will, or caused it to be signed, in the presence of the witnesses, and the latter in turn signed in her presence and that of each other, the court, after observing the demeanor of the witnesses for both parties, is of the opinion that those for the petitioner spoke the truth. It is neither probable nor likely that a man versed in the law, such as Attorney Francisco, who was present at the execution of the will in question, and to whose conscientiousness in the matter of compliance with all the extrinsic formalities of the execution of a will, and to nothing else, was due the fact that the testatrix had cancelled her former will (Exhibit B) and had new one (Exhibit A) prepared and executed, should have consented the omission of formality compliance with which would have required little or no effort; namely, that of seeing to it that the testatrix and the attesting witnesses were all present when their respective signatures were affixed to the will." And the record does not furnish us sufficient ground for deviating from the line reasoning and findings of the trial judge.

In conclusion we hold that the assignments of error made by the appellants are not supported by the evidence of record.

The judgment appealed from if affirmed with costs against the appellants. So ordered.

Araullo, C.J., Johnson, Street, Malcolm, Avanceña, Villamor and Johns, JJ., concur.

G.R. No. 76648 February 26, 1988

THE HEIRS OF THE LATE MATILDE MONTINOLA-SANSON, petitioners, vs.

COURT OF APPEALS and EDUARDO F. HERNANDEZ, respondents.

GANCAYCO, J.:

This is a petition for review on certiorari of the decision of the Court of Appeals 1 promulgated August

29,1986 affirming in toto the decision of the Regional Trial Court of Manila, Branch XXII 2 dated March 21, 1985, the dispositive part of which reads:

WHEREFORE, the Court renders judgment declaring the holographic will marked in evidence as Exhibit "H" as one wholly written, dated, and signed freely by the late Herminia Montinola in accordance with law while in possession of full testamentary capacity, and allowing and admitting the same to probate.

Upon the finality of the decision, let letters testamentary issue to the executor, Eduardo F. Hernandez, as well as the certificate of probate prescribed under Section 13 of Rule 76 of the Rules of Court.

SO ORDERED. 3

This case arose from a petition filed by private respondent Atty. Eduardo F. Hernandez on April 22, 1981 with the Court of First Instance of Manila (now Regional Trial Court) seeking the probate of the holographic will of the late Herminia Montinola executed on January 28, 1980. 4 The testatrix, who

died single, parentless and childless on March 29,1981 at the age of 70 years, devised in this will several of her real properties to specified persons.

On April 29,1981, private respondent who was named executor in the will filed an urgent motion for appointment of special administrator. 5 With the conformity of all the relatives and heirs of the testatrix except oppositor, the court in its order of May 5, 1981 6 appointed private respondent as Special Administrator of the testate estate of deceased.

On June 29,1981, Matilde Montinola Sanson (petitioner), the only surviving sister of the deceased but who was not named in the said win, filed her Opposition to Probate of Will, 7 alleging inter alia:

that the subject will was not entirely written, dated and signed by the testatrix herself and the same was falsely dated or antedated; that the testatrix was not in full possession of her mental faculties to make testamentary dispositions; that undue influence was exerted upon the person and mind of the testatrix by the beneficiaries named in the win; and that the will failed to institute a residual heir to the remainder of the estate.

After a hearing on the merits, the probate court, finding the evidence presented in support of the petition to be conclusive and overwhelming, rendered its decision allowing the probate of the disputed will.

Petitioner thus appealed the decision of the probate court to the Court of Appeals which affirmed in toto the decision. 8

On September 24,1986, petitioner filed with the respondent court a motion for new trial. 9 Attached to

her motion was the Affidavit of Merit of Gregorio Montinola Sanson, petitioner's son, alleging that witnesses have been located whose testimonies could shed light as to the ill health of the testatrix as well as undue influence exerted on the latter.

The appellate court in its resolution of October 13, 1986, 10 denied the motion for new trial of petitioner on the following grounds: (1) the Affidavit of merit attached to the motion alleged that efforts were exerted to locate unnamed witnesses only after the court's decision was handed down, and (2) the unnamed witnesses would allegedly shed light on the fact of grave illness of the testatrix as well as the undue influence exerted on her which are merely corroborative or cumulative since these facts were brought to light during the trial.

The motion for reconsideration of petitioner dated October 27, 1986 11 was likewise denied by the

appellate court in its resolution of November 20, 1986 12 on the ground that the affidavit of one Patricia Delgado submitted with the motion constitutes cumulative evidence and the motion being in reality a second motion for reconsideration which is prescribed by law.

In the petition now before Us, petitioner assigned the following errors:

I

THE RESPONDENT COURT OF APPEALS ERRED IN DENYING PETITIONERS' MOTION FOR NEW TRIAL ON THE GROUND THAT THE EVIDENCE SOUGHT TO BE PRESENTED IS MERELY CUMULATIVE.

II

THE SAID COURT ERRED IN DENYING PETITIONERS' MOTION FOR RECONSIDERATION OF THE RESOLUTION DENYING THE AFORESAID MOTION FOR NEW TRIAL.

III

AT ANY RATE, THE SAID COURT ERRED IN HOLDING THAT THE HOLOGRAPHIC WILL IN QUESTION WAS WHOLLY WRITTEN, DATED AND SIGNED BY THE LATE HERMINIA MONTINOLA.

IV

THE SAID COURT ERRED IN NOT FINDING THAT THE ALLEGED WILL WAS FRAUDULENTLY ANTEDATED TO CONCEAL ITS ACTUAL DATE OF EXECUTION AND TO SHIELD IT FROM PROBABLE DISPUTES AS TO THE TESTAMENTARY CAPACITY ON THE PART OF THE ALLEGED TESTATRIX AT THE TIME OF ITS ACTUAL EXECUTION.

V

THE SAID COURT ERRED IN HOLDING THAT THE LATE HERMINIA MONTINOLA WAS NOT SUBJECTED TO UNDUE PRESSURE AND IMPROPERIMPORTUNINGS ON THE PART OF THOSE STANDING TO BENEFIT FROM THE ALLEGED WILL.

VI

THE SAID COURT ERRED IN ALLOWING THE HOLOGRAPHIC WILL IN QUESTION TO PROBATE.

In the meantime, petitioner who passed away on November 3, 1986, was substituted by her heirs.

In the first and second assigned errors, petitioners maintain that the appellate court erred in denying the motion for new trial insisting that the new evidence sought to be presented is not merely corroborative or cumulative.

On the other hand, the contention of private respondent is that the motion for new trial was a pro-forma motion because it was not in accordance with Sec. 1, Rule 53 of the Rules of Court. We find merit in this contention.

Section 1, Rule 53 provides —

Before a final order or judgment rendered by the Court of appeals becomes executory, a motion for new trial may be filed on the ground of newly discovered evidence which could not have been discovered prior to the trial in the court below by the exercise of the diligence and which is of such a character as would probably change the result. The motion shall be accompanied by affidavits showing the facts constituting the grounds therefor and the newly discovered evidence.

The affidavit of merit executed by Gregorio Montinola Sanson alleged the following:

xxx xxx xxx

3. That in her plea for new trial in the said case, I have exerted efforts to locate witnesses whose whereabouts were not known to us during the trial in the lower court, but I have finally succeeded in tracking them down;

4. That despite their initial reluctance to testify in this case,I am convinced that they would testify under proper subpoena for purposes of shedding light on the fact that the testatrix was gravely ill at or but the time that the questioned will was allegedly executed;

5. That they had the clear opportunity to know the circumstances under which the purported will was executed; and that they know for a fact that there was 'undue influence' exerted by petitioner and other relatives to procure improper favors from the testatrix;

xxx xxx xxx 13

Said motion for new trial is not in substantial compliance with the requirements of Rule 53. The lone affidavit of a witness who was already presented said the hearing is hardly sufficient to justify the holding of new trial. The alleged new witnesses were unnamed without any certainty as, to their appearance before the court to testify. Affiant attests only on his belief that they would testify if and when they are subpoenaed by the court. Furthermore, the allegations in the affidavit as to the undue influence exerted on the testatrix are mere conclusions and not statement of facts. The requisite affidavits must state facts and not mere conclusions or opinions, otherwise they are not valid. 14 The

affidavits are required to avoid waste of the court's time if the newly discovered evidence turns out to be immaterial or of any evidentiary weight.

Moreover, it could not be said that the evidence sought to be presented is new having been discovered only after the trial. It is apparent from the allegations of affiant that efforts to locate the witnesses were exerted only after the decision of the appellate court was handed down. The trial lasted for about four years so that petitioner had ample time to find said alleged witnesses who were admittedly known to her. The evidence which the petitioner now propose to present could have been discovered and presented during the hearing of the case, and there is no sufficient reason for concluding that had the petitioner exercised proper diligence she would not have been able to discover said evidence. 15

In addition, We agree with the appellate court that since the alleged illness of the testatrix as well as the charges of undue influence exerted upon her had been brought to light during the trial, and new evidence on this point is merely corroborative and cumulative which is generally not a ground for new trial. 16 Accordingly, such evidence even if presented win not carry much probative weight which can alter the judgment. 17

It is very patent that the motion for new trial was filed by petitioner only for the purpose of delaying the proceedings. In fact, petitioners son in his manifestation admitted that he had to request a new law firm to do everything legally possible to meet the deadline for the filing of a motion for reconsideration and/or for new trial. 18This would explain the haphazard preparation of the motion, thus failing to comply with the requirements of rule 53, which was filed on the last day of the reglementary period of appeal so that the veracity of the ground relied upon is questionable. The appellate court correctly denied the motion for new trial.

The motion for new trial being pro-forma, it does not interrupt the running of the period for appeal. 19 Since petitioner's motion was filed on September 24,1986, the fifteenth or last day of the period

to appeal, the decision of the respondent court became final on the following day, September 25. And when the motion for reconsideration of petitioner was filed on October 30,1986, it was obviously filed out of time.

Since the questioned decision has already become final and executory, it is no longer within the province of this Court to review it. This being so, the findings of the probate court as to the due execution of the will and the testamentary capacity of testatrix are now conclusive. 20

At any rate, even assuming that We can still review this case on its merits, the petition will also have to fail.

During the hearing before the probate court, not only were three (3) close relatives of the testatrix presented but also two (2) expert witnesses who declared that the contested will and signature are in the handwriting of the testatrix. These testimonies more than satisfy the requirements of Art. 811 of the Civil Code 21 in conjunction with Section 11 of Rule 76, Revised Rules of Court, 22 or the probate of

holographic wills.

As regards the alleged antedating of the will, petitioner failed to present competent proof that the will was actually executed sometime in June 1980 when the testatrix was already seriously ill and dying of terminal lung cancer. She relied only on the supposed inconsistencies in the testimony of Asuncion Gemperle, niece and constant companion of testatrix, which upon careful examination did not prove such claim of antedating.

The factual findings of the probate court and the Court of Appeals that the will in question was executed according to the formalities required by law are conclusive on the Supreme Court when supported by evidence. 23 We have examined the records of this case and find no error in the conclusion

arrived at by the respondent court that the contested will was duly executed in accordance with law.

Petitioner alleges that her exclusion from the alleged holographic will was without rhyme or reason, being the only surviving sister of the testatrix with whom she shares an intimate relationship, thus demonstrating the lack of testamentary capacity of testatrix.

In the case of Pecson v. Coronel, 24 it was held —

The appellants emphasize the fact that family ties in this country are very strongly knit and that the exclusion of a relative from one's estate is an exceptional case. It is true that the ties of relationship in the Philippines are very strong, but we understand that cases of preterition of relatives from the inheritance are not rare. The liberty to dispose of one's estate by will when there are no forced heirs is rendered sacred by the Civil Code in force in the Philippines since 1889...

Article 842 of the Civil Code provides that one who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person having capacity to succeed.

It is within the right of the testatrix not to include her only sister who is not a compulsory heir in her will. Nevertheless, per testimony of Asuncion Gemperle, the latter had reserved two boxes of jewelry worth P850,000.00 for petitioner. Furthermore, petitioner's son Francis was instituted as an heir in the contested will.

Petitioner still insists that the fact that in her holographic will the testatrix failed to dispose of all of her estate is an indication of the unsoundness of her mind.

We cannot subscribe to this contention. Art. 841 of the Civil Code provides —

A will shall be valid even though it should not contain an institution of an heir, or such institution should not comprise the entire estate, and even though the person so instituted should not accept the inheritance or should be incapacitated to succeed.

In such cases, the testamentary dispositions made in accordance with law shall be complied with and the remainder of the estate shall pass to the legal heirs.

Thus, the fact that in her holographic will, testatrix disposed of only eleven (11) of her real properties does not invalidate the will, or is it an indication that the testatrix was of unsound mind. The portion of the estate undisposed of shall pass on to the heirs of the deceased in intestate succession.

Neither is undue influence present just because blood relatives, other than compulsory heirs have been omitted, for while blood ties are strong in the Philippines, it is the testator's right to disregard non-compulsory heirs. 25 The fact that some heirs are more favored than others is proof of neither fraud

or undue influence. 26 Diversity of apportionment is the usual reason for making a testament, otherwise, the decedent might as well die intestate. 27

The contention of the petitioner that the will was obtained by undue influence or improper pressure exerted by the beneficiaries of the will cannot be sustained on mere conjecture or suspicion; as it is not enough that there was opportunity to exercise undue influence or a possibility that it may have

been exercised. 28 The exercise of improper pressure and undue influence must be supported by

substantial evidence that it was actually exercised. 29

Finally, We quote with approval the observation of the respondent court —

There is likewise no question as to the due execution of the subject Will. To Our minds, the most authentic proof that decreased had testamentary capacity at the time of the execution of the Will, is the Will itself which according to a report of one of the two expert witnesses (Exhibits X to X-3) reveals the existence of significant handwriting characteristics such as:

1. Spontaneity, freedom, and speed of writing

xxx xxx xxx

3. good line quality.

4. presence of natural variation... (Exhibit X).

The characteristics of spontaneity, freedom and good line quality could not be achieved by the testatrix if it was true that she was indeed of unsound mind and/or under undue influence or improper pressure when she the Will.

IN VIEW OF THE FOREGOING CONSIDERATIONS, the petition is DENIED for lack of merit with costs against petitioner. The decision of respondent court dated August 29, 1986 in toto the decision of the Regional Trial Court of Manila dated March 21, 1985 is hereby declared to be immediately executory.

SO ORDERED.

Teehankee, C.J., Narvasa, Cruz and Grino-Aquino, JJ., concur.

G.R. No. L-39247 June 27, 1975

64 SCRA 452

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).1äwphï1.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).1äw phï1.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. Fernando (Chairman), Barredo, Antonio and Concepcion, Jr., JJ., concur.

G.R. No. L-23445 June 23, 1966

17 SCRA 449

REMEDIOS NUGUID, petitioner and appellant, vs.

FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and appellees.

Custodio O. Partade for petitioner and appellant. Beltran, Beltran and Beltran for oppositors and appellees.

SANCHEZ, J.:

Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, without descendants, legitimate or illegitimate. Surviving her were her legitimate parents, Felix Nuguid and Paz Salonga Nuguid, and six (6) brothers and sisters, namely: Alfredo, Federico, Remedios, Conrado, Lourdes and Alberto, all surnamed Nuguid.

On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of Rizal a holographic will allegedly executed by Rosario Nuguid on November 17, 1951, some 11 years before her demise. Petitioner prayed that said will be admitted to probate and that letters of administration with the will annexed be issued to her.

On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate father and mother of the deceased Rosario Nuguid, entered their opposition to the probate of her will. Ground therefor, inter alia, is that by the institution of petitioner Remedios Nuguid as universal heir of the deceased, oppositors — who are compulsory heirs of the deceased in the direct ascending line — were illegally preterited and that in consequence the institution is void.

On August 29, 1963, before a hearing was had on the petition for probate and objection thereto, oppositors moved to dismiss on the ground of absolute preterition.

On September 6, 1963, petitioner registered her opposition to the motion to dismiss.1äwphï1.ñët

The court's order of November 8, 1963, held that "the will in question is a complete nullity and will perforce create intestacy of the estate of the deceased Rosario Nuguid" and dismissed the petition without costs.

A motion to reconsider having been thwarted below, petitioner came to this Court on appeal.

1. Right at the outset, a procedural aspect has engaged our attention. The case is for the probate of a will. The court's area of inquiry is limited — to an examination of, and resolution on, the extrinsic validity of the will. The due execution thereof, the testatrix's testamentary capacity, and the compliance with the requisites or solemnities by law prescribed, are the questions solely to be presented, and to be acted upon, by the court. Said court at this stage of the proceedings — is not called upon to rule on the intrinsic validity or efficacy of the provisions of the will, the legality of any devise or legacy therein.1

A peculiar situation is here thrust upon us. The parties shunted aside the question of whether or not the will should be allowed probate. For them, the meat of the case is the intrinsic validity of the will.

Normally, this comes only after the court has declared that the will has been duly authenticated.2 But petitioner and oppositors, in the court below and here on appeal, travelled on the issue of law, to wit: Is the will intrinsically a nullity?

We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On the contrary, this litigation will be protracted. And for aught that appears in the record, in the event of probate or if the court rejects the will, probability exists that the case will come up once again before us on the same issue of the intrinsic validity or nullity of the will. Result: waste of time, effort, expense, plus added anxiety. These are the practical considerations that induce us to a belief that we might as well meet head-on the issue of the validity of the provisions of the will in question.3 After all, there exists a justiciable controversy crying for solution.

2. Petitioner's sole assignment of error challenges the correctness of the conclusion below that the will is a complete nullity. This exacts from us a study of the disputed will and the applicable statute.

Reproduced hereunder is the will:

Nov. 17, 1951

I, ROSARIO NUGUID, being of sound and disposing mind and memory, having amassed a certain amount of property, do hereby give, devise, and bequeath all of the property which I may have when I die to my beloved sister Remedios Nuguid, age 34, residing with me at 38-B Iriga, Q.C. In witness whereof, I have signed my name this seventh day of November, nineteen hundred and fifty-one.

(Sgd.) Illegible

T/ ROSARIO NUGUID

The statute we are called upon to apply in Article 854 of the Civil Code which, in part, provides:

ART. 854. 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. ...

Except for inconsequential variation in terms, the foregoing is a reproduction of Article 814 of the Civil Code of Spain of 1889, which is similarly herein copied, thus —

Art. 814. 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 betterments4 shall be valid, in so far as they are not inofficious. ...

A comprehensive understanding of the term preterition employed in the law becomes a necessity. On this point Manresa comments:

La pretericion consiste en omitar al heredero en el testamento. O no se le nombra siquiera o aun nombrandole como padre, hijo, etc., no se le instituya heredero ni se le deshereda expresamente ni se le asigna parte alguna de los bienes, resultando privado de un modo tacito de su derecho a legitima.

Para que exista pretericion, con arreglo al articulo 814, basta que en el testamento omita el testador a uno cualquiera de aquellos a quienes por su muerte corresponda la herencia forzosa.

Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que la omision sea completa; que el heredero forzoso nada reciba en el testamento.

It may now appear trite bat nonetheless helpful in giving us a clear perspective of the problem before us, to have on hand a clear-cut definition of the word annul:

To "annul" means to abrogate, to make void ... In re Morrow's Estate, 54 A. 342, 343, 204 Pa. 484.6

The word "annul" as used in statute requiring court to annul alimony provisions of divorce decree upon wife's remarriage means to reduce to nothing; to annihilate; obliterate; blot out; to make void or of no effect; to nullify; to abolish. N.J.S.A. 2:50 — 38 (now N.J.S. 2A:34-35). Madden vs. Madden, 40 A. 2d 611, 614, 136 N..J Eq. 132.7

ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect; to nullify; to abolish; to do away with. Ex parte Mitchell, 123 W. Va. 283, 14 S.E. 2d. 771, 774.8

And now, back to the facts and the law. The deceased Rosario Nuguid left no descendants, legitimate or illegitimate. But she left forced heirs in the direct ascending line her parents, now oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will completely omits both of them: They thus received nothing by the testament; tacitly, they were deprived of their legitime; neither were they expressly disinherited. This is a clear case of preterition. Such preterition in the words of Manresa "anulara siempre la institucion de heredero, dando caracter absoluto a este ordenamiento referring to the mandate of Article 814, now 854 of the Civil Code.9 The one-sentence will here institutes petitioner as the sole, universal heir — nothing more. No specific legacies or bequests are therein provided for. It is in this posture that we say that the nullity is complete. Perforce, Rosario Nuguid died intestate. Says Manresa:

En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir, en todo o en parte? No se añade limitacion alguna, como en el articulo 851, en el que se expresa que se anulara la institucion de heredero en cuanto prejudique a la legitima del deseheredado Debe, pues, entenderse que la anulacion es completa o total, y que este articulo como especial en el caso que le motiva rige con preferencia al 817. 10

The same view is expressed by Sanchez Roman: —

La consecuencia de la anulacion o nulidad de la institucion de heredero por pretericion de uno, varios o todos los forzosos en linea recta, es la apertura de la sucesion intestada total o parcial. Sera total, cuando el testador que comete la pretericion, hubiese dispuesto de todos los bienes por titulo universal de herencia en favor de los herederos instituidos, cuya institucion se anula, porque asi lo exige la generalidad del precepto legal del art. 814, al determinar, como efecto de la pretericion, el de que "anulara la institucion de heredero." ... 11

Really, as we analyze the word annul employed in the statute, there is no escaping the conclusion that the universal institution of petitioner to the entire inheritance results in totally abrogating the will. Because, the nullification of such institution of universal heir — without any other testamentary disposition in the will — amounts to a declaration that nothing at all was written. Carefully worded and in clear terms, Article 854 offers no leeway for inferential interpretation. Giving it an expansive

meaning will tear up by the roots the fabric of the statute. On this point, Sanchez Roman cites the "Memoria annual del Tribunal Supreme, correspondiente a 1908", which in our opinion expresses the rule of interpretation, viz:

... El art. 814, que preceptua en tales casos de pretericion la nulidad de la institucion de heredero, no consiente interpretacion alguna favorable a la persona instituida en el sentido antes expuesto aun cuando parezca, y en algun caso pudiera ser, mas o menos equitativa, porque una nulidad no significa en Derecho sino la suposicion de que el hecho o el acto no se ha realizado, debiendo por lo tanto procederse sobre tal base o supuesto, y consiguientemente, en un testamento donde falte la institucion, es obligado llamar a los herederos forzosos en todo caso, como habria que llamar a los de otra clase, cuando el testador no hubiese distribudo todos sus bienes en legados, siendo tanto mas obligada esta consecuencia legal cuanto que, en materia de testamentos, sabido es, segun tiene declarado la jurisprudencia, con repeticion, que no basta que sea conocida la voluntad de quien testa si esta voluntad no aparece en la forma y en las condiciones que la ley ha exigido para que sea valido y eficaz, por lo que constituiria una interpretacion arbitraria, dentro del derecho positivo, reputar como legatario a un heredero cuya institucion fuese anulada con pretexto de que esto se acomodaba mejor a la voluntad del testador, pues aun cuando asi fuese, sera esto razon para modificar la ley, pero no autoriza a una interpretacion contraria a sus terminos y a los principios que informan la testamentifaccion, pues no porque parezca mejor una cosa en el terreno del Derecho constituyente, hay razon para convereste juicio en regla de interpretacion, desvirtuando y anulando por este procedimiento lo que el legislador quiere establecer. 12

3. We should not be led astray by the statement in Article 854 that, annullment notwithstanding, "the devises and legacies shall be valid insofar as they are not inofficious". Legacies and devises merit consideration only when they are so expressly given as such in a will. Nothing in Article 854 suggests that the mere institution of a universal heir in a will — void because of preterition — would give the heir so instituted a share in the inheritance. As to him, the will is inexistent. There must be, in addition to such institution, a testamentary disposition granting him bequests or legacies apart and separate from the nullified institution of heir. Sanchez Roman, speaking of the two component parts of Article 814, now 854, states that preterition annuls the institution of the heir "totalmente por la pretericion"; but added (in reference to legacies and bequests) "pero subsistiendo ... todas aquellas otras disposiciones que no se refieren a la institucion de heredero ... . 13 As Manresa puts it, annulment throws open to intestate succession the entire inheritance including "la porcion libre (que) no hubiese dispuesto en virtud de legado, mejora o donacion. 14

As aforesaid, there is no other provision in the will before us except the institution of petitioner as universal heir. That institution, by itself, is null and void. And, intestate succession ensues.

4. Petitioner's mainstay is that the present is "a case of ineffective disinheritance rather than one of preterition". 15From this, petitioner draws the conclusion that Article 854 "does not apply to the case at bar". This argument fails to appreciate the distinction between pretention and disinheritance.

Preterition "consists in the omission in the testator's will of the forced heirs or anyone of them, either because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly disinherited." 16 Disinheritance, in turn, "is a testamentary disposition depriving any compulsory heir of his share in the legitime for a cause authorized by law. " 17 In Manresa's own words: "La privacion expresa de la legitima constituye la desheredacion. La privacion tacita de la misma se denomina pretericion." 18 Sanchez Roman emphasizes the distinction by stating that disinheritance "es siempre voluntaria"; preterition, upon the other hand, is presumed to be "involuntaria". 19 Express as disinheritance should be, the same must be supported by a legal cause specified in the will itself. 20

The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It simply omits their names altogether. Said will rather than be labeled ineffective disinheritance is clearly one in which the said forced heirs suffer from preterition.

On top of this is the fact that the effects flowing from preterition are totally different from those of disinheritance. Preterition under Article 854 of the Civil Code, we repeat, "shall annul the institution of heir". This annulment is in toto, unless in the will there are, in addition, testamentary dispositions in the form of devises or legacies. In ineffective disinheritance under Article 918 of the same Code, such disinheritance shall also "annul the institution of heirs", put only "insofar as it may prejudice the person disinherited", which last phrase was omitted in the case of preterition. 21 Better stated yet, in disinheritance the nullity is limited to that portion of the estate of which the disinherited heirs have been illegally deprived. Manresa's expressive language, in commenting on the rights of the preterited heirs in the case of preterition on the one hand and legal disinheritance on the other, runs thus: "Preteridos, adquiren el derecho a todo; desheredados, solo les corresponde un tercio o dos tercios, 22 el caso.23

5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to receive their legitimes, but that the institution of heir "is not invalidated," although the inheritance of the heir so instituted is reduced to the extent of said legitimes. 24

This is best answered by a reference to the opinion of Mr. Chief Justice Moran in the Neri case heretofore cited,viz:

But the theory is advanced that the bequest made by universal title in favor of the children by the second marriage should be treated as legado and mejora and, accordingly, it must not be entirely annulled but merely reduced. This theory, if adopted, will result in a complete abrogation of Articles 814 and 851 of the Civil Code. If every case of institution of heirs may be made to fall into the concept of legacies and betterments reducing the bequest accordingly, then the provisions of Articles 814 and 851 regarding total or partial nullity of the institution, would. be absolutely meaningless and will never have any application at all. And the remaining provisions contained in said article concerning the reduction of inofficious legacies or betterments would be a surplusage because they would be absorbed by Article 817. Thus, instead of construing, we would be destroying integral provisions of the Civil Code.

The destructive effect of the theory thus advanced is due mainly to a failure to distinguish institution of heirs from legacies and betterments, and a general from a special provision. With reference to article 814, which is the only provision material to the disposition of this case, it must be observed that the institution of heirs is therein dealt with as a thing separate and distinct from legacies or betterments. And they are separate and distinct not only because they are distinctly and separately treated in said article but because they are in themselves different. Institution of heirs is a bequest by universal title of property that is undetermined. Legacy refers to specific property bequeathed by a particular or special title. ... But again an institution of heirs cannot be taken as a legacy. 25

The disputed order, we observe, declares the will in question "a complete nullity". Article 854 of the Civil Code in turn merely nullifies "the institution of heir". Considering, however, that the will before us solely provides for the institution of petitioner as universal heir, and nothing more, the result is the same. The entire will is null.

Upon the view we take of this case, the order of November 8, 1963 under review is hereby affirmed. No costs allowed. So ordered.

Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Bengzon, J.P. and Zaldivar, JJ., concur.

G.R. No. 72706 October 27, 1987

CONSTANTINO C. ACAIN, petitioner, vs.

HON. INTERMEDIATE APPELLATE COURT (Third Special Cases Division), VIRGINIA A. FERNANDEZ and ROSA DIONGSON, respondents.

PARAS, J.:

This is a petition for review on certiorari of the decision * of respondent. Court of Appeals in AC-G.R. SP No. 05744

promulgated on August 30, 1985 (Rollo, p. 108) ordering the dismissal of the petition in Special Proceedings No, 591 ACEB and its Resolution issued on October 23, 1985 (Rollo, p. 72) denying respondents' (petitioners herein) motion for reconsideration.

The dispositive portion of the questioned decision reads as follows:

WHEREFORE, the petition is hereby granted and respondent Regional Trial Court of the Seventh Judicial Region, Branch XIII (Cebu City), is hereby ordered to dismiss the petition in Special Proceedings No. 591 ACEB No special pronouncement is made as to costs.

The antecedents of the case, based on the summary of the Intermediate Appellate Court, now Court of Appeals, (Rollo, pp. 108-109) are as follows:

On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial Court of Cebu City Branch XIII, a petition for the probate of the will of the late Nemesio Acain and for the issuance to the same petitioner of letters testamentary, docketed as Special Proceedings No. 591 ACEB (Rollo, p. 29), on the premise that Nemesio Acain died leaving a will in which petitioner and his brothers Antonio, Flores and Jose and his sisters Anita, Concepcion, Quirina and Laura were instituted as heirs. The will allegedly executed by Nemesio Acain on February 17, 1960 was written in Bisaya (Rollo, p. 27) with a translation in English (Rollo, p. 31) submi'tted by petitioner without objection raised by private respondents. The will contained provisions on burial rites, payment of debts, and the appointment of a certain Atty. Ignacio G. Villagonzalo as the executor of the testament. On the disposition of the testator's property, the will provided:

THIRD: All my shares that I may receive from our properties. house, lands and money which I earned jointly with my wife Rosa Diongson shall all be given by me to my brother SEGUNDO ACAIN Filipino, widower, of legal age and presently residing at 357-C Sanciangko Street, Cebu City. In case my brother Segundo Acain pre-deceased me, all the money properties, lands, houses there in Bantayan and here in Cebu City which constitute my share shall be given to me to his children, namely: Anita, Constantino, Concepcion, Quirina, laura, Flores, Antonio and Jose, all surnamed Acain.

Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo who are claiming to be heirs, with Constantino as the petitioner in Special Proceedings No. 591 ACEB

After the petition was set for hearing in the lower court on June 25, 1984 the oppositors (respondents herein Virginia A. Fernandez, a legally adopted daughter of tile deceased and the latter's widow Rosa Diongson Vda. de Acain filed a motion to dismiss on the following grounds for the petitioner has no legal capacity to institute these proceedings; (2) he is merely a universal heir

and (3) the widow and the adopted daughter have been pretirited. (Rollo, p. 158). Said motion was denied by the trial judge.

After the denial of their subsequent motion for reconsideration in the lower court, respondents filed with the Supreme Court a petition for certiorari and prohibition with preliminary injunction which was subsequently referred to the Intermediate Appellate Court by Resolution of the Court dated March 11, 1985 (Memorandum for Petitioner, p. 3; Rollo, p. 159).

Respondent Intermediate Appellate Court granted private respondents' petition and ordered the trial court to dismiss the petition for the probate of the will of Nemesio Acain in Special Proceedings No. 591 ACEB

His motion for reconsideration having been denied, petitioner filed this present petition for the review of respondent Court's decision on December 18, 1985 (Rollo, p. 6). Respondents' Comment was filed on June 6, 1986 (Rollo, p. 146).

On August 11, 1986 the Court resolved to give due course to the petition (Rollo, p. 153). Respondents' Memorandum was filed on September 22, 1986 (Rollo, p. 157); the Memorandum for petitioner was filed on September 29, 1986 (Rollo, p. 177).

Petitioner raises the following issues (Memorandum for petitioner, p. 4):

(A) The petition filed in AC-G.R. No. 05744 for certiorari and prohibition with preliminary injunction is not the proper remedy under the premises;

(B) The authority of the probate courts is limited only to inquiring into the extrinsic validity of the will sought to be probated and it cannot pass upon the intrinsic validity thereof before it is admitted to probate;

(C) The will of Nemesio Acain is valid and must therefore, be admitted to probate. The preterition mentioned in Article 854 of the New Civil Code refers to preterition of "compulsory heirs in the direct line," and does not apply to private respondents who are not compulsory heirs in the direct line; their omission shall not annul the institution of heirs;

(D) DICAT TESTATOR ET MERIT LEX. What the testator says will be the law;

(E) There may be nothing in Article 854 of the New Civil Code, that suggests that mere institution of a universal heir in the will would give the heir so instituted a share in the inheritance but there is a definite distinct intention of the testator in the case at bar, explicitly expressed in his will. This is what matters and should be in violable.

(F) As an instituted heir, petitioner has the legal interest and standing to file the petition in Sp. Proc. No. 591 ACEB for probate of the will of Nemesio Acain and

(G) Article 854 of the New Civil Code is a bill of attainder. It is therefore unconstitutional and ineffectual.

The pivotal issue in this case is whether or not private respondents have been pretirited.

Article 854 of the Civil Code provides:

Art. 854. 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 devisees and legacies shall be valid insofar as they are not; inofficious.

If the omitted compulsory heirs should die before the testator, the institution shall he effectual, without prejudice to the right of representation.

Preterition consists in the omission in the testator's will of the forced heirs or anyone of them either because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly disinherited (Nuguid v. Nuguid, 17 SCRA 450 [1966]; Maninang v. Court of Appeals, 114 SCRA 478 [1982]). Insofar as the widow is concerned, Article 854 of the Civil Code may not apply as she does not ascend or descend from the testator, although she is a compulsory heir. Stated otherwise, even if the surviving spouse is a compulsory heir, there is no preterition even if she is omitted from the inheritance, for she is not in the direct line. (Art. 854, Civil code) however, the same thing cannot be said of the other respondent Virginia A. Fernandez, whose legal adoption by the testator has not been questioned by petitioner (.Memorandum for the Petitioner, pp. 8-9). Under Article 39 of P.D. No. 603, known as the Child and Youth Welfare Code, adoption gives to the adopted person the same rights and duties as if he were a legitimate child of the adopter and makes the adopted person a legal heir of the adopter. It cannot be denied that she has totally omitted and preterited in the will of the testator and that both adopted child and the widow were deprived of at least their legitime. Neither can it be denied that they were not expressly disinherited. Hence, this is a clear case of preterition of the legally adopted child.

Pretention annuls the institution of an heir and annulment throws open to intestate succession the entire inheritance including "la porcion libre (que) no hubiese dispuesto en virtual de legado mejora o donacion" Maniesa as cited in Nuguid v. Nuguid, supra; Maninang v. Court of Appeals, 114 SCRA [1982]). The only provisions which do not result in intestacy are the legacies and devises made in the will for they should stand valid and respected, except insofar as the legitimes are concerned.

The universal institution of petitioner together with his brothers and sisters to the entire inheritance of the testator results in totally abrogating the will because the nullification of such institution of universal heirs-without any other testamentary disposition in the will-amounts to a declaration that nothing at all was written. Carefully worded and in clear terms, Article 854 of the Civil Code offers no leeway for inferential interpretation (Nuguid v. Nuguid), supra. No legacies nor devises having been provided in the will the whole property of the deceased has been left by universal title to petitioner and his brothers and sisters. The effect of annulling the "Institution of heirs will be, necessarily, the opening of a total intestacy (Neri v. Akutin, 74 Phil. 185 [1943]) except that proper legacies and devises must, as already stated above, be respected.

We now deal with another matter. In order that a person may be allowed to intervene in a probate proceeding he must have an interest iii the estate, or in the will, or in the property to be affected by it either as executor or as a claimant of the estate and an interested party is one who would be benefited by the estate such as an heir or one who has a claim against the estate like a creditor (Sumilang v. Ramagosa, 21 SCRA 1369/1967). Petitioner is not the appointed executor, neither a devisee or a legatee there being no mention in the testamentary disposition of any gift of an individual item of personal or real property he is called upon to receive (Article 782, Civil Code). At the outset, he appears to have an interest in the will as an heir, defined under Article 782 of the Civil Code as a person called to the succession either by the provision of a will or by operation of law. However, intestacy having resulted from the preterition of respondent adopted child and the universal institution of heirs, petitioner is in effect not an heir of the testator. He has no legal standing

to petition for the probate of the will left by the deceased and Special Proceedings No. 591 A-CEB must be dismissed.

As a general rule certiorari cannot be a substitute for appeal, except when the questioned order is an oppressive exercise of j judicial authority (People v. Villanueva, 110 SCRA 465 [1981]; Vda. de Caldito v. Segundo, 117 SCRA 573 [1982]; Co Chuan Seng v. Court of Appeals, 128 SCRA 308 [1984]; and Bautista v. Sarmiento, 138 SCRA 587 [1985]). It is axiomatic that the remedies of certiorari and prohibition are not available where the petitioner has the remedy of appeal or some other plain, speedy and adequate remedy in the course of law (DD Comendador Construction Corporation v. Sayo (118 SCRA 590 [1982]). They are, however, proper remedies to correct a grave abuse of discretion of the trial court in not dismissing a case where the dismissal is founded on valid grounds (Vda. de Bacang v. Court of Appeals, 125 SCRA 137 [1983]).

Special Proceedings No. 591 ACEB is for the probate of a will. As stated by respondent Court, the general rule is that the probate court's authority is limited only to the extrinsic validity of the will, the due execution thereof, the testator'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. Said court at this stage of the proceedings is not called upon to rule on the intrinsic validity or efficacy of the provisions of the will (Nuguid v. Nuguid, 17 SCRA 449 [1966]; Sumilang v. Ramagosa, supra; Maninang v. Court of Appeals, 114 SCRA 478 [1982]; Cayetano v. Leonides, 129 SCRA 522 [1984]; and Nepomuceno v. Court of Appeals, 139 SCRA 206 [1985]).

The rule, however, is not inflexible and absolute. Under exceptional circumstances, the probate court is not powerless to do what the situation constrains it to do and pass upon certain provisions of the will (Nepomuceno v. Court of Appeals, supra). In Nuguid v. Nuguid the oppositors to the probate moved to dismiss on the ground of absolute preteriton The probate court acting on the motion held that the will in question was a complete nullity and dismissed the petition without costs. On appeal the Supreme Court upheld the decision of the probate court, induced by practical considerations. The Court said:

We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On the contrary, this litigation will be protracted. And for aught that appears in the record, in the event of probate or if the court rejects the will, probability exists that the case will come up once again before us on the same issue of the intrinsic validity or nullity of the will. Result: waste of time, effort, expense, plus added anxiety. These are the practical considerations that induce us to a belief that we might as well meet head-on the issue of the validity of the provisions of the will in question. After all there exists a justiciable controversy crying for solution.

In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the petition by the surviving spouse was grounded on petitioner's lack of legal capacity to institute the proceedings which was fully substantiated by the evidence during the hearing held in connection with said motion. The Court upheld the probate court's order of dismissal.

In Cayetano v. Leonides, supra one of the issues raised in the motion to dismiss the petition deals with the validity of the provisions of the will. Respondent Judge allowed the probate of the will. The Court held that as on its face the will appeared to have preterited the petitioner the respondent judge should have denied its probate outright. Where circumstances demand that intrinsic validity of testamentary provisions be passed upon even before the extrinsic validity of the will is resolved, the probate court should meet the issue. (Nepomuceno v. Court of Appeals,supra; Nuguid v. Nuguid, supra).

In the instant case private respondents filed a motion to dismiss the petition in Sp. Proceedings No. 591 ACEB of the Regional Trial Court of Cebu on the following grounds: (1) petitioner has no legal capacity to institute the proceedings; (2) he is merely a universal heir; and (3) the widow and the adopted daughter have been preterited (Rollo, p. 158). It was denied by the trial court in an order dated January 21, 1985 for the reason that "the grounds for the motion to dismiss are matters properly to be resolved after a hearing on the issues in the course of the trial on the merits of the case (Rollo, p. 32). A subsequent motion for reconsideration was denied by the trial court on February 15, 1985 (Rollo, p. 109).

For private 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 as petitioner and his brothers and sisters were instituted as universal heirs coupled with the obvious fact that one of the private respondents had been preterited 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 (Cayetano v. Leonides, supra; Nuquid v. Nuguid, supra. The remedies of certiorari and prohibition were properly availed of by private respondents.

Thus, this Court ruled that where the grounds for dismissal are indubitable, the defendants had the right to resort to the more speedy, and adequate remedies of certiorari and prohibition to correct a grave abuse of discretion, amounting to lack of jurisdiction, committed by the trial court in not dismissing the case, (Vda. de Bacang v. Court of Appeals, supra) and even assuming the existence of the remedy of appeal, the Court harkens to the rule that in the broader interests of justice, a petition for certiorari may be entertained, particularly where appeal would not afford speedy and adequate relief. (Maninang Court of Appeals, supra).

PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and the questioned decision of respondent Court of Appeals promulgated on August 30, 1985 and its Resolution dated October 23, 1985 are hereby AFFIRMED.

SO ORDERED.

Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur.

G.R. No. L-24365 June 30, 1966

17 SCRA 590

IN THE MATTER OF THE INTESTATE ESTATE OF EDWARD E. CHRISTENSEN, deceased. ADOLFO C. AZNAR, executor and appellee,

vs. MARIA LUCY CHRISTENSEN DUNCAN, oppositor and appellant.

MARIA HELEN CHRISTENSEN, oppositor and appellee.

J. Salonga and L. M. Abellera for oppositor and appellee. Carlos Dominguez, Jr. for executor-appellee. M. R. Sotelo for appellant.

MAKALINTAL, J.:

Edward E. Christensen, a citizen of California with domicile in the Philippines, died leaving a will executed on March 5, 1951. The will was admitted to probate by the Court of First Instance of Davao in its decision of February 28, 1954. In that same decision the court declared that Maria Helen Christensen Garcia (hereinafter referred to as Helen Garcia) was a natural child of the deceased. The declaration was appealed to this Court, and was affirmed in its decision of February 14, 1958 (G.R. No. L-11484).

In another incident relative to the partition of the deceased's estate, the trial court approved the project submitted by the executor in accordance with the provisions of the will, which said court found to be valid under the law of California. Helen Garcia appealed from the order of approval, and this Court, on January 31, 1963, reversed the same on the ground that the validity of the provisions of the will should be governed by Philippine law, and returned the case to the lower court with instructions that the partition be made as provided by said law (G.R. No. L-16749).

On October 29, 1964, the Court of First Instance of Davao issued an order approving the project of partition submitted by the executor, dated June 30, 1964, wherein the properties of the estate were divided equally between Maria Lucy Christensen Duncan (named in the will as Maria Lucy Christensen Daney, and hereinafter referred to as merely Lucy Duncan), whom the testator had expressly recognized in his will as his daughter (natural) and Helen Garcia, who had been judicially declared as such after his death. The said order was based on the proposition that since Helen Garcia had been preterited in the will the institution of Lucy Duncan as heir was annulled, and hence the properties passed to both of them as if the deceased had died intestate, saving only the legacies left in favor of certain other persons, which legacies have been duly approved by the lower court and distributed to the legatees.

The case is once more before us on appeal, this time by Lucy Duncan, on the sole question of whether the estate, after deducting the legacies, should pertain to her and to Helen Garcia in equal shares, or whether the inheritance of Lucy Duncan as instituted heir should be merely reduced to the extent necessary to cover the legitime of Helen Garcia, equivalent to 1/4 of the entire estate.

The will of Edward E. Christensen contains, among others, the following clauses which are pertinent to the issue in this case:

3. I declare ... that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN (Now Mrs. Bernard Daney), who was born in the Philippines about twenty-eight years ago, who is now residing at No. 665 Rodger Young Village, Los Angeles, California, U.S.A.

4. I further declare that I now have no living ascendants, and no descendants except my above-named daughter, MARIA LUCY CHRISTENSEN DANEY.

x x x x x x x x x

7. I give, devise, and bequeath unto MARIA HELEN CHRISTENSEN, now married to Eduardo Garcia, about eighteen years of age and who, notwithstanding the fact that she was baptized Christensen, is not in any way related to me, nor has she been at any time adopted by me, and who, from all information I have now resides in Egpit, Digos, Davao, Philippines, the sum of THREE THOUSAND SIX HUNDRED PESOS (P3,600.00), Philippine Currency, the same to be deposited in trust for the said Maria Helen Christensen with the Davao Branch of the Philippine National Bank, and paid to her at the rate of One Hundred Pesos (P100.00), Philippine Currency per month until the principal thereof as well as any interest which may have accrued thereon, is exhausted.

x x x x x x x x x

12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said MARIA LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney) now residing, as aforesaid, at No. 665 Rodger Young Village, Los Angeles, California, U.S.A., all the income from the rest, remainder, and residue of my property and estate, real, personal and/or mixed, of whatsoever kind or character, and wheresoever situated, of which I may be possessed at my death and which may have come to me from any source whatsoever, during her lifetime; Provided, however, that should the said MARIA LUCY CHRISTENSEN DANEY at anytime prior to her decease having living issue, then and in that event, the life interest herein given shall terminate, and if so terminated, then I give, devise, and bequeath to my daughter, the said MARIA LUCY CHRISTENSEN DANEY the rest, remainder and residue of my property with the same force and effect as if I had originally so given, devised and bequeathed it to her; and provided, further, that should the said MARIA LUCY CHRISTENSEN DANEY die without living issue, then, and in that event, I give, devise and bequeath all the rest, remainder and residue of my property one-half (1/2) to my well-beloved sister, Mrs. CARRIE LOUISE C. BORTON, now residing at No. 2124, Twentieth Street, Bakersfield, California, U.S.A., and one-half (1/2) to the children of my deceased brother, JOSEPH C. CHRISTENSEN, namely: Mrs. Carol F. Ruggaver, of Los Angeles, California, U.S.A., and Joseph Raymond Christensen, of Manhattan Beach, California, U.S.A., share and share alike, the share of any of the three above named who may predecease me, to go in equal parts to the descendants of the deceased; and, provided further, that should my sister Mrs. Carol Louise C. Borton die before my own decease, then, and in that event, the share of my estate devised to her herein I give, devise and bequeath to her children, Elizabeth Borton de Treviño, of Mexico City Mexico; Barbara Borton Philips, of Bakersfield, California, U.S.A., and Richard Borton, of Bakersfield, California, U.S.A., or to the heirs of any of them who may die before my own decease, share and share alike.

The trial court ruled, and appellee now maintains, that there has been preterition of Helen Garcia, a compulsory heir in the direct line, resulting in the annulment of the institution of heir pursuant to Article 854 of the Civil Code, which provides:

ART. 854. 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.

On the other hand, appellant contends that this is not a case of preterition, but is governed by Article 906 of the Civil Code, which says: "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." Appellant also suggests that considering the provisions of the will whereby the testator expressly denied his relationship with Helen Garcia, but left to her a legacy nevertheless although less than the amount of her legitime, she was in effect defectively disinherited within the meaning of Article 918, which reads:

ART. 918. Disinheritance without a specification of the cause, or for a cause the truth of which, if contradicted, is not proved, or which is not one of those set forth in this Code, shall annul the institution of heirs insofar as it may prejudice the person disinherited; but the devices and legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitimate.

Thus, according to appellant, under both Article 906 and 918, Helen Garcia is entitled only to her legitime, and not to a share of the estate equal that of Lucy Duncan as if the succession were intestate.

Article 854 is a reproduction of Article 814 of the Spanish Civil Code; and Article 906 of Article 815. Commenting on Article 815, Manresa explains:

Como dice Goyena, en el caso de pretericion puede presumirse ignorancia o falta de memoria en el testador; en el de dejar algo al heredero forzoso no. Este no se encuentra plivado totalmente de su legitima: ha recibido por cualquir titulo una porcion de los bienes hereditarios, porcion que no alcanza a completar la legitima, pero que influeye poderosamente en el animo del legislador para decidirle a adoptar una solucion bien diferente de la señalada para el caso de pretericion.

El testador no ha olvidado por completo al heredero forzoso; le ha dejado bienes; pero haciendo un calculo equivocado, ha repartido en favor de extraños o en favor de otros legitimarios por via de legado donacion o mejora mayor cantidad de la que la ley de consentia disponer. El heredero forzoso no puede perder su legitima, pero tampoco puede pedir mas que la misma. De aqui su derecho a reclamar solamente lo que le falta; al complemento de la porcion que forzosamente la corresponde.

... Dejar el testador por cualquier titulo, equivale a disponer en testamento por titulo de herencia legado o mejora, y en favor de legitimarios, de alguna cantidad o porcion de bienes menos que la legitima o igual a la misma. Tal sentido, que es el mas proprio en al articulo 815, no pugna tampoco con la doctrina de la ley.Cuando en el testamento se deja algo al heredero forzoso, la pretericion es incompleta: es mas formularia que real. Cuando en el testamento nada se deja el legitimario, hay verdadera pretericion. (6 Manresa, 7th Ed., 1951, p. 437.)

On the difference between preterition of a compulsory heir and the right to ask for completion of his legitime, Sanchez Roman says:

La desheredacion, como expresa, es siempre voluntaria; la pretericion puede serlo pero se presume involuntaria la omision en que consiste en cuanto olvida o no atiende el testador en su testamento a la satisfaccion del derecho a la legitima del heredero forzoso preterido, prescindiendo absoluta y totalmente de el y no mencionandole en ninguna de sus disposiciones testamentarias, o no instituyendole en parte alguna de la herencia, ni por titulo de heredero ni por el de legatar o aunque le mencionara o nombrara sin dejarle mas o menos bienes. Si le dejara algunos, por pocos que sean e insuficientes para cubrir su

legitima, ya no seria caso de pretericion, sino de complemento de aquella. El primer supuesto o de pretericion se regula por el articulo 814, y produce accion de nulidad de la institucion de heredero; y el segundo, o de complemento de legitima por el 815 y solo original la accion ad suplementum, para completar la legitima. (Sanchez Roman, Tomo VI, Vol. 2, p. 1131.)

Manresa defines preterition as the omission of the heir in the will, either by not naming him at all or, while mentioning him as father, son, etc., by not instituting him as heir without disinheriting him expressly, nor assigning to him some part of the properties. Manresa continues:

Se necesita pues (a) Que la omision se refiera a un heredero forzoso; (b) Que la omision sea completa; que el heredero forzoso nada reciba en el testamento.1äwphï1.ñët

x x x x x x x x x

B. Que la omision sea completa — Esta condicion se deduce del mismo Articulo 814 y resulta con evidencia al relacionar este articulo con el 815. El heredero forzoso a quien el testador deja algo por cualquier titulo en su testamento, no se halla propiamente omitido pues se le nombra y se le reconoce participacion en los bienes hereditarios. Podria discutirse en el Articulo 814 si era o no necesario que se reconociese el derecho del heredero como tal heredero, pero el articulo 815 desvanece esta duda. Aquel se ocupa de privacion completa o total, tacita este, de la privacion parcial. Los efectos deben ser y son, como veremos completamente distintos (6 Manresa, p. 428.)

La privacion de la legitima puede ser total o parcial.

Privar totalmente de la legitima es negarla en absoluto al legitimario, despojarle de ella por completo. A este caso se refiere el articulo 814. Privar parcialmente de la legitima, es menguarla o reducirla dejar al legitimario una porcion, menor que la que le corresponde. A este caso se refiere el articulo 815. El 813 sienta, pues, una regla general, y las consecuencias del que brantamiento de esta regla se determina en los articulos 814 y 815. (6 Manresa p. 418.)

Again Sanchez Roman:

QUE LA OMISSION SEA TOTAL. — Aunque el articulo 814 no consigna de modo expreso esta circunstancia de que la pretericion o falta de mencion e institucion o disposicion testamentaria a su favor, sea total, completa y absoluta, asi se deduce de no hacer distincion o salvedad alguna empleandola en terminos generales; pero sirve a confirmarlo de un modo indudable el siguiente articulo 815, al decir que el heredero forzoso a quien el testador haya dejado por cualquier titulo, menos de la legitima que la corresponda, podria pedir el complemento de la misma, lo cual ya no son el caso ni los efectos de la pretericion, que anula la institucion, sino simplemente los del suplemento necesario para cubrir su legitima. (Sanchez Roman — Tomo VI, Vol. 2.0 p. 1133.)

The question may be posed: In order that the right of a forced heir may be limited only to the completion of his legitime (instead of the annulment of the institution of heirs) is it necessary that what has been left to him in the will "by any title," as by legacy, be granted to him in his capacity as heir, that is, a titulo de heredero? In other words, should he be recognized or referred to in the will as heir? This question is pertinent because in the will of the deceased Edward E. Christensen Helen Garcia is not mentioned as an heir — indeed her status as such is denied — but is given a legacy of P3,600.00.

While the classical view, pursuant to the Roman law, gave an affirmative answer to the question, according to both Manresa (6 Manresa 7th 3rd. 436) and Sanchez Roman (Tomo VI, Vol. 2.0 — p. 937), that view was changed by Article 645 of the "Proyecto de Codigo de 1851," later on copied in Article 906 of our own Code. Sanchez Roman, in the citation given above, comments as follows:

RESPECTO DEL COMPLEMENTO DE LA LEGITIMA. — Se inspira el Codigo en esta materia en la doctrina clasica del Derecho romano y patrio (2); pero con alguna racional modificacion. Concedian aquellos precedentes legales al heredero forzoso, a quien no se le dejaba por titulo de tal el completo de su legitima, la accion para invalidar la institucion hecha en el testamento y reclamar y obtener aquella mediante el ejercicio de la querella de inoficioso, y aun cuando resultara favorecido como donotario, por otro titulo que no fuera el de heredero, sino al honor de que se le privaba no dandole este caracter, y solo cuando era instituido heredero en parte o cantidad inferior a lo que le correspondiera por legitima, era cuando bastaba el ejercicio de la accion ad suplementum para completarla, sin necesidad de anular las otras instituciones de heredero o demas disposiciones contenidas en el testamento.

El Articulo 851 se aparta de este criterio estricto y se ajusta a la unica necesidad que le inspira cual es la de que se complete la legitima del heredero forzoso, a quien por cualquier titulo se haya dejado menos de lo que le corresponda, y se le otorga tan solo el derecho de pedir el complemento de la misma sin necesidad de que se anulen las disposiciones testamentarias, que se reduciran en lo que sean inoficiosas conforme al articulo 817, cuya interpretacion y sentido tienen ya en su apoyo la sancion de la jurisprudencia (3); siendo condicion precisa que lo que se hubiere dejado de menos de la legitima al heredero forzoso, lo haya sido en el testamento, o sea por disposicion del testador, segun lo revela el texto del articulo, "el heredero forzoso a quien el testador haya dejado, etc., esto es por titulo de legado o donacion mortis causa en el testamento y, no fuera de al. (Sanchez Roman, Tomo VI, Vol. 2.0 — p. 937.)

Manresa cites particularly three decisions of the Supreme Court of Spain dated January 16, 1895, May 25, 1917, and April 23, 1932, respectively. In each one of those cases the testator left to one who was a forced heir a legacy worth less than the legitime, but without referring to the legatee as an heir or even as a relative, and willed the rest of the estate to other persons. It was held that Article 815 applied, and the heir could not ask that the institution of heirs be annulled entirely, but only that the legitime be completed. (6 Manresa, pp. 438, 441.)

The foregoing solution is indeed more in consonance with the expressed wishes of the testator in the present case as may be gathered very clearly from the provisions of his will. He refused to acknowledge Helen Garcia as his natural daughter, and limited her share to a legacy of P3,600.00. The fact that she was subsequently declared judicially to possess such status is no reason to assume that had the judicial declaration come during his lifetime his subjective attitude towards her would have undergone any change and that he would have willed his estate equally to her and to Lucy Duncan, who alone was expressly recognized by him.

The decision of this Court in Neri, et al. v. Akutin, 74 Phil. 185, is cited by appellees in support of their theory of preterition. That decision is not here applicable, because it referred to a will where "the testator left all his property by universal title to the children by his second marriage, and (that) without expressly disinheriting the children by his first marriage, he left nothing to them or, at least, some of them." In the case at bar the testator did not entirely omit oppositor-appellee Helen Garcia, but left her a legacy of P3,600.00.

The estate of the deceased Christensen upon his death consisted of 399 shares of stocks in the Christensen Plantation Company and a certain amount in cash. One-fourth (1/4) of said estate descended to Helen Garcia as her legitime. Since she became the owner of her share as of the moment of the death of the decedent (Arts. 774, 777, Civil Code), she is entitled to a corresponding portion of all the fruits or increments thereof subsequently accruing. These include the stock dividends on the corporate holdings. The contention of Lucy Duncan that all such dividends pertain to her according to the terms of the will cannot be sustained, for it would in effect impair the right of ownership of Helen Garcia with respect to her legitime.

One point deserves to be here mentioned, although no reference to it has been made in the brief for oppositor-appellant. It is the institution of substitute heirs to the estate bequeathed to Lucy Duncan in the event she should die without living issue. This substitution results in effect from the fact that under paragraph 12 of the will she is entitled only to the income from said estate, unless prior to her decease she should have living issue, in which event she would inherit in full ownership; otherwise the property will go to the other relatives of the testator named in the will. Without deciding this, point, since it is not one of the issues raised before us, we might call attention to the limitations imposed by law upon this kind of substitution, particularly that which says that it can never burden the legitime (Art. 864 Civil Code), which means that the legitime must descend to the heir concerned in fee simple.

Wherefore, the order of the trial court dated October 29, 1964, approving the project of partition as submitted by the executor-appellee, is hereby set aside; and the case is remanded with instructions to partition the hereditary estate anew as indicated in this decision, that is, by giving to oppositor-appellee Maria Helen Christensen Garcia no more than the portion corresponding to her as legitime, equivalent to one-fourth (1/4) of the hereditary estate, after deducting all debts and charges, which shall not include those imposed in the will of the decedent, in accordance with Article 908 of the Civil Code. Costs against appellees in this instance.

Concepcion, C.J., J.B.L. Reyes, Barrera, Dizon, Regala, J.P. Bengzon, Zaldivar and Sanchez, JJ., concur.

R E S O L U T I O N

July 30, 1967

MAKALINTAL, J.:

Oppositor-appellant has filed an ex-parte petition dated July 11, 1966, making reference to an alleged oversight and asking for the corresponding correction, in the last paragraph before the dispositive part of our decision, which reads as follows:

One point deserves to be here mentioned, although no reference to it has been made in the brief for oppositor-appellant. It is the institution of substituted heirs to the estate bequeathed to Lucy Duncan in the event she should die without living issue. This substitution results in effect from the fact that under paragraph 12 of the will she is entitled only to the income from said estate, unless prior to her decease she should have living issue, in which event she would inherit in full ownership; otherwise the property will go to the other relatives of the testator named in the will. Without deciding this point, since it is not one of the issues raised before us, we might call attention to the limitations imposed by law upon this kind of substitution, particularly that which says that it can never burden the legitime (Art. 864, Civil Code), which means that the legitime must descend to the heir concerned in fee simple. (Decision, June 30, 1966, pages 14-15; emphasis ours).

Oppositor-appellant points out that the matter of substitution of heirs was taken up and discussed in her brief particularly in pages 28 and 32 thereof. This is indeed quite true, but the reference to and discussion of the rights of the substitute heirs (called American heirs in the brief) appears to be merely for the purpose of refuting the theory advanced by appellees and not for the purpose of having the rights of said heirs defined in so far as, under the terms of the will, they may affect the legitime of oppositor-appellant. This point of course was not and could hardly have been squarely raised as an issue inasmuch as the substitute heirs are not parties in this case. We have nevertheless called attention "to the limitations imposed by law upon this kind of substitution," because in the brief for oppositor-appellant, at page 45, she makes the conclusion "that the Last Will and Testament of Edward E. Christensen are valid under Philippine Law and must be given full force and effect;" and to give them full force and effect would precisely affect the legitime of oppositor-appellant.

Wherefore, the last paragraph before the dispositive part of our decision quoted above is amended by eliminating the following phrase in the first sentence: "although no reference to it has been made in the brief for oppositor-appellant."

Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur. Regala and Castro, JJ., took no part.

G.R. No. L-57848 June 19, 1982

114 SCRA 478

RAFAEL E. MANINANG and SOLEDAD L. MANINANG, petitioners, vs.

COURT OF APPEALS, HON. RICARDO L. PRONOVE, JR., as Judge of the Court of First Instance of Rizal and BERNARDO S. ASENETA, respondents.

MELENCIO-HERRERA, J.:

A Petition to Review the Decision of April 28, 1981 of respondent Appellate Court in CA-G.R. No. 12032-R entitled "Rafael E. Maninang and Soledad L. Maninang vs. Hon. Ricardo Pronove, Judge of the Court of First Instance of Rizal, Pasig, Branch XI, and Bernardo S. Aseneta".

Pertinent to the controversy are the following antecedental facts:

On May 21, 1977, Clemencia Aseneta, single, died at the Manila Sanitarium Hospital at age 81. She left a holographic will, the pertinent portions of which are quoted hereunder:

xxx xxx xxx

It is my will that all my real properties located in Manila, Makati, Quezon City, Albay and Legaspi City and all my personal properties shagllbe inherited upon my death by Dra. Soledad L. Maninang with whose family I have lived continuously for around the last 30 years now. Dra. Maninang and her husband Pamping have been kind to me. ... I have found peace and happiness with them even during the time when my sisters were still alive and especially now when I am now being troubled by my nephew Bernardo and niece Salvacion. I am not incompetent as Nonoy would like me to appear. I know what is right and wrong. I can decide for myself. I do not consider Nonoy as my adopted son. He has made me do things against my will.

xxx xxx xxx

On June 9, 1977, petitioner Soledad Maninang filed a Petition for probate of the Will of the decedent with the Court of First Instance-Branch IV, Quezon City (Sp. Proc. No. Q-23304, hereinafter referred to as the Testate Case).

On July 25, 1977, herein respondent Bernardo Aseneta, who, as the adopted son, claims to be the sole heir of decedent Clemencia Aseneta, instituted intestate proceedings with the Court of First Instance-Branch XI, Pasig, Rizal (Sp. Proc. No. 8569, called hereinafter the Intestate Case" for brevity).

On December 23, 1977, the Testate and Intestate Cases were ordered consolidated before Branch XI, presided by respondent Judge.

Respondent Bernardo then filed a Motion to Dismiss the Testate Case on the ground that the holographic will was null and void because he, as the only compulsory heir, was preterited and, therefore, intestacy should ensue. In support of said Motion to Dismiss, respondent Bernardo cited

the cases of Neri vs. Akutin (72 Phil. 322); Nuguid vs. Nuguid (17 SCRA 449), and Ramos vs. Baldovino (2 CA Rep. 2nd, 878). 1

In her Opposition to said Motion to Dismiss, petitioner Soledad averred that it is still the rule that in a case for probate of a Will, the Court's area of inquiry is limited to an examination of and resolution on the extrinsic validity of the will; and that respondent Bernardo was effectively disinherited by the decedent. 2

On September 8, 1980, the lower Court ordered the dismissal of the Testate Case in this wise:

For reasons stated in the motion to dismiss filed by petitioner Bernardo S. Aseneta which the Court finds meritorious, the petition for probate of will filed by Soledad L. Maninang and which was docketed as Sp. Proc. No. Q-23304 is DISMISSED, without pronouncement as to costs.

On December 19, 1980, the lower Court denied reconsideration for lack of merit and in the same Order appointed Bernardo as the administrator of the intestate estate of the deceased Clemencia Aseneta "considering that he is a forced heir of said deceased while oppositor Soledad Maninang is not, and considering further that Bernardo Aseneta has not been shown to be unfit to perform the duties of the trust. "

Petitioners Maninang resorted to a certiorari Petition before respondent Court of Appeals alleging that the lower Court exceeded its jurisdiction in issuing the Orders of dismissal of the Testate Case (September 8, 1980) and denial of reconsideration (December 19, 1980).

On April 28, 1981, respondent Court 3 denied certiorari and ruled that the trial Judge's Order of dismissal was final in nature as it finally disposed of the Testate Case and, therefore, appeal was the proper remedy, which petitioners failed to avail of. Continuing, it said that even granting that the lower Court committed errors in issuing the questioned Orders, those are errors of judgment reviewable only by appeal and not by Certiorari. 'Thus, this Petition before us.

We find that the Court a quo a quo acted in excess of its jurisdiction when it dismissed the Testate Case. Generally, the probate of a Will is mandatory.

No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. 4

The law enjoins the probate of the Will and public policy requires it, because unless the Will is probated and notice thereof given to the whole world, the right of a person to dispose of his property by Will may be rendered nugatory. 5

Normally, the probate of a Will does not look into its intrinsic validity.

... The authentication of a will decides no other question than such as touch upon the capacity of the testator and the compliance with those requisites or solemnities which the law prescribes for the validity of wills. It does not determine nor even by implication prejudge the validity or efficiency (sic) of the provisions, these may be impugned as being vicious or null, notwithstanding its authentication. The que0stions relating to these points remain entirely unaffected, and may be raised even after the will has been authenticated .... 6

Opposition to the intrinsic validity or legality of the provisions of the will cannot be entertained in Probate proceeding because its only purpose is merely to determine if the will has been executed in accordance with the requirements of the law. 7

Respondent Bernardo, however, relies on the pronouncement in Nuguid vs. Nuguid 8, reading:

In a proceeding for the probate of a will, the Court's area of inquiry is limited to an examination of, and resolution on, 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 that issue. (Emphasis supplied)

Our ruling in Balanay vs. Hon. Martinez 9 had a similar thrust:

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.

The Nuguid and the Balanay cases provide the exception rather than the rule. The intrinsic validity of the Wills in those cases was passed upon even before probate because "practical considerations" so demanded. Moreover, for the parties in the Nuguid case, the "meat of the controversy" was the intrinsic validity of the Will; in fact, the parties in that case "shunted aside the question of whether or not the Will should be allowed probate." Not so in the case before us now where the probate of the Will is insisted on by petitioners and a resolution on the extrinsic validity of the Will demanded.

Moreover, in the Nuguid case, this Court ruled that the Will was intrinsically invalid as it completely preterited the parents of the testator. In the instant case, a crucial issue that calls for resolution is whether under the terms of the decedent's Will, private respondent had been preterited or disinherited, and if the latter, whether it was a valid disinheritance. Preterition and disinheritance are two diverse concepts.

... Preterition "consists in the omission in the testator's will of the forced heirs or anyone of them, either because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly disinherited." (Neri vs. Akutin, 72 Phil. 325). Disinheritance, in turn, "is a testamentary disposition depriving any compulsory heirs of his share in the legitimate for a cause authorized by law." (Justice J.B.L. Reyes and R.C. Puno, "An Outline of Philippine Civil Law", 1956 ed., Vol. III, p. 8, citing cases) Disinheritance is always "voluntary", preterition upon the other hand, is presumed to be "involuntary" (Sanchez Roman, Estudios de Derecho Civil 2nd edition, Volume 2.o p. 1131). 10

The effects of preterition and disinheritance are also totally different.

... The effects flowing from preterition are totally different from those of disinheritance. Pretention under Article 854 of the New Civil Code shall annul the institution of heir. This annulment is in toto, unless in the wail there are, in addition, testamentary dispositions in the form of devises or legacies. In ineffective

disinheritance under Article 918 of the same Code, such disinheritance shall also "annul the institution of heirs", but only "insofar as it may prejudice the person disinherited", which last phrase was omitted in the case of preterition (III Tolentino, Civil Code of the Philippines, 1961 Edition, p. 172). Better stated yet, in disinheritance the nullity is limited to that portion of the estate of which the disinherited heirs have been illegally deprived. 11

By virtue of the dismissal of the Testate Case, the determination of that controversial issue has not been thoroughly considered. We gather from the assailed Order of the trial Court that its conclusion was that respondent Bernardo has been preterited We are of opinion, however, that from the face of the Will, that conclusion is not indubitable.

As held in the case of Vda. de Precilla vs. Narciso 12

... it is as important a matter of public interest that a purported will is not denied legalization on dubious grounds. Otherwise, the very institution of testamentary succession will be shaken to its foundation, ...

Coming now to the procedural aspect, suffice it to state that in view of our finding that respondent Judge had acted in excess of his jurisdiction in dismissing the Testate Case, certiorari is a proper remedy. An act done by a Probate Court in excess of its jurisdiction may be corrected by Certiorari. 13 And even assuming the existence of the remedy of appeal, we harken to the rule that in

the broader interests of justice, a petition for certiorari may be entertained, particularly where appeal would not afford speedy and adequate relief.

WHEREFORE, the Decision in question is set aside and the Orders of the Court of First Instance-Branch XI, Rizal, dated September 8, 1980 and December 19, 1980, are nullified. Special Proceeding No. Q-23304 is hereby remanded to said Court of First Instance-Branch XI. Rizal, therein to be reinstated and consolidated with Special Proceeding No. 8569 for further proceedings.

No pronouncement as to costs.

SO ORDERED.

Teehankee (Chairman), Makasiar, Plana and Relova JJ., concur.

Vasquez, J., took no part.

Gutierrez, Jr., J., I concur.

G.R. No. L-31703 February 13, 1930

54 Phil 431

CARMEN G. DE PEREZ, trustee of the estate of Ana Maria Alcantara, plaintiff-appellee, vs.

MARIANO GARCHITORENA, and JOSE CASIMIRO, Sheriff of the Court of First Instance of Manila,defendants-appellants.

L. D. Lockwood and Jose M. Casal for appellants. Eduardo Gutierrez Repide and Leoncio B. Monzon for appellee.

ROMUALDEZ, J.:

The amount of P21,428.58 is on deposit in the plaintiff's name with the association known as La Urbana in Manila, as the final payment of the liquidated credit of Ana Maria Alcantara, deceased, whose heiress is said plaintiff, against Andres Garchitorena, also deceased, represented by his son, the defendant Mariano Garchitorena.

And as said Mariano Garchitorena held a judgment for P7,872.23 against Joaquin Perez Alcantara, husband of the plaintiff, Carmen G. de Perez, the sheriff pursuant to the writ of execution issued in said judgment, levied an attachment on said amount deposited with La Urbana.

The plaintiff, alleging that said deposit belongs to the fideicommissary heirs of the decedent Ana Maria Alcantara, secured a preliminary injunction restraining the execution of said judgment on the sum so attached. The defendants contend that the plaintiff is the decedent's universal heiress, and pray for the dissolution of the injunction.

The court below held that said La Urbana deposit belongs to the plaintiff's children as fideicommissary heirs of Ana Maria Alcantara, and granted a final writ of injunction.

The defendants insist in their contentions, and, in their appeal from the decision of the trial court, assign the following errors:

1. The lower court erred in holding that a trust was created by the will of Doña Ana Maria Alcantara.

2. The lower court erred in concluding and declaring that the amount of P21,428.58 deposited with La Urbana is the property of the children of the plaintiff as "herederos fidei-comisarios."

3. The lower court erred in making the injunction permanent and condemning defendant to pay the costs.

The question here raised is confined to the scope and meaning of the institution of heirs made in the will of the late Ana Maria Alcantara already admitted to probate, and whose legal force and effect is not in dispute.

The clauses of said will relevant to the points in dispute, between the parties are the ninth, tenth, and eleventh, quoted below:

Ninth. Being single and without any forced heir, to show my gratitude to my niece-in-law, Carmen Garchitorena, of age, married to my nephew, Joaquin Perez Alcantara, and living in this same house with me, I institute her as my sole and universal heiress to the remainder of my estate after the payment of my debts and legacies, so that upon my death and after probate of this will, and after the report of the committee on claims and appraisal has been rendered and approved, she will receive from my executrix and properties composing my hereditary estate, that she may enjoy them with God's blessing and my own.

Tenth. Should my heiress Carmen Garchitorena die, I order that my whole estate shall pass unimpaired to her surviving children; and should any of these die, his share shall serve to increase the portions of his surviving brothers (and sisters) by accretion, in such wise that my estate shall never pass out of the hands of my heiress or her children in so far as it is legally possible.

Eleventh. Should my aforesaid heiress, Carmen Garchitorena, die after me while her children are still in their minority, I order that my estate be administered by my executrix, Mrs. Josefa Laplana, and in her default, by Attorney Ramon Salinas and in his default, by his son Ramon Salinas; but the direction herein given must not be considered as an indication of lack of confidence in my nephew Joaquin Perez Alcantara, whom I relieve from the duties of administering my estate, because I recognize that his character is not adapted to management and administration.

The appellants contend that in these clauses the testatrix has ordered a simple substitution, while the appellee contends that it is a fideicommissary substitution.

This will certainly provides for a substitution of heirs, and of the three cases that might give rise to a simple substitution (art. 774, Civil Code), only the death of the instituted heiress before the testatrix would in the instant case give place to such substitution, inasmuch as nothing is said of the waiver of inheritance, or incapacity to accept it. As a matter of fact, however, clause XI provides for the administration of the estate in case the heiress instituted should die after the testatrix and while the substitute heirs are still under age. And it is evident that, considering the nature of simple substitution by the heir's death before the testator, and the fact that by clause XI in connection with clause X, the substitution is ordered where the heiress instituted dies after the testatrix, this cannot be a case of simple substitution.

The existence of a substitution in the will is not and cannot be denied, and since it cannot be a simple substitution in the light of the considerations above stated, let us now see whether the instants case is a fideicommissary substitution.

In clause IX, the testatrix institutes the plaintiff herein her sole and universal heiress, and provides that upon her death (the testatrix's) and after probate of the will and approval of the report of the committee on claims and appraisal, said heiress shall receive and enjoy the whole hereditary estate. Although this clause provides nothing explicit about substitution, it does not contain anything in conflict with the idea of fideicommissary substitution. The fact that the plaintiff was instituted the sole and universal heiress does not prevent her children from receiving, upon her death and in conformity with the express desire of the testatrix, the latter's hereditary estate, as provided in the following (above quoted) clauses which cannot be disregarded if we are to give a correct interpretation of the will. The word sole does not necessarily exclude the idea of substitute heirs; and taking these three clauses together, such word means that the plaintiff is the sole heiress instituted in the first instance.

The disposition contained in clause IX, that said heiress shall receive and enjoy the estate, is not incompatible with a fideicommissary substitution (it certainly is incompatible with the idea of simple

substitution, where the heiress instituted does not receive the inheritance). In fact the enjoyment of the inheritance is in conformity with the idea of fideicommissary substitution, by virtue of which the heir instituted receives the inheritance and enjoys it, although at the same time he preserves it in order to pass it on the second heir. On this point the illustrious Manresa, in his Civil Code (Vol. 6, pp. 142 and 143, 5th ed.), says:

Or, what amounts to the same thing, the fideicommissary substitution, as held in the Resolution of June 25, 1895, February 10, 1899, and July 19, 1909, requires three things:

1. A first heir called primarily to the enjoyment of the estate.

2. An obligation clearly imposed upon him to preserve and transmit to a third person the whole or a part of the estate.

3. A second heir.

To these requisites, the decision of November 18, 1918 adds another, namely that the fideicommissarius be entitled to the estate from the time the testator dies, since he is to inherit from the latter and not from the fiduciary. (Emphasis ours.)

It appears from this quotation that the heir instituted or the fiduciary, as referred to in articles 783 of the Civil Code, is entitled to enjoy the inheritance. And it might here be observed, as a timely remark, that the fideicommissum arising from a fideicommissary substitution, which is of Roman origin, is not exactly equivalent to, nor may it be confused with, the English "trust."

It should also be noted that said clause IX vests in the heiress only the right to enjoy but not the right to dispose of the estate. It says, she may enjoy it, but does not say she may dispose of it. This is an indication of the usufruct inherent in fideicommissary substitution.

Clause X expressly provides for the substitution. It is true that it does not say whether the death of the heiress herein referred to is before or after that of the testatrix; but from the whole context it appears that in making the provisions contained in this clause X, the testatrix had in mind a fideicommissary substitution, since she limits the transmission of her estate to the children of the heiress by this provision, "in such wise that my estate shall never pass out of the hands of my heiress or her children in so far as it is legally possible." Here it clearly appears that the testatrix tried to avoid the possibility that the substitution might later be legally declared null for transcending the limits fixed by article 781 of the Civil Code which prescribed that fideicommissary substitutions shall be valid "provided they do not go beyond the second degree."

Another clear and outstanding indication of fideicommissary substitution in clause X is the provision that the wholeestate shall pass unimpaired to the heiress's children, that is to say the heiress is required to preserve the whole estate, without diminution, in order to pass it on in due time to the fideicommissary heirs. This provision complies with another of the requisites of fideicommissary substitution according to our quotation from Manresa inserted above.

Lastly, clause XI more clearly indicates the idea of fideicommissary substitution, when a provision is therein made in the event the heiress should die after the testatrix. That is, said clause anticipates the case where the instituted heiress should die after the testatrix and after receiving and enjoying the inheritance.

The foregoing leads us to the conclusion that all the requisites of a fideicommissary substitution, according to the quotation from Manresa above inserted, are present in the case of substitution now under consideration, to wit:

1. At first heir primarily called to the enjoyment of the estate. In this case the plaintiff was instituted an heiress, called to the enjoyment of the estate, according to clause IX of the will.

2. An obligation clearly imposed upon the heir to preserve and transmit to a third person the whole or a part of the estate. Such an obligation is imposed in clause X which provides that the "whole estate shall pass unimpaired to her (heiress's) surviving children;" thus, instead of leaving the heiress at liberty to dispose of the estate by will, or of leaving the law to take its course in case she dies intestate, said clause not only disposes of the estate in favor of the heiress instituted, but also provides for the disposition thereof in case she should die after the testatrix.

3. A second heir. Such are the children of the heiress instituted, who are referred to as such second heirs both in clause X and in clause XI.

Finally, the requisite added by the decision of November 18, 1918, to wit, that the fideicommissarius or second heir should be entitled to the estate from the time of the testator's death, which in the instant case, is, rather than a requisite, a necessary consequence derived from the nature of the fideicommissary substitution, in which the second heir does not inherit from the heir first instituted, but from the testator.

By virtue of this consequence, the inheritance in question does not belong to the heiress instituted, the plaintiff herein, as her absolute property, but to her children, from the moment of the death of the testatrix, Ana Maria Alcantara.

Therefore, said inheritance, of which the amount referred to at the beginning, which is on deposit with the association known as La Urbana in the plaintiff's name, is a part, does not belong to her nor can it be subject to the execution of the judgment against Joaquin Perez, who is not one of the fideicommissary heirs.

The judgment appealed from is affirmed, with costs against the appellant, Mariano Garchitorena. So ordered.

Johnson, Malcolm, Villamor, Ostrand, Johns and Villa-Real, JJ., concur. Street, J., reserves his vote.

G.R. No. L-27952 February 15, 1982

111 SCRA 704

TESTATE ESTATE OF JOSE EUGENIO RAMIREZ, MARIA LUISA PALACIOS, Administratrix, petitioner-appellee,

vs. MARCELLE D. VDA. DE RAMIREZ, ET AL., oppositors, JORGE and ROBERTO

RAMIREZ, legatees, oppositors- appellants.

ABAD SANTOS, J.:

The main issue in this appeal is the manner of partitioning the testate estate of Jose Eugenio Ramirez among the principal beneficiaries, namely: his widow Marcelle Demoron de Ramirez; his two grandnephews Roberto and Jorge Ramirez; and his companion Wanda de Wrobleski.

The task is not trouble-free because the widow Marcelle is a French who lives in Paris, while the companion Wanda is an Austrian who lives in Spain. Moreover, the testator provided for substitutions.

Jose Eugenio Ramirez, a Filipino national, died in Spain on December 11, 1964, with only his widow as compulsory heir. His will was admitted to probate by the Court of First Instance of Manila, Branch X, on July 27, 1965. Maria Luisa Palacios was appointed administratrix of the estate. In due time she submitted an inventory of the estate as follows:

INVENTARIO

Una sexta parte (1/6) proindiviso de un te

rreno, con sus mejoras y edificaciones, situadoen

la Escolta, Manila............................................................. P500,000.00

Una sexta parte (1/6) proindiviso de dos

parcelas de terreno situadas en Antipolo, Rizal................... 658.34

Cuatrocientos noventa y uno (491) acciones

de la 'Central Azucarera de la Carlota a P17.00

por accion ................................................................................8,347.00

Diez mil ochocientos seize (10,806) acciones

de la 'Central Luzon Milling Co.', disuelta y en

liquidacion a P0.15 por accion ..............................................1,620.90

Cuenta de Ahorros en el Philippine Trust

Co.............................................................................................. 2,350.73

TOTAL.............................................................. P512,976.97

MENOS:

Deuda al Banco de las Islas Filipinas, garan-

tizada con prenda de las acciones de La Carlota ......... P 5,000,00

VALOR LIQUIDO........................................... P507,976.97

The testamentary dispositions are as follows:

A.—En nuda propiedad, a D. Roberto y D. Jorge Ramirez, ambas menores de edad, residentes en Manila, I.F., calle 'Alright, No. 1818, Malate, hijos de su sobrino D. Jose Ma. Ramirez, con sustitucion vulgar a favor de sus respectivos descendientes, y, en su defecto, con sustitucion vulgar reciprocal entre ambos.

El precedente legado en nuda propiedad de la participacion indivisa de la finca Santa Cruz Building, lo ordena el testador a favor de los legatarios nombrados, en atencion a que dicha propiedad fue creacion del querido padre del otorgante y por ser aquellos continuadores del apellido Ramirez,

B.—Y en usufructo a saber: —

a. En cuanto a una tercera parte, a favor de la esposa del testador, Da. Marcelle Ramirez, domiciliada en IE PECO, calle del General Gallieni No. 33, Seine Francia, con sustitucion vulgar u fideicomisaria a favor de Da. Wanda de Wrobleski, de Palma de Mallorca, Son Rapina Avenida de los Reyes 13,

b.—Y en cuanto a las dos terceras partes restantes, a favor de la nombrada Da. Wanda de Nrobleski con sustitucion vulgar v fideicomisaria a saber:—

En cuanto a la mitad de dichas dos terceras partes, a favor de D. Juan Pablo Jankowski, de Son Rapina Palma de Mallorca; y encuanto a la mitad restante, a favor de su sobrino, D. Horace V. Ramirez, San Luis Building, Florida St. Ermita, Manila, I.F.

A pesar de las sustituciones fideiconiisarias precedentemente ordinadas, las usufiructuarias nombradas conjuntamente con los nudo propietarios, podran en cualquier memento vender a tercero los bienes objeto delegado, sin intervencion alguna de los titulares fideicomisaarios.

On June 23, 1966, the administratrix submitted a project of partition as follows: the property of the deceased is to be divided into two parts. One part shall go to the widow 'en pleno dominio" in satisfaction of her legitime; the other part or "free portion" shall go to Jorge and Roberto Ramirez "en nuda propriedad." Furthermore, one third (1/3) of the free portion is charged with the widow's usufruct and the remaining two-thirds (2/3) with a usufruct in favor of Wanda.

Jorge and Roberto opposed the project of partition on the grounds: (a) that the provisions for vulgar substitution in favor of Wanda de Wrobleski with respect to the widow's usufruct and in favor of Juan Pablo Jankowski and Horacio V. Ramirez, with respect to Wanda's usufruct are invalid because the first heirs Marcelle and Wanda) survived the testator; (b) that the provisions for fideicommissary substitutions are also invalid because the first heirs are not related to the second heirs or substitutes within the first degree, as provided in Article 863 of the Civil Code; (c) that the grant of a usufruct over real property in the Philippines in favor of Wanda Wrobleski, who is an alien, violates Section 5, Article III of the Philippine Constitution; and that (d) the proposed partition of the testator's interest in the Santa Cruz (Escolta) Building between the widow Marcelle and the appellants, violates the testator's express win to give this property to them Nonetheless, the lower court approved the project of partition in its order dated May 3, 1967. It is this order which Jorge and Roberto have appealed to this Court.

1. The widow's legitime.

The appellant's do not question the legality of giving Marcelle one-half of the estate in full ownership. They admit that the testator's dispositions impaired his widow's legitime. Indeed, under Art. 900 of the Civil Code "If the only survivor is the widow or widower, she or he shall be entitled to one-half of the hereditary estate." And since Marcelle alone survived the deceased, she is entitled to one-half of his estate over which he could impose no burden, encumbrance, condition or substitution of any kind whatsoever. (Art. 904, par. 2, Civil Code.)

It is the one-third usufruct over the free portion which the appellants question and justifiably so. It appears that the court a quo approved the usufruct in favor of Marcelle because the testament provides for a usufruct in her favor of one-third of the estate. The court a quo erred for Marcelle who is entitled to one-half of the estate "en pleno dominio" as her legitime and which is more than what she is given under the will is not entitled to have any additional share in the estate. To give Marcelle more than her legitime will run counter to the testator's intention for as stated above his dispositions even impaired her legitime and tended to favor Wanda.

2. The substitutions.

It may be useful to recall that "Substitution is the appoint- judgment of another heir so that he may enter into the inheritance in default of the heir originally instituted." (Art. 857, Civil Code. And that there are several kinds of substitutions, namely: simple or common, brief or compendious, reciprocal, and fideicommissary (Art. 858, Civil Code.) According to Tolentino, "Although the Code enumerates four classes, there are really only two principal classes of substitutions: the simple and the fideicommissary. The others are merely variations of these two." (111 Civil Code, p. 185 [1973].)

The simple or vulgar is that provided in Art. 859 of the Civil Code which reads:

ART. 859. The testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or heirs should die before him, or should not wish, or should be incapacitated to accept the inheritance.

A simple substitution, without a statement of the cases to which it refers, shall comprise the three mentioned in the preceding paragraph, unless the testator has otherwise provided.

The fideicommissary substitution is described in the Civil Code as follows:

ART. 863. A fideicommissary substitution by virtue of which the fiduciary or first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of inheritance, shall be valid and shall take effect, provided such substitution does not go beyond one degree from the heir originally instituted, and provided further that the fiduciary or first heir and the second heir are living at time of the death of the testator.

It will be noted that the testator provided for a vulgar substitution in respect of the legacies of Roberto and Jorge Ramirez, the appellants, thus: con sustitucion vulgar a favor de sus respectivos descendientes, y, en su defecto, con substitution vulgar reciprocal entre ambos.

The appellants do not question the legality of the substitution so provided. The appellants question the sustitucion vulgar y fideicomisaria a favor de Da. Wanda de Wrobleski" in connection with the one-third usufruct over the estate given to the widow Marcelle However, this question has become moot because as We have ruled above, the widow is not entitled to any usufruct.

The appellants also question the sustitucion vulgar y fideicomisaria in connection with Wanda's usufruct over two thirds of the estate in favor of Juan Pablo Jankowski and Horace v. Ramirez.

They allege that the substitution in its vulgar aspect as void because Wanda survived the testator or stated differently because she did not predecease the testator. But dying before the testator is not the only case for vulgar substitution for it also includes refusal or incapacity to accept the inheritance as provided in Art. 859 of the Civil Code, supra. Hence, the vulgar substitution is valid.

As regards the substitution in its fideicommissary aspect, the appellants are correct in their claim that it is void for the following reasons:

(a) The substitutes (Juan Pablo Jankowski and Horace V. Ramirez) are not related to Wanda, the heir originally instituted. Art. 863 of the Civil Code validates a fideicommissary substitution "provided such substitution does not go beyond one degree from the heir originally instituted."

What is meant by "one degree" from the first heir is explained by Tolentino as follows:

Scaevola Maura, and Traviesas construe "degree" as designation, substitution, or transmission. The Supreme Court of Spain has decidedly adopted this construction. From this point of view, there can be only one tranmission or substitution, and the substitute need not be related to the first heir. Manresa, Morell and Sanchez Roman, however, construe the word "degree" as generation, and the present Code has obviously followed this interpretation. by providing that the substitution shall not go beyond one degree "from the heir originally instituted." The Code thus clearly indicates that the second heir must be related to and be one generation from the first heir.

From this, it follows that the fideicommissary can only be either a child or a parent of the first heir. These are the only relatives who are one generation or degree from the fiduciary (Op. cit., pp. 193-194.)

(b) There is no absolute duty imposed on Wanda to transmit the usufruct to the substitutes as required by Arts. 865 and 867 of the Civil Code. In fact, the appellee admits "that the testator contradicts the establishment of a fideicommissary substitution when he permits the properties subject of the usufruct to be sold upon mutual agreement of the usufructuaries and the naked owners." (Brief, p. 26.)

3. The usufruct of Wanda.

The appellants claim that the usufruct over real properties of the estate in favor of Wanda is void because it violates the constitutional prohibition against the acquisition of lands by aliens.

The 1935 Constitution which is controlling provides as follows:

SEC. 5. Save in cases of hereditary succession, no private agricultural land shall be transferred or assigned except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain in the Philippines. (Art. XIII.)

The court a quo upheld the validity of the usufruct given to Wanda on the ground that the Constitution covers not only succession by operation of law but also testamentary succession. We are of the opinion that the Constitutional provision which enables aliens to acquire private lands does not extend to testamentary succession for otherwise the prohibition will be for naught and meaningless. Any alien would be able to circumvent the prohibition by paying money to a Philippine landowner in exchange for a devise of a piece of land.

This opinion notwithstanding, We uphold the usufruct in favor of Wanda because a usufruct, albeit a real right, does not vest title to the land in the usufructuary and it is the vesting of title to land in favor of aliens which is proscribed by the Constitution.

IN VIEW OF THE FOREGOING, the estate of Jose Eugenio Ramirez is hereby ordered distributed as follows:

One-half (1/2) thereof to his widow as her legitime;

One-half (1/2) thereof which is the free portion to Roberto and Jorge Ramirez in naked ownership and the usufruct to Wanda de Wrobleski with a simple substitution in favor of Juan Pablo Jankowski and Horace V. Ramirez.

The distribution herein ordered supersedes that of the court a quo. No special pronouncement as to costs.

SO ORDERED.

Barredo (Chairman), Concepcion, Jr., De Castro, Ericta and Escolin, JJ., concur.

Aquino J., took no part.

G.R. No. L-13876 February 28, 1962

4 SCRA 491

CONSOLACION FLORENTINO DE CRISOLOGO, ET AL., plaintiffs-appellees, vs.

DR. MANUEL SINGSON, defendant-appellant.

Felix V. Vergara for defendant-appellant. B. Martinez for plaintiffs-appellees.

DIZON, J.:

Action for partition commenced by the spouses Consolacion Florentino and Francisco Crisologo against Manuel Singson in connection with a residential lot located a Plaridel St., Vigan, Ilocos Sur, with an area of approximately 193 square meters, and the improvements existing thereon, covered by Tax No. 10765-C. Their complaint alleged that Singson owned one-half pro-indiviso of said property and that Consolacion Florentino owned the other half by virtue of the provisions of the duly probated last will of Dña. Leona Singson, the original owner, and the project of partition submitted to, and approved by the Court of First Instance of Ilocos Sur in special Proceeding No. 453; that plaintiffs had made demands for the partition of said property, but defendant refused to accede thereto, thus compelling them to bring action.

Defendant's defense was that Consolacion Florentino was a mere usufructuary of, and not owner of one-half pro-indiviso of the property in question, and that, therefore, she was not entitled to demand partition thereof.

After trial upon the issue thus posed, the lower court rendered judgment as follows:

1. Declaring that the plaintiff is a co-owner pro-indiviso with the defendant of the house and lot described in the complaint to the extent of each of an undivided 1/2 portion thereof; .

2. Ordering the aforesaid co-owners to execute an agreement of partition of the said property within 30 days from receipt of this judgment unless it be shown that the division thereof may render it unserviceable, in which case the provisions of Art. 498 of the New Civil Code may be applied; .1äw phï1.ñët

3. That in the event the said parties shall fail to do so, this Court will appoint the corresponding commissioners to make the partition in accordance with law; and .

4. Without special pronouncement as to costs." .

From the above judgment, defendant Singson appealed.

It is admitted that Dña. Leona Singson, who died single on January 13, 1948, was the owner of the property in question at the time of her death. On July 31, 1951 she executed her last will which was admitted to probate in Special Proceeding No. 453 of the lower court whose decision was affirmed by the Court of Appeals in G.R. No. 3605-R. At the time of the execution of the will, her nearest living relatives were her brothers Evaristo, Manuel and Dionisio Singson, her nieces Rosario, Emilia and Trinidad, and her grandniece Consolation, all surnamed Florentino.

Clause IX of her last will reads as follows: .

NOVENO. — Ordeno que se de a mi nieta por parte de mi hermana mia y que al mismo tiempo vive en mi casa, y, por tanto, bajo mi proteccion, y es la CONSOLACION FLORENTINO: —

(A). La mitad de mi casa de materials fuertes con techo de hierro galvanizado, incluyendo la mitad de su solar, ubicado en la Poblacion de Vigan, Ilocos Sur, Calle Plaridel, actualmente arrendada por los hermanos Fortunato, Teofilo y Pedro del appellido Kairuz. Pero si falleciere antes o despues que yo mi citada nieta, esta propiedad se dara por partes iguales entre mis tres hermanos Evaristo, Manuel y Dionisio, o a sus herederos forzosos en el caso de que alguno de ellas murieie antes ... (Exhibit F.)

The issue to be decided is whether the testamentary disposition above-quoted provided for what is calledsustitucion vulgar or for a sustitucion fideicomisaria. This issue is, we believe, controlled by the pertinent provisions of the Civil Code in force in the Philippines prior to the effectivity of the New Civil Code, in view of the fact that the testatrix died on January 13, 1948. They are the following: .

Art. 774. The testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or heirs should die before him, or should not wish or should be unable to accept the inheritance.

A simple substitution, without a statement of the cases to which it is to apply, shall include the three mentioned in the next preceeding paragraph, unless the testator has otherwise provided:

Art. 781. Fidei-commissary substitutions by virtue of which the heir is charged to preserve and transmit to a third person the whole or part of the inheritance shall be valid and effective, provided they do not go beyond the second degree, or that they are made in favor of persons living at the time of the death of the testator." .

Art. 785. The following shall be inoperative: .

1. Fiduciary substitutions not made expressly, either by giving them this name or by imposing upon the fiduciary the absolute obligation of delivering the property to a second heir." ....

In accordance with the first legal provision quoted above, the testator may not only designate the heirs who will succeed him upon his death, but also provide for substitutes in the event that said heirs do not accept or are in no position to accept the inheritance or legacies, or die ahead of him.

The testator may also bequeath his properties to a particular person with the obligation, on the part of the latter, to deliver the same to another person, totally or partially, upon the occurrence of a particular event (6 Manresa, p. 1112).

It is clear that the particular testamentary clause under consideration provides for a substitution of the heir named therein in this manner: that upon the death of Consolacion Florentino — whether this occurs before or after that of the testatrix — the property bequeathed to her shall be delivered ("se dara") or shall belong in equal parts to the testatrix's three brothers, Evaristo, Manuel and Dionisio, or their forced heirs, should anyone of them die ahead of Consolacion Florentino. If this clause created what is known as sustitucion vulgar, the necessary result would be that Consolacion Florentino, upon the death of the testatrix, became the owner of one undivided half of the property,

but if it provided for a sustitution fideicomisaria, she would have acquired nothing more than usufructuary rights over the same half. In the former case, she would undoubtedly be entitled to partition, but not in the latter. As Manresa says, if the fiduciary did not acquire full ownership of the property bequeathed by will, but mere usufructuary rights thereon until the time came for him to deliver said property to the fideicomisario, it is obvious that the nude ownership over the property, upon the death of the testatrix, passed to and was acquired by another person, and the person cannot be other than the fideicomisario (6 Manresa p. 145).

It seems to be of the essence of a fideicommissary substitution that an obligation be clearly imposed upon the first heir to preserve and transmit to another the whole or part of the estate bequeathed to him, upon his death or upon the happening of a particular event. For this reason, Art. 785 of the old Civil Code provides that a fideicommissary substitution shall have no effect unless it is made expressly ("de una manera expresa") either by giving it such name, or by imposing upon the first heir the absolute obligation ("obligacion terminante") to deliver the inheritance to a substitute or second heir. In this connection Manresa says: .

Para que la sustitucion sea fideicomisaria, es preciso segun el art. 781, que se ordeno o encargue al primer heredero, cuando sea tal, que conserve y transmita a una tercera persona o entidad el todo a parte de la herencia. O lo que es lo mismo, la sustitucion fideicomisaria, como declaran las resoluciones de 25 de Junio de 1895, 10 de Febrero de 1899 y 19 de Julio de 1909, exige tres requisitos: .

1.o Un primer heredero llamado al goce de los bienes preferentemente.

2.o Obligacion claramente impuesta al mismo de conservar y transmitir a un tercero el todo o parte del caudal.

3.o Un segundo heredero.

A estos requisitos anade la sentencia de 18 de Noviembre de 1918, otro mas, el del que el fideicomisario tenga derecho a los bienes de la herencia desde el momento de la muerte del testador, puesto que ha de suceder a este y no al fiduciario.

Por tanto, cuando el causante se limita a instituir dos herederos, y por fallecimiento de ambos o de cualquiera de ellos, asigna la parte del fallecido o fallecidos, a los herederos legitimos o a otras personas, solo existe una sustitucion vulgar, porque falta el requisito de haberse impuesto a los primeros herederos la obligacion de conservar y transmitir los bienes, y el articulo 789, en su parrafo primero, evige que la sustitucion sea expresa, ya dandole el testador el nombre de sustitucion fideicomisaria, ya imponiendo al sustituido la obligacion terminante de conservar y transmitir los bienes a un segundo heredero.

A careful perusal of the testamentary clause under consideration shows that the substitution of heirs provided for therein is not expressly made of the fideicommissary kind, nor does it contain a clear statement to the effect that appellee, during her lifetime, shall only enjoy usufructuary rights over the property bequeathed to her, naked ownership thereof being vested in the brothers of the testatrix. As already stated, it merely provides that upon appellee's death — whether this happens before or after that of the testatrix — her share shall belong to the brothers of the testatrix.

In the light of the foregoing, we believe, and so hold, that the last will of the deceased Dña. Leona Singson, established a mere sustitucion vulgar, the substitution Consolacion Florentino by the brothers of the testatrix to be effective or to take place upon the death of the former, whether it happens before or after that of the testatrix.

IN VIEW OF THE FOREGOING, the appealed judgment is affirmed, with costs.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes and De Leon, JJ., concur.

G.R. Nos. L-27860 and L-27896 March 29, 1974

PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, Administrator of the Testate Estate of Charles Newton Hodges (Sp. Proc. No. 1672 of the Court of First Instance of Iloilo), petitioner, vs. THE HONORABLE VENICIO ESCOLIN, Presiding Judge of the Court of First Instance of Iloilo, Branch II, and AVELINA A. MAGNO, respondents.

G.R. Nos. L-27936 & L-27937 March 29, 1974

TESTATE ESTATE OF THE LATE LINNIE JANE HODGES (Sp. Proc. No. 1307). TESTATE ESTATE OF THE LATE CHARLES NEWTON HODGES (Sp. Proc. No. 1672). PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK,administrator-appellant, vs. LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL, SALVADOR GUZMAN, BELCESAR CAUSING, FLORENIA BARRIDO, PURIFICACION CORONADO, GRACIANO LUCERO, ARITEO THOMAS JAMIR, MELQUIADES BATISANAN, PEPITO IYULORES, ESPERIDION PARTISALA, WINIFREDO ESPADA, ROSARIO ALINGASA, ADELFA PREMAYLON, SANTIAGO PACAONSIS, and AVELINA A. MAGNO, the last as Administratrix in Sp. Proc. No. 1307, appellees, WESTERN INSTITUTE OF TECHNOLOGY, INC., movant-appellee.

San Juan, Africa, Gonzales and San Agustin for Philippine Commercial and Industrial Bank.

Manglapus Law Office, Antonio Law Office and Rizal R. Quimpo for private respondents and appellees Avelina A. Magno, etc., et al.

BARREDO, J.:p

Certiorari and prohibition with preliminary injunction; certiorari to "declare all acts of the respondent court in the Testate Estate of Linnie Jane Hodges (Sp. Proc. No. 1307 of the Court of First Instance of Iloilo) subsequent to the order of December 14, 1957 as null and void for having been issued without jurisdiction"; prohibition to enjoin the respondent court from allowing, tolerating, sanctioning, or abetting private respondent Avelina A. Magno to perform or do any acts of administration, such as those enumerated in the petition, and from exercising any authority or power as Regular Administratrix of above-named Testate Estate, by entertaining manifestations, motion and pleadings filed by her and acting on them, and also to enjoin said court from allowing said private respondent to interfere, meddle or take part in any manner in the administration of the Testate Estate of Charles Newton Hodges (Sp. Proc. No. 1672 of the same court and branch); with prayer for preliminary injunction, which was issued by this Court on August 8, 1967 upon a bond of P5,000; the petition being particularly directed against the orders of the respondent court of October 12, 1966 denying petitioner's motion of April 22, 1966 and its order of July 18, 1967 denying the motion for reconsideration of said order.

Related to and involving basically the same main issue as the foregoing petition, thirty-three (33) appeals from different orders of the same respondent court approving or otherwise sanctioning the acts of administration of the respondent Magno on behalf of the testate Estate of Mrs. Hodges.

THE FACTS

On May 23, 1957, Linnie Jane Hodges died in Iloilo City leaving a will executed on November 22, 1952 pertinently providing as follows:

FIRST: I direct that all my just debts and funeral expenses be first paid out of my estate.

SECOND: I give, devise and bequeath all of the rest, residue and remainder of my estate, both personal and real, wherever situated, or located, to my beloved husband, Charles Newton Hodges, to have and to hold unto him, my said husband, during his natural lifetime.

THIRD: I desire, direct and provide that my husband, Charles Newton Hodges, shall have the right to manage, control, use and enjoy said estate during his lifetime, and he is hereby given the right to make any changes in the physical properties of said estate, by sale or any part thereof which he may think best, and the purchase of any other or additional property as he may think best; to execute conveyances with or without general or special warranty, conveying in fee simple or for any other term or time, any property which he may deem proper to dispose of; to lease any of the real property for oil, gas and/or other minerals, and all such deeds or leases shall pass the absolute fee simple title to the interest so conveyed in such property as he may elect to sell. All rents, emoluments and income from said estate shall belong to him, and he is further authorized to use any part of the principal of said estate as he may need or desire. It is provided herein, however, that he shall not sell or otherwise dispose of any of the improved property now owned by us located at, in or near the City of Lubbock, Texas, but he shall have the full right to lease, manage and enjoy the same during his lifetime, above provided. He shall have the right to subdivide any farm land and sell lots therein. and may sell unimproved town lots.

FOURTH: At the death of my said husband, Charles Newton Hodges, I give, devise and bequeath all of the rest, residue and remainder of my estate, both real and personal, wherever situated or located, to be equally divided among my brothers and sisters, share and share alike, namely:

Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Saddie Rascoe, Era Roman and Nimroy Higdon.

FIFTH: In case of the death of any of my brothers and/or sisters named in item Fourth, above, prior to the death of my husband, Charles Newton Hodges, then it is my will and bequest that the heirs of such deceased brother or sister shall take jointly the share which would have gone to such brother or sister had she or he survived.

SIXTH: I nominate and appoint my said husband, Charles Newton Hodges, to be executor of this, my last will and testament, and direct that no bond or other security be required of him as such executor.

SEVENTH: It is my will and bequest that no action be had in the probate court, in the administration of my estate, other than that necessary to prove and record this will and to return an inventory and appraisement of my estate and list of claims. (Pp. 2-4, Petition.)

This will was subsequently probated in aforementioned Special Proceedings No. 1307 of respondent court on June 28, 1957, with the widower Charles Newton Hodges being appointed as Executor, pursuant to the provisions thereof.

Previously, on May 27, 1957, the said widower (hereafter to be referred to as Hodges) had been appointed Special Administrator, in which capacity he filed a motion on the same date as follows:

URGENT EX-PARTE MOTION TO ALLOW OR AUTHORIZE PETITIONER TO CONTINUE THE BUSINESS IN WHICH HE WAS ENGAGED AND TO PERFORM ACTS WHICH HE HAD BEEN DOING WHILE DECEASED WAS LIVING

Come petitioner in the above-entitled special proceedings, thru his undersigned attorneys, to the Hon. Court, most respectfully states:

1. — That Linnie Jane Hodges died leaving her last will and testament, a copy of which is attached to the petition for probate of the same.

2. — That in said last will and testament herein petitioner Charles Newton Hodges is directed to have the right to manage, control use and enjoy the estate of deceased Linnie Jane Hodges, in the same way, a provision was placed in paragraph two, the following: "I give, devise and bequeath all of the rest, residue and remainder of my estate, to my beloved husband, Charles Newton Hodges, to have and (to) hold unto him, my said husband, during his natural lifetime."

3. — That during the lifetime of Linnie Jane Hodges, herein petitioner was engaged in the business of buying and selling personal and real properties, and do such acts which petitioner may think best.

4. — That deceased Linnie Jane Hodges died leaving no descendants or ascendants, except brothers and sisters and herein petitioner as executor surviving spouse, to inherit the properties of the decedent.

5. — That the present motion is submitted in order not to paralyze the business of petitioner and the deceased, especially in the purchase and sale of properties. That proper accounting will be had also in all these transactions.

WHEREFORE, it is most respectfully prayed that, petitioner C. N. Hodges (Charles Newton Hodges) be allowed or authorized to continue the business in which he was engaged and to perform acts which he had been doing while deceased Linnie Jane Hodges was living.

City of Iloilo, May 27, 1957. (Annex "D", Petition.)

which the respondent court immediately granted in the following order:

It appearing in the urgent ex-parte motion filed by petitioner C. N. Hodges, that the business in which said petitioner and the deceased were engaged will be paralyzed, unless and until the Executor is named and appointed by the Court, the said petitioner is allowed or authorized to continue the business in which he was engaged and to perform acts which he had been doing while the deceased was living.

SO ORDERED.

City of Iloilo May 27, 1957. (Annex "E", Petition.)

Under date of December 11, 1957, Hodges filed as such Executor another motion thus:

MOTION TO APPROVE ALL SALES, CONVEYANCES, LEASES, MORTGAGES THAT THE EXECUTOR HAD MADE FURTHER AND SUBSEQUENT TRANSACTIONS WHICH THE EXECUTOR MAY DO IN ACCORDANCE WITH THE LAST WISH OF THE DECEASED LINNIE JANE HODGES.

Comes the Executor in the above-entitled proceedings, thru his undersigned attorney, to the Hon. Court, most respectfully states:

1. — That according to the last will and testament of the deceased Linnie Jane Hodges, the executor as the surviving spouse and legatee named in the will of the deceased; has the right to dispose of all the properties left by the deceased, portion of which is quoted as follows:

Second: I give, devise and bequeath all of the rest, residue and remainder of my estate, both personal and real, wherever situated, or located, to my beloved husband, Charles Newton Hodges, to have and to hold unto him, my said husband, during his natural lifetime.

Third: I desire, direct and provide that my husband, Charles Newton Hodges, shall have the right to manage, control, use and enjoy said estate during his lifetime, and he is hereby given the right to make any changes in the physical properties of said estate, by sale or any part thereof which he may think best, and the purchase of any other or additional property as he may think best; to execute conveyances with or without general or special warranty, conveying in fee simple or for any other term or time, any property which he may deem proper to dispose of; to lease any of the real property for oil, gas and/or other minerals, and all such deeds or leases shall pass the absolute fee simple title to the interest so conveyed in such property as he may elect to sell. All rents, emoluments and income from said estate shall belong to him, and he is further authorized to use any part of the principal of said estate as he may need or desire. ...

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

3. — That since the death of Linnie Jane Hodges, Mr. C.N. Hodges had been buying and selling real and personal properties, in accordance with the wishes of the late Linnie Jane Hodges.

4. — That the Register of Deeds for Iloilo, had required of late the herein Executor to have all the sales, leases, conveyances or mortgages made by him, approved by the Hon. Court.

5. — That it is respectfully requested, all the sales, conveyances leases and mortgages executed by the Executor, be approved by the Hon. Court. and subsequent sales conveyances, leases and mortgages in compliances with the wishes of the late Linnie Jane Hodges, and within the scope of the terms of the last will and testament, also be approved;

6. — That the Executor is under obligation to submit his yearly accounts, and the properties conveyed can also be accounted for, especially the amounts received.

WHEREFORE, it is most respectfully prayed that, all the sales, conveyances, leases, and mortgages executed by the Executor, be approved by the Hon. Court, and also the subsequent sales, conveyances, leases, and mortgages in consonance with the wishes of the deceased contained in her last will and testament, be with authorization and approval of the Hon. Court.

City of Iloilo, December 11, 1967.

(Annex "G", Petition.)

which again was promptly granted by the respondent court on December 14, 1957 as follows:

O R D E R

As prayed for by Attorney Gellada, counsel for the Executor for the reasons stated in his motion dated December 11, 1957, which the Court considers well taken all the sales, conveyances, leases and mortgages of all properties left by the deceased Linnie Jane Hodges executed by the Executor Charles N. Hodges are hereby APPROVED. The said Executor is further authorized to execute subsequent sales, conveyances, leases and mortgages of the properties left by the said deceased Linnie Jane Hodges in consonance with the wishes conveyed in the last will and testament of the latter.

So ordered.

Iloilo City. December 14, 1957.

(Annex "H", Petition.)

On April 14, 1959, in submitting his first statement of account as Executor for approval, Hodges alleged:

Pursuant to the provisions of the Rules of Court, herein executor of the deceased, renders the following account of his administration covering the period from January

1, 1958 to December 31, 1958, which account may be found in detail in the individual income tax return filed for the estate of deceased Linnie Jane Hodges, to wit:

That a certified public accountant has examined the statement of net worth of the estate of Linnie Jane Hodges, the assets and liabilities, as well as the income and expenses, copy of which is hereto attached and made integral part of this statement of account as Annex "A".

IN VIEW OF THE FOREGOING, it is most respectfully prayed that, the statement of net worth of the estate of Linnie Jane Hodges, the assets and liabilities, income and expenses as shown in the individual income tax return for the estate of the deceased and marked as Annex "A", be approved by the Honorable Court, as substantial compliance with the requirements of the Rules of Court.

That no person interested in the Philippines of the time and place of examining the herein accounts be given notice, as herein executor is the only devisee or legatee of the deceased, in accordance with the last will and testament already probated by the Honorable court.

City of Iloilo April 14, 1959.

(Annex "I", Petition.)

The respondent court approved this statement of account on April 21, 1959 in its order worded thus:

Upon petition of Atty. Gellada, in representation of the Executor, the statement of net worth of the estate of Linnie Jane Hodges, assets and liabilities, income and expenses as shown in the individual income tax return for the estate of the deceased and marked as Annex "A" is approved.

SO ORDERED.

City of Iloilo April 21, 1959.

(Annex "J", Petition.)

His accounts for the periods January 1, 1959 to December 31, 1959 and January 1, 1960 to December 31, 1960 were submitted likewise accompanied by allegations identical mutatis mutandis to those of April 14, 1959, quoted above; and the respective orders approving the same, dated July 30, 1960 and May 2, 1961, were substantially identical to the above-quoted order of April 21, 1959. In connection with the statements of account just mentioned, the following assertions related thereto made by respondent-appellee Magno in her brief do not appear from all indications discernible in the record to be disputable:

Under date of April 14, 1959, C.N. Hodges filed his first "Account by the Executor" of the estate of Linnie Jane Hodges. In the "Statement of Networth of Mr. C.N. Hodges and the Estate of Linnie Jane Hodges" as of December 31, 1958 annexed thereto, C.N. Hodges reported that the combined conjugal estate earned a net income of P328,402.62, divided evenly between him and the estate of Linnie Jane Hodges. Pursuant to this, he filed an "individual income tax return" for calendar year 1958 on the estate of Linnie Jane Hodges reporting, under oath, the said estate as having

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

xxx xxx xxx

Under date of July 21, 1960, C.N. Hodges filed his second "Annual Statement of Account by the Executor" of the estate of Linnie Jane Hodges. In the "Statement of Networth of Mr. C.N. Hodges and the Estate of Linnie Jane Hodges" as of December 31, 1959 annexed thereto, C.N. Hodges reported that the combined conjugal estate earned a net income of P270,623.32, divided evenly between him and the estate of Linnie Jane Hodges. Pursuant to this, he filed an "individual income tax return" for calendar year 1959 on the estate of Linnie Jane Hodges reporting, under oath, the said estate as having earned income of P135,311.66, exactly one-half of the net income of his combined personal assets and that of the estate of Linnie Jane Hodges. (pp. 91-92. Appellee's Brief.)

xxx xxx xxx

Under date of April 20, 1961, C.N. Hodges filed his third "Annual Statement of Account by the Executor for the Year 1960" of the estate of Linnie Jane Hodges. In the "Statement of Net Worth of Mr. C.N. Hodges and the Estate of Linnie Jane Hodges" as of December 31, 1960 annexed thereto, C.N. Hodges reported that the combined conjugal estate earned a net income of P314,857.94, divided evenly between him and the estate of Linnie Jane Hodges. Pursuant to this, he filed an "individual income tax return" for calendar year 1960 on the estate of Linnie Jane Hodges reporting, under oath, the said estate as having earned income of P157,428.97, exactly one-half of the net income of his combined personal assets and that of the estate of Linnie Jane Hodges. (Pp. 92-93, Appellee's Brief.)

Likewise the following:

In the petition for probate that he (Hodges) filed, he listed the seven brothers and sisters of Linnie Jane as her "heirs" (see p. 2, Green ROA). The order of the court admitting the will to probate unfortunately omitted one of the heirs, Roy Higdon (see p. 14, Green ROA). Immediately, C.N. Hodges filed a verified motion to have Roy Higdon's name included as an heir, stating that he wanted to straighten the records "in order the heirs of deceased Roy Higdon may not think or believe they were omitted, and that they were really and are interested in the estate of deceased Linnie Jane Hodges. .

As an executor, he was bound to file tax returns for the estate he was administering under American law. He did file such as estate tax return on August 8, 1958. In Schedule "M" of such return, he answered "Yes" to the question as to whether he was contemplating "renouncing the will". On the question as to what property interests passed to him as the surviving spouse, he answered:

"None, except for purposes of administering the Estate, paying debts, taxes and other legal charges. It is the intention of the surviving husband of deceased to distribute the remaining property and interests of the deceased in their Community estate to the devisees

and legatees named in the will when the debts, liabilities, taxes and expenses of administration are finally determined and paid."

Again, on August 9, 1962, barely four months before his death, he executed an "affidavit" wherein he ratified and confirmed all that he stated in Schedule "M" of his estate tax returns as to his having renounced what was given him by his wife's will. 1

As appointed executor, C.N. Hodges filed an "Inventory" dated May 12, 1958. He listed all the assets of his conjugal partnership with Linnie Jane Hodges on a separate balance sheet and then stated expressly that her estate which has come into his possession as executor was "one-half of all the items" listed in said balance sheet. (Pp. 89-90, Appellee's Brief.)

Parenthetically, it may be stated, at this juncture, that We are taking pains to quote wholly or at least, extensively from some of the pleadings and orders whenever We feel that it is necessary to do so for a more comprehensive and clearer view of the important and decisive issues raised by the parties and a more accurate appraisal of their respective positions in regard thereto.

The records of these cases do not show that anything else was done in the above-mentioned Special Proceedings No. 1307 until December 26, 1962, when on account of the death of Hodges the day before, the same lawyer, Atty. Leon P. Gellada, who had been previously acting as counsel for Hodges in his capacity as Executor of his wife's estate, and as such had filed the aforequoted motions and manifestations, filed the following:

URGENT EX-PARTE MOTION FOR THE APPOINTMENT OF A SPECIAL ADMINISTRATRIX

COMES the undersigned attorney for the Executor in the above-entitled proceedings, to the Honorable Court, most respectfully states:

1. That in accordance with the Last Will and Testament of Linnie Jane Hodges (deceased), her husband, Charles Newton Hodges was to act as Executor, and in fact, in an order issued by this Hon. Court dated June 28, 1957, the said Charles Newton Hodges was appointed Executor and had performed the duties as such.

2. That last December 22, 1962, the said Charles Newton Hodges was stricken ill, and brought to the Iloilo Mission Hospital for treatment, but unfortunately, he died on December 25, 1962, as shown by a copy of the death certificate hereto attached and marked as Annex "A".

3. That in accordance with the provisions of the last will and testament of Linnie Jane Hodges, whatever real and personal properties that may remain at the death of her husband Charles Newton Hodges, the said properties shall be equally divided among their heirs. That there are real and personal properties left by Charles Newton Hodges, which need to be administered and taken care of.

4. That the estate of deceased Linnie Jane Hodges, as well as that of Charles Newton Hodges, have not as yet been determined or ascertained, and there is necessity for the appointment of a general administrator to liquidate and distribute the residue of the estate to the heirs and legatees of both spouses. That in accordance with the provisions of Section 2 of Rule 75 of the Rules of Court, the

conjugal partnership of Linnie Jane Hodges and Charles Newton Hodges shall be liquidated in the testate proceedings of the wife.

5. That the undersigned counsel, has perfect personal knowledge of the existence of the last will and testament of Charles Newton Hodges, with similar provisions as that contained in the last will and testament of Linnie Jane Hodges. However, said last will and testament of Charles Newton Hodges is kept inside the vault or iron safe in his office, and will be presented in due time before this honorable Court.

6. That in the meantime, it is imperative and indispensable that, an Administratrix be appointed for the estate of Linnie Jane Hodges and a Special Administratrix for the estate of Charles Newton Hodges, to perform the duties required by law, to administer, collect, and take charge of the goods, chattels, rights, credits, and estate of both spouses, Charles Newton Hodges and Linnie Jane Hodges, as provided for in Section 1 and 2, Rule 81 of the Rules of Court.

7. That there is delay in granting letters testamentary or of administration, because the last will and testament of deceased, Charles Newton Hodges, is still kept in his safe or vault, and in the meantime, unless an administratrix (and,) at the same time, a Special Administratrix is appointed, the estate of both spouses are in danger of being lost, damaged or go to waste.

8. That the most trusted employee of both spouses Linnie Jane Hodges and C.N. Hodges, who had been employed for around thirty (30) years, in the person of Miss Avelina Magno, (should) be appointed Administratrix of the estate of Linnie Jane Hodges and at the same time Special Administratrix of the estate of Charles Newton Hodges. That the said Miss Avelina Magno is of legal age, a resident of the Philippines, the most fit, competent, trustworthy and well-qualified person to serve the duties of Administratrix and Special Administratrix and is willing to act as such.

9. That Miss Avelina Magno is also willing to file bond in such sum which the Hon. Court believes reasonable.

WHEREFORE, in view of all the foregoing, it is most respectfully prayed that, Miss AVELINA A. MAGNO be immediately appointed Administratrix of the estate of Linnie Jane Hodges and as Special Administratrix of the estate of Charles Newton Hodges, with powers and duties provided for by law. That the Honorable Court fix the reasonable bond of P1,000.00 to be filed by Avelina A. Magno.

(Annex "O", Petition.)

which respondent court readily acted on in its order of even date thus: .

For the reasons alleged in the Urgent Ex-parte Motion filed by counsel for the Executor dated December 25, 1962, which the Court finds meritorious, Miss AVELINA A. MAGNO, is hereby appointed Administratrix of the estate of Linnie Jane Hodges and as Special Administratrix of the estate of Charles Newton Hodges, in the latter case, because the last will of said Charles Newton Hodges is still kept in his vault or iron safe and that the real and personal properties of both spouses may be lost, damaged or go to waste, unless a Special Administratrix is appointed.

Miss Avelina A. Magno is required to file bond in the sum of FIVE THOUSAND PESOS (P5,000.00), and after having done so, let letters of Administration be issued to her." (Annex "P", Petition.)

On December 29, 1962, however, upon urgent ex-parte petition of respondent Magno herself, thru Atty. Gellada, Harold, R. Davies, "a representative of the heirs of deceased Charles Newton Hodges (who had) arrived from the United States of America to help in the administration of the estate of said deceased" was appointed as Co-Special Administrator of the estate of Hodges, (pp. 29-33, Yellow - Record on Appeal) only to be replaced as such co-special administrator on January 22, 1963 by Joe Hodges, who, according to the motion of the same attorney, is "the nephew of the deceased (who had) arrived from the United States with instructions from the other heirs of the deceased to administer the properties or estate of Charles Newton Hodges in the Philippines, (Pp. 47-50, id.)

Meanwhile, under date of January 9, 1963, the same Atty. Gellada filed in Special Proceedings 1672 a petition for the probate of the will of Hodges, 2 with a prayer for the issuance of letters of

administration to the same Joe Hodges, albeit the motion was followed on February 22, 1963 by a separate one asking that Atty. Fernando Mirasol be appointed as his co-administrator. On the same date this latter motion was filed, the court issued the corresponding order of probate and letters of administration to Joe Hodges and Atty. Mirasol, as prayed for.

At this juncture, again, it may also be explained that just as, in her will, Mrs. Hodges bequeathed her whole estate to her husband "to have and to hold unto him, my said husband, during his natural lifetime", she, at the same time or in like manner, provided that "at the death of my said husband — I give devise and bequeath all of the rest, residue and remainder of my estate, both real and personal, wherever situated or located, to be equally divided among my brothers and sisters, share and share alike —". Accordingly, it became incumbent upon Hodges, as executor of his wife's will, to duly liquidate the conjugal partnership, half of which constituted her estate, in order that upon the eventuality of his death, "the rest, residue and remainder" thereof could be determined and correspondingly distributed or divided among her brothers and sisters. And it was precisely because no such liquidation was done, furthermore, there is the issue of whether the distribution of her estate should be governed by the laws of the Philippines or those of Texas, of which State she was a national, and, what is more, as already stated, Hodges made official and sworn statements or manifestations indicating that as far as he was concerned no "property interests passed to him as surviving spouse — "except for purposes of administering the estate, paying debts, taxes and other legal charges" and it was the intention of the surviving husband of the deceased to distribute the remaining property and interests of the deceased in their Community Estate to the devisees and legatees named in the will when the debts, liabilities, taxes and expenses of administration are finally determined and paid", that the incidents and controversies now before Us for resolution arose. As may be observed, the situation that ensued upon the death of Hodges became rather unusual and so, quite understandably, the lower court's actuations presently under review are apparently wanting in consistency and seemingly lack proper orientation.

Thus, We cannot discern clearly from the record before Us the precise perspective from which the trial court proceeded in issuing its questioned orders. And, regretably, none of the lengthy briefs submitted by the parties is of valuable assistance in clearing up the matter.

To begin with, We gather from the two records on appeal filed by petitioner, as appellant in the appealed cases, one with green cover and the other with a yellow cover, that at the outset, a sort of modus operandi had been agreed upon by the parties under which the respective administrators of the two estates were supposed to act conjointly, but since no copy of the said agreement can be found in the record before Us, We have no way of knowing when exactly such agreement was

entered into and under what specific terms. And while reference is made to said modus operandi in the order of September 11, 1964, on pages 205-206 of the Green Record on Appeal, reading thus:

The present incident is to hear the side of administratrix, Miss Avelina A. Magno, in answer to the charges contained in the motion filed by Atty. Cesar Tirol on September 3, 1964. In answer to the said charges, Miss Avelina A. Magno, through her counsel, Atty. Rizal Quimpo, filed a written manifestation.

After reading the manifestation here of Atty. Quimpo, for and in behalf of the administratrix, Miss Avelina A. Magno, the Court finds that everything that happened before September 3, 1964, which was resolved on September 8, 1964, to the satisfaction of parties, was simply due to a misunderstanding between the representative of the Philippine Commercial and Industrial Bank and Miss Magno and in order to restore the harmonious relations between the parties, the Court ordered the parties to remain in status quo as to their modus operandi before September 1, 1964, until after the Court can have a meeting with all the parties and their counsels on October 3, as formerly agreed upon between counsels, Attys. Ozaeta, Gibbs and Ozaeta, Attys. Tirol and Tirol and Atty. Rizal Quimpo.

In the meantime, the prayers of Atty. Quimpo as stated in his manifestation shall not be resolved by this Court until October 3, 1964.

SO ORDERED.

there is nothing in the record indicating whatever happened to it afterwards, except that again, reference thereto was made in the appealed order of October 27, 1965, on pages 292-295 of the Green Record on Appeal, as follows:

On record is an urgent motion to allow PCIB to open all doors and locks in the Hodges Office at 206-208 Guanco Street, Iloilo City, to take immediate and exclusive possession thereof and to place its own locks and keys for security purposes of the PCIB dated October 27, 1965 thru Atty. Cesar Tirol. It is alleged in said urgent motion that Administratrix Magno of the testate estate of Linnie Jane Hodges refused to open the Hodges Office at 206-208 Guanco Street, Iloilo City where PCIB holds office and therefore PCIB is suffering great moral damage and prejudice as a result of said act. It is prayed that an order be issued authorizing it (PCIB) to open all doors and locks in the said office, to take immediate and exclusive possession thereof and place thereon its own locks and keys for security purposes; instructing the clerk of court or any available deputy to witness and supervise the opening of all doors and locks and taking possession of the PCIB.

A written opposition has been filed by Administratrix Magno of even date (Oct. 27) thru counsel Rizal Quimpo stating therein that she was compelled to close the office for the reason that the PCIB failed to comply with the order of this Court signed by Judge Anacleto I. Bellosillo dated September 11, 1964 to the effect that both estates should remain in status quo to their modus operandi as of September 1, 1964.

To arrive at a happy solution of the dispute and in order not to interrupt the operation of the office of both estates, the Court aside from the reasons stated in the urgent motion and opposition heard the verbal arguments of Atty. Cesar Tirol for the PCIB and Atty. Rizal Quimpo for Administratix Magno.

After due consideration, the Court hereby orders Magno to open all doors and locks in the Hodges Office at 206-208 Guanco Street, Iloilo City in the presence of the PCIB or its duly authorized representative and deputy clerk of court Albis of this branch not later than 7:30 tomorrow morning October 28, 1965 in order that the office of said estates could operate for business.

Pursuant to the order of this Court thru Judge Bellosillo dated September 11, 1964, it is hereby ordered:

(a) That all cash collections should be deposited in the joint account of the estates of Linnie Jane Hodges and estates of C.N. Hodges;

(b) That whatever cash collections that had been deposited in the account of either of the estates should be withdrawn and since then deposited in the joint account of the estate of Linnie Jane Hodges and the estate of C.N. Hodges;

(c) That the PCIB should countersign the check in the amount of P250 in favor of Administratrix Avelina A. Magno as her compensation as administratrix of the Linnie Jane Hodges estate chargeable to the testate estate of Linnie Jane Hodges only;

(d) That Administratrix Magno is hereby directed to allow the PCIB to inspect whatever records, documents and papers she may have in her possession in the same manner that Administrator PCIB is also directed to allow Administratrix Magno to inspect whatever records, documents and papers it may have in its possession;

(e) That the accountant of the estate of Linnie Jane Hodges shall have access to all records of the transactions of both estates for the protection of the estate of Linnie Jane Hodges; and in like manner the accountant or any authorized representative of the estate of C.N. Hodges shall have access to the records of transactions of the Linnie Jane Hodges estate for the protection of the estate of C.N. Hodges.

Once the estates' office shall have been opened by Administratrix Magno in the presence of the PCIB or its duly authorized representative and deputy clerk Albis or his duly authorized representative, both estates or any of the estates should not close it without previous consent and authority from this court.

SO ORDERED.

As may be noted, in this order, the respondent court required that all collections from the properties in the name of Hodges should be deposited in a joint account of the two estates, which indicates that seemingly the so-calledmodus operandi was no longer operative, but again there is nothing to show when this situation started.

Likewise, in paragraph 3 of the petitioner's motion of September 14, 1964, on pages 188-201 of the Green Record on Appeal, (also found on pp. 83-91 of the Yellow Record on Appeal) it is alleged that:

3. On January 24, 1964 virtually all of the heirs of C.N. Hodges, Joe Hodges and Fernando P. Mirasol acting as the two co-administrators of the estate of C.N. Hodges, Avelina A. Magno acting as the administratrix of the estate of Linnie Jane Hodges and Messrs. William Brown and Ardell Young acting for all of the Higdon

family who claim to be the sole beneficiaries of the estate of Linnie Jane Hodges and various legal counsel representing the aforementioned parties entered into an amicable agreement, which was approved by this Honorable Court, wherein the parties thereto agreed that certain sums of money were to be paid in settlement of different claims against the two estates and that the assets (to the extent they existed) of both estates would be administered jointly by the PCIB as administrator of the estate of C.N. Hodges and Avelina A. Magno as administratrix of the estate of Linnie Jane Hodges, subject, however, to the aforesaid October 5, 1963 Motion, namely, the PCIB's claim to exclusive possession and ownership of one hundred percent (100%) (or, in the alternative, seventy-five percent (75%) of all assets owned by C.N. Hodges or Linnie Jane Hodges situated in the Philippines. On February 1, 1964 (pp. 934-935, CFI Rec., S.P. No. 1672) this Honorable Court amended its order of January 24, 1964 but in no way changed its recognition of the afore-described basic demand by the PCIB as administrator of the estate of C.N. Hodges to one hundred percent (100%) of the assets claimed by both estates.

but no copy of the mentioned agreement of joint administration of the two estates exists in the record, and so, We are not informed as to what exactly are the terms of the same which could be relevant in the resolution of the issues herein.

On the other hand, the appealed order of November 3, 1965, on pages 313-320 of the Green Record on Appeal, authorized payment by respondent Magno of, inter alia, her own fees as administratrix, the attorney's fees of her lawyers, etc., as follows:

Administratrix Magno thru Attys. Raul S. Manglapus and Rizal. R. Quimpo filed a Manifestation and Urgent Motion dated June 10, 1964 asking for the approval of the Agreement dated June 6, 1964 which Agreement is for the purpose of retaining their services to protect and defend the interest of the said Administratrix in these proceedings and the same has been signed by and bears the express conformity of the attorney-in-fact of the late Linnie Jane Hodges, Mr. James L. Sullivan. It is further prayed that the Administratrix of the Testate Estate of Linnie Jane Hodges be directed to pay the retailers fee of said lawyers, said fees made chargeable as expenses for the administration of the estate of Linnie Jane Hodges (pp. 1641-1642, Vol. V, Sp. 1307).

An opposition has been filed by the Administrator PCIB thru Atty. Herminio Ozaeta dated July 11, 1964, on the ground that payment of the retainers fee of Attys. Manglapus and Quimpo as prayed for in said Manifestation and Urgent Motion is prejudicial to the 100% claim of the estate of C. N. Hodges; employment of Attys. Manglapus and Quimpo is premature and/or unnecessary; Attys. Quimpo and Manglapus are representing conflicting interests and the estate of Linnie Jane Hodges should be closed and terminated (pp. 1679-1684, Vol, V, Sp. 1307).

Atty. Leon P. Gellada filed a memorandum dated July 28, 1964 asking that the Manifestation and Urgent Motion filed by Attys. Manglapus and Quimpo be denied because no evidence has been presented in support thereof. Atty. Manglapus filed a reply to the opposition of counsel for the Administrator of the C. N. Hodges estate wherein it is claimed that expenses of administration include reasonable counsel or attorney's fees for services to the executor or administrator. As a matter of fact the fee agreement dated February 27, 1964 between the PCIB and the law firm of Ozaeta, Gibbs & Ozaeta as its counsel (Pp. 1280-1284, Vol. V, Sp. 1307) which stipulates the fees for said law firm has been approved by the Court in its order dated

March 31, 1964. If payment of the fees of the lawyers for the administratrix of the estate of Linnie Jane Hodges will cause prejudice to the estate of C. N. Hodges, in like manner the very agreement which provides for the payment of attorney's fees to the counsel for the PCIB will also be prejudicial to the estate of Linnie Jane Hodges (pp. 1801-1814, Vol. V, Sp. 1307).

Atty. Herminio Ozaeta filed a rejoinder dated August 10, 1964 to the reply to the opposition to the Manifestation and Urgent Motion alleging principally that the estates of Linnie Jane Hodges and C. N. Hodges are not similarly situated for the reason that C. N. Hodges is an heir of Linnie Jane Hodges whereas the latter is not an heir of the former for the reason that Linnie Jane Hodges predeceased C. N. Hodges (pp. 1839-1848, Vol. V, Sp. 1307); that Attys. Manglapus and Quimpo formally entered their appearance in behalf of Administratrix of the estate of Linnie Jane Hodges on June 10, 1964 (pp. 1639-1640, Vol. V, Sp. 1307).

Atty. Manglapus filed a manifestation dated December 18, 1964 stating therein that Judge Bellosillo issued an order requiring the parties to submit memorandum in support of their respective contentions. It is prayed in this manifestation that the Manifestation and Urgent Motion dated June 10, 1964 be resolved (pp. 6435-6439, Vol. VII, Sp. 1307).

Atty. Roman Mabanta, Jr. for the PCIB filed a counter- manifestation dated January 5, 1965 asking that after the consideration by the court of all allegations and arguments and pleadings of the PCIB in connection therewith (1) said manifestation and urgent motion of Attys. Manglapus and Quimpo be denied (pp. 6442-6453, Vol. VII, Sp. 1307). Judge Querubin issued an order dated January 4, 1965 approving the motion dated June 10, 1964 of the attorneys for the administratrix of the estate of Linnie Jane Hodges and agreement annexed to said motion. The said order further states: "The Administratrix of the estate of Linnie Jane Hodges is authorized to issue or sign whatever check or checks may be necessary for the above purpose and the administrator of the estate of C. N. Hodges is ordered to countersign the same. (pp. 6518-6523, Vol VII, Sp. 1307).

Atty. Roman Mabanta, Jr. for the PCIB filed a manifestation and motion dated January 13, 1965 asking that the order of January 4, 1965 which was issued by Judge Querubin be declared null and void and to enjoin the clerk of court and the administratrix and administrator in these special proceedings from all proceedings and action to enforce or comply with the provision of the aforesaid order of January 4, 1965. In support of said manifestation and motion it is alleged that the order of January 4, 1965 is null and void because the said order was never delivered to the deputy clerk Albis of Branch V (the sala of Judge Querubin) and the alleged order was found in the drawer of the late Judge Querubin in his office when said drawer was opened on January 13, 1965 after the death of Judge Querubin by Perfecto Querubin, Jr., the son of the judge and in the presence of Executive Judge Rovira and deputy clerk Albis (Sec. 1, Rule 36, New Civil Code) (Pp. 6600-6606, Vol. VIII, Sp. 1307).

Atty. Roman Mabanta, Jr. for the PCIB filed a motion for reconsideration dated February 23, 1965 asking that the order dated January 4, 1964 be reversed on the ground that:

1. Attorneys retained must render services to the estate not to the personal heir;

2. If services are rendered to both, fees should be pro-rated between them;

3. Attorneys retained should not represent conflicting interests; to the prejudice of the other heirs not represented by said attorneys;

4. Fees must be commensurate to the actual services rendered to the estate;

5. There must be assets in the estate to pay for said fees (Pp. 6625-6636, Vol. VIII, Sp. 1307).

Atty. Quimpo for Administratrix Magno of the estate of Linnie Jane Hodges filed a motion to submit dated July 15, 1965 asking that the manifestation and urgent motion dated June 10, 1964 filed by Attys. Manglapus and Quimpo and other incidents directly appertaining thereto be considered submitted for consideration and approval (pp. 6759-6765, Vol. VIII, Sp. 1307).

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

WHEREFORE, the order dated January 4, 1965 is hereby declared null and void.

The manifestation and motion dated June 10, 1964 which was filed by the attorneys for the administratrix of the testate estate of Linnie Jane Hodges is granted and the agreement annexed thereto is hereby approved.

The administratrix of the estate of Linnie Jane Hodges is hereby directed to be needed to implement the approval of the agreement annexed to the motion and the administrator of the estate of C. N. Hodges is directed to countersign the said check or checks as the case may be.

SO ORDERED.

thereby implying somehow that the court assumed the existence of independent but simultaneous administrations.

Be that as it may, again, it appears that on August 6, 1965, the court, acting on a motion of petitioner for the approval of deeds of sale executed by it as administrator of the estate of Hodges, issued the following order, also on appeal herein:

Acting upon the motion for approval of deeds of sale for registered land of the PCIB, Administrator of the Testate Estate of C. N. Hodges in Sp. Proc. 1672 (Vol. VII, pp. 2244-2245), dated July 16, 1965, filed by Atty. Cesar T. Tirol in representation of the law firms of Ozaeta, Gibbs and Ozaeta and Tirol and Tirol and the opposition thereto of Atty. Rizal R. Quimpo (Vol. VIII, pp. 6811-6813) dated July 22, 1965 and considering the allegations and reasons therein stated, the court believes that the deeds of sale should be signed jointly by the PCIB, Administrator of the Testate Estate of C. N. Hodges and Avelina A. Magno, Administratrix of the Testate Estate of Linnie Jane Hodges and to this effect the PCIB should take the necessary steps so that Administratrix Avelina A. Magno could sign the deeds of sale.

SO ORDERED. (p. 248, Green Record on Appeal.)

Notably this order required that even the deeds executed by petitioner, as administrator of the Estate of Hodges, involving properties registered in his name, should be co-signed by respondent Magno. 3 And this was not an isolated instance.

In her brief as appellee, respondent Magno states:

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

A random check of the records of Special Proceeding No. 1307 alone will show Atty. Cesar T. Tirol as having presented for court approval deeds of sale of real properties signed by both appellee Avelina A. Magno and D. R. Paulino in the following numbers: (a) motion dated September 21, 1964 — 6 deeds of sale; (b) motion dated November 4, 1964 — 1 deed of sale; (c) motion dated December 1, 1964 — 4 deeds of sale; (d) motion dated February 3, 1965 — 8 deeds of sale; (f) motion dated May 7, 1965 — 9 deeds of sale. In view of the very extensive landholdings of the Hodges spouses and the many motions filed concerning deeds of sale of real properties executed by C. N. Hodges the lower court has had to constitute special separate

expedientes in Special Proceedings Nos. 1307 and 1672 to include mere motions for the approval of deeds of sale of the conjugal properties of the Hodges spouses.

As an example, from among the very many, under date of February 3, 1965, Atty. Cesar T. Tirol, as counsel for the appellant, filed "Motion for Approval of Deeds of Sale for Registered Land and Cancellations of Mortgages" (CFI Record, Sp. Proc. No. 1307, Vol. VIII, pp. 6570-6596) the allegations of which read:

"1. In his lifetime, the late C. N. Hodges executed "Contracts to Sell" real property, and the prospective buyers under said contracts have already paid the price and complied with the terms and conditions thereof;

"2. In the course of administration of both estates, mortgage debtors have already paid their debts secured by chattel mortgages in favor of the late C. N. Hodges, and are now entitled to release therefrom;

"3. There are attached hereto documents executed jointly by the Administratrix in Sp. Proc. No. 1307 and the Administrator in Sp. Proc. No. 1672, consisting of deeds of sale in favor —

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

and cancellations of mortgages in favor of —

Pablo Manzano, Oton, Iloilo Ricardo M. Diana, Dao, San Jose, Antique Simplicio Tingson, Iloilo City Amado Magbanua, Pototan, Iloilo Roselia M. Baes, Bolo, Roxas City William Bayani, Rizal Estanzuela, Iloilo City Elpidio Villarete, Molo, Iloilo City Norma T. Ruiz, Jaro, Iloilo City

"4. That the approval of the aforesaid documents will not reduce the assets of the estates so as to prevent any creditor from receiving his full debt or diminish his dividend."

And the prayer of this motion is indeed very revealing:

"WHEREFORE, it is respectfully prayed that, under Rule 89, Section 8 of the Rules of Court, this honorable court approve the aforesaid deeds of sale and cancellations of mortgages." (Pp. 113-117, Appellee's Brief.)

None of these assertions is denied in Petitioner's reply brief.

Further indicating lack of concrete perspective or orientation on the part of the respondent court and its hesitancy to clear up matters promptly, in its other appealed order of November 23, 1965, on pages 334-335 of the Green Record on Appeal, said respondent court allowed the movant Ricardo Salas, President of appellee Western Institute of Technology (successor of Panay Educational Institutions, Inc.), one of the parties with whom Hodges had contracts that are in question in the appeals herein, to pay petitioner, as Administrator of the estate of Hodges and/or respondent Magno, as Administrator of the estate of Mrs. Hodges, thus:

Considering that in both cases there is as yet no judicial declaration of heirs nor distribution of properties to whomsoever are entitled thereto, the Court believes that payment to both the administrator of the testate estate of C. N. Hodges and the administratrix of the testate estate of Linnie Jane Hodges or to either one of the two estates is proper and legal.

WHEREFORE, movant Ricardo T. Salas can pay to both estates or either of them.

SO ORDERED.

(Pp. 334-335, Green Record on Appeal.)

On the other hand, as stated earlier, there were instances when respondent Magno was given authority to act alone. For instance, in the other appealed order of December 19, 1964, on page 221 of the Green Record on Appeal, the respondent court approved payments made by her of overtime pay to some employees of the court who had helped in gathering and preparing copies of parts of the records in both estates as follows:

Considering that the expenses subject of the motion to approve payment of overtime pay dated December 10, 1964, are reasonable and are believed by this Court to be a proper charge of administration chargeable to the testate estate of the late Linnie Jane Hodges, the said expenses are hereby APPROVED and to be charged against the testate estate of the late Linnie Jane Hodges. The administrator of the testate estate of the late Charles Newton Hodges is hereby ordered to countersign the check or checks necessary to pay the said overtime pay as shown by the bills marked Annex "A", "B" and "C" of the motion.

SO ORDERED.

(Pp. 221-222, Green Record on Appeal.)

Likewise, the respondent court approved deeds of sale executed by respondent Magno alone, as Administratrix of the estate of Mrs. Hodges, covering properties in the name of Hodges, pursuant to "contracts to sell" executed by Hodges, irrespective of whether they were executed by him before or after the death of his wife. The orders of this nature which are also on appeal herein are the following:

1. Order of March 30, 1966, on p. 137 of the Green Record on Appeal, approving the deed of sale executed by respondent Magno in favor of appellee Lorenzo Carles on February 24, 1966, pursuant to a "contract to sell" signed by Hodges on June 17, 1958, after the death of his wife, which contract petitioner claims was cancelled by it for failure of Carles to pay the installments due on January 7, 1965.

2. Order of April 5, 1966, on pp. 139-140, id., approving the deed of sale executed by respondent Magno in favor of appellee Salvador Guzman on February 28, 1966 pursuant to a "contract to sell" signed by Hodges on September 13, 1960, after the death of his wife, which contract petitioner claims it cancelled on March 3, 1965 in view of failure of said appellee to pay the installments on time.

3. Order of April 20, 1966, on pp. 167-168, id., approving the deed of sale executed by respondent Magno in favor of appellee Purificacion Coronado on March 28, 1966 pursuant to a "contract to sell" signed by Hodges on August 14, 1961, after the death of his wife.

4. Order of April 20, 1966, on pp. 168-169, id., approving the deed of sale executed by respondent Magno in favor of appellee Florenia Barrido on March 28, 1966, pursuant to a "contract to sell" signed by Hodges on February 21, 1958, after the death of his wife.

5. Order of June 7, 1966, on pp. 184-185, id., approving the deed of sale executed by respondent Magno in favor of appellee Belcezar Causing on May 2, 1966, pursuant to a "contract to sell" signed by Hodges on February 10, 1959, after the death of his wife.

6. Order of June 21, 1966, on pp. 211-212, id., approving the deed of sale executed by respondent Magno in favor of appellee Artheo Thomas Jamir on June 3, 1966, pursuant to a "contract to sell" signed by Hodges on May 26, 1961, after the death of his wife.

7. Order of June 21, 1966, on pp. 212-213, id., approving the deed of sale executed by respondent Magno in favor of appellees Graciano Lucero and Melquiades Batisanan on June 6 and June 3, 1966, respectively, pursuant to "contracts to sell" signed by Hodges on June 9, 1959 and November 27, 1961, respectively, after the death of his wife.

8. Order of December 2, 1966, on pp. 303-304, id., approving the deed of sale executed by respondent Magno in favor of appellees Espiridion Partisala, Winifredo Espada and Rosario Alingasa on September 6, 1966, August 17, 1966 and August 3, 1966, respectively, pursuant to "contracts to sell" signed by Hodges on April 20, 1960, April 18, 1960 and August 25, 1958, respectively, that is, after the death of his wife.

9. Order of April 5, 1966, on pp. 137-138, id., approving the deed of sale executed by respondent Magno in favor of appellee Alfredo Catedral on March 2, 1966, pursuant to a "contract to sell" signed by Hodges on May 29, 1954, before the death of his wife, which contract petitioner claims it had cancelled on February 16, 1966 for failure of appellee Catedral to pay the installments due on time.

10. Order of April 5, 1966, on pp. 138-139, id., approving the deed of sale executed by respondent Magno in favor of appellee Jose Pablico on March 7, 1966, pursuant to a "contract to sell" signed by Hodges on March 7, 1950, after the death of his wife, which contract petitioner claims it had cancelled on June 29, 1960, for failure of appellee Pablico to pay the installments due on time.

11. Order of December 2, 1966, on pp. 303-304, id., insofar as it approved the deed of sale executed by respondent Magno in favor of appellee Pepito Iyulores on September 6, 1966, pursuant to a "contract to sell" signed by Hodges on February 5, 1951, before the death of his wife.

12. Order of January 3, 1967, on pp. 335-336, id., approving three deeds of sale executed by respondent Magno, one in favor of appellees Santiago Pacaonsis and two in favor of appellee Adelfa Premaylon on December 5, 1966 and November 3, 1966, respectively, pursuant to separate "promises to sell" signed respectively by Hodges on May 26, 1955 and January 30, 1954, before the death of his wife, and October 31, 1959, after her death.

In like manner, there were also instances when respondent court approved deeds of sale executed by petitioner alone and without the concurrence of respondent Magno, and such approvals have not been the subject of any appeal. No less than petitioner points this out on pages 149-150 of its brief as appellant thus:

The points of fact and law pertaining to the two abovecited assignments of error have already been discussed previously. In the first abovecited error, the order alluded to was general, and as already explained before, it was, as admitted by the lower court itself, superseded by the particular orders approving specific final deeds of sale executed by the appellee, Avelina A. Magno, which are subject of this appeal, as well as the particular orders approving specific final deeds of sale executed by the appellant, Philippine Commercial and Industrial Bank, which were never appealed by the appellee, Avelina A. Magno, nor by any party for that matter, and which are now therefore final.

Now, simultaneously with the foregoing incidents, others of more fundamental and all embracing significance developed. On October 5, 1963, over the signature of Atty. Allison J. Gibbs in representation of the law firm of Ozaeta, Gibbs & Ozaeta, as counsel for the co-administrators Joe Hodges and Fernando P. Mirasol, the following self-explanatory motion was filed:

URGENT MOTION FOR AN ACCOUNTING AND DELIVERY TO ADMINISTRATION OF THE ESTATE OF C. N. HODGES OF ALL OF THE ASSETS OF THE CONJUGAL PARTNERSHIP OF THE DECEASED LINNIE JANE HODGES AND C N. HODGES EXISTING AS OF MAY 23, 1957 PLUS ALL THE RENTS, EMOLUMENTS AND INCOME THEREFROM.

COMES NOW the co-administrator of the estate of C. N. Hodges, Joe Hodges, through his undersigned attorneys in the above-entitled proceedings, and to this Honorable Court respectfully alleges:

(1) On May 23, 1957 Linnie Jane Hodges died in Iloilo City.

(2) On June 28, 1957 this Honorable Court admitted to probate the Last Will and Testament of the deceased Linnie Jane Hodges executed November 22, 1952 and appointed C. N. Hodges as Executor of the estate of Linnie Jane Hodges (pp. 24-25, Rec. Sp. Proc. 1307).

(3) On July 1, 1957 this Honorable Court issued Letters Testamentary to C. N. Hodges in the Estate of Linnie Jane Hodges (p. 30, Rec. Sp. Proc. 1307).

(4) On December 14, 1957 this Honorable Court, on the basis of the following allegations in a Motion dated December 11, 1957 filed by Leon P. Gellada as attorney for the executor C. N. Hodges:

"That herein Executor, (is) not only part owner of the properties left as conjugal, but also,the successor to all the properties left by the deceased Linnie Jane Hodges."

(p. 44, Rec. Sp. Proc. 1307; emphasis supplied.)

issued the following order:

"As prayed for by Attorney Gellada, counsel for the Executory, for the reasons stated in his motion dated December 11, 1957 which the court considers well taken, all the sales, conveyances, leases and mortgages of all properties left by the deceased Linnie Jane Hodges are hereby APPROVED. The said executor is further authorized to execute subsequent sales, conveyances, leases and mortgages of the properties left by the said deceased Linnie Jane Hodges in consonance with the wishes contained in the last will and testament of the latter."

(p. 46, Rec. Sp. Proc. 1307; emphasis supplied.)

(5) On April 21, 1959 this Honorable Court approved the inventory and accounting submitted by C. N. Hodges through his counsel Leon P. Gellada on April 14, 1959 wherein he alleged among other things

"That no person interested in the Philippines of the time and place of examining the herein account, be given notice, as herein executor is the only devisee or legatee of the deceased, in accordance with the last will and testament already probated by the Honorable Court."

(pp. 77-78, Rec. Sp. Proc. 1307; emphasis supplied.).

(6) On July 30, 1960 this Honorable Court approved the "Annual Statement of Account" submitted by C. N. Hodges through his counsel Leon P. Gellada on July 21, 1960 wherein he alleged among other things:

"That no person interested in the Philippines of the time and place of examining the herein account, be given notice as herein executor is the only devisee or legatee of the deceased Linnie Jane Hodges, in accordance with the last will and testament of the deceased, already probated by this Honorable Court."

(pp. 81-82. Rec. Sp. Proc. 1307; emphasis supplied.)

(7) On May 2, 1961 this Honorable court approved the "Annual Statement of Account By The Executor for the Year 1960" submitted through Leon P. Gellada on April 20, 1961 wherein he alleged:

That no person interested in the Philippines be given notice, of the time and place of examining the herein account, as herein Executor is the only devisee or legatee of the deceased Linnie Jane Hodges, in accordance with the last will and testament of the deceased, already probated by this Honorable Court.

(pp. 90-91. Rec. Sp. Proc. 1307; emphasis supplied.)

(8) On December 25, 1962, C.N. Hodges died.

(9) On December 25, 1962, on the Urgent Ex-parte Motion of Leon P. Gellada filed only in Special Proceeding No. 1307, this Honorable Court appointed Avelina A. Magno

"Administratrix of the estate of Linnie Jane Hodges and as Special Administratrix of the estate of Charles Newton Hodges, in the latter case, because the last will of said Charles Newton Hodges is still kept in his vault or iron safe and that the real and personal properties of both spouses may be lost, damaged or go to waste, unless a Special Administratrix is appointed."

(p. 100. Rec. Sp. Proc. 1307)

(10) On December 26, 1962 Letters of Administration were issued to Avelina Magno pursuant to this Honorable Court's aforesaid Order of December 25, 1962

"With full authority to take possession of all the property of said deceased in any province or provinces in which it may be situated and to perform all other acts necessary for the preservation of said property, said Administratrix and/or Special Administratrix having filed a bond satisfactory to the Court."

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

(11) On January 22, 1963 this Honorable Court on petition of Leon P. Gellada of January 21, 1963 issued Letters of Administration to:

(a) Avelina A. Magno as Administratrix of the estate of Linnie Jane Hodges;

(b) Avelina A. Magno as Special Administratrix of the Estate of Charles Newton Hodges; and

(c) Joe Hodges as Co-Special Administrator of the Estate of Charles Newton Hodges.

(p. 43, Rec. Sp. Proc. 1307)

(12) On February 20, 1963 this Honorable Court on the basis of a motion filed by Leon P. Gellada as legal counsel on February 16, 1963 for Avelina A. Magno acting as Administratrix of the Estate of Charles Newton Hodges (pp. 114-116, Sp. Proc. 1307) issued the following order:

"... se autoriza a aquella (Avelina A. Magno) a firmar escrituras de venta definitiva de propiedades cubiertas por contratos para vender, firmados, en vida, por el finado Charles Newton Hodges, cada vez que el precio estipulado en cada contrato este totalmente pagado. Se autoriza igualmente a la misma a firmar escrituras de cancelacion de hipoteca tanto de bienes reales como personales cada vez que la consideracion de cada hipoteca este totalmente pagada.

"Cada una de dichas escrituras que se otorguen debe ser sometida para la aprobacion de este Juzgado."

(p. 117, Sp. Proc. 1307).

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

(13) On September l6, 1963 Leon P. Gellada, acting as attorney for Avelina A. Magno as Administratrix of the estate of Linnie Jane Hodges, alleges:

3. — That since January, 1963, both estates of Linnie Jane Hodges and Charles Newton Hodges have been receiving in full, payments for those "contracts to sell" entered into by C. N. Hodges during his lifetime, and the purchasers have been demanding the execution of definite deeds of sale in their favor.

4. — That hereto attached are thirteen (13) copies deeds of sale executed by the Administratrix and by the co-administrator (Fernando P. Mirasol) of the estate of Linnie Jane Hodges and Charles Newton Hodges respectively, in compliance with the terms and conditions of the respective "contracts to sell" executed by the parties thereto."

(14) The properties involved in the aforesaid motion of September 16, 1963 are all registered in the name of the deceased C. N. Hodges.

(15) Avelina A. Magno, it is alleged on information and belief, has been advertising in the newspaper in Iloilo thusly:

For Sale

Testate Estate of Linnie Jane Hodges and Charles Newton Hodges.

All Real Estate or Personal Property will be sold on First Come First Served Basis.

Avelina A. Magno Administratrix

(16) Avelina A. Magno, it is alleged on information and belief, has paid and still is paying sums of money to sundry persons.

(17) Joe Hodges through the undersigned attorneys manifested during the hearings before this Honorable Court on September 5 and 6, 1963 that the estate of C. N. Hodges was claiming all of the assets belonging to the deceased spouses Linnie Jane Hodges and C. N. Hodges situated in Philippines because of the aforesaid election by C. N. Hodges wherein he claimed and took possession as sole owner of all of said assets during the administration of the estate of Linnie Jane Hodges on the ground that he was the sole devisee and legatee under her Last Will and Testament.

(18) Avelina A. Magno has submitted no inventory and accounting of her administration as Administratrix of the estate of Linnie Jane Hodges and Special Administratrix of the estate of C. N. Hodges. However, from manifestations made by

Avelina A. Magno and her legal counsel, Leon P. Gellada, there is no question she will claim that at least fifty per cent (50%) of the conjugal assets of the deceased spouses and the rents, emoluments and income therefrom belong to the Higdon family who are named in paragraphs Fourth and Fifth of the Will of Linnie Jane Hodges (p. 5, Rec. Sp. Proc. 1307).

WHEREFORE, premises considered, movant respectfully prays that this Honorable Court, after due hearing, order:

(1) Avelina A. Magno to submit an inventory and accounting of all of the funds, properties and assets of any character belonging to the deceased Linnie Jane Hodges and C. N. Hodges which have come into her possession, with full details of what she has done with them;

(2) Avelina A. Magno to turn over and deliver to the Administrator of the estate of C. N. Hodges all of the funds, properties and assets of any character remaining in her possession;

(3) Pending this Honorable Court's adjudication of the aforesaid issues, Avelina A. Magno to stop, unless she first secures the conformity of Joe Hodges (or his duly authorized representative, such as the undersigned attorneys) as the Co-administrator and attorney-in-fact of a majority of the beneficiaries of the estate of C. N. Hodges:

(a) Advertising the sale and the sale of the properties of the estates:

(b) Employing personnel and paying them any compensation.

(4) Such other relief as this Honorable Court may deem just and equitable in the premises. (Annex "T", Petition.)

Almost a year thereafter, or on September 14, 1964, after the co-administrators Joe Hodges and Fernando P. Mirasol were replaced by herein petitioner Philippine Commercial and Industrial Bank as sole administrator, pursuant to an agreement of all the heirs of Hodges approved by the court, and because the above motion of October 5, 1963 had not yet been heard due to the absence from the country of Atty. Gibbs, petitioner filed the following:

MANIFESTATION AND MOTION, INCLUDING MOTION TO SET FOR HEARING AND RESOLVE "URGENT MOTION FOR AN ACCOUNTING AND DELIVERY TO ADMINISTRATORS OF THE ESTATE OF C. N. HODGES OF ALL THE ASSETS OF THE CONJUGAL PARTNERSHIP OF THE DECEASED LINNIE JANE HODGES AND C. N. HODGES EXISTING AS OF MAY 23, 1957 PLUS ALL OF THE RENTS, EMOLUMENTS AND INCOME THEREFROM OF OCTOBER 5, 1963.

COMES NOW Philippine Commercial and Industrial Bank (hereinafter referred to as PCIB), the administrator of the estate of C. N. Hodges, deceased, in Special Proceedings No. 1672, through its undersigned counsel, and to this Honorable Court respectfully alleges that:

1. On October 5, 1963, Joe Hodges acting as the co-administrator of the estate of C. N. Hodges filed, through the undersigned attorneys, an "Urgent Motion For An Accounting and Delivery To Administrator of the Estate of C. N. Hodges of all Of The Assets Of The Conjugal Partnership of The Deceased Linnie Jane Hodges and C. N. Hodges Existing as Of May, 23, 1957 Plus All Of The Rents, Emoluments and Income Therefrom" (pp. 536-542, CFI Rec. S. P. No. 1672).

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

3. On January 24, 1964 virtually all of the heirs of C. N. Hodges, Joe Hodges and Fernando P. Mirasol acting as the two co-administrators of the estate of C. N. Hodges, Avelina A. Magno acting as the administratrix of the estate of Linnie Jane Hodges, and Messrs. William Brown and Ardel Young Acting for all of the Higdon family who claim to be the sole beneficiaries of the estate of Linnie Jane Hodges and various legal counsel representing the aforenamed parties entered into an amicable agreement, which was approved by this Honorable Court, wherein the parties thereto agreed that certain sums of money were to be paid in settlement of different claims against the two estates and that the assets (to the extent they existed)of both estates would be administrated jointly by the PCIB as administrator of the estate of C. N. Hodges and Avelina A. Magno as administratrix of the estate of Linnie Jane Hodges, subject, however, to the aforesaid October 5, 1963 Motion, namely, the PCIB's claim to exclusive possession and ownership of one-hundred percent (10017,) (or, in the alternative, seventy-five percent [75%] of all assets owned by C. N. Hodges or Linnie Jane Hodges situated in the Philippines. On February 1, 1964 (pp. 934-935, CFI Rec., S. P. No. 1672) this Honorable Court amended its order of January 24, 1964 but in no way changes its recognition of the aforedescribed basic demand by the PCIB as administrator of the estate of C. N. Hodges to one hundred percent (100%) of the assets claimed by both estates.

4. On February 15, 1964 the PCIB filed a "Motion to Resolve" the aforesaid Motion of October 5, 1963. This Honorable Court set for hearing on June 11, 1964 the Motion of October 5, 1963.

5. On June 11, 1964, because the undersigned Allison J. Gibbs was absent in the United States, this Honorable Court ordered the indefinite postponement of the hearing of the Motion of October 5, 1963.

6. Since its appointment as administrator of the estate of C. N. Hodges the PCIB has not been able to properly carry out its duties and obligations as administrator of the estate of C. N. Hodges because of the following acts, among others, of Avelina A. Magno and those who claim to act for her as administratrix of the estate of Linnie Jane Hodges:

(a) Avelina A. Magno illegally acts as if she is in exclusive control of all of the assets in the Philippines of both estates including those claimed by the estate of C. N. Hodges as evidenced in part by her

locking the premises at 206-208 Guanco Street, Iloilo City on August 31, 1964 and refusing to reopen same until ordered to do so by this Honorable Court on September 7, 1964.

(b) Avelina A. Magno illegally acts as though she alone may decide how the assets of the estate of C.N. Hodges should be administered, who the PCIB shall employ and how much they may be paid as evidenced in party by her refusal to sign checks issued by the PCIB payable to the undersigned counsel pursuant to their fee agreement approved by this Honorable Court in its order dated March 31, 1964.

(c) Avelina A. Magno illegally gives access to and turns over possession of the records and assets of the estate of C.N. Hodges to the attorney-in-fact of the Higdon Family, Mr. James L. Sullivan, as evidenced in part by the cashing of his personal checks.

(d) Avelina A. Magno illegally refuses to execute checks prepared by the PCIB drawn to pay expenses of the estate of C. N. Hodges as evidenced in part by the check drawn to reimburse the PCIB's advance of P48,445.50 to pay the 1964 income taxes reported due and payable by the estate of C.N. Hodges.

7. Under and pursuant to the orders of this Honorable Court, particularly those of January 24 and February 1, 1964, and the mandate contained in its Letters of Administration issued on January 24, 1964 to the PCIB, it has

"full authority to take possession of all the property of the deceased C. N. Hodges

"and to perform all other acts necessary for the preservation of said property." (p. 914, CFI Rec., S.P. No. 1672.)

8. As administrator of the estate of C. N. Hodges, the PCIB claims the right to the immediate exclusive possession and control of all of the properties, accounts receivables, court cases, bank accounts and other assets, including the documentary records evidencing same, which existed in the Philippines on the date of C. N. Hodges' death, December 25, 1962, and were in his possession and registered in his name alone. The PCIB knows of no assets in the Philippines registered in the name of Linnie Jane Hodges, the estate of Linnie Jane Hodges, or, C. N. Hodges, Executor of the Estate of Linnie Jane Hodges on December 25, 1962. All of the assets of which the PCIB has knowledge are either registered in the name of C. N. Hodges, alone or were derived therefrom since his death on December 25, 1962.

9. The PCIB as the current administrator of the estate of C. N. Hodges, deceased, succeeded to all of the rights of the previously duly appointed administrators of the estate of C. N. Hodges, to wit:

(a) On December 25, 1962, date of C. N. Hodges' death, this Honorable Court appointed Miss Avelina A. Magno simultaneously as:

(i) Administratrix of the estate of Linnie Jane Hodges (p. 102, CFI Rec., S.P. No. 1307) to replace the deceased C. N. Hodges who on May 28, 1957 was appointed Special Administrator (p. 13. CFI Rec. S.P. No. 1307) and on July 1, 1957 Executor of the estate of Linnie Jane Hodges (p. 30, CFI Rec., S. P. No. 1307).

(ii) Special Administratrix of the estate of C. N. Hodges (p. 102, CFI Rec., S.P. No. 1307).

(b) On December 29, 1962 this Honorable Court appointed Harold K. Davies as co-special administrator of the estate of C.N. Hodges along with Avelina A. Magno (pp. 108-111, CFI Rec., S. P. No. 1307).

(c) On January 22, 1963, with the conformity of Avelina A. Magno, Harold K. Davies resigned in favor of Joe Hodges (pp. 35-36, CFI Rec., S.P. No. 1672) who thereupon was appointed on January 22, 1963 by this Honorable Court as special co-administrator of the estate of C.N. Hodges (pp. 38-40 & 43, CFI Rec. S.P. No. 1672) along with Miss Magno who at that time was still acting as special co-administratrix of the estate of C. N. Hodges.

(d) On February 22, 1963, without objection on the part of Avelina A. Magno, this Honorable Court appointed Joe Hodges and Fernando P. Mirasol as co-administrators of the estate of C.N. Hodges (pp. 76-78, 81 & 85, CFI Rec., S.P. No. 1672).

10. Miss Avelina A. Magno, pursuant to the orders of this Honorable Court of December 25, 1962, took possession of all Philippine Assets now claimed by the two estates. Legally, Miss Magno could take possession of the assets registered in the name of C. N. Hodges alone only in her capacity as Special Administratrix of the Estate of C.N. Hodges. With the appointment by this Honorable Court on February 22, 1963 of Joe Hodges and Fernando P. Mirasol as the co-administrators of the estate of C.N. Hodges, they legally were entitled to take over from Miss Magno the full and exclusive possession of all of the assets of the estate of C.N. Hodges. With the appointment on January 24, 1964 of the PCIB as the sole administrator of the estate of C.N. Hodges in substitution of Joe Hodges and Fernando P. Mirasol, the PCIB legally became the only party entitled to the sole and exclusive possession of all of the assets of the estate of C. N. Hodges.

11. The PCIB's predecessors submitted their accounting and this Honorable Court approved same, to wit:

(a) The accounting of Harold K. Davies dated January 18, 1963 (pp. 16-33, CFI Rec. S.P. No. 1672); which shows or its face the:

(i) Conformity of Avelina A. Magno acting as "Administratrix of the Estate of Linnie Jane Hodges and Special Administratrix of the Estate of C. N. Hodges";

(ii) Conformity of Leslie Echols, a Texas lawyer acting for the heirs of C.N. Hodges; and

(iii) Conformity of William Brown, a Texas lawyer acting for the Higdon family who claim to be the only heirs of Linnie Jane Hodges (pp. 18, 25-33, CFI Rec., S. P. No. 1672).

Note: This accounting was approved by this Honorable Court on January 22, 1963 (p. 34, CFI Rec., S. P. No. 1672).

(b) The accounting of Joe Hodges and Fernando P. Mirasol as of January 23, 1964, filed February 24, 1964 (pp. 990-1000, CFI Rec. S.P. No. 1672 and pp. 1806-1848, CFI Rec. S.P. No. 1307).

Note: This accounting was approved by this Honorable Court on March 3, 1964.

(c) The PCIB and its undersigned lawyers are aware of no report or accounting submitted by Avelina A. Magno of her acts as administratrix of the estate of Linnie Jane Hodges or special administratrix of the estate of C.N. Hodges, unless it is the accounting of Harold K. Davies as special co-administrator of the estate of C.N. Hodges dated January 18, 1963 to which Miss Magno manifested her conformity (supra).

12. In the aforesaid agreement of January 24, 1964, Miss Avelina A. Magno agreed to receive P10,000.00

"for her services as administratrix of the estate of Linnie Jane Hodges"

and in addition she agreed to be employed, starting February 1, 1964, at

"a monthly salary of P500.00 for her services as an employee of both estates."

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13. Under the aforesaid agreement of January 24, 1964 and the orders of this Honorable Court of same date, the PCIB as administrator of the estate of C. N. Hodges is entitled to the exclusive possession of all records, properties and assets in the name of C. N. Hodges as of the date of his death on December 25, 1962 which were in the possession of the deceased C. N. Hodges on that date and which then passed to the possession of Miss Magno in her capacity as Special Co-Administratrix of the estate of C. N. Hodges or the possession of Joe Hodges or Fernando P. Mirasol as co-administrators of the estate of C. N. Hodges.

14. Because of Miss Magno's refusal to comply with the reasonable request of PCIB concerning the assets of the estate of C. N. Hodges, the PCIB dismissed Miss Magno as an employee of the estate of C. N. Hodges effective August 31, 1964. On September 1, 1964 Miss Magno locked the premises at 206-208 Guanco Street and denied the PCIB access thereto. Upon the Urgent Motion of the PCIB dated September 3, 1964, this Honorable Court on September 7, 1964 ordered Miss Magno to reopen the aforesaid premises at 206-208 Guanco Street and permit the PCIB access thereto no later than September 8, 1964.

15. The PCIB pursuant to the aforesaid orders of this Honorable Court is again in physical possession of all of the assets of the estate of C. N. Hodges. However, the PCIB is not in exclusive control of the aforesaid records, properties and assets because Miss Magno continues to assert the claims hereinabove outlined in paragraph 6, continues to use her own locks to the doors of the aforesaid premises at 206-208 Guanco Street, Iloilo City and continues to deny the PCIB its right to know the combinations to the doors of the vault and safes situated within the premises at 206-208 Guanco Street despite the fact that said combinations were known to only C. N. Hodges during his lifetime.

16. The Philippine estate and inheritance taxes assessed the estate of Linnie Jane Hodges were assessed and paid on the basis that C. N. Hodges is the sole beneficiary of the assets of the estate of Linnie Jane Hodges situated in the Philippines. Avelina A. Magno and her legal counsel at no time have questioned the validity of the aforesaid assessment and the payment of the corresponding Philippine death taxes.

17. Nothing further remains to be done in the estate of Linnie Jane Hodges except to resolve the aforesaid Motion of October 5, 1963 and grant the PCIB the exclusive possession and control of all of the records, properties and assets of the estate of C. N. Hodges.

18. Such assets as may have existed of the estate of Linnie Jane Hodges were ordered by this Honorable Court in special Proceedings No. 1307 to be turned over and delivered to C. N. Hodges alone. He in fact took possession of them before his death and asserted and exercised the right of exclusive ownership over the said assets as the sole beneficiary of the estate of Linnie Jane Hodges.

WHEREFORE, premises considered, the PCIB respectfully petitions that this Honorable court:

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

(2) Order Avelina A. Magno to submit an inventory and accounting as Administratrix of the Estate of Linnie Jane Hodges and Co-Administratrix of the Estate of C. N. Hodges of all of the funds, properties and assets of any character belonging to the deceased Linnie Jane Hodges and C. N. Hodges which have come into her possession, with full details of what she has done with them;

(3) Order Avelina A. Magno to turn over and deliver to the PCIB as administrator of the estate of C. N. Hodges all of the funds, properties and assets of any character remaining in her possession;

(4) Pending this Honorable Court's adjudication of the aforesaid issues, order Avelina A. Magno and her representatives to stop interferring with the administration of the estate of C. N. Hodges by the PCIB and its duly authorized representatives;

(5) Enjoin Avelina A. Magno from working in the premises at 206-208 Guanco Street, Iloilo City as an employee of the estate of C. N. Hodges and approve her dismissal as such by the PCIB effective August 31, 1964;

(6) Enjoin James L. Sullivan, Attorneys Manglapus and Quimpo and others allegedly representing Miss Magno from entering the premises at 206-208 Guanco Street, Iloilo City or any other properties of C. N. Hodges without the express permission of the PCIB;

(7) Order such other relief as this Honorable Court finds just and equitable in the premises. (Annex "U" Petition.)

On January 8, 1965, petitioner also filed a motion for "Official Declaration of Heirs of Linnie Jane Hodges Estate" alleging:

COMES NOW Philippine Commercial and Industrial Bank (hereinafter referred to as PCIB), as administrator of the estate of the late C. N. Hodges, through the undersigned counsel, and to this Honorable Court respectfully alleges that:

1. During their marriage, spouses Charles Newton Hodges and Linnie Jane Hodges, American citizens originally from the State of Texas, U.S.A., acquired and accumulated considerable assets and properties in the Philippines and in the States of Texas and Oklahoma, United States of America. All said properties constituted their conjugal estate.

2. Although Texas was the domicile of origin of the Hodges spouses, this Honorable Court, in its orders dated March 31 and December 12, 1964 (CFI Record, Sp. Proc. No. 1307, pp. ----; Sp. Proc. No. 1672, p. ----), conclusively found and categorically ruled that said spouses had lived and worked for more than 50 years in Iloilo City and had, therefore, acquired a domicile of choice in said city, which they retained until the time of their respective deaths.

3. On November 22, 1952, Linnie Jane Hodges executed in the City of Iloilo her Last Will and Testament, a copy of which is hereto attached as Annex "A". The bequests in said will pertinent to the present issue are the second, third, and fourth provisions, which we quote in full hereunder.

SECOND: I give, devise and bequeath all of the rest, residue and remainder of my estate, both personal and real, wherever situated, or located, to my husband, Charles Newton Hodges, to have and to hold unto him, my said husband during his natural lifetime.

THIRD: I desire, direct and provide that my husband, Charles Newton Hodges, shall have the right to manage, control, use and enjoy said estate during his lifetime, and he is hereby given the right to make any changes in the physical properties of said estate by sale of any part thereof which he think best, and the purchase of any other or additional property as he may think best; to execute conveyances with or without general or special warranty, conveying in fee simple or for any other term or time, any property which he may deem proper to dispose of; to lease any of the real property for oil, gas and/or other minerals, and all such deeds or leases shall pass the absolute fee simple title to the interest so conveyed in such property as he may elect to sell. All rents, emoluments and income from said estate shall belong to him, and he is further authorized to use any part of the principal of said estate as he may need or desire. It is provided

herein, however, that he shall not sell or otherwise dispose of any of the improved property now owned by us located at, in or near the City of Lubbock, Texas, but he shall have the full right to lease, manage and enjoy the same during his lifetime, as above provided. He shall have the right to sub-divide any farmland and sell lots therein, and may sell unimproved town lots.

FOURTH: At the death of my said husband, Charles Newton Hodges, I give, devise and bequeath all of the rest, residue and remainder of my estate both real and personal, wherever situated or located, to be equally divided among my brothers and sisters, share and share alike, namely:

"Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie Rascoe, Era Boman and Nimray Higdon."

4. On November 14, 1953, C. N. Hodges executed in the City of Iloilo his Last Will and Testament, a copy of which is hereto attached as Annex "B ". In said Will, C. N. Hodges designated his wife, Linnie Jane Hodges, as his beneficiary using the identical language she used in the second and third provisos of her Will, supra.

5. On May 23, 1957 Linnie Jane Hodges died in Iloilo City, predeceasing her husband by more than five (5) years. At the time of her death, she had no forced or compulsory heir, except her husband, C. N. Hodges. She was survived also by various brothers and sisters mentioned in her Will (supra), which, for convenience, we shall refer to as the HIGDONS.

6. On June 28, 1957, this Honorable Court admitted to probate the Last Will and Testament of the deceased Linnie Jane Hodges (Annex "A"), and appointed C. N. Hodges as executor of her estate without bond. (CFI Record, Sp. Proc. No. 1307, pp. 24-25). On July 1, 1957, this Honorable Court issued letters testamentary to C. N. Hodges in the estate of Linnie Jane Hodges. (CFI Record, Sp. Proc. No. 1307, p. 30.)

7. The Will of Linnie Jane Hodges, with respect to the order of succession, the amount of successional rights, and the intrinsic of its testamentary provisions, should be governed by Philippine laws because:

(a) The testatrix, Linnie Jane Hodges, intended Philippine laws to govern her Will;

(b) Article 16 of the Civil Code provides that "the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found", shall prevail. However, the Conflict of Law of Texas, which is the "national law" of the testatrix, Linnie Jane Hodges, provide that the domiciliary law (Philippine law — see paragraph 2, supra) should govern the testamentary dispositions and successional rights over movables (personal properties), and the law of the situs of the property (also Philippine law as to properties located in the Philippines) with regards immovable (real properties). Thus applying the "Renvoi Doctrine", as approved and applied by our

Supreme Court in the case of "In The Matter Of The Testate Estate of Eduard E. Christensen", G.R. No. L-16749, promulgated January 31, 1963, Philippine law should apply to the Will of Linnie Jane Hodges and to the successional rights to her estate insofar as her movable andimmovable assets in the Philippines are concerned. We shall not, at this stage, discuss what law should govern the assets of Linnie Jane Hodges located in Oklahoma and Texas, because the only assets in issue in this motion are those within the jurisdiction of this motion Court in the two above-captioned Special Proceedings.

8. Under Philippine and Texas law, the conjugal or community estate of spouses shall, upon dissolution, be divided equally between them. Thus, upon the death of Linnie Jane Hodges on May 23, 1957, one-half (1/2) of the entirety of the assets of the Hodges spouses constituting their conjugal estate pertained automatically to Charles Newton Hodges, not by way of inheritance, but in his own right as partner in the conjugal partnership. The other one-half (1/2) portion of the conjugal estate constituted the estate of Linnie Jane Hodges. This is the only portion of the conjugal estate capable of inheritance by her heirs.

9. This one-half (1/2) portion of the conjugal assets pertaining to Linnie Jane Hodges cannot, under a clear and specific provision of her Will, be enhanced or increased by income, earnings, rents, or emoluments accruing after her death on May 23, 1957. Linnie Jane Hodges' Will provides that "all rents, emoluments and income from said estate shall belong to him (C. N. Hodges) and he is further authorized to use any part of the principal of said estate as he may need or desire." (Paragraph 3, Annex "A".) Thus, by specific provision of Linnie Jane Hodges' Will, "all rents, emoluments and income" must be credited to the one-half (1/2) portion of the conjugal estate pertaining to C. N. Hodges. Clearly, therefore, the estate of Linnie Jane Hodges, capable of inheritance by her heirs, consisted exclusively of no more than one-half (1/2) of the conjugal estate, computed as of the time of her death on May 23, 1957.

10. Articles 900, 995 and 1001 of the New Civil Code provide that the surviving spouse of a deceased leaving no ascendants or descendants is entitled, as a matter of right and by way of irrevocable legitime, to at least one-half (1/2) of the estate of the deceased, and no testamentary disposition by the deceased can legally and validly affect this right of the surviving spouse. In fact, her husband is entitled to said one-half (1/2) portion of her estate by way of legitime. (Article 886, Civil Code.) Clearly, therefore, immediately upon the death of Linnie Jane Hodges, C. N. Hodges was the owner of at least three-fourths (3/4) or seventy-five (75%) percent of all of the conjugal assets of the spouses, (1/2 or 50% by way of conjugal partnership share and 1/4 or 25% by way of inheritance and legitime) plus all "rents, emoluments and income" accruing to said conjugal estate from the moment of Linnie Jane Hodges' death (see paragraph 9, supra).

11. The late Linnie Jane Hodges designated her husband C.N. Hodges as her sole and exclusive heir with full authority to do what he pleased, as exclusive heir and owner of all the assets constituting her estate, except only with regards certain properties "owned by us, located at, in or near the City of Lubbock, Texas". Thus, even without relying on our laws of succession and legitime, which we have cited above, C. N. Hodges, by specific testamentary designation of his wife, was entitled to the entirely to his wife's estate in the Philippines.

12. Article 777 of the New Civil Code provides that "the rights of the successor are transmitted from the death of the decedent". Thus, title to the estate of Linnie Jane Hodges was transmitted to C. N. Hodges immediately upon her death on May 23, 1957. For the convenience of this Honorable Court, we attached hereto as Annex "C" a graph of how the conjugal estate of the spouses Hodges should be divided in accordance with Philippine law and the Will of Linnie Jane Hodges.

13. In his capacity as sole heir and successor to the estate of Linnie Jane Hodges as above-stated, C. N. Hodges, shortly after the death of Linnie Jane Hodges, appropriated to himself the entirety of her estate. He operated all the assets, engaged in business and performed all acts in connection with the entirety of the conjugal estate, in his own name alone, just as he had been operating, engaging and doing while the late Linnie Jane Hodges was still alive. Upon his death on December 25, 1962, therefore, all said conjugal assets were in his sole possession and control, and registered in his name alone, not as executor, but as exclusive owner of all said assets.

14. All these acts of C. N. Hodges were authorized and sanctioned expressly and impliedly by various orders of this Honorable Court, as follows:

(a) In an Order dated May 27, 1957, this Honorable Court ruled that C. N. Hodges "is allowed or authorized to continue the business in which he was engaged, and to perform acts which he had been doing while the deceased was living." (CFI Record, Sp. Proc. No. 1307, p. 11.)

(b) On December 14, 1957, this Honorable Court, on the basis of the following fact, alleged in the verified Motion dated December 11, 1957 filed by Leon P. Gellada as attorney for the executor C. N. Hodges:

That herein Executor, (is) not only part owner of the properties left as conjugal, but also, the successor to all the properties left by the deceased Linnie Jane Hodges.' (CFI Record, Sp. Proc. No. 1307, p. 44; emphasis supplied.)

issued the following order:

"As prayed for by Attorney Gellada, counsel for the Executor, for the reasons stated in his motion dated December 11, 1957, which the Court considers well taken, all the sales, conveyances, leases and mortgages of all the properties left by the deceased Linnie Jane Hodges executed by the Executor, Charles Newton Hodges are hereby APPROVED. The said Executor is further authorized to execute subsequent sales, conveyances, leases and mortgages of the properties left by the said deceased Linnie Jane Hodges in consonance with the wishes contained in the last will and testament of the latter." (CFI Record. Sp. Proc. No. 1307, p. 46; emphasis supplied.)

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(c) On April 21, 1959, this Honorable Court approved the verified inventory and accounting submitted by C. N. Hodges through his counsel Leon P. Gellada on April 14, 1959 wherein he alleged among other things,

"That no person interested in the Philippines of the time and place of examining the herein account, be given notice, as herein executor is

the only devisee or legatee of the deceased, in accordance with the last will and testament already probated by the Honorable Court." (CFI Record, Sp. Proc. No. 1307, pp. 77-78; emphasis supplied.)

(d) On July 20, 1960, this Honorable Court approved the verified "Annual Statement of Account" submitted by C. N. Hodges through his counsel Leon P. Gellada on July 21, 1960 wherein he alleged, among other things.

"That no person interested in the Philippines of the time and place of examining the herein account, be given notice as herein executor is the only devisee or legatee of the deceased Linnie Jane Hodges, in accordance with the last will and testament ofthe deceased, already probated by this Honorable Court." (CFI Record, Sp. Proc. No. 1307, pp. 81-82; emphasis supplied.)

(e) On May 2, 1961, this Honorable Court approved the verified "Annual Statement of Account By The Executor For the Year 1960" submitted through Leon P. Gellada on April 20, 1961 wherein he alleged:

"That no person interested in the Philippines be given notice, ofthe time and place of examining the herein account, as herein executor is the only devisee or legatee of the deceased Linnie Jane Hodges, in accordance with the last will and testament ofthe deceased, already probated by this Honorable Court." (CFI Record, Sp. Proc. No. 1307, pp. 90-91; emphasis supplied.)

15. Since C. N. Hodges was the sole and exclusive heir of Linnie Jane Hodges, not only by law, but in accordance with the dispositions of her will, there was, in fact, no need to liquidate the conjugal estate of the spouses. The entirely of said conjugal estate pertained to him exclusively, therefore this Honorable Court sanctioned and authorized, as above-stated, C. N. Hodges to manage, operate and control all the conjugal assets as owner.

16. By expressly authorizing C. N. Hodges to act as he did in connection with the estate of his wife, this Honorable Court has (1) declared C. N. Hodges as the sole heir of the estate of Linnie Jane Hodges, and (2) delivered and distributed her estate to C. N. Hodges as sole heir in accordance with the terms and conditions of her Will. Thus, although the "estate of Linnie Jane Hodges" still exists as a legal and juridical personality, it had no assets or properties located in the Philippines registered in its name whatsoever at the time of the death of C. N. Hodges on December 25, 1962.

17. The Will of Linnie Jane Hodges (Annex "A"), fourth paragraph, provides as follows:

"At the death of my said husband, Charles Newton Hodges, I give, devise and bequeath all of the rest, residue and remainder of my estate both real and personal, wherever situated or located, to be equally divided among my brothers and sisters, share and share alike, namely:

"Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie Rascoe, Era Boman and Nimray Higdon."

Because of the facts hereinabove set out there is no "rest, residue and remainder", at least to the extent of the Philippine assets, which remains to vest in the HIGDONS, assuming this proviso in Linnie Jane Hodges' Will is valid and binding against the estate of C. N. Hodges.

18. Any claims by the HIGDONS under the above-quoted provision of Linnie Jane Hodges' Will is without merit because said provision is void and invalid at least as to the Philippine assets. It should not, in anyway, affect the rights of the estate of C. N. Hodges or his heirs to the properties, which C. N. Hodges acquired by way of inheritance from his wife Linnie Jane Hodges upon her death.

(a) In spite of the above-mentioned provision in the Will of Linnie Jane Hodges, C. N. Hodges acquired, not merely a usufructuary right, but absolute title and ownership to her estate. In a recent case involving a very similar testamentary provision, the Supreme Court held that the heir first designated acquired full ownership of the property bequeathed by the will, not mere usufructuary rights. (Consolacion Florentino de Crisologo, et al., vs. Manuel Singson, G. R. No. L-13876, February 28, 1962.)

(b) Article 864, 872 and 886 of the New Civil Code clearly provide that no charge, condition or substitution whatsoever upon the legitime can be imposed by a testator. Thus, under the provisions of Articles 900, 995 and 1001 of the New Civil Code, the legitime of a surviving spouse is 1/2 of the estate of the deceased spouse. Consequently, the above-mentioned provision in the Will of Linnie Jane Hodges is clearly invalid insofar as the legitime of C. N. Hodges was concerned, which consisted of 1/2 of the 1/2 portion of the conjugal estate, or 1/4 of the entire conjugal estate of the deceased.

(c) There are generally only two kinds of substitution provided for and authorized by our Civil Code (Articles 857-870), namely, (1) simple or common substitution, sometimes referred to as vulgar substitution (Article 859), and (2) fideicommissary substitution (Article 863). All other substitutions are merely variations of these. The substitution provided for by paragraph four of the Will of Linnie Jane Hodges is not fideicommissary substitution, because there is clearly no obligation on the part of C. N. Hodges as the first heir designated, to preserve the properties for the substitute heirs. (Consolacion Florentino de Crisologo et al. vs. Manuel Singson, G. R. No. L-13876.) At most, it is a vulgar or simple substitution. However, in order that a vulgar orsimple substitution can be valid, three alternative conditions must be present, namely, that the first designated heir (1) should die before the testator; or (2) should not wish to accept the inheritance; or (3) should be incapacitated to do so. None of these conditions apply to C. N. Hodges, and, therefore, the substitution provided for by the above-quoted provision of the Will is not authorized by the Code, and, therefore, it is void. Manresa, commenting on these kisses of substitution, meaningfully stated that: "... cuando el testador instituyeun primer heredero, y por fallecimiento de este nombra otro u otros, ha de entenderse que estas segundas designaciones solo han de llegar a tener efectividad en el caso de que el primer instituido muera antes que el testador, fuera o no esta

su verdadera intencion. ...". (6 Manresa, 7 a ed., pag. 175.) In other words, when another heir is designated to inherit upon the death of a first heir, the second designation can have effect only in case the first instituted heir dies before the testator, whether or not that was the true intention of said testator. Since C. N. Hodges did not die before Linnie Jane Hodges, the provision for substitution contained in Linnie Jane Hodges' Willis void.

(d) In view of the invalidity of the provision for substitution in the Will, C. N. Hodges' inheritance to the entirety of the Linnie Jane Hodges estate is irrevocable and final.

19. Be that as it may, at the time of C. N. Hodges' death, the entirety of the conjugal estate appeared and was registered in him exclusively as owner. Thus, the presumption is that all said assets constituted his estate. Therefore —

(a) If the HIGDONS wish to enforce their dubious rights as substituted heirs to 1/4 of the conjugal estate (the other 1/4 is covered by the legitime of C. N. Hodges which can not be affected by any testamentary disposition), their remedy, if any, is to file their claim against the estate of C. N. Hodges, which should be entitled at the present time to full custody and control of all the conjugal estate of the spouses.

(b) The present proceedings, in which two estates exist under separate administration, where the administratrix of the Linnie Jane Hodges estate exercises an officious right to object and intervene in matters affecting exclusively the C. N. Hodges estate, is anomalous.

WHEREFORE, it is most respectfully prayed that after trial and reception of evidence, this Honorable Court declare:

1. That the estate of Linnie Jane Hodges was and is composed exclusively of one-half (1/2) share in the conjugal estate of the spouses Hodges, computed as of the date of her death on May 23, 1957;

2. That the other half of the conjugal estate pertained exclusively to C. N. Hodges as his share as partner in the conjugal partnership;

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

4. That C. N. Hodges was the sole and exclusive heir of the estate of Linnie Jane Hodges;

5. That, therefore, the entire conjugal estate of the spouses located in the Philippines, plus all the "rents, emoluments and income" above-mentioned, now constitutes the estate of C. N. Hodges, capable of distribution to his heirs upon termination of Special Proceedings No. 1672;

6. That PCIB, as administrator of the estate of C. N. Hodges, is entitled to full and exclusive custody, control and management of all said properties; and

7. That Avelina A. Magno, as administratrix of the estate of Linnie Jane Hodges, as well as the HIGDONS, has no right to intervene or participate in the administration of the C. N. Hodges estate.

PCIB further prays for such and other relief as may be deemed just and equitable in the premises."

(Record, pp. 265-277)

Before all of these motions of petitioner could be resolved, however, on December 21, 1965, private respondent Magno filed her own "Motion for the Official Declaration of Heirs of the Estate of Linnie Jane Hodges" as follows:

COMES NOW the Administratrix of the Estate of Linnie Jane Hodges and, through undersigned counsel, unto this Honorable Court most respectfully states and manifests:

1. That the spouses Charles Newton Hodges and Linnie Jane Hodges were American citizens who died at the City of Iloilo after having amassed and accumulated extensive properties in the Philippines;

2. That on November 22, 1952, Linnie Jane Hodges executed a last will and testament (the original of this will now forms part of the records of these proceedings as Exhibit "C" and appears as Sp. Proc. No. 1307, Folio I, pp. 17-18);

3. That on May 23, 1957, Linnie Jane Hodges died at the City of Iloilo at the time survived by her husband, Charles Newton Hodges, and several relatives named in her last will and testament;

4. That on June 28, 1957, a petition therefor having been priorly filed and duly heard, this Honorable Court issued an order admitting to probate the last will and testament of Linnie Jane Hodges (Sp. Proc. No. 1307, Folio I, pp. 24-25, 26-28);

5. That the required notice to creditors and to all others who may have any claims against the decedent, Linnie Jane Hodges has already been printed, published and posted (Sp. Proc. No. 1307, Folio I. pp. 34-40) and the reglamentary period for filing such claims has long ago lapsed and expired without any claims having been asserted against the estate of Linnie Jane Hodges, approved by the Administrator/Administratrix of the said estate, nor ratified by this Honorable Court;

6. That the last will and testament of Linnie Jane Hodges already admitted to probate contains an institution of heirs in the following words:

"SECOND: I give, devise and bequeath all of the rest, residue and remainder of my estate, both personal and real, wherever situated or located, to my beloved husband, Charles Newton Hodges to have and to hold unto him, my said husband, during his natural lifetime.

THIRD: I desire, direct and provide that my husband, Charles Newton Hodges, shall have the right to manage, control, use and enjoy said estate during his lifetime, and, he is hereby given the right to make

any changes in the physical properties of said estate, by sale of any part thereof which he may think best, and the purchase of any other or additional property as he may think best; to execute conveyances with or without general or special warranty, conveying in fee simple or for any other term or time, any property which he may deem proper to dispose of; to lease any of the real property for oil, gas and/or other minerals, and all such deeds or leases shall pass the absolute fee simple title to the interest so conveyed in such property as he elect to sell. All rents, emoluments and income from said estate shall belong to him, and he is further authorized to use any part of the principal of said estate as he may need or desire. It is provided herein, however, that he shall not sell or otherwise dispose of any of the improved property now owned by us located at, in or near the City of Lubbock Texas, but he shall have the full right to lease, manage and enjoy the same during his lifetime, above provided. He shall have the right to subdivide any farm land and sell lots therein, and may sell unimproved town lots.

FOURTH: At the death of my said husband, Charles Newton Hodges, I give, devise and bequeath all of the rest, residue and remainder of my estate, both real and personal, wherever situated or located, to be equally divided among my brothers and sisters, share and share alike, namely:

Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie Rascoe, Era Boman and Nimroy Higdon.

FIFTH: In case of the death of any of my brothers and/or sisters named in item Fourth, above, prior to the death of my husband, Charles Newton Hodges, then it is my will and bequest that the heirs of such deceased brother or sister shall take jointly the share which would have gone to such brother or sister had she or he survived."

7. That under the provisions of the last will and testament already above-quoted, Linnie Jane Hodges gave a life-estate or a usufruct over all her estate to her husband, Charles Newton Hodges, and a vested remainder-estate or the naked title over the same estate to her relatives named therein;

8. That after the death of Linnie Jane Hodges and after the admission to probate of her last will and testament, but during the lifetime of Charles Newton Hodges, the said Charles Newton Hodges with full and complete knowledge of the life-estate or usufruct conferred upon him by the will since he was then acting as Administrator of the estate and later as Executor of the will of Linnie Jane Hodges, unequivocably and clearly through oral and written declarations and sworn public statements, renounced, disclaimed and repudiated his life-estate and usufruct over the estate of Linnie Jane Hodges;

9. That, accordingly, the only heirs left to receive the estate of Linnie Jane Hodges pursuant to her last will and testament, are her named brothers and sisters, or their heirs, to wit: Esta Higdon, Emma Howell, Leonard Higdon, Aline Higdon and David Higdon, the latter two being the wife and son respectively of the deceased Roy

Higdon, Sadie Rascoe Era Boman and Nimroy Higdon, all of legal ages, American citizens, with residence at the State of Texas, United States of America;

10. That at the time of the death of Linnie Jane Hodges on May 23, 1957, she was the co-owner (together with her husband Charles Newton Hodges) of an undivided one-half interest in their conjugal properties existing as of that date, May 23, 1957, which properties are now being administered sometimes jointly and sometimes separately by the Administratrix of the estate of Linnie Jane Hodges and/or the Administrator of the estate of C. N. Hodges but all of which are under the control and supervision of this Honorable Court;

11. That because there was no separation or segregation of the interests of husband and wife in the combined conjugal estate, as there has been no such separation or segregation up to the present, both interests have continually earned exactly the same amount of "rents, emoluments and income", the entire estate having been continually devoted to the business of the spouses as if they were alive;

12. That the one-half interest of Linnie Jane Hodges in the combined conjugal estate was earning "rents, emoluments and income" until her death on May 23, 1957, when it ceased to be saddled with any more charges or expenditures which are purely personal to her in nature, and her estate kept on earning such "rents, emoluments and income" by virtue of their having been expressly renounced, disclaimed and repudiated by Charles Newton Hodges to whom they were bequeathed for life under the last will and testament of Linnie Jane Hodges;

13. That, on the other hand, the one-half interest of Charles Newton Hodges in the combined conjugal estate existing as of May 23, 1957, while it may have earned exactly the same amount of "rents, emoluments and income" as that of the share pertaining to Linnie Jane Hodges, continued to be burdened by charges, expenditures, and other dispositions which are purely personal to him in nature, until the death of Charles Newton Hodges himself on December 25, 1962;

14. That of all the assets of the combined conjugal estate of Linnie Jane Hodges and Charles Newton Hodges as they exist today, the estate of Linnie Jane Hodges is clearly entitled to a portion more than fifty percent (50%) as compared to the portion to which the estate of Charles Newton Hodges may be entitled, which portions can be exactly determined by the following manner:

a. An inventory must be made of the assets of the combined conjugal estate as they existed on the death of Linnie Jane Hodges on May 23, 1957 — one-half of these assets belong to the estate of Linnie Jane Hodges;

b. An accounting must be made of the "rents, emoluments and income" of all these assets — again one-half of these belong to the estate of Linnie Jane Hodges;

c. Adjustments must be made, after making a deduction of charges, disbursements and other dispositions made by Charles Newton Hodges personally and for his own personal account from May 23, 1957 up to December 25, 1962, as well as other charges,

disbursements and other dispositions made for him and in his behalf since December 25, 1962 up to the present;

15. That there remains no other matter for disposition now insofar as the estate of Linnie Jane Hodges is concerned but to complete the liquidation of her estate, segregate them from the conjugal estate, and distribute them to her heirs pursuant to her last will and testament.

WHEREFORE, premises considered, it is most respectfully moved and prayed that this Honorable Court, after a hearing on the factual matters raised by this motion, issue an order:

a. Declaring the following persons, to wit: Esta Higdon, Emma Howell, Leonard Higdon, Aline Higdon, David Higdon, Sadie Rascoe, Era Boman and Nimroy Higdon, as the sole heirs under the last will and testament of Linnie Jane Hodges and as the only persons entitled to her estate;

b. Determining the exact value of the estate of Linnie Jane Hodges in accordance with the system enunciated in paragraph 14 of this motion;

c. After such determination ordering its segregation from the combined conjugal estate and its delivery to the Administratrix of the estate of Linnie Jane Hodges for distribution to the heirs to whom they properly belong and appertain.

(Green Record on Appeal, pp. 382-391)

whereupon, instead of further pressing on its motion of January 8, 1965 aforequoted, as it had been doing before, petitioner withdrew the said motion and in addition to opposing the above motion of respondent Magno, filed a motion on April 22, 1966 alleging in part that:

1. That it has received from the counsel for the administratrix of the supposed estate of Linnie Jane Hodges a notice to set her "Motion for Official Declaration of Heirs of the Estate of Linnie Jane Hodges";

2. That before the aforesaid motion could be heard, there are matters pending before this Honorable Court, such as:

a. The examination already ordered by this Honorable Court of documents relating to the allegation of Avelina Magno that Charles Newton Hodges "through ... written declarations and sworn public statements, renounced, disclaimed and repudiated life-estate and usufruct over the estate of Linnie Jane Hodges';

b. That "Urgent Motion for An Accounting and Delivery to the Estate of C. N. Hodges of All the Assets of the Conjugal Partnership of the Deceased Linnie Jane Hodges and C. N. Hodges Existing as of May 23, 1957 Plus All the Rents, Emoluments and Income Therefrom";

c. Various motions to resolve the aforesaid motion;

d. Manifestation of September 14, 1964, detailing acts of interference of Avelina Magno under color of title as administratrix of the Estate of Linnie Jane Hodges;

which are all prejudicial, and which involve no issues of fact, all facts involved therein being matters of record, and therefore require only the resolution of questions of law;

3. That whatever claims any alleged heirs or other persons may have could be very easily threshed out in the Testate Estate of Charles Newton Hodges;

4. That the maintenance of two separate estate proceedings and two administrators only results in confusion and is unduly burdensome upon the Testate Estate of Charles Newton Hodges, particularly because the bond filed by Avelina Magno is grossly insufficient to answer for the funds and property which she has inofficiously collected and held, as well as those which she continues to inofficiously collect and hold;

5. That it is a matter of record that such state of affairs affects and inconveniences not only the estate but also third-parties dealing with it;" (Annex "V", Petition.)

and then, after further reminding the court, by quoting them, of the relevant allegations of its earlier motion of September 14, 1964, Annex U, prayed that:

1. Immediately order Avelina Magno to account for and deliver to the administrator of the Estate of C. N. Hodges all the assets of the conjugal partnership of the deceased Linnie Jane Hodges and C. N. Hodges, plus all the rents, emoluments and income therefrom;

2. Pending the consideration of this motion, immediately order Avelina Magno to turn over all her collections to the administrator Philippine Commercial & Industrial Bank;

3. Declare the Testate Estate of Linnie Jane Hodges (Sp. Proc. No. 1307) closed;

4. Defer the hearing and consideration of the motion for declaration of heirs in the Testate Estate of Linnie Jane Hodges until the matters hereinabove set forth are resolved. (Prayer, Annex "V" of Petition.)

On October 12, 1966, as already indicated at the outset of this opinion, the respondent court denied the foregoing motion, holding thus:

O R D E R

On record is a motion (Vol. X, Sp. 1672, pp. 4379-4390) dated April 22, 1966 of administrator PCIB praying that (1) Immediately order Avelina Magno to account for and deliver to the administrator of the estate of C. N. Hodges all assets of the conjugal partnership of the deceased Linnie Jane Hodges and C. N. Hodges, plus all the rents, emoluments and income therefrom; (2) Pending the consideration of this motion, immediately order Avelina Magno to turn over all her collections to the administrator PCIB; (3) Declare the Testate Estate of Linnie Jane Hodges (Sp. Proc. No. 1307) closed; and (4) Defer the hearing and consideration of the motion for

declaration of heirs in the Testate Estate of Linnie Jane Hodges until the matters hereinabove set forth are resolved.

This motion is predicated on the fact that there are matters pending before this court such as (a) the examination already ordered by this Honorable Court of documents relating to the allegation of Avelina Magno that Charles Newton Hodges thru written declaration and sworn public statements renounced, disclaimed and repudiated his life-estate and usufruct over the estate of Linnie Jane Hodges (b) the urgent motion for accounting and delivery to the estate of C. N. Hodges of all the assets of the conjugal partnership of the deceased Linnie Jane Hodges and C. N. Hodges existing as of May 23, 1957 plus all the rents, emoluments and income therefrom; (c) various motions to resolve the aforesaid motion; and (d) manifestation of September 14, 1964, detailing acts of interference of Avelina Magno under color of title as administratrix of the estate of Linnie Jane Hodges.

These matters, according to the instant motion, are all pre-judicial involving no issues of facts and only require the resolution of question of law; that in the motion of October 5, 1963 it is alleged that in a motion dated December 11, 1957 filed by Atty. Leon Gellada as attorney for the executor C. N. Hodges, the said executor C. N. Hodges is not only part owner of the properties left as conjugal but also the successor to all the properties left by the deceased Linnie Jane Hodges.

Said motion of December 11, 1957 was approved by the Court in consonance with the wishes contained in the last will and testament of Linnie Jane Hodges.

That on April 21, 1959 this Court approved the inventory and accounting submitted by C. N. Hodges thru counsel Atty. Leon Gellada in a motion filed on April 14, 1959 stating therein that executor C. N. Hodges is the only devisee or legatee of Linnie Jane Hodges in accordance with the last will and testament already probated by the Court.

That on July 13, 1960 the Court approved the annual statement of accounts submitted by the executor C. N. Hodges thru his counsel Atty. Gellada on July 21, 1960 wherein it is stated that the executor, C. N. Hodges is the only devisee or legatee of the deceased Linnie Jane Hodges; that on May 2, 1961 the Court approved the annual statement of accounts submitted by executor, C. N. Hodges for the year 1960 which was submitted by Atty. Gellada on April 20, 1961 wherein it is stated that executor Hodges is the only devisee or legatee of the deceased Linnie Jane Hodges;

That during the hearing on September 5 and 6, 1963 the estate of C. N. Hodges claimed all the assets belonging to the deceased spouses Linnie Jane Hodges and C. N. Hodges situated in the Philippines; that administratrix Magno has executed illegal acts to the prejudice of the testate estate of C. N. Hodges.

An opposition (Sp. 1672, Vol. X, pp. 4415-4421) dated April 27, 1966 of administratrix Magno has been filed asking that the motion be denied for lack of merit and that the motion for the official declaration of heirs of the estate of Linnie Jane Hodges be set for presentation and reception of evidence.

It is alleged in the aforesaid opposition that the examination of documents which are in the possession of administratrix Magno can be made prior to the hearing of the

motion for the official declaration of heirs of the estate of Linnie Jane Hodges, during said hearing.

That the matters raised in the PCIB's motion of October 5, 1963 (as well as the other motion) dated September 14, 1964 have been consolidated for the purpose of presentation and reception of evidence with the hearing on the determination of the heirs of the estate of Linnie Jane Hodges. It is further alleged in the opposition that the motion for the official declaration of heirs of the estate of Linnie Jane Hodges is the one that constitutes a prejudicial question to the motions dated October 5 and September 14, 1964 because if said motion is found meritorious and granted by the Court, the PCIB's motions of October 5, 1963 and September 14, 1964 will become moot and academic since they are premised on the assumption and claim that the only heir of Linnie Jane Hodges was C. N. Hodges.

That the PCIB and counsel are estopped from further questioning the determination of heirs in the estate of Linnie Jane Hodges at this stage since it was PCIB as early as January 8, 1965 which filed a motion for official declaration of heirs of Linnie Jane Hodges that the claim of any heirs of Linnie Jane Hodges can be determined only in the administration proceedings over the estate of Linnie Jane Hodges and not that of C. N. Hodges, since the heirs of Linnie Jane Hodges are claiming her estate and not the estate of C. N. Hodges.

A reply (Sp. 1672, Vol. X, pp. 4436-4444) dated May 11, 1966 of the PCIB has been filed alleging that the motion dated April 22, 1966 of the PCIB is not to seek deferment of the hearing and consideration of the motion for official declaration of heirs of Linnie Jane Hodges but to declare the testate estate of Linnie Jane Hodges closed and for administratrix Magno to account for and deliver to the PCIB all assets of the conjugal partnership of the deceased spouses which has come to her possession plus all rents and income.

A rejoinder (Sp. 1672, Vol. X, pp. 4458-4462) of administratrix Magno dated May 19, 1966 has been filed alleging that the motion dated December 11, 1957 only sought the approval of all conveyances made by C. N. Hodges and requested the Court authority for all subsequent conveyances that will be executed by C. N. Hodges; that the order dated December 14, 1957 only approved the conveyances made by C. N. Hodges; that C. N. Hodges represented by counsel never made any claim in the estate of Linnie Jane Hodges and never filed a motion to declare himself as the heir of the said Linnie Jane Hodges despite the lapse of more than five (5) years after the death of Linnie Jane Hodges; that it is further alleged in the rejoinder that there can be no order of adjudication of the estate unless there has been a prior express declaration of heirs and so far no declaration of heirs in the estate of Linnie Jane Hodges (Sp. 1307) has been made.

Considering the allegations and arguments in the motion and of the PCIB as well as those in the opposition and rejoinder of administratrix Magno, the Court finds the opposition and rejoinder to be well taken for the reason that so far there has been no official declaration of heirs in the testate estate of Linnie Jane Hodges and therefore no disposition of her estate.

WHEREFORE, the motion of the PCIB dated April 22, 1966 is hereby DENIED. (Annex "W", Petition)

In its motion dated November 24, 1966 for the reconsideration of this order, petitioner alleged inter alia that:

It cannot be over-stressed that the motion of December 11, 1957 was based on the fact that:

a. Under the last will and testament of the deceased, Linnie Jane Hodges, the late Charles Newton Hodges was the sole heir instituted insofar as her properties in the Philippines are concerned;

b. Said last will and testament vested upon the said late Charles Newton Hodges rights over said properties which, in sum, spell ownership, absolute and in fee simple;

c. Said late Charles Newton Hodges was, therefore, "not only part owner of the properties left as conjugal, but also, the successor to all the properties left by the deceased Linnie Jane Hodges.

Likewise, it cannot be over-stressed that the aforesaid motion was granted by this Honorable Court "for the reasons stated" therein.

Again, the motion of December 11, 1957 prayed that not only "all the sales, conveyances, leases, and mortgages executed by" the late Charles Newton Hodges, but also all "the subsequent sales, conveyances, leases, and mortgages ..." be approved and authorized. This Honorable Court, in its order of December 14, 1957, "for the reasons stated" in the aforesaid motion, granted the same, and not only approved all the sales, conveyances, leases and mortgages of all properties left by the deceased Linnie Jane Hodges executed by the late Charles Newton Hodges, but also authorized "all subsequent sales, conveyances, leases and mortgages of the properties left by the said deceased Linnie Jane Hodges. (Annex "X", Petition)

and reiterated its fundamental pose that the Testate Estate of Linnie Jane Hodges had already been factually, although not legally, closed with the virtual declaration of Hodges and adjudication to him, as sole universal heir of all the properties of the estate of his wife, in the order of December 14, 1957, Annex G. Still unpersuaded, on July 18, 1967, respondent court denied said motion for reconsideration and held that "the court believes that there is no justification why the order of October 12, 1966 should be considered or modified", and, on July 19, 1967, the motion of respondent Magno "for official declaration of heirs of the estate of Linnie Jane Hodges", already referred to above, was set for hearing.

In consequence of all these developments, the present petition was filed on August 1, 1967 (albeit petitioner had to pay another docketing fee on August 9, 1967, since the orders in question were issued in two separate testate estate proceedings, Nos. 1307 and 1672, in the court below).

Together with such petition, there are now pending before Us for resolution herein, appeals from the following:

1. The order of December 19, 1964 authorizing payment by respondent Magno of overtime pay, (pp. 221, Green Record on Appeal) together with the subsequent orders of January 9, 1965, (pp. 231-232, id.) October 27, 1965, (pp. 227, id.) and February 15, 1966 (pp. 455-456, id.) repeatedly denying motions for reconsideration thereof.

2. The order of August 6, 1965 (pp. 248, id.) requiring that deeds executed by petitioner to be co-signed by respondent Magno, as well as the order of October 27, 1965 (pp. 276-277) denying reconsideration.

3. The order of October 27, 1965 (pp. 292-295, id.) enjoining the deposit of all collections in a joint account and the same order of February 15, 1966 mentioned in No. 1 above which included the denial of the reconsideration of this order of October 27, 1965.

4. The order of November 3, 1965 (pp. 313-320, id.) directing the payment of attorney's fees, fees of the respondent administratrix, etc. and the order of February 16, 1966 denying reconsideration thereof.

5. The order of November 23, 1965 (pp. 334-335, id.) allowing appellee Western Institute of Technology to make payments to either one or both of the administrators of the two estates as well as the order of March 7, 1966 (p. 462, id.) denying reconsideration.

6. The various orders hereinabove earlier enumerated approving deeds of sale executed by respondent Magno in favor of appellees Carles, Catedral, Pablito, Guzman, Coronado, Barrido, Causing, Javier, Lucero and Batisanan, (see pp. 35 to 37 of this opinion), together with the two separate orders both dated December 2, 1966 (pp. 306-308, and pp. 308-309, Yellow Record on Appeal) denying reconsideration of said approval.

7. The order of January 3, 1967, on pp. 335-336, Yellow Record on Appeal, approving similar deeds of sale executed by respondent Magno, as those in No. 6, in favor of appellees Pacaonsis and Premaylon, as to which no motion for reconsideration was filed.

8. Lastly, the order of December 2, 1966, on pp. 305-306, Yellow Record on Appeal, directing petitioner to surrender to appellees Lucero, Batisanan, Javier, Pablito, Barrido, Catedral, Causing, Guzman, and Coronado, the certificates of title covering the lands involved in the approved sales, as to which no motion for reconsideration was filed either.

Strictly speaking, and considering that the above orders deal with different matters, just as they affect distinctly different individuals or persons, as outlined by petitioner in its brief as appellant on pp. 12-20 thereof, there are, therefore, thirty-three (33) appeals before Us, for which reason, petitioner has to pay also thirty-one (31) more docket fees.

It is as well perhaps to state here as elsewhere in this opinion that in connection with these appeals, petitioner has assigned a total of seventy-eight (LXXVIII) alleged errors, the respective discussions and arguments under all of them covering also the fundamental issues raised in respect to the petition for certiorari and prohibition, thus making it feasible and more practical for the Court to dispose of all these cases together. 4

The assignments of error read thus:

I to IV

THE ORDER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEES, PEPITO G. IYULORES, ESPIRIDION PARTISALA, WINIFREDO C. ESPADA AND ROSARIO ALINGASA, EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME.

V to VIII

THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF THE APPELLEES, PEPITO G. IYULORES, ESPIRIDION PARTISALA, WINIFREDO C. ESPADA AND ROSARIO ALINGASA, COVERING PARCELS OF LAND FOR WHICH THEY HAVE NEVER PAID IN FULL IN ACCORDANCE WITH THE ORIGINAL CONTRACTS TO SELL.

IX to XII

THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF OWNERSHIP OVER REAL PROPERTY OF THE APPELLEES, PEPITO G. IYULORES, ESPIRIDION PARTISALA, WINIFREDO C. ESPADA AND ROSARIO ALINGASA, WHILE ACTING AS A PROBATE COURT.

XIII to XV

THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEES ADELFA PREMAYLON (LOT NO. 102), SANTIAGO PACAONSIS, AND ADELFA PREMAYLON (LOT NO. 104), EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME.

XVI to XVIII

THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF THE APPELLEES ADELFA PREMAYLON (LOT NO. 102), SANTIAGO PACAONSIS, AND ADELFA PREMAYLON (LOT NO. 104) COVERING PARCELS OF LAND FOR WHICH THEY HAVE NEVER PAID IN FULL IN ACCORDANCE WITH THE ORIGINAL CONTRACTS TO SELL.

XIX to XXI

THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF OWNERSHIP OVER REAL PROPERTY OF THE APPELLEES ADELFA PREMAYLON (LOT NO. 102), SANTIAGO PACAONSIS, AND ADELFA PREMAYLON (LOT NO. 104) WHILE ACTING AS A PROBATE COURT.

XXII to XXV

THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEES LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL AND SALVADOR S. GUZMAN, EXECUTED BY THE APPELLEE,

AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME.

XXVI to XXIX

THE LOWER COURT ERRED IN APPROVING THE FINAL DEED OF SALE EXECUTED IN FAVOR OF THE APPELLEES, LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL AND SALVADOR S. GUZMAN PURSUANT TO CONTRACTS TO SPELL WHICH WERE CANCELLED AND RESCINDED.

XXX to XXXIV

THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF OWNERSHIP OVER REAL PROPERTY OF THE LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL AND SALVADOR S. GUZMAN, WHILE ACTING AS A PROBATE COURT.

XXXV to XXXVI

THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEES, FLORENIA BARRIDO AND PURIFICACION CORONADO, EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME.

XXXVII to XXXVIII

THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF THE APPELLEES, FLORENIA BARRIDO AND PURIFICACION CORONADO, ALTHOUGH THEY WERE IN ARREARS IN THE PAYMENTS AGREED UPON IN THE ORIGINAL CONTRACT TO SELL WHICH THEY EXECUTED WITH THE DECEASED, CHARLES NEWTON HODGES, IN THE AMOUNT OF P10,680.00 and P4,428.90, RESPECTIVELY.

XXXIX to XL

THE LOWER COURT ERRED IN DEPRIVING THE DECEASED, CHARLES NEWTON HODGES, OF THE CONTRACTUAL RIGHT, EXERCISED THROUGH HIS ADMINISTRATOR, THE INSTANT APPELLANT, TO CANCEL THE CONTRACTS TO SELL OF THE APPELLEES, FLORENIA BARRIDO AND PURIFICACION CORONADO.

XLI to XLIII

THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEES, GRACIANO LUCERO, ARITEO THOMAS JAMIR AND MELQUIADES BATISANAN, EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED,

CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME.

XLIV to XLVI

THE LOWER COURT ERRED IN APPROVING THE FINAL DEED OF SALE IN FAVOR OF THE APPELLEES, GRACIANO LUCERO, ARITEO THOMAS JAMIR AND MELQUIADES BATISANAN, PURSUANT TO CONTRACTS TO SELL EXECUTED BY THEM WITH THE DECEASED, CHARLES NEWTON HODGES, THE TERMS AND CONDITIONS OF WHICH THEY HAVE NEVER COMPLIED WITH.

XLVII to XLIX

THE LOWER COURT ERRED IN DEPRIVING THE DECEASED, CHARLES NEWTON HODGES, OF HIS RIGHT, EXERCISED THROUGH HIS ADMINISTRATION, THE INSTANT APPELLANT, TO CANCEL THE CONTRACTS TO SELL OF THE APPELLEES, GRACIANO LUCERO, ARITEO THOMAS JAMIR AND MELQUIADES BATISANAN, AND IN DETERMINING THE RIGHTS OF THE SAID APPELLEES OVER REAL PROPERTY WHILE ACTING AS A PROBATE COURT.

L

THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEE, BELCESAR CAUSING, EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME.

LI

THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF THE APPELLEE, BELCESAR CAUSING, ALTHOUGH HE WAS IN ARREARS IN THE PAYMENTS AGREED UPON IN THE ORIGINAL CONTRACT TO SELL WHICH HE EXECUTED WITH THE DECEASED, CHARLES NEWTON HODGES, IN THE AMOUNT OF P2,337.50.

LII

THE LOWER COURT ERRED IN APPROVING THE DEED OF SALE IN FAVOR OF THE APPELLEE, BELCESAR CAUSING, ALTHOUGH THE SAME WAS NOT EXECUTED IN ACCORDANCE WITH THE RULES OF COURT.

LIII to LXI

THE LOWER COURT ERRED IN ORDERING THE APPELLANT, PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK TO SURRENDER THE OWNER'S DUPLICATE CERTIFICATES OF TITLE OVER THE RESPECTIVE LOTS COVERED BY THE DEEDS OF SALE EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, IN FAVOR OF THE OTHER APPELLEES, JOSE PABLICO, ALFREDO

CATEDRAL, SALVADOR S. GUZMAN, FLRENIA BARRIDO, PURIFICACION CORONADO, BELCESAR CAUSING, ARITEO THOMAS JAMIR, MAXIMA BATISANAN AND GRACIANO L. LUCERO.

LXII

THE LOWER COURT ERRED IN RESOLVING THE MOTION OF THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, DATED NOVEMBER 3, 1965, WITHOUT ANY COPY THEREOF HAVING BEEN SERVED UPON THE APPELLANT, PHILIPPINE COMMERCIAL & INDUSTRIAL BANK.

LXIII

THE LOWER COURT ERRED IN HEARING AND CONSIDERING THE MOTION OF THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, DATED NOVEMBER 3rd, 1965, ON NOVEMBER 23, 1965, WHEN THE NOTICE FOR THE HEARING THEREOF WAS FOR NOVEMBER 20, 1965.

LXIV

THE LOWER COURT ERRED IN GRANTING THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY A RELIEF OTHER THAN THAT PRAYED FOR IN ITS MOTION, DATED NOVEMBER 3, 1965, IN THE ABSENCE OF A PRAYER FOR GENERAL RELIEF CONTAINED THEREIN.

LXV

THE LOWER COURT ERRED IN ALLOWING THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, TO CONTINUE PAYMENTS UPON A CONTRACT TO SELL THE TERMS AND CONDITIONS OF WHICH IT HAS FAILED TO FULFILL.

LXVI

THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY OVER THE REAL PROPERTY SUBJECT MATTER OF THE CONTRACT TO SELL IT EXECUTED WITH THE DECEASED, CHARLES NEWTON HODGES, WHILE ACTING AS A PROBATE COURT.

LXVII

LOWER COURT ERRED IN ALLOWING THE CONTINUATION OF PAYMENTS BY THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, UPON A CONTRACT TO SELL EXECUTED BY IT AND THE DECEASED, CHARLES NEWTON HODGES, TO A PERSON OTHER THAN HIS LAWFULLY APPOINTED ADMINISTRATOR.

LXVIII

THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF RETAINER'S FEES FROM THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES, WHEN THERE IS NEITHER SUCH ESTATE NOR ASSETS THEREOF.

LXIX

THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF RETAINER'S FEES OF LAWYERS OF ALLEGED HEIRS TO THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES.

LXX

THE LOWER COURT ERRED IN IMPLEMENTING THE ALLEGED AGREEMENT BETWEEN THE HEIRS OF THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES, AND THEIR LAWYERS.

LXXI

THE LOWER COURT ERRED IN ORDERING THE PREMATURE DISTRIBUTION OF ESTATE ASSETS TO ALLEGED HEIRS OR BENEFICIARIES THEREOF, BY WAY OF RETAINER'S FEES.

LXXII

THE LOWER COURT ERRED IN ORDERING THAT ALL FINAL DEEDS OF SALE EXECUTED PURSUANT TO CONTRACTS TO SELL ENTERED INTO BY THE DECEASED, CHARLES NEWTON HODGES, DURING HIS LIFETIME, BE SIGNED JOINTLY BY THE APPELLEE, AVELINA A. MAGNO, AND THE APPELLANT, PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, AND NOT BY THE LATTER ONLY AS THE LAWFULLY APPOINTED ADMINISTRATOR OF HIS ESTATE.

LXXIII

THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF LEGAL EXPENSES FROM THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES, WHEN THERE IS NEITHER SUCH ESTATE NOR ASSETS THEREOF.

LXXIV

THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF LEGAL EXPENSES OF LAWYERS OF ALLEGED HEIRS TO THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES.

LXXV

THE LOWER COURT ERRED IN ORDERING THE PREMATURE DISTRIBUTION OF ESTATE ASSETS TO ALLEGED HEIRS OR BENEFICIARIES THEREOF, BY WAY OF LEGAL EXPENSES.

LXXVI

THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF COMPENSATION TO THE PURPORTED ADMINISTRATRIX OF THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES, THE INSTANT APPELLEE, AVELINA A. MAGNO, WHEN THERE IS NEITHER SUCH ESTATE NOR ASSETS THEREOF.

LXXVII

THE LOWER COURT ERRED IN ORDERING THAT THE FUNDS OF THE TESTATE ESTATE OF THE DECEASED, CHARLES NEWTON HODGES, BE PLACED IN A JOINT ACCOUNT OF THE APPELLANT, PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, AND THE APPELLEE, AVELINA A. MAGNO, WHO IS A COMPLETE STRANGER TO THE AFORESAID ESTATE.

LXXVIII

THE LOWER COURT ERRED IN ORDERING THAT THE APPELLEE, AVELINA A. MAGNO, BE GIVEN EQUAL ACCESS TO THE RECORDS OF THE TESTATE ESTATE OF THE DECEASED, CHARLES NEWTON HODGES, WHEN SHE IS A COMPLETE STRANGER TO THE AFORESAID ESTATE. (Pp. 73-83, Appellant's Brief.)

To complete this rather elaborate, and unavoidably extended narration of the factual setting of these cases, it may also be mentioned that an attempt was made by the heirs of Mrs. Hodges to have respondent Magno removed as administratrix, with the proposed appointment of Benito J. Lopez in her place, and that respondent court did actually order such proposed replacement, but the Court declared the said order of respondent court violative of its injunction of August 8, 1967, hence without force and effect (see Resolution of September 8, 1972 and February 1, 1973). Subsequently, Atty. Efrain B. Trenas, one of the lawyers of said heirs, appeared no longer for the proposed administrator Lopez but for the heirs themselves, and in a motion dated October 26, 1972 informed the Court that a motion had been filed with respondent court for the removal of petitioner PCIB as administrator of the estate of C. N. Hodges in Special Proceedings 1672, which removal motion alleged that 22.968149% of the share of C. N. Hodges had already been acquired by the heirs of Mrs. Hodges from certain heirs of her husband. Further, in this connection, in the answer of PCIB to the motion of respondent Magno to have it declared in contempt for disregarding the Court's resolution of September 8, 1972 modifying the injunction of August 8, 1967, said petitioner annexed thereto a joint manifestation and motion, appearing to have been filed with respondent court, informing said court that in addition to the fact that 22% of the share of C. N. Hodges had already been bought by the heirs of Mrs. Hodges, as already stated, certain other heirs of Hodges representing 17.343750% of his estate were joining cause with the heirs of Mrs. Hodges as against PCIB, thereby making somewhat precarious, if not possibly untenable, petitioners' continuation as administrator of the Hodges estate.

RESOLUTION OF ISSUES IN THE CERTIORARI AND PROHIBITION CASES

I

As to the Alleged Tardiness of the Present Appeals

The priority question raised by respondent Magno relates to the alleged tardiness of all the aforementioned thirty-three appeals of PCIB. Considering, however, that these appeals revolve around practically the same main issues and that it is admitted that some of them have been timely taken, and, moreover, their final results hereinbelow to be stated and explained make it of no consequence whether or not the orders concerned have become final by the lapsing of the respective periods to appeal them, We do not deem it necessary to pass upon the timeliness of any of said appeals.

II

The Propriety Here of Certiorari and Prohibition instead of Appeal

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

We come now to the errors assigned by petitioner-appellant, Philippine Commercial & Industrial Bank, (PCIB, for short) in the petition as well as in its main brief as appellant.

III

On Whether or Not There is Still Any Part of the Testate Estate Mrs. Hodges that may be Adjudicated to her brothers and sisters as her estate, of which respondent Magno is the unquestioned Administratrix in special Proceedings 1307.

In the petition, it is the position of PCIB that the respondent court exceeded its jurisdiction or gravely abused its discretion in further recognizing after December 14, 1957 the existence of the Testate Estate of Linnie Jane Hodges and in sanctioning purported acts of administration therein of respondent Magno. Main ground for such posture is that by the aforequoted order of respondent court of said date, Hodges was already allowed to assert and exercise all his rights as universal heir of his wife pursuant to the provisions of her will, quoted earlier, hence, nothing else remains to be

done in Special Proceedings 1307 except to formally close it. In other words, the contention of PCIB is that in view of said order, nothing more than a formal declaration of Hodges as sole and exclusive heir of his wife and the consequent formal unqualified adjudication to him of all her estate remain to be done to completely close Special Proceedings 1307, hence respondent Magno should be considered as having ceased to be Administratrix of the Testate Estate of Mrs. Hodges since then.

After carefully going over the record, We feel constrained to hold that such pose is patently untenable from whatever angle it is examined.

To start with, We cannot find anywhere in respondent Order of December 14, 1957 the sense being read into it by PCIB. The tenor of said order bears no suggestion at all to such effect. The declaration of heirs and distribution by the probate court of the estate of a decedent is its most important function, and this Court is not disposed to encourage judges of probate proceedings to be less than definite, plain and specific in making orders in such regard, if for no other reason than that all parties concerned, like the heirs, the creditors, and most of all the government, the devisees and legatees, should know with certainty what are and when their respective rights and obligations ensuing from the inheritance or in relation thereto would begin or cease, as the case may be, thereby avoiding precisely the legal complications and consequent litigations similar to those that have developed unnecessarily in the present cases. While it is true that in instances wherein all the parties interested in the estate of a deceased person have already actually distributed among themselves their respective shares therein to the satisfaction of everyone concerned and no rights of creditors or third parties are adversely affected, it would naturally be almost ministerial for the court to issue the final order of declaration and distribution, still it is inconceivable that the special proceeding instituted for the purpose may be considered terminated, the respective rights of all the parties concerned be deemed definitely settled, and the executor or administrator thereof be regarded as automatically discharged and relieved already of all functions and responsibilities without the corresponding definite orders of the probate court to such effect.

Indeed, the law on the matter is specific, categorical and unequivocal. Section 1 of Rule 90 provides:

SECTION 1. When order for distribution of residue made. — When the debts, funeral charges, and expenses of administration, the allowance to the widow and inheritance tax, if any, chargeable to the estate in accordance with law have been paid, the court, on the application of the executor or administrator, or of a person interested in the estate, and after hearing upon notice, shall assign the residue of the estate to the persons entitled to the same, naming them and the proportions, or parts, to which each is entitled, and such persons may demand and recover their respective shares from the executor or administrator, or any other person having the same in his possession. If there is a controversy before the court as to who are the lawful heirs of the deceased person or as to the distributive shares to which each person is entitled under the law, the controversy shall be heard and decided as in ordinary cases.

No distribution shall be allowed until the payment of the obligations above mentioned has been made or provided for, unless the distributees, or any of them give a bond, in a sum to be fixed by the court, conditioned for the payment of said obligations within such time as the court directs.

These provisions cannot mean anything less than that in order that a proceeding for the settlement of the estate of a deceased may be deemed ready for final closure, (1) there should have been issued already an order of distribution or assignment of the estate of the decedent among or to those entitled thereto by will or by law, but (2) such order shall not be issued until after it is shown that the "debts, funeral expenses, expenses of administration, allowances, taxes, etc. chargeable to the

estate" have been paid, which is but logical and proper. (3) Besides, such an order is usually issued upon proper and specific application for the purpose of the interested party or parties, and not of the court.

... it is only after, and not before, the payment of all debts, funeral charges, expenses of administration, allowance to the widow, and inheritance tax shall have been effected that the court should make a declaration of heirs or of such persons as are entitled by law to the residue. (Moran, Comments on the Rules of Court, 2nd ed., Vol. II, p. 397, citing Capistrano vs. Nadurata, 49 Phil., 726; Lopez vs. Lopez, 37 Off. Gaz., 3091.) (JIMOGA-ON v. BELMONTE, 84 Phil. 545, 548) (p. 86, Appellee's Brief)

xxx xxx xxx

Under Section 753 of the Code of Civil Procedure, (corresponding to Section 1, Rule 90) what brings an intestate (or testate) proceeding to a close is the order of distribution directing delivery of the residue to the persons entitled thereto after paying the indebtedness, if any, left by the deceased. (Santiesteban vs. Santiesteban, 68 Phil. 367, 370.)

In the cases at bar, We cannot discern from the voluminous and varied facts, pleadings and orders before Us that the above indispensable prerequisites for the declaration of heirs and the adjudication of the estate of Mrs. Hodges had already been complied with when the order of December 14, 1957 was issued. As already stated, We are not persuaded that the proceedings leading to the issuance of said order, constituting barely of the motion of May 27, 1957, Annex D of the petition, the order of even date, Annex E, and the motion of December 11, 1957, Annex H, all aforequoted, are what the law contemplates. We cannot see in the order of December 14, 1957, so much relied upon by the petitioner, anything more than an explicit approval of "all the sales, conveyances, leases and mortgages of all the properties left by the deceased Linnie Jane Hodges executed by the Executor Charles N. Hodges" (after the death of his wife and prior to the date of the motion), plus a general advance authorization to enable said "Executor — to execute subsequent sales, conveyances, leases and mortgages of the properties left the said deceased Linnie Jane Hodges in consonance with wishes conveyed in the last will and testament of the latter", which, certainly, cannot amount to the order of adjudication of the estate of the decedent to Hodges contemplated in the law. In fact, the motion of December 11, 1957 on which the court predicated the order in question did not pray for any such adjudication at all. What is more, although said motion did allege that "herein Executor (Hodges) is not only part owner of the properties left as conjugal, but also, the successor to all the properties left by the deceased Linnie Jane Hodges", it significantly added that "herein Executor, as Legatee (sic), has the right to sell, convey, lease or dispose of the properties in the Philippines — during his lifetime", thereby indicating that what said motion contemplated was nothing more than either the enjoyment by Hodges of his rights under the particular portion of the dispositions of his wife's will which were to be operative only during his lifetime or the use of his own share of the conjugal estate, pending the termination of the proceedings. In other words, the authority referred to in said motions and orders is in the nature of that contemplated either in Section 2 of Rule 109 which permits, in appropriate cases, advance or partial implementation of the terms of a duly probated will before final adjudication or distribution when the rights of third parties would not be adversely affected thereby or in the established practice of allowing the surviving spouse to dispose of his own share of he conjugal estate, pending its final liquidation, when it appears that no creditors of the conjugal partnership would be prejudiced thereby, (see the Revised Rules of Court by Francisco, Vol. V-B, 1970 ed. p. 887) albeit, from the tenor of said motions, We are more inclined to believe that Hodges meant to refer to the former. In any event, We are fully persuaded that the quoted allegations of said motions read together cannot be construed as a repudiation of the rights unequivocally established in the will in favor of Mrs. Hodges' brothers and sisters to whatever have not been disposed of by him up to his death.

Indeed, nowhere in the record does it appear that the trial court subsequently acted upon the premise suggested by petitioner. On the contrary, on November 23, 1965, when the court resolved the motion of appellee Western Institute of Technology by its order We have quoted earlier, it categorically held that as of said date, November 23, 1965, "in both cases (Special Proceedings 1307 and 1672) there is as yet no judicial declaration of heirs nor distribution of properties to whomsoever are entitled thereto." In this connection, it may be stated further against petitioner, by way of some kind of estoppel, that in its own motion of January 8, 1965, already quoted in full on pages 54-67 of this decision, it prayed inter alia that the court declare that "C. N. Hodges was the sole and exclusive heir of the estate of Linnie Jane Hodges", which it would not have done if it were really convinced that the order of December 14, 1957 was already the order of adjudication and distribution of her estate. That said motion was later withdrawn when Magno filed her own motion for determination and adjudication of what should correspond to the brothers and sisters of Mrs. Hodges does not alter the indubitable implication of the prayer of the withdrawn motion.

It must be borne in mind that while it is true that Mrs. Hodges bequeathed her whole estate to her husband and gave him what amounts to full powers of dominion over the same during his lifetime, she imposed at the same time the condition that whatever should remain thereof upon his death should go to her brothers and sisters. In effect, therefore, what was absolutely given to Hodges was only so much of his wife's estate as he might possibly dispose of during his lifetime; hence, even assuming that by the allegations in his motion, he did intend to adjudicate the whole estate to himself, as suggested by petitioner, such unilateral act could not have affected or diminished in any degree or manner the right of his brothers and sisters-in-law over what would remain thereof upon his death, for surely, no one can rightly contend that the testamentary provision in question allowed him to so adjudicate any part of the estate to himself as to prejudice them. In other words, irrespective of whatever might have been Hodges' intention in his motions, as Executor, of May 27, 1957 and December 11, 1957, the trial court's orders granting said motions, even in the terms in which they have been worded, could not have had the effect of an absolute and unconditional adjudication unto Hodges of the whole estate of his wife. None of them could have deprived his brothers and sisters-in-law of their rights under said will. And it may be added here that the fact that no one appeared to oppose the motions in question may only be attributed, firstly, to the failure of Hodges to send notices to any of them, as admitted in the motion itself, and, secondly, to the fact that even if they had been notified, they could not have taken said motions to be for the final distribution and adjudication of the estate, but merely for him to be able, pending such final distribution and adjudication, to either exercise during his lifetime rights of dominion over his wife's estate in accordance with the bequest in his favor, which, as already observed, may be allowed under the broad terms of Section 2 of Rule 109, or make use of his own share of the conjugal estate. In any event, We do not believe that the trial court could have acted in the sense pretended by petitioner, not only because of the clear language of the will but also because none of the interested parties had been duly notified of the motion and hearing thereof. Stated differently, if the orders of May 27, 1957 and December 4, 1957 were really intended to be read in the sense contended by petitioner, We would have no hesitancy in declaring them null and void.

Petitioner cites the case of Austria vs. Ventenilla, G. R. No. L-10018, September 19, 1956, (unreported but a partial digest thereof appears in 99 Phil. 1069) in support of its insistence that with the orders of May 27 and December 14, 1957, the closure of Mrs. Hodges' estate has become a mere formality, inasmuch as said orders amounted to the order of adjudication and distribution ordained by Section 1 of Rule 90. But the parallel attempted to be drawn between that case and the present one does not hold. There the trial court had in fact issued a clear, distinct and express order of adjudication and distribution more than twenty years before the other heirs of the deceased filed their motion asking that the administratrix be removed, etc. As quoted in that decision, the order of the lower court in that respect read as follows:

En orden a la mocion de la administradora, el juzgado la encuentra procedente bajo la condicion de que no se hara entrega ni adjudicacion de los bienes a los herederos antes de que estos presten la fianza correspondiente y de acuerdo con lo prescrito en el Art. 754 del Codigo de Procedimientos: pues, en autos no aparece que hayan sido nombrados comisionados de avaluo y reclamaciones. Dicha fianza podra ser por un valor igual al de los bienes que correspondan a cada heredero segun el testamento. Creo que no es obice para la terminacion del expediente el hecho de que la administradora no ha presentado hasta ahora el inventario de los bienes; pues, segun la ley, estan exentos de esta formalidad os administradores que son legatarios del residuo o remanente de los bienes y hayan prestado fianza para responder de las gestiones de su cargo, y aparece en el testamento que la administradora Alejandra Austria reune dicha condicion.

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

ASI SE ORDENA.

Undoubtedly, after the issuance of an order of such tenor, the closure of any proceedings for the settlement of the estate of a deceased person cannot be but perfunctory.

In the case at bar, as already pointed out above, the two orders relied upon by petitioner do not appear ex-facie to be of the same tenor and nature as the order just quoted, and, what is more, the circumstances attendant to its issuance do not suggest that such was the intention of the court, for nothing could have been more violative of the will of Mrs. Hodges.

Indeed, to infer from Hodges' said motions and from his statements of accounts for the years 1958, 1959 and 1960, A Annexes I, K and M, respectively, wherein he repeatedly claimed that "herein executor (being) the only devisee or legatee of the deceased, in accordance with the last will and testament already probated," there is "no (other) person interested in the Philippines of the time and place of examining herein account to be given notice", an intent to adjudicate unto himself the whole of his wife's estate in an absolute manner and without regard to the contingent interests of her brothers and sisters, is to impute bad faith to him, an imputation which is not legally permissible, much less warranted by the facts of record herein. Hodges knew or ought to have known that, legally speaking, the terms of his wife's will did not give him such a right. Factually, there are enough

circumstances extant in the records of these cases indicating that he had no such intention to ignore the rights of his co-heirs. In his very motions in question, Hodges alleged, thru counsel, that the "deceased Linnie Jane Hodges died leaving no descendants and ascendants, except brothers and sisters and herein petitioner, as surviving spouse, to inherit the properties of the decedent", and even promised that "proper accounting will be had — in all these transactions" which he had submitted for approval and authorization by the court, thereby implying that he was aware of his responsibilities vis-a-vis his co-heirs. As alleged by respondent Magno in her brief as appellee:

Under date of April 14, 1959, C. N. Hodges filed his first "Account by the Executor" of the estate of Linnie Jane Hodges. In the "Statement of Networth of Mr. C. N. Hodges and the Estate of Linnie Jane Hodges" as of December 31, 1958 annexed thereto, C. N. Hodges reported that the combined conjugal estate earned a net income of P328,402.62, divided evenly between him and the estate of Linnie Jane Hodges. Pursuant to this, he filed an "individual income tax return" for calendar year 1958 on the estate of Linnie Jane Hodges reporting, under oath, the said estate as having earned income of P164,201.31, exactly one-half of the net income of his combined personal assets and that of the estate of Linnie Jane Hodges. (p. 91, Appellee's Brief.)

Under date of July 21, 1960, C. N. Hodges filed his second "Annual Statement of Account by the Executor" of the estate of Linnie Jane Hodges. In the "Statement of Networth of Mr. C. N. Hodges and the Estate of Linnie Jane Hodges" as of December 31, 1959 annexed thereto, C. N. Hodges reported that the combined conjugal estate earned a net income of P270,623.32, divided evenly between him and the estate of Linnie Jane Hodges. Pursuant to this, he filed an "individual income tax return" for calendar year 1959 on the estate of Linnie Jane Hodges reporting, under oath, the said estate as having earned income of P135,311.66, exactly one-half of the net income of his combined personal assets and that of the estate of Linnie Jane Hodges. (pp. 91-92, id.)

Under date of April 20, 1961, C. N. Hodges filed his third "Annual Statement of Account by the Executor for the year 1960" of the estate of Linnie Jane Hodges. In the "Statement of Net Worth of Mr. C. N. Hodges and the Estate of Linnie Jane Hodges" as of December 31, 1960 annexed thereto, C. N. Hodges reported that the combined conjugal estate earned a net income of P314,857.94, divided of Linnie Jane Hodges. Pursuant to this, he filed an "individual evenly between him and the estate income tax return" for calendar year 1960 on the estate of Linnie Jane Hodges reporting, under oath, the said estate as having earned income of P157,428.97, exactly one-half of the net income of his combined personal assets and that of the estate of Linnie Jane Hodges. (pp. 92-93, id.)

In the petition for probate that he (Hodges) filed, he listed the seven brothers and sisters of Linnie Jane as her "heirs" (see p. 2, Green ROA). The order of the court admitting the will to probate unfortunately omitted one of the heirs, Roy Higdon (see p. 14, Green ROA). Immediately, C. N. Hodges filed a verified motion to have Roy Higdon's name included as an heir, stating that he wanted to straighten the records "in order (that) the heirs of deceased Roy Higdon may not think or believe they were omitted, and that they were really and are interested in the estate of deceased Linnie Jane Hodges".

Thus, he recognized, if in his own way, the separate identity of his wife's estate from his own share of the conjugal partnership up to the time of his death, more than five years after that of his wife. He

never considered the whole estate as a single one belonging exclusively to himself. The only conclusion one can gather from this is that he could have been preparing the basis for the eventual transmission of his wife's estate, or, at least, so much thereof as he would not have been able to dispose of during his lifetime, to her brothers and sisters in accordance with her expressed desire, as intimated in his tax return in the United States to be more extensively referred to anon. And assuming that he did pay the corresponding estate and inheritance taxes in the Philippines on the basis of his being sole heir, such payment is not necessarily inconsistent with his recognition of the rights of his co-heirs. Without purporting to rule definitely on the matter in these proceedings, We might say here that We are inclined to the view that under the peculiar provisions of his wife's will, and for purposes of the applicable inheritance tax laws, Hodges had to be considered as her sole heir, pending the actual transmission of the remaining portion of her estate to her other heirs, upon the eventuality of his death, and whatever adjustment might be warranted should there be any such remainder then is a matter that could well be taken care of by the internal revenue authorities in due time.

It is to be noted that the lawyer, Atty. Leon P. Gellada, who signed the motions of May 27, 1957 and December 11, 1957 and the aforementioned statements of account was the very same one who also subsequently signed and filed the motion of December 26, 1962 for the appointment of respondent Magno as "Administratrix of the Estate of Mrs. Linnie Jane Hodges" wherein it was alleged that "in accordance with the provisions of the last will and testament of Linnie Jane Hodges, whatever real properties that may remain at the death of her husband, Charles Newton Hodges, the said properties shall be equally divided among their heirs." And it appearing that said attorney was Hodges' lawyer as Executor of the estate of his wife, it stands to reason that his understanding of the situation, implicit in his allegations just quoted, could somehow be reflective of Hodges' own understanding thereof.

As a matter of fact, the allegations in the motion of the same Atty. Gellada dated July 1, 1957, a "Request for Inclusion of the Name of Roy Higdon in the Order of the Court dated July 19, 1957, etc.", reference to which is made in the above quotation from respondent Magno's brief, are over the oath of Hodges himself, who verified the motion. Said allegations read:

1. — That the Hon. Court issued orders dated June 29, 1957, ordering the probate of the will.

2. — That in said order of the Hon. Court, the relatives of the deceased Linnie Jane Hodges were enumerated. However, in the petition as well as in the testimony of Executor during the hearing, the name Roy Higdon was mentioned, but deceased. It was unintentionally omitted the heirs of said Roy Higdon who are his wife Aline Higdon and son David Higdon, all of age, and residents of Quinlan, Texas, U.S.A.

3. — That to straighten the records, and in order the heirs of deceased Roy Higdon may not think or believe they were omitted, and that they were really and are interested in the estate of deceased Linnie Jane Hodges, it is requested of the Hon. Court to insert the names of Aline Higdon and David Higdon, wife and son of deceased Roy Higdon in the said order of the Hon. Court dated June 29, 1957. (pars. 1 to 3, Annex 2 of Magno's Answer — Record, p. 260)

As can be seen, these italicized allegations indicate, more or less, the real attitude of Hodges in regard to the testamentary dispositions of his wife.

In connection with this point of Hodges' intent, We note that there are documents, copies of which are annexed to respondent Magno's answer, which purportedly contain Hodges' own solemn

declarations recognizing the right of his co-heirs, such as the alleged tax return he filed with the United States Taxation authorities, identified as Schedule M, (Annex 4 of her answer) and his supposed affidavit of renunciation, Annex 5. In said Schedule M, Hodges appears to have answered the pertinent question thus:

2a. Had the surviving spouse the right to declare an election between (1) the provisions made in his or her favor by the will and (11) dower, curtesy or a statutory interest? (X) Yes ( ) No

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

3. According to the information and belief of the person or persons filing the return, is any action described under question 1 designed or contemplated? ( ) Yes (X) No (Annex 4, Answer — Record, p. 263)

and to have further stated under the item, "Description of property interests passing to surviving spouse" the following:

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

In addition, in the supposed affidavit of Hodges, Annex 5, it is stated:

I, C. N. Hodges, being duly sworn, on oath affirm that at the time the United States Estate Tax Return was filed in the Estate of Linnie Jane Hodges on August 8, 1958, I renounced and disclaimed any and all right to receive the rents, emoluments and income from said estate, as shown by the statement contained in Schedule M at page 29 of said return, a copy of which schedule is attached to this affidavit and made a part hereof.

The purpose of this affidavit is to ratify and confirm, and I do hereby ratify and confirm, the declaration made in Schedule M of said return and hereby formally disclaim and renounce any right on my part to receive any of the said rents, emoluments and income from the estate of my deceased wife, Linnie Jane Hodges. This affidavit is made to absolve me or my estate from any liability for the payment of income taxes on income which has accrued to the estate of Linnie Jane Hodges since the death of the said Linnie Jane Hodges on May 23, 1957. (Annex 5, Answer — Record, p. 264)

Although it appears that said documents were not duly presented as evidence in the court below, and We cannot, therefore, rely on them for the purpose of the present proceedings, still, We cannot close our eyes to their existence in the record nor fail to note that their tenor jibes with Our conclusion discussed above from the circumstances related to the orders of May 27 and December 14, 1957. 5 Somehow, these documents, considering they are supposed to be copies of their originals found in the official files of the governments of the United States and of the Philippines, serve to lessen any possible apprehension that Our conclusion from the other evidence of Hodges' manifest intent vis-a-vis the rights of his co-heirs is without basis in fact.

Verily, with such eloquent manifestations of his good intentions towards the other heirs of his wife, We find it very hard to believe that Hodges did ask the court and that the latter agreed that he be declared her sole heir and that her whole estate be adjudicated to him without so much as just annotating the contingent interest of her brothers and sisters in what would remain thereof upon his demise. On the contrary, it seems to us more factual and fairer to assume that Hodges was well aware of his position as executor of the will of his wife and, as such, had in mind the following admonition made by the Court in Pamittan vs. Lasam, et al., 60 Phil., 908, at pp. 913-914:

Upon the death of Bernarda in September, 1908, said lands continued to be conjugal property in the hands of the defendant Lasam. It is provided in article 1418 of the Civil Code that upon the dissolution of the conjugal partnership, an inventory shall immediately be made and this court in construing this provision in connection with section 685 of the Code of Civil Procedure (prior to its amendment by Act No. 3176 of November 24, 1924) has repeatedly held that in the event of the death of the wife, the law imposes upon the husband the duty of liquidating the affairs of the partnership without delay (desde luego) (Alfonso vs. Natividad, 6 Phil., 240; Prado vs. Lagera, 7 Phil., 395; De la Rama vs. De la Rama, 7 Phil., 745; Enriquez vs. Victoria, 10 Phil., 10; Amancio vs. Pardo, 13 Phil., 297; Rojas vs. Singson Tongson, 17 Phil., 476; Sochayseng vs. Trujillo, 31 Phil., 153; Molera vs. Molera, 40 Phil., 566; Nable Jose vs. Nable Jose, 41 Phil., 713.)

In the last mentioned case this court quoted with approval the case of Leatherwood vs. Arnold (66 Texas, 414, 416, 417), in which that court discussed the powers of the surviving spouse in the administration of the community property. Attention was called to the fact that the surviving husband, in the management of the conjugal property after the death of the wife, was a trustee of unique character who is liable for any fraud committed by him with relation to the property while he is charged with its administration. In the liquidation of the conjugal partnership, he had wide powers (as the law stood prior to Act No. 3176) and the high degree of trust reposed in him stands out more clearly in view of the fact that he was the owner of a half interest in his own right of the conjugal estate which he was charged to administer. He could therefore no more acquire a title by prescription against those for whom he was administering the conjugal estate than could a guardian against his ward or a judicial administrator against the heirs of estate. Section 38 of Chapter III of the Code of Civil Procedure, with relation to prescription, provides that "this chapter shall not apply ... in the case of a continuing and subsisting trust." The surviving husband in the administration and liquidation of the conjugal estate occupies the position of a trustee of the highest order and is not permitted by the law to hold that estate or any portion thereof adversely to those for whose benefit the law imposes upon him the duty of administration and liquidation. No liquidation was ever made by Lasam — hence, the conjugal property which came into his possession on the death of his wife in September, 1908, still remains conjugal property, a continuing and subsisting trust. He should have made a liquidation immediately (desde luego). He cannot now be permitted to take advantage of his own wrong. One of the conditions of title by prescription (section 41, Code of Civil Procedure) is possession "under a claim of title exclusive of any other right". For a trustee to make such a claim would be a manifest fraud.

And knowing thus his responsibilities in the premises, We are not convinced that Hodges arrogated everything unto himself leaving nothing at all to be inherited by his wife's brothers and sisters.

PCIB insists, however, that to read the orders of May 27 and December 14, 1957, not as adjudicatory, but merely as approving past and authorizing future dispositions made by Hodges in a

wholesale and general manner, would necessarily render the said orders void for being violative of the provisions of Rule 89 governing the manner in which such dispositions may be made and how the authority therefor and approval thereof by the probate court may be secured. If We sustained such a view, the result would only be that the said orders should be declared ineffective either way they are understood, considering We have already seen it is legally impossible to consider them as adjudicatory. As a matter of fact, however, what surges immediately to the surface, relative to PCIB's observations based on Rule 89, is that from such point of view, the supposed irregularity would involve no more than some non-jurisdictional technicalities of procedure, which have for their evident fundamental purpose the protection of parties interested in the estate, such as the heirs, its creditors, particularly the government on account of the taxes due it; and since it is apparent here that none of such parties are objecting to said orders or would be prejudiced by the unobservance by the trial court of the procedure pointed out by PCIB, We find no legal inconvenience in nor impediment to Our giving sanction to the blanket approval and authority contained in said orders. This solution is definitely preferable in law and in equity, for to view said orders in the sense suggested by PCIB would result in the deprivation of substantive rights to the brothers and sisters of Mrs. Hodges, whereas reading them the other way will not cause any prejudice to anyone, and, withal, will give peace of mind and stability of rights to the innocent parties who relied on them in good faith, in the light of the peculiar pertinent provisions of the will of said decedent.

Now, the inventory submitted by Hodges on May 12, 1958 referred to the estate of his wife as consisting of "One-half of all the items designated in the balance sheet, copy of which is hereto attached and marked as "Annex A"." Although, regrettably, no copy of said Annex A appears in the records before Us, We take judicial notice, on the basis of the undisputed facts in these cases, that the same consists of considerable real and other personal kinds of properties. And since, according to her will, her husband was to be the sole owner thereof during his lifetime, with full power and authority to dispose of any of them, provided that should there be any remainder upon his death, such remainder would go to her brothers and sisters, and furthermore, there is no pretension, much less any proof that Hodges had in fact disposed of all of them, and, on the contrary, the indications are rather to the effect that he had kept them more or less intact, it cannot truthfully be said that, upon the death of Hodges, there was no more estate of Mrs. Hodges to speak of. It is Our conclusion, therefore, that properties do exist which constitute such estate, hence Special Proceedings 1307 should not yet be closed.

Neither is there basis for holding that respondent Magno has ceased to be the Administratrix in said proceeding. There is no showing that she has ever been legally removed as such, the attempt to replace her with Mr. Benito Lopez without authority from the Court having been expressly held ineffective by Our resolution of September 8, 1972. Parenthetically, on this last point, PCIB itself is very emphatic in stressing that it is not questioning said respondent's status as such administratrix. Indeed, it is not clear that PCIB has any standing to raise any objection thereto, considering it is a complete stranger insofar as the estate of Mrs. Hodges is concerned.

It is the contention of PCIB, however, that as things actually stood at the time of Hodges' death, their conjugal partnership had not yet been liquidated and, inasmuch as the properties composing the same were thus commingled pro indiviso and, consequently, the properties pertaining to the estate of each of the spouses are not yet identifiable, it is PCIB alone, as administrator of the estate of Hodges, who should administer everything, and all that respondent Magno can do for the time being is to wait until the properties constituting the remaining estate of Mrs. Hodges have been duly segregated and delivered to her for her own administration. Seemingly, PCIB would liken the Testate Estate of Linnie Jane Hodges to a party having a claim of ownership to some properties included in the inventory of an administrator of the estate of a decedent, (here that of Hodges) and who normally has no right to take part in the proceedings pending the establishment of his right or title; for which as a rule it is required that an ordinary action should be filed, since the probate court is without

jurisdiction to pass with finality on questions of title between the estate of the deceased, on the one hand, and a third party or even an heir claiming adversely against the estate, on the other.

We do not find such contention sufficiently persuasive. As We see it, the situation obtaining herein cannot be compared with the claim of a third party the basis of which is alien to the pending probate proceedings. In the present cases what gave rise to the claim of PCIB of exclusive ownership by the estate of Hodges over all the properties of the Hodges spouses, including the share of Mrs. Hodges in the community properties, were the orders of the trial court issued in the course of the very settlement proceedings themselves, more specifically, the orders of May 27 and December 14, 1957 so often mentioned above. In other words, the root of the issue of title between the parties is something that the court itself has done in the exercise of its probate jurisdiction. And since in the ultimate analysis, the question of whether or not all the properties herein involved pertain exclusively to the estate of Hodges depends on the legal meaning and effect of said orders, the claim that respondent court has no jurisdiction to take cognizance of and decide the said issue is incorrect. If it was within the competence of the court to issue the root orders, why should it not be within its authority to declare their true significance and intent, to the end that the parties may know whether or not the estate of Mrs. Hodges had already been adjudicated by the court, upon the initiative of Hodges, in his favor, to the exclusion of the other heirs of his wife instituted in her will?

At this point, it bears emphasis again that the main cause of all the present problems confronting the courts and the parties in these cases was the failure of Hodges to secure, as executor of his wife's estate, from May, 1957 up to the time of his death in December, 1962, a period of more than five years, the final adjudication of her estate and the closure of the proceedings. The record is bare of any showing that he ever exerted any effort towards the early settlement of said estate. While, on the one hand, there are enough indications, as already discuss that he had intentions of leaving intact her share of the conjugal properties so that it may pass wholly to his co-heirs upon his death, pursuant to her will, on the other hand, by not terminating the proceedings, his interests in his own half of the conjugal properties remained commingled pro-indiviso with those of his co-heirs in the other half. Obviously, such a situation could not be conducive to ready ascertainment of the portion of the inheritance that should appertain to his co-heirs upon his death. Having these considerations in mind, it would be giving a premium for such procrastination and rather unfair to his co-heirs, if the administrator of his estate were to be given exclusive administration of all the properties in question, which would necessarily include the function of promptly liquidating the conjugal partnership, thereby identifying and segregating without unnecessary loss of time which properties should be considered as constituting the estate of Mrs. Hodges, the remainder of which her brothers and sisters are supposed to inherit equally among themselves.

To be sure, an administrator is not supposed to represent the interests of any particular party and his acts are deemed to be objectively for the protection of the rights of everybody concerned with the estate of the decedent, and from this point of view, it maybe said that even if PCIB were to act alone, there should be no fear of undue disadvantage to anyone. On the other hand, however, it is evidently implicit in section 6 of Rule 78 fixing the priority among those to whom letters of administration should be granted that the criterion in the selection of the administrator is not his impartiality alone but, more importantly, the extent of his interest in the estate, so much so that the one assumed to have greater interest is preferred to another who has less. Taking both of these considerations into account, inasmuch as, according to Hodges' own inventory submitted by him as Executor of the estate of his wife, practically all their properties were conjugal which means that the spouses have equal shares therein, it is but logical that both estates should be administered jointly by representatives of both, pending their segregation from each other. Particularly is such an arrangement warranted because the actuations so far of PCIB evince a determined, albeit groundless, intent to exclude the other heirs of Mrs. Hodges from their inheritance. Besides, to allow PCIB, the administrator of his estate, to perform now what Hodges was duty bound to do as executor is to violate the spirit, if not the letter, of Section 2 of Rule 78 which expressly provides that

"The executor of an executor shall not, as such, administer the estate of the first testator." It goes without saying that this provision refers also to the administrator of an executor like PCIB here.

We are not unmindful of the fact that under Section 2 of Rule 73, "When the marriage is dissolved by the death of the husband or wife, the community property shall be inventoried, administered, and liquidated, and the debts thereof paid, in the testate or intestate proceedings of the deceased spouse. If both spouses have died, the conjugal partnership shall be liquidated in the testate or intestate proceedings of either." Indeed, it is true that the last sentence of this provision allows or permits the conjugal partnership of spouses who are both deceased to be settled or liquidated in the testate or intestate proceedings of either, but precisely because said sentence allows or permits that the liquidation be made in either proceeding, it is a matter of sound judicial discretion in which one it should be made. After all, the former rule referring to the administrator of the husband's estate in respect to such liquidation was done away with by Act 3176, the pertinent provisions of which are now embodied in the rule just cited.

Thus, it can be seen that at the time of the death of Hodges, there was already the pending judicial settlement proceeding of the estate of Mrs. Hodges, and, more importantly, that the former was the executor of the latter's will who had, as such, failed for more than five years to see to it that the same was terminated earliest, which was not difficult to do, since from ought that appears in the record, there were no serious obstacles on the way, the estate not being indebted and there being no immediate heirs other than Hodges himself. Such dilatory or indifferent attitude could only spell possible prejudice of his co-heirs, whose rights to inheritance depend entirely on the existence of any remainder of Mrs. Hodges' share in the community properties, and who are now faced with the pose of PCIB that there is no such remainder. Had Hodges secured as early as possible the settlement of his wife's estate, this problem would not arisen. All things considered, We are fully convinced that the interests of justice will be better served by not permitting or allowing PCIB or any administrator of the estate of Hodges exclusive administration of all the properties in question. We are of the considered opinion and so hold that what would be just and proper is for both administrators of the two estates to act conjointly until after said estates have been segregated from each other.

At this juncture, it may be stated that we are not overlooking the fact that it is PCIB's contention that, viewed as a substitution, the testamentary disposition in favor of Mrs. Hodges' brothers and sisters may not be given effect. To a certain extent, this contention is correct. Indeed, legally speaking, Mrs. Hodges' will provides neither for a simple or vulgar substitution under Article 859 of the Civil Code nor for a fideicommissary substitution under Article 863 thereof. There is no vulgar substitution therein because there is no provision for either (1) predecease of the testator by the designated heir or (2) refusal or (3) incapacity of the latter to accept the inheritance, as required by Article 859; and neither is there a fideicommissary substitution therein because no obligation is imposed thereby upon Hodges to preserve the estate or any part thereof for anyone else. But from these premises, it is not correct to jump to the conclusion, as PCIB does, that the testamentary dispositions in question are therefore inoperative and invalid.

The error in PCIB's position lies simply in the fact that it views the said disposition exclusively in the light of substitutions covered by the Civil Code section on that subject, (Section 3, Chapter 2, Title IV, Book III) when it is obvious that substitution occurs only when another heir is appointed in a will "so that he may enter into inheritance in default of the heir originally instituted," (Article 857, id.) and, in the present case, no such possible default is contemplated. The brothers and sisters of Mrs. Hodges are not substitutes for Hodges because, under her will, they are not to inherit what Hodges cannot, would not or may not inherit, but what he would not dispose of from his inheritance; rather, therefore, they are also heirs instituted simultaneously with Hodges, subject, however, to certain conditions, partially resolutory insofar as Hodges was concerned and correspondingly suspensive with reference to his brothers and sisters-in-law. It is partially resolutory, since it bequeaths unto

Hodges the whole of her estate to be owned and enjoyed by him as universal and sole heir with absolute dominion over them 6 only during his lifetime, which means that while he could completely and absolutely dispose of any portion thereof inter vivos to anyone other than himself, he was not free to do so mortis causa, and all his rights to what might remain upon his death would cease entirely upon the occurrence of that contingency, inasmuch as the right of his brothers and sisters-in-law to the inheritance, although vested already upon the death of Mrs. Hodges, would automatically become operative upon the occurrence of the death of Hodges in the event of actual existence of any remainder of her estate then.

Contrary to the view of respondent Magno, however, it was not the usufruct alone of her estate, as contemplated in Article 869 of the Civil Code, that she bequeathed to Hodges during his lifetime, but the full ownership thereof, although the same was to last also during his lifetime only, even as there was no restriction whatsoever against his disposing or conveying the whole or any portion thereof to anybody other than himself. The Court sees no legal impediment to this kind of institution, in this jurisdiction or under Philippine law, except that it cannot apply to the legitime of Hodges as the surviving spouse, consisting of one-half of the estate, considering that Mrs. Hodges had no surviving ascendants nor descendants. (Arts. 872, 900, and 904, New Civil Code.)

But relative precisely to the question of how much of Mrs. Hodges' share of the conjugal partnership properties may be considered as her estate, the parties are in disagreement as to how Article 16 of the Civil Code 7 should be applied. On the one hand, petitioner claims that inasmuch as Mrs. Hodges was a resident of the Philippines at the time of her death, under said Article 16, construed in relation to the pertinent laws of Texas and the principle of renvoi, what should be applied here should be the rules of succession under the Civil Code of the Philippines, and, therefore, her estate could consist of no more than one-fourth of the said conjugal properties, the other fourth being, as already explained, the legitime of her husband (Art. 900, Civil Code) which she could not have disposed of nor burdened with any condition (Art. 872, Civil Code). On the other hand, respondent Magno denies that Mrs. Hodges died a resident of the Philippines, since allegedly she never changed nor intended to change her original residence of birth in Texas, United States of America, and contends that, anyway, regardless of the question of her residence, she being indisputably a citizen of Texas, under said Article 16 of the Civil Code, the distribution of her estate is subject to the laws of said State which, according to her, do not provide for any legitime, hence, the brothers and sisters of Mrs. Hodges are entitled to the remainder of the whole of her share of the conjugal partnership properties consisting of one-half thereof. Respondent Magno further maintains that, in any event, Hodges had renounced his rights under the will in favor of his co-heirs, as allegedly proven by the documents touching on the point already mentioned earlier, the genuineness and legal significance of which petitioner seemingly questions. Besides, the parties are disagreed as to what the pertinent laws of Texas provide. In the interest of settling the estates herein involved soonest, it would be best, indeed, if these conflicting claims of the parties were determined in these proceedings. The Court regrets, however, that it cannot do so, for the simple reason that neither the evidence submitted by the parties in the court below nor their discussion, in their respective briefs and memoranda before Us, of their respective contentions on the pertinent legal issues, of grave importance as they are, appear to Us to be adequate enough to enable Us to render an intelligent comprehensive and just resolution. For one thing, there is no clear and reliable proof of what in fact the possibly applicable laws of Texas are. 7* Then also, the genuineness of documents relied upon by respondent Magno is disputed. And there are a number of still other conceivable related issues which the parties may wish to raise but which it is not proper to mention here. In Justice, therefore, to all the parties concerned, these and all other relevant matters should first be threshed out fully in the trial court in the proceedings hereafter to be held therein for the purpose of ascertaining and adjudicating and/or distributing the estate of Mrs. Hodges to her heirs in accordance with her duly probated will.

To be more explicit, all that We can and do decide in connection with the petition for certiorari and prohibition are: (1) that regardless of which corresponding laws are applied, whether of the Philippines or of Texas, and taking for granted either of the respective contentions of the parties as to provisions of the latter, 8 and regardless also of whether or not it can be proven by competent

evidence that Hodges renounced his inheritance in any degree, it is easily and definitely discernible from

the inventory submitted by Hodges himself, as Executor of his wife's estate, that there are properties which should constitute the estate of Mrs. Hodges and ought to be disposed of or distributed among her heirs pursuant to her will in said Special Proceedings 1307; (2) that, more specifically, inasmuch as the question of what are the pertinent laws of Texas applicable to the situation herein is basically one of fact, and, considering that the sole difference in the positions of the parties as to the effect of said laws has reference to the supposed legitime of Hodges — it being the stand of PCIB that Hodges had such a legitime whereas Magno claims the negative - it is now beyond controversy for all future purposes of these proceedings that whatever be the provisions actually of the laws of Texas applicable hereto, the estate of Mrs. Hodges is at least, one-fourth of the conjugal estate of the spouses; the existence and effects of foreign laws being questions of fact, and it being the position now of PCIB that the estate of Mrs. Hodges, pursuant to the laws of Texas, should only be one-fourth of the conjugal estate, such contention constitutes an admission of fact, and consequently, it would be in estoppel in any further proceedings in these cases to claim that said estate could be less, irrespective of what might be proven later to be actually the provisions of the applicable laws of Texas; (3) that Special Proceedings 1307 for the settlement of the testate estate of Mrs. Hodges cannot be closed at this stage and should proceed to its logical conclusion, there having been no proper and legal adjudication or distribution yet of the estate therein involved; and (4) that respondent Magno remains and continues to be the Administratrix therein. Hence, nothing in the foregoing opinion is intended to resolve the issues which, as already stated, are not properly before the Court now, namely, (1) whether or not Hodges had in fact and in law waived or renounced his inheritance from Mrs. Hodges, in whole or in part, and (2) assuming there had been no such waiver, whether or not, by the application of Article 16 of the Civil Code, and in the light of what might be the applicable laws of Texas on the matter, the estate of Mrs. Hodges is more than the one-fourth declared above. As a matter of fact, even our finding above about the existence of properties constituting the estate of Mrs. Hodges rests largely on a general appraisal of the size and extent of the conjugal partnership gathered from reference made thereto by both parties in their briefs as well as in their pleadings included in the records on appeal, and it should accordingly yield, as to which exactly those properties are, to the more concrete and specific evidence which the parties are supposed to present in support of their respective positions in regard to the foregoing main legal and factual issues. In the interest of justice, the parties should be allowed to present such further evidence in relation to all these issues in a joint hearing of the two probate proceedings herein involved. After all, the court a quo has not yet passed squarely on these issues, and it is best for all concerned that it should do so in the first instance.

Relative to Our holding above that the estate of Mrs. Hodges cannot be less than the remainder of one-fourth of the conjugal partnership properties, it may be mentioned here that during the deliberations, the point was raised as to whether or not said holding might be inconsistent with Our other ruling here also that, since there is no reliable evidence as to what are the applicable laws of Texas, U.S.A. "with respect to the order of succession and to the amount of successional rights" that may be willed by a testator which, under Article 16 of the Civil Code, are controlling in the instant cases, in view of the undisputed Texan nationality of the deceased Mrs. Hodges, these cases should be returned to the court a quo, so that the parties may prove what said law provides, it is premature for Us to make any specific ruling now on either the validity of the testamentary dispositions herein involved or the amount of inheritance to which the brothers and sisters of Mrs. Hodges are entitled. After nature reflection, We are of the considered view that, at this stage and in the state of the records before Us, the feared inconsistency is more apparent than real. Withal, it no longer lies in the lips of petitioner PCIB to make any claim that under the laws of Texas, the estate of Mrs. Hodges could in any event be less than that We have fixed above.

It should be borne in mind that as above-indicated, the question of what are the laws of Texas governing the matters herein issue is, in the first instance, one of fact, not of law. Elementary is the rule that foreign laws may not be taken judicial notice of and have to be proven like any other fact in dispute between the parties in any proceeding, with the rare exception in instances when the said laws are already within the actual knowledge of the court, such as when they are well and generally known or they have been actually ruled upon in other cases before it and none of the parties

concerned do not claim otherwise. (5 Moran, Comments on the Rules of Court, p. 41, 1970 ed.) In Fluemer vs. Hix, 54 Phil. 610, it was held:

It is the theory of the petitioner that the alleged will was executed in Elkins West Virginia, on November 3, 1925, by Hix who had his residence in that jurisdiction, and that the laws of West Virginia govern. To this end, there was submitted a copy of section 3868 of Acts 1882, c. 84 as found in West Virginia Code, Annotated, by Hogg Charles E., vol. 2, 1914, p. 1960, and as certified to by the Director of the National Library. But this was far from a compliance with the law. The laws of a foreign jurisdiction do not prove themselves in our courts. The courts of the Philippine Islands are not authorized to take judicial notice of the laws of the various States of the American Union. Such laws must be proved as facts. (In re Estate of Johnson [1918], 39 Phil., 156.) Here the requirements of the law were not met. There was no showing that the book from which an extract was taken was printed or published under the authority of the State of West Virginia, as provided in section 300 of the Code of Civil Procedure. Nor was the extract from the law attested by the certificate of the officer having charge of the original, under the seal of the State of West Virginia, as provided in section 301 of the Code of Civil Procedure. No evidence was introduced to show that the extract from the laws of West Virginia was in force at the time the alleged will was executed."

No evidence of the nature thus suggested by the Court may be found in the records of the cases at bar. Quite to the contrary, the parties herein have presented opposing versions in their respective pleadings and memoranda regarding the matter. And even if We took into account that in Aznar vs. Garcia, the Court did make reference to certain provisions regarding succession in the laws of Texas, the disparity in the material dates of that case and the present ones would not permit Us to indulge in the hazardous conjecture that said provisions have not been amended or changed in the meantime.

On the other hand, in In re Estate of Johnson, 39 Phil. 156, We held:

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

Nevertheless, even supposing that the trial court may have erred in taking judicial notice of the law of Illinois on the point in question, such error is not now available to the petitioner, first, because the petition does not state any fact from which it would appear that the law of Illinois is different from what the court found, and, secondly,

because the assignment of error and argument for the appellant in this court raises no question based on such supposed error. Though the trial court may have acted upon pure conjecture as to the law prevailing in the State of Illinois, its judgment could not be set aside, even upon application made within six months under section 113 of the Code of Civil Procedure, unless it should be made to appear affirmatively that the conjecture was wrong. The petitioner, it is true, states in general terms that the will in question is invalid and inadequate to pass real and personal property in the State of Illinois, but this is merely a conclusion of law. The affidavits by which the petition is accompanied contain no reference to the subject, and we are cited to no authority in the appellant's brief which might tend to raise a doubt as to the correctness of the conclusion of the trial court. It is very clear, therefore, that this point cannot be urged as of serious moment.

It is implicit in the above ruling that when, with respect to certain aspects of the foreign laws concerned, the parties in a given case do not have any controversy or are more or less in agreement, the Court may take it for granted for the purposes of the particular case before it that the said laws are as such virtual agreement indicates, without the need of requiring the presentation of what otherwise would be the competent evidence on the point. Thus, in the instant cases wherein it results from the respective contentions of both parties that even if the pertinent laws of Texas were known and to be applied, the amount of the inheritance pertaining to the heirs of Mrs. Hodges is as We have fixed above, the absence of evidence to the effect that, actually and in fact, under said laws, it could be otherwise is of no longer of any consequence, unless the purpose is to show that it could be more. In other words, since PCIB, the petitioner-appellant, concedes that upon application of Article 16 of the Civil Code and the pertinent laws of Texas, the amount of the estate in controversy is just as We have determined it to be, and respondent-appellee is only claiming, on her part, that it could be more, PCIB may not now or later pretend differently.

To be more concrete, on pages 20-21 of its petition herein, dated July 31, 1967, PCIB states categorically:

Inasmuch as Article 16 of the Civil Code provides that "intestate and testamentary successions both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found", while the law of Texas (the Hodges spouses being nationals of U.S.A., State of Texas), in its conflicts of law rules, provides that the domiciliary law (in this case Philippine law) governs the testamentary dispositions and successional rights over movables or personal properties, while the law of the situs (in this case also Philippine law with respect to all Hodges properties located in the Philippines), governs with respect to immovable properties, and applying therefore the 'renvoi doctrine' as enunciated and applied by this Honorable Court in the case of In re Estate of Christensen (G.R. No. L-16749, Jan. 31, 1963), there can be no question that Philippine law governs the testamentary dispositions contained in the Last Will and Testament of the deceased Linnie Jane Hodges, as well as the successional rights to her estate, both with respect to movables, as well as to immovables situated in the Philippines.

In its main brief dated February 26, 1968, PCIB asserts:

The law governing successional rights.

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

Article 16 of the Civil Code provides:

"Real property as well as personal property is subject to the law of the country where it is situated.

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

Thus the aforecited provision of the Civil Code points towards the national law of the deceased, Linnie Jane Hodges, which is the law of Texas, as governing succession "both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions ...". But the law of Texas, in its conflicts of law rules, provides that the domiciliary law governs the testamentary dispositions and successional rights over movables or personal property, while the law of the situs governs with respect to immovable property. Such that with respect to both movable property, as well as immovable property situated in the Philippines, the law of Texas points to the law of the Philippines.

Applying, therefore, the so-called "renvoi doctrine", as enunciated and applied by this Honorable Court in the case of "In re Christensen" (G.R. No. L-16749, Jan. 31, 1963), there can be no question that Philippine law governs the testamentary provisions in the Last Will and Testament of the deceased Linnie Jane Hodges, as well as the successional rights to her estate, both with respect to movables, as well as immovables situated in the Philippines.

The subject of successional rights.

Under Philippine law, as it is under the law of Texas, the conjugal or community property of the spouses, Charles Newton Hodges and Linnie Jane Hodges, upon the death of the latter, is to be divided into two, one-half pertaining to each of the spouses, as his or her own property. Thus, upon the death of Linnie Jane Hodges, one-half of the conjugal partnership property immediately pertained to Charles Newton Hodges as his own share, and not by virtue of any successional rights. There can be no question about this.

Again, Philippine law, or more specifically, Article 900 of the Civil Code provides:

If the only survivor is the widow or widower, she or he shall be entitled to one-half of the hereditary estate of the deceased spouse, and the testator may freely dispose of the other half.

If the marriage between the surviving spouse and the testator was solemnized in articulo mortis, and the testator died within three months from the time of the marriage, the legitime of the surviving spouse as the sole heir shall be one-third of the hereditary estate, except when they have been living as husband and wife for more than five years. In the latter case, the legitime of the surviving spouse shall be that specified in the preceding paragraph.

This legitime of the surviving spouse cannot be burdened by a fideicommisary substitution (Art. 864, Civil code), nor by any charge, condition, or substitution (Art, 872, Civil code). It is clear, therefore, that in addition to one-half of the conjugal partnership property as his own conjugal share, Charles Newton Hodges was also immediately entitled to one-half of the half conjugal share of the deceased, Linnie Jane Hodges, or one-fourth of the entire conjugal property, as his legitime.

One-fourth of the conjugal property therefore remains at issue.

In the summary of its arguments in its memorandum dated April 30, 1968, the following appears:

Briefly, the position advanced by the petitioner is:

a. That the Hodges spouses were domiciled legally in the Philippines (pp. 19-20, petition). This is now a matter of res adjudicata (p. 20, petition).

b. That under Philippine law, Texas law, and the renvoi doctrine, Philippine law governs the successional rights over the properties left by the deceased, Linnie Jane Hodges (pp. 20-21, petition).

c. That under Philippine as well as Texas law, one-half of the Hodges properties pertains to the deceased, Charles Newton Hodges (p. 21, petition). This is not questioned by the respondents.

d. That under Philippine law, the deceased, Charles Newton Hodges, automatically inherited one-half of the remaining one-half of the Hodges properties as his legitime (p. 21, petition).

e. That the remaining 25% of the Hodges properties was inherited by the deceased, Charles Newton Hodges, under the will of his deceased spouse (pp. 22-23, petition). Upon the death of Charles Newton Hodges, the substitution 'provision of the will of the deceased, Linnie Jane Hodges, did not operate because the same is void (pp. 23-25, petition).

f. That the deceased, Charles Newton Hodges, asserted his sole ownership of the Hodges properties and the probate court sanctioned such assertion (pp. 25-29, petition). He in fact assumed such ownership and such was the status of the properties as of the time of his death (pp. 29-34, petition).

Of similar tenor are the allegations of PCIB in some of its pleadings quoted in the earlier part of this option.

On her part, it is respondent-appellee Magno's posture that under the laws of Texas, there is no system of legitime, hence the estate of Mrs. Hodges should be one-half of all the conjugal properties.

It is thus unquestionable that as far as PCIB is concerned, the application to these cases of Article 16 of the Civil Code in relation to the corresponding laws of Texas would result in that the Philippine laws on succession should control. On that basis, as We have already explained above, the estate of Mrs. Hodges is the remainder of one-fourth of the conjugal partnership properties, considering that We have found that there is no legal impediment to the kind of disposition ordered by Mrs. Hodges in her will in favor of her brothers and sisters and, further, that the contention of PCIB that the same constitutes an inoperative testamentary substitution is untenable. As will be recalled, PCIB's position that there is no such estate of Mrs. Hodges is predicated exclusively on two propositions, namely: (1) that the provision in question in Mrs. Hodges' testament violates the rules on substitution of heirs under the Civil Code and (2) that, in any event, by the orders of the trial court of May 27, and December 14, 1957, the trial court had already finally and irrevocably adjudicated to her husband the whole free portion of her estate to the exclusion of her brothers and sisters, both of which poses, We have overruled. Nowhere in its pleadings, briefs and memoranda does PCIB maintain that the application of the laws of Texas would result in the other heirs of Mrs. Hodges not inheriting anything under her will. And since PCIB's representations in regard to the laws of Texas virtually constitute admissions of fact which the other parties and the Court are being made to rely and act upon, PCIB is "not permitted to contradict them or subsequently take a position contradictory to or inconsistent with them." (5 Moran, id, p. 65, citing Cunanan vs. Amparo, 80 Phil. 227; Sta. Ana vs. Maliwat, L-23023, Aug. 31, 1968, 24 SCRA 1018).

Accordingly, the only question that remains to be settled in the further proceedings hereby ordered to be held in the court below is how much more than as fixed above is the estate of Mrs. Hodges, and this would depend on (1) whether or not the applicable laws of Texas do provide in effect for more, such as, when there is no legitime provided therein, and (2) whether or not Hodges has validly waived his whole inheritance from Mrs. Hodges.

In the course of the deliberations, it was brought out by some members of the Court that to avoid or, at least, minimize further protracted legal controversies between the respective heirs of the Hodges spouses, it is imperative to elucidate on the possible consequences of dispositions made by Hodges after the death of his wife from the mass of the unpartitioned estates without any express indication in the pertinent documents as to whether his intention is to dispose of part of his inheritance from his wife or part of his own share of the conjugal estate as well as of those made by PCIB after the death of Hodges. After a long discussion, the consensus arrived at was as follows: (1) any such dispositions made gratuitously in favor of third parties, whether these be individuals, corporations or foundations, shall be considered as intended to be of properties constituting part of Hodges' inheritance from his wife, it appearing from the tenor of his motions of May 27 and December 11, 1957 that in asking for general authority to make sales or other disposals of properties under the jurisdiction of the court, which include his own share of the conjugal estate, he was not invoking particularly his right over his own share, but rather his right to dispose of any part of his inheritance pursuant to the will of his wife; (2) as regards sales, exchanges or other remunerative transfers, the proceeds of such sales or the properties taken in by virtue of such exchanges, shall be considered as merely the products of "physical changes" of the properties of her estate which the will expressly authorizes Hodges to make, provided that whatever of said products should remain with the estate at the time of the death of Hodges should go to her brothers and sisters; (3) the dispositions made by PCIB after the death of Hodges must naturally be deemed as covering only the properties belonging to his estate considering that being only the administrator of the estate of Hodges, PCIB could not have disposed of properties belonging to the estate of his wife. Neither could such dispositions be considered as involving conjugal properties, for the simple reason that the conjugal partnership automatically ceased when Mrs. Hodges died, and by the peculiar provision of her will,

under discussion, the remainder of her share descended also automatically upon the death of Hodges to her brothers and sisters, thus outside of the scope of PCIB's administration. Accordingly, these construction of the will of Mrs. Hodges should be adhered to by the trial court in its final order of adjudication and distribution and/or partition of the two estates in question.

THE APPEALS

A cursory examination of the seventy-eight assignments of error in appellant PCIB's brief would readily reveal that all of them are predicated mainly on the contention that inasmuch as Hodges had already adjudicated unto himself all the properties constituting his wife's share of the conjugal partnership, allegedly with the sanction of the trial court per its order of December 14, 1957, there has been, since said date, no longer any estate of Mrs. Hodges of which appellee Magno could be administratrix, hence the various assailed orders sanctioning her actuations as such are not in accordance with law. Such being the case, with the foregoing resolution holding such posture to be untenable in fact and in law and that it is in the best interest of justice that for the time being the two estates should be administered conjointly by the respective administrators of the two estates, it should follow that said assignments of error have lost their fundamental reasons for being. There are certain matters, however, relating peculiarly to the respective orders in question, if commonly among some of them, which need further clarification. For instance, some of them authorized respondent Magno to act alone or without concurrence of PCIB. And with respect to many of said orders, PCIB further claims that either the matters involved were not properly within the probate jurisdiction of the trial court or that the procedure followed was not in accordance with the rules. Hence, the necessity of dealing separately with the merits of each of the appeals.

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

Incidentally, it may be mentioned, at this point, that it was principally on account of the confusion that might result later from PCIB's continuing to administer all the community properties, notwithstanding the certainty of the existence of the separate estate of Mrs. Hodges, and to enable both estates to function in the meantime with a relative degree of regularity, that the Court ordered in the resolution of September 8, 1972 the modification of the injunction issued pursuant to the resolutions of August 8, October 4 and December 6, 1967, by virtue of which respondent Magno was completely barred from any participation in the administration of the properties herein involved. In the September 8 resolution, We ordered that, pending this decision, Special Proceedings 1307 and 1672 should

proceed jointly and that the respective administrators therein "act conjointly — none of them to act singly and independently of each other for any purpose." Upon mature deliberation, We felt that to allow PCIB to continue managing or administering all the said properties to the exclusion of the administratrix of Mrs. Hodges' estate might place the heirs of Hodges at an unduly advantageous position which could result in considerable, if not irreparable, damage or injury to the other parties concerned. It is indeed to be regretted that apparently, up to this date, more than a year after said resolution, the same has not been given due regard, as may be gleaned from the fact that recently, respondent Magno has filed in these proceedings a motion to declare PCIB in contempt for alleged failure to abide therewith, notwithstanding that its repeated motions for reconsideration thereof have all been denied soon after they were filed. 9

Going back to the appeals, it is perhaps best to begin first with what appears to Our mind to be the simplest, and then proceed to the more complicated ones in that order, without regard to the numerical sequence of the assignments of error in appellant's brief or to the order of the discussion thereof by counsel.

Assignments of error numbers LXXII, LXXVII and LXXVIII.

These assignments of error relate to (1) the order of the trial court of August 6, 1965 providing that "the deeds of sale (therein referred to involving properties in the name of Hodges) should be signed jointly by the PCIB, as Administrator of Testate Estate of C.N. Hodges, and Avelina A. Magno, as Administratrix of the Testate Estate of Linnie Jane Hodges, and to this effect, the PCIB should take the necessary steps so that Administratrix Avelina A. Magno could sign the deeds of sale," (p. 248, Green Rec. on Appeal) (2) the order of October 27, 1965 denying the motion for reconsideration of the foregoing order, (pp. 276-277, id.) (3) the other order also dated October 27, 1965 enjoining inter alia, that "(a) all cash collections should be deposited in the joint account of the estate of Linnie Jane Hodges and estate of C. N. Hodges, (b) that whatever cash collections (that) had been deposited in the account of either of the estates should be withdrawn and since then (sic) deposited in the joint account of the estate of Linnie Jane Hodges and the estate of C. N. Hodges; ... (d) (that) Administratrix Magno — allow the PCIB to inspect whatever records, documents and papers she may have in her possession, in the same manner that Administrator PCIB is also directed to allow Administratrix Magno to inspect whatever records, documents and papers it may have in its possession" and "(e) that the accountant of the estate of Linnie Jane Hodges shall have access to all records of the transactions of both estates for the protection of the estate of Linnie Jane Hodges; and in like manner, the accountant or any authorized representative of the estate of C. N. Hodges shall have access to the records of transactions of the Linnie Jane Hodges estate for the protection of the estate of C. N. Hodges", (pp. 292-295, id.) and (4) the order of February 15, 1966, denying, among others, the motion for reconsideration of the order of October 27, 1965 last referred to. (pp. 455-456, id.)

As may be readily seen, the thrust of all these four impugned orders is in line with the Court's above-mentioned resolution of September 8, 1972 modifying the injunction previously issued on August 8, 1967, and, more importantly, with what We have said the trial court should have always done pending the liquidation of the conjugal partnership of the Hodges spouses. In fact, as already stated, that is the arrangement We are ordering, by this decision, to be followed. Stated differently, since the questioned orders provide for joint action by the two administrators, and that is precisely what We are holding out to have been done and should be done until the two estates are separated from each other, the said orders must be affirmed. Accordingly the foregoing assignments of error must be, as they are hereby overruled.

Assignments of error Numbers LXVIII to LXXI and LXXIII to LXXVI.

The orders complained of under these assignments of error commonly deal with expenditures made by appellee Magno, as Administratrix of the Estate of Mrs. Hodges, in connection with her administration thereof, albeit additionally, assignments of error Numbers LXIX to LXXI put into question the payment of attorneys fees provided for in the contract for the purpose, as constituting, in effect, premature advances to the heirs of Mrs. Hodges.

More specifically, assignment Number LXXIII refers to reimbursement of overtime pay paid to six employees of the court and three other persons for services in copying the court records to enable the lawyers of the administration to be fully informed of all the incidents in the proceedings. The reimbursement was approved as proper legal expenses of administration per the order of December 19, 1964, (pp. 221-222, id.) and repeated motions for reconsideration thereof were denied by the orders of January 9, 1965, (pp. 231-232, id.) October 27, 1965, (p. 277, id.) and February 15, 1966. (pp. 455-456, id.) On the other hand, Assignments Numbers LXVIII to LXXI, LXXIV and LXXV question the trial court's order of November 3, 1965 approving the agreement of June 6, 1964 between Administratrix Magno and James L. Sullivan, attorney-in-fact of the heirs of Mrs. Hodges, as Parties of the First Part, and Attorneys Raul Manglapus and Rizal R. Quimpo, as Parties of the Second Part, regarding attorneys fees for said counsel who had agreed "to prosecute and defend their interests (of the Parties of the First Part) in certain cases now pending litigation in the Court of First Instance of Iloilo —, more specifically in Special Proceedings 1307 and 1672 —" (pp. 126-129, id.) and directing Administratrix Magno "to issue and sign whatever check or checks maybe needed to implement the approval of the agreement annexed to the motion" as well as the "administrator of the estate of C. N. Hodges — to countersign the said check or checks as the case maybe." (pp. 313-320, id.), reconsideration of which order of approval was denied in the order of February 16, 1966, (p. 456,id.) Assignment Number LXXVI imputes error to the lower court's order of October 27, 1965, already referred to above, insofar as it orders that "PCIB should counter sign the check in the amount of P250 in favor of Administratrix Avelina A. Magno as her compensation as administratrix of Linnie Jane Hodges estate chargeable to the Testate Estate of Linnie Jane Hodges only." (p. 294, id.)

Main contention again of appellant PCIB in regard to these eight assigned errors is that there is no such estate as the estate of Mrs. Hodges for which the questioned expenditures were made, hence what were authorized were in effect expenditures from the estate of Hodges. As We have already demonstrated in Our resolution above of the petition for certiorari and prohibition, this posture is incorrect. Indeed, in whichever way the remaining issues between the parties in these cases are ultimately resolved, 10 the final result will surely be that there are properties constituting the estate of Mrs.

Hodges of which Magno is the current administratrix. It follows, therefore, that said appellee had the right, as such administratrix, to hire the persons whom she paid overtime pay and to be paid for her own services as administratrix. That she has not yet collected and is not collecting amounts as substantial as that paid to or due appellant PCIB is to her credit.

Of course, she is also entitled to the services of counsel and to that end had the authority to enter into contracts for attorney's fees in the manner she had done in the agreement of June 6, 1964. And as regards to the reasonableness of the amount therein stipulated, We see no reason to disturb the discretion exercised by the probate court in determining the same. We have gone over the agreement, and considering the obvious size of the estate in question and the nature of the issues between the parties as well as the professional standing of counsel, We cannot say that the fees agreed upon require the exercise by the Court of its inherent power to reduce it.

PCIB insists, however, that said agreement of June 6, 1964 is not for legal services to the estate but to the heirs of Mrs. Hodges, or, at most, to both of them, and such being the case, any payment

under it, insofar as counsels' services would redound to the benefit of the heirs, would be in the nature of advances to such heirs and a premature distribution of the estate. Again, We hold that such posture cannot prevail.

Upon the premise We have found plausible that there is an existing estate of Mrs. Hodges, it results that juridically and factually the interests involved in her estate are distinct and different from those involved in her estate of Hodges and vice versa. Insofar as the matters related exclusively to the estate of Mrs. Hodges, PCIB, as administrator of the estate of Hodges, is a complete stranger and it is without personality to question the actuations of the administratrix thereof regarding matters not affecting the estate of Hodges. Actually, considering the obviously considerable size of the estate of Mrs. Hodges, We see no possible cause for apprehension that when the two estates are segregated from each other, the amount of attorney's fees stipulated in the agreement in question will prejudice any portion that would correspond to Hodges' estate.

And as regards the other heirs of Mrs. Hodges who ought to be the ones who should have a say on the attorney's fees and other expenses of administration assailed by PCIB, suffice it to say that they appear to have been duly represented in the agreement itself by their attorney-in-fact, James L. Sullivan and have not otherwise interposed any objection to any of the expenses incurred by Magno questioned by PCIB in these appeals. As a matter of fact, as ordered by the trial court, all the expenses in question, including the attorney's fees, may be paid without awaiting the determination and segregation of the estate of Mrs. Hodges.

Withal, the weightiest consideration in connection with the point under discussion is that at this stage of the controversy among the parties herein, the vital issue refers to the existence or non-existence of the estate of Mrs. Hodges. In this respect, the interest of respondent Magno, as the appointed administratrix of the said estate, is to maintain that it exists, which is naturally common and identical with and inseparable from the interest of the brothers and sisters of Mrs. Hodges. Thus, it should not be wondered why both Magno and these heirs have seemingly agreed to retain but one counsel. In fact, such an arrangement should be more convenient and economical to both. The possibility of conflict of interest between Magno and the heirs of Mrs. Hodges would be, at this stage, quite remote and, in any event, rather insubstantial. Besides, should any substantial conflict of interest between them arise in the future, the same would be a matter that the probate court can very well take care of in the course of the independent proceedings in Case No. 1307 after the corresponding segregation of the two subject estates. We cannot perceive any cogent reason why, at this stage, the estate and the heirs of Mrs. Hodges cannot be represented by a common counsel.

Now, as to whether or not the portion of the fees in question that should correspond to the heirs constitutes premature partial distribution of the estate of Mrs. Hodges is also a matter in which neither PCIB nor the heirs of Hodges have any interest. In any event, since, as far as the records show, the estate has no creditors and the corresponding estate and inheritance taxes, except those of the brothers and sisters of Mrs. Hodges, have already been paid, 11 no prejudice can caused to anyone by the comparatively small amount of attorney's fees in question. And in this connection, it may be added that, although strictly speaking, the attorney's fees of the counsel of an administrator is in the first instance his personal responsibility, reimbursable later on by the estate, in the final analysis, when, as in the situation on hand, the attorney-in-fact of the heirs has given his conformity thereto, it would be idle effort to inquire whether or not the sanction given to said fees by the probate court is proper.

For the foregoing reasons, Assignments of Error LXVIII to LXXI and LXXIII to LXXVI should be as they are hereby overruled.

Assignments of error I to IV, XIII to XV, XXII to XXV, XXXV to XXX VI, XLI to XLIII and L.

These assignments of error deal with the approval by the trial court of various deeds of sale of real properties registered in the name of Hodges but executed by appellee Magno, as Administratrix of the Estate of Mrs. Hodges, purportedly in implementation of corresponding supposed written "Contracts to Sell" previously executed by Hodges during the interim between May 23, 1957, when his wife died, and December 25, 1962, the day he died. As stated on pp. 118-120 of appellant's main brief, "These are: the, contract to sell between the deceased, Charles Newton Hodges, and the appellee, Pepito G. Iyulores executed on February 5, 1961; the contract to sell between the deceased, Charles Newton Hodges, and the appellant Esperidion Partisala, executed on April 20, 1960; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Winifredo C. Espada, executed on April 18, 1960; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Rosario Alingasa, executed on August 25, 1958; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Lorenzo Carles, executed on June 17, 1958; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Salvador S. Guzman, executed on September 13, 1960; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Florenia Barrido, executed on February 21, 1958; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Purificacion Coronado, executed on August 14, 1961; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Graciano Lucero, executed on November 27, 1961; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Ariteo Thomas Jamir, executed on May 26, 1961; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Melquiades Batisanan, executed on June 9, 1959; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Belcezar Causing, executed on February 10, 1959 and the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Adelfa Premaylon, executed on October 31, 1959, re Title No. 13815."

Relative to these sales, it is the position of appellant PCIB that, inasmuch as pursuant to the will of Mrs. Hodges, her husband was to have dominion over all her estate during his lifetime, it was as absolute owner of the properties respectively covered by said sales that he executed the aforementioned contracts to sell, and consequently, upon his death, the implementation of said contracts may be undertaken only by the administrator of his estate and not by the administratrix of the estate of Mrs. Hodges. Basically, the same theory is invoked with particular reference to five other sales, in which the respective "contracts to sell" in favor of these appellees were executed by Hodges before the death of his wife, namely, those in favor of appellee Santiago Pacaonsis, Alfredo Catedral, Jose Pablico, Western Institute of Technology and Adelfa Premaylon.

Anent those deeds of sale based on promises or contracts to sell executed by Hodges after the death of his wife, those enumerated in the quotation in the immediately preceding paragraph, it is quite obvious that PCIB's contention cannot be sustained. As already explained earlier, 1 1* all

proceeds of remunerative transfers or dispositions made by Hodges after the death of his wife should be deemed as continuing to be parts of her estate and, therefore, subject to the terms of her will in favor of her brothers and sisters, in the sense that should there be no showing that such proceeds, whether in cash or property have been subsequently conveyed or assigned subsequently by Hodges to any third party by acts inter vivos with the result that they could not thereby belong to him anymore at the time of his death, they automatically became part of the inheritance of said brothers and sisters. The deeds here in question involve transactions which are exactly of this nature. Consequently, the payments made by the appellees should be considered as payments to the estate of Mrs. Hodges which is to be distributed and partitioned among her heirs specified in the will.

The five deeds of sale predicated on contracts to sell executed Hodges during the lifetime of his wife, present a different situation. At first blush, it would appear that as to them, PCIB's position has some degree of plausibility. Considering, however, that the adoption of PCIB's theory would necessarily have tremendous repercussions and would bring about considerable disturbance of property rights that have somehow accrued already in favor of innocent third parties, the five purchasers aforenamed, the Court is inclined to take a pragmatic and practical view of the legal situation involving them by overlooking the possible technicalities in the way, the non-observance of which would not, after all, detract materially from what should substantially correspond to each and all of the parties concerned.

To start with, these contracts can hardly be ignored. Bona fide third parties are involved; as much as possible, they should not be made to suffer any prejudice on account of judicial controversies not of their own making. What is more, the transactions they rely on were submitted by them to the probate court for approval, and from already known and recorded actuations of said court then, they had reason to believe that it had authority to act on their motions, since appellee Magno had, from time to time prior to their transactions with her, been allowed to act in her capacity as administratrix of one of the subject estates either alone or conjointly with PCIB. All the sales in question were executed by Magno in 1966 already, but before that, the court had previously authorized or otherwise sanctioned expressly many of her act as administratrix involving expenditures from the estate made by her either conjointly with or independently from PCIB, as Administrator of the Estate of Hodges. Thus, it may be said that said buyers-appellees merely followed precedents in previous orders of the court. Accordingly, unless the impugned orders approving those sales indubitably suffer from some clearly fatal infirmity the Court would rather affirm them.

It is quite apparent from the record that the properties covered by said sales are equivalent only to a fraction of what should constitute the estate of Mrs. Hodges, even if it is assumed that the same would finally be held to be only one-fourth of the conjugal properties of the spouses as of the time of her death or, to be more exact, one-half of her estate as per the inventory submitted by Hodges as executor, on May 12, 1958. In none of its numerous, varied and voluminous pleadings, motions and manifestations has PCIB claimed any possibility otherwise. Such being the case, to avoid any conflict with the heirs of Hodges, the said properties covered by the questioned deeds of sale executed by appellee Magno may be treated as among those corresponding to the estate of Mrs. Hodges, which would have been actually under her control and administration had Hodges complied with his duty to liquidate the conjugal partnership. Viewing the situation in that manner, the only ones who could stand to be prejudiced by the appealed orders referred to in the assignment of errors under discussion and who could, therefore, have the requisite interest to question them would be only the heirs of Mrs. Hodges, definitely not PCIB.

It is of no moment in what capacity Hodges made the "contracts to sell' after the death of his wife. Even if he had acted as executor of the will of his wife, he did not have to submit those contracts to the court nor follow the provisions of the rules, (Sections 2, 4, 5, 6, 8 and 9 of Rule 89 quoted by appellant on pp. 125 to 127 of its brief) for the simple reason that by the very orders, much relied upon by appellant for other purposes, of May 27, 1957 and December 14, 1957, Hodges was "allowed or authorized" by the trial court "to continue the business in which he was engaged and to perform acts which he had been doing while the deceased was living", (Order of May 27) which according to the motion on which the court acted was "of buying and selling personal and real properties", and "to execute subsequent sales, conveyances, leases and mortgages of the properties left by the said deceased Linnie Jane Hodges in consonance with the wishes conveyed in the last will and testament of the latter." (Order of December 14) In other words, if Hodges acted then as executor, it can be said that he had authority to do so by virtue of these blanket orders, and PCIB does not question the legality of such grant of authority; on the contrary, it is relying on the terms of the order itself for its main contention in these cases. On the other hand, if, as PCIB

contends, he acted as heir-adjudicatee, the authority given to him by the aforementioned orders would still suffice.

As can be seen, therefore, it is of no moment whether the "contracts to sell" upon which the deeds in question were based were executed by Hodges before or after the death of his wife. In a word, We hold, for the reasons already stated, that the properties covered by the deeds being assailed pertain or should be deemed as pertaining to the estate of Mrs. Hodges; hence, any supposed irregularity attending the actuations of the trial court may be invoked only by her heirs, not by PCIB, and since the said heirs are not objecting, and the defects pointed out not being strictly jurisdictional in nature, all things considered, particularly the unnecessary disturbance of rights already created in favor of innocent third parties, it is best that the impugned orders are not disturbed.

In view of these considerations, We do not find sufficient merit in the assignments of error under discussion.

Assignments of error V to VIII, XVI to XVIII, XXVI to XXIX, XXXVII to XXXVIII, XLIV to XLVI and LI.

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

Assignments of error IX to XII, XIX to XXI, XXX to XXIV, XXXIX to XL, XLVII to XLIX, LII and LIII to LXI.

PCIB raises under these assignments of error two issues which according to it are fundamental, namely: (1) that in approving the deeds executed by Magno pursuant to contracts to sell already cancelled by it in the performance of its functions as administrator of the estate of Hodges, the trial court deprived the said estate of the right to invoke such cancellations it (PCIB) had made and (2) that in so acting, the court "arrogated unto itself, while acting as a probate court, the power to determine the contending claims of third parties against the estate of Hodges over real property," since it has in effect determined whether or not all the terms and conditions of the respective contracts to sell executed by Hodges in favor of the buyers-appellees concerned were complied with

by the latter. What is worse, in the view of PCIB, is that the court has taken the word of the appellee Magno, "a total stranger to his estate as determinative of the issue".

Actually, contrary to the stand of PCIB, it is this last point regarding appellee Magno's having agreed to ignore the cancellations made by PCIB and allowed the buyers-appellees to consummate the sales in their favor that is decisive. Since We have already held that the properties covered by the contracts in question should be deemed to be portions of the estate of Mrs. Hodges and not that of Hodges, it is PCIB that is a complete stranger in these incidents. Considering, therefore, that the estate of Mrs. Hodges and her heirs who are the real parties in interest having the right to oppose the consummation of the impugned sales are not objecting, and that they are the ones who are precisely urging that said sales be sanctioned, the assignments of error under discussion have no basis and must accordingly be as they are hereby overruled.

With particular reference to assignments LIII to LXI, assailing the orders of the trial court requiring PCIB to surrender the respective owner's duplicate certificates of title over the properties covered by the sales in question and otherwise directing the Register of Deeds of Iloilo to cancel said certificates and to issue new transfer certificates of title in favor of the buyers-appellees, suffice it to say that in the light of the above discussion, the trial court was within its rights to so require and direct, PCIB having refused to give way, by withholding said owners' duplicate certificates, of the corresponding registration of the transfers duly and legally approved by the court.

Assignments of error LXII to LXVII

All these assignments of error commonly deal with the appeal against orders favoring appellee Western Institute of Technology. As will be recalled, said institute is one of the buyers of real property covered by a contract to sell executed by Hodges prior to the death of his wife. As of October, 1965, it was in arrears in the total amount of P92,691.00 in the payment of its installments on account of its purchase, hence it received under date of October 4, 1965 and October 20, 1965, letters of collection, separately and respectively, from PCIB and appellee Magno, in their respective capacities as administrators of the distinct estates of the Hodges spouses, albeit, while in the case of PCIB it made known that "no other arrangement can be accepted except by paying all your past due account", on the other hand, Magno merely said she would "appreciate very much if you can make some remittance to bring this account up-to-date and to reduce the amount of the obligation." (See pp. 295-311, Green R. on A.) On November 3, 1965, the Institute filed a motion which, after alleging that it was ready and willing to pay P20,000 on account of its overdue installments but uncertain whether it should pay PCIB or Magno, it prayed that it be "allowed to deposit the aforesaid amount with the court pending resolution of the conflicting claims of the administrators." Acting on this motion, on November 23, 1965, the trial court issued an order, already quoted in the narration of facts in this opinion, holding that payment to both or either of the two administrators is "proper and legal", and so "movant — can pay to both estates or either of them", considering that "in both cases (Special Proceedings 1307 and 1672) there is as yet no judicial declaration of heirs nor distribution of properties to whomsoever are entitled thereto."

The arguments under the instant assignments of error revolve around said order. From the procedural standpoint, it is claimed that PCIB was not served with a copy of the Institute's motion, that said motion was heard, considered and resolved on November 23, 1965, whereas the date set for its hearing was November 20, 1965, and that what the order grants is different from what is prayed for in the motion. As to the substantive aspect, it is contended that the matter treated in the motion is beyond the jurisdiction of the probate court and that the order authorized payment to a person other than the administrator of the estate of Hodges with whom the Institute had contracted.

The procedural points urged by appellant deserve scant consideration. We must assume, absent any clear proof to the contrary, that the lower court had acted regularly by seeing to it that appellant was duly notified. On the other hand, there is nothing irregular in the court's having resolved the motion three days after the date set for hearing the same. Moreover, the record reveals that appellants' motion for reconsideration wherein it raised the same points was denied by the trial court on March 7, 1966 (p. 462, Green R. on A.) Withal, We are not convinced that the relief granted is not within the general intent of the Institute's motion.

Insofar as the substantive issues are concerned, all that need be said at this point is that they are mere reiterations of contentions We have already resolved above adversely to appellants' position. Incidentally, We may add, perhaps, to erase all doubts as to the propriety of not disturbing the lower court's orders sanctioning the sales questioned in all these appeal s by PCIB, that it is only when one of the parties to a contract to convey property executed by a deceased person raises substantial objections to its being implemented by the executor or administrator of the decedent's estate that Section 8 of Rule 89 may not apply and, consequently, the matter has, to be taken up in a separate action outside of the probate court; but where, as in the cases of the sales herein involved, the interested parties are in agreement that the conveyance be made, it is properly within the jurisdiction of the probate court to give its sanction thereto pursuant to the provisions of the rule just mentioned. And with respect to the supposed automatic rescission clauses contained in the contracts to sell executed by Hodges in favor of herein appellees, the effect of said clauses depend on the true nature of the said contracts, despite the nomenclature appearing therein, which is not controlling, for if they amount to actual contracts of sale instead of being mere unilateral accepted "promises to sell", (Art. 1479, Civil Code of the Philippines, 2nd paragraph) thepactum commissorium or the automatic rescission provision would not operate, as a matter of public policy, unless there has been a previous notarial or judicial demand by the seller (10 Manresa 263, 2nd ed.) neither of which have been shown to have been made in connection with the transactions herein involved.

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

S U M M A R Y

Considering the fact that this decision is unusually extensive and that the issues herein taken up and resolved are rather numerous and varied, what with appellant making seventy-eight assignments of error affecting no less than thirty separate orders of the court a quo, if only to facilitate proper understanding of the import and extent of our rulings herein contained, it is perhaps desirable that a brief restatement of the whole situation be made together with our conclusions in regard to its various factual and legal aspects. .

The instant cases refer to the estate left by the late Charles Newton Hodges as well as that of his wife, Linnie Jane Hodges, who predeceased him by about five years and a half. In their respective wills which were executed on different occasions, each one of them provided mutually as follows: "I give, devise and bequeath all of the rest, residue and remainder (after funeral and administration expenses, taxes and debts) of my estate, both real and personal, wherever situated or located, to my beloved (spouse) to have and to hold unto (him/her) — during (his/her) natural lifetime", subject to the condition that upon the death of whoever of them survived the other, the remainder of what he or she would inherit from the other is "give(n), devise(d) and bequeath(ed)" to the brothers and sisters of the latter.

Mrs. Hodges died first, on May 23, 1957. Four days later, on May 27, Hodges was appointed special administrator of her estate, and in a separate order of the same date, he was "allowed or authorized to continue the business in which he was engaged, (buying and selling personal and real properties)

and to perform acts which he had been doing while the deceased was living." Subsequently, on December 14, 1957, after Mrs. Hodges' will had been probated and Hodges had been appointed and had qualified as Executor thereof, upon his motion in which he asserted that he was "not only part owner of the properties left as conjugal, but also, the successor to all the properties left by the deceased Linnie Jane Hodges", the trial court ordered that "for the reasons stated in his motion dated December 11, 1957, which the Court considers well taken, ... all the sales, conveyances, leases and mortgages of all properties left by the deceased Linnie Jane Hodges executed by the Executor, Charles Newton Hodges are hereby APPROVED. The said Executor is further authorized to execute subsequent sales, conveyances, leases and mortgages of the properties left by the said deceased Linnie Jane Hodges in consonance with the wishes contained in the last will and testament of the latter."

Annually thereafter, Hodges submitted to the court the corresponding statements of account of his administration, with the particularity that in all his motions, he always made it point to urge the that "no person interested in the Philippines of the time and place of examining the herein accounts be given notice as herein executor is the only devisee or legatee of the deceased in accordance with the last will and testament already probated by the Honorable Court." All said accounts approved as prayed for.

Nothing else appears to have been done either by the court a quo or Hodges until December 25, 1962. Importantly to be the provision in the will of Mrs. Hodges that her share of the conjugal partnership was to be inherited by her husband "to have and to hold unto him, my said husband, during his natural lifetime" and that "at the death of my said husband, I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, wherever situated or located, to be equally divided among my brothers and sisters, share and share alike", which provision naturally made it imperative that the conjugal partnership be promptly liquidated, in order that the "rest, residue and remainder" of his wife's share thereof, as of the time of Hodges' own death, may be readily known and identified, no such liquidation was ever undertaken. The record gives no indication of the reason for such omission, although relatedly, it appears therein:

1. That in his annual statement submitted to the court of the net worth of C. N. Hodges and the Estate of Linnie Jane Hodges, Hodges repeatedly and consistently reported the combined income of the conjugal partnership and then merely divided the same equally between himself and the estate of the deceased wife, and, more importantly, he also, as consistently, filed corresponding separate income tax returns for each calendar year for each resulting half of such combined income, thus reporting that the estate of Mrs. Hodges had its own income distinct from his own.

2. That when the court a quo happened to inadvertently omit in its order probating the will of Mrs. Hodges, the name of one of her brothers, Roy Higdon then already deceased, Hodges lost no time in asking for the proper correction "in order that the heirs of deceased Roy Higdon may not think or believe they were omitted, and that they were really interested in the estate of the deceased Linnie Jane Hodges".

3. That in his aforementioned motion of December 11, 1957, he expressly stated that "deceased Linnie Jane Hodges died leaving no descendants or ascendants except brothers and sisters and herein petitioner as the surviving spouse, to inherit the properties of the decedent", thereby indicating that he was not excluding his wife's brothers and sisters from the inheritance.

4. That Hodges allegedly made statements and manifestations to the United States inheritance tax authorities indicating that he had renounced his inheritance from his

wife in favor of her other heirs, which attitude he is supposed to have reiterated or ratified in an alleged affidavit subscribed and sworn to here in the Philippines and in which he even purportedly stated that his reason for so disclaiming and renouncing his rights under his wife's will was to "absolve (him) or (his) estate from any liability for the payment of income taxes on income which has accrued to the estate of Linnie Jane Hodges", his wife, since her death.

On said date, December 25, 1962, Hodges died. The very next day, upon motion of herein respondent and appellee, Avelina A. Magno, she was appointed by the trial court as Administratrix of the Testate Estate of Linnie Jane Hodges, in Special Proceedings No. 1307 and as Special Administratrix of the estate of Charles Newton Hodges, "in the latter case, because the last will of said Charles Newton Hodges is still kept in his vault or iron safe and that the real and personal properties of both spouses may be lost, damaged or go to waste, unless Special Administratrix is appointed," (Order of December 26, 1962, p. 27, Yellow R. on A.) although, soon enough, on December 29, 1962, a certain Harold K. Davies was appointed as her Co-Special Administrator, and when Special Proceedings No. 1672, Testate Estate of Charles Newton Hodges, was opened, Joe Hodges, as next of kin of the deceased, was in due time appointed as Co-Administrator of said estate together with Atty. Fernando P. Mirasol, to replace Magno and Davies, only to be in turn replaced eventually by petitioner PCIB alone.

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

Predicating its position on the tenor of the orders of May 27 and December 14, 1957 as well as the approval by the court a quo of the annual statements of account of Hodges, PCIB holds to the view that the estate of Mrs. Hodges has already been in effect closed with the virtual adjudication in the mentioned orders of her whole estate to Hodges, and that, therefore, Magno had already ceased since then to have any estate to administer and the brothers and sisters of Mrs. Hodges have no interests whatsoever in the estate left by Hodges. Mainly upon such theory, PCIB has come to this Court with a petition for certiorari and prohibition praying that the lower court's orders allowing respondent Magno to continue acting as administratrix of the estate of Mrs. Hodges in Special Proceedings 1307 in the manner she has been doing, as detailed earlier above, be set aside. Additionally, PCIB maintains that the provision in Mrs. Hodges' will instituting her brothers and sisters in the manner therein specified is in the nature of a testamentary substitution, but inasmuch as the purported substitution is not, in its view, in accordance with the pertinent provisions of the

Civil Code, it is ineffective and may not be enforced. It is further contended that, in any event, inasmuch as the Hodges spouses were both residents of the Philippines, following the decision of this Court in Aznar vs. Garcia, or the case of Christensen, 7 SCRA 95, the estate left by Mrs. Hodges could not be more than one-half of her share of the conjugal partnership, notwithstanding the fact that she was citizen of Texas, U.S.A., in accordance with Article 16 in relation to Articles 900 and 872 of the Civil Code. Initially, We issued a preliminary injunction against Magno and allowed PCIB to act alone.

At the same time PCIB has appealed several separate orders of the trial court approving individual acts of appellee Magno in her capacity as administratrix of the estate of Mrs. Hodges, such as, hiring of lawyers for specified fees and incurring expenses of administration for different purposes and executing deeds of sale in favor of her co-appellees covering properties which are still registered in the name of Hodges, purportedly pursuant to corresponding "contracts to sell" executed by Hodges. The said orders are being questioned on jurisdictional and procedural grounds directly or indirectly predicated on the principal theory of appellant that all the properties of the two estates belong already to the estate of Hodges exclusively.

On the other hand, respondent-appellee Magno denies that the trial court's orders of May 27 and December 14, 1957 were meant to be finally adjudicatory of the hereditary rights of Hodges and contends that they were no more than the court's general sanction of past and future acts of Hodges as executor of the will of his wife in due course of administration. As to the point regarding substitution, her position is that what was given by Mrs. Hodges to her husband under the provision in question was a lifetime usufruct of her share of the conjugal partnership, with the naked ownership passing directly to her brothers and sisters. Anent the application of Article 16 of the Civil Code, she claims that the applicable law to the will of Mrs. Hodges is that of Texas under which, she alleges, there is no system of legitime, hence, the estate of Mrs. Hodges cannot be less than her share or one-half of the conjugal partnership properties. She further maintains that, in any event, Hodges had as a matter of fact and of law renounced his inheritance from his wife and, therefore, her whole estate passed directly to her brothers and sisters effective at the latest upon the death of Hodges.

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

More specifically, We hold that, on the basis of circumstances presently extant in the record, and on the assumption that Hodges' purported renunciation should not be upheld, the estate of Mrs. Hodges inherited by her brothers and sisters consists of one-fourth of the community estate of the spouses at the time of her death, minus whatever Hodges had gratuitously disposed of therefrom during the period from, May 23, 1957, when she died, to December 25, 1962, when he died provided, that with regard to remunerative dispositions made by him during the same period, the proceeds thereof,

whether in cash or property, should be deemed as continuing to be part of his wife's estate, unless it can be shown that he had subsequently disposed of them gratuitously.

At this juncture, it may be reiterated that the question of what are the pertinent laws of Texas and what would be the estate of Mrs. Hodges under them is basically one of fact, and considering the respective positions of the parties in regard to said factual issue, it can already be deemed as settled for the purposes of these cases that, indeed, the free portion of said estate that could possibly descend to her brothers and sisters by virtue of her will may not be less than one-fourth of the conjugal estate, it appearing that the difference in the stands of the parties has reference solely to the legitime of Hodges, PCIB being of the view that under the laws of Texas, there is such a legitime of one-fourth of said conjugal estate and Magno contending, on the other hand, that there is none. In other words, hereafter, whatever might ultimately appear, at the subsequent proceedings, to be actually the laws of Texas on the matter would no longer be of any consequence, since PCIB would anyway be in estoppel already to claim that the estate of Mrs. Hodges should be less than as contended by it now, for admissions by a party related to the effects of foreign laws, which have to be proven in our courts like any other controverted fact, create estoppel.

In the process, We overrule PCIB's contention that the provision in Mrs. Hodges' will in favor of her brothers and sisters constitutes ineffective hereditary substitutions. But neither are We sustaining, on the other hand, Magno's pose that it gave Hodges only a lifetime usufruct. We hold that by said provision, Mrs. Hodges simultaneously instituted her brothers and sisters as co-heirs with her husband, with the condition, however, that the latter would have complete rights of dominion over the whole estate during his lifetime and what would go to the former would be only the remainder thereof at the time of Hodges' death. In other words, whereas they are not to inherit only in case of default of Hodges, on the other hand, Hodges was not obliged to preserve anything for them. Clearly then, the essential elements of testamentary substitution are absent; the provision in question is a simple case of conditional simultaneous institution of heirs, whereby the institution of Hodges is subject to a partial resolutory condition the operative contingency of which is coincidental with that of the suspensive condition of the institution of his brothers and sisters-in-law, which manner of institution is not prohibited by law.

We also hold, however, that the estate of Mrs. Hodges inherited by her brothers and sisters could be more than just stated, but this would depend on (1) whether upon the proper application of the principle of renvoi in relation to Article 16 of the Civil Code and the pertinent laws of Texas, it will appear that Hodges had no legitime as contended by Magno, and (2) whether or not it can be held that Hodges had legally and effectively renounced his inheritance from his wife. Under the circumstances presently obtaining and in the state of the record of these cases, as of now, the Court is not in a position to make a final ruling, whether of fact or of law, on any of these two issues, and We, therefore, reserve said issues for further proceedings and resolution in the first instance by the court a quo, as hereinabove indicated. We reiterate, however, that pending such further proceedings, as matters stand at this stage, Our considered opinion is that it is beyond cavil that since, under the terms of the will of Mrs. Hodges, her husband could not have anyway legally adjudicated or caused to be adjudicated to himself her whole share of their conjugal partnership, albeit he could have disposed any part thereof during his lifetime, the resulting estate of Mrs. Hodges, of which Magno is the uncontested administratrix, cannot be less than one-fourth of the conjugal partnership properties, as of the time of her death, minus what, as explained earlier, have beengratuitously disposed of therefrom, by Hodges in favor of third persons since then, for even if it were assumed that, as contended by PCIB, under Article 16 of the Civil Code and applying renvoi the laws of the Philippines are the ones ultimately applicable, such one-fourth share would be her free disposable portion, taking into account already the legitime of her husband under Article 900 of the Civil Code.

The foregoing considerations leave the Court with no alternative than to conclude that in predicating its orders on the assumption, albeit unexpressed therein, that there is an estate of Mrs. Hodges to be distributed among her brothers and sisters and that respondent Magno is the legal administratrix thereof, the trial court acted correctly and within its jurisdiction. Accordingly, the petition for certiorari and prohibition has to be denied. The Court feels however, that pending the liquidation of the conjugal partnership and the determination of the specific properties constituting her estate, the two administrators should act conjointly as ordered in the Court's resolution of September 8, 1972 and as further clarified in the dispositive portion of its decision.

Anent the appeals from the orders of the lower court sanctioning payment by appellee Magno, as administratrix, of expenses of administration and attorney's fees, it is obvious that, with Our holding that there is such an estate of Mrs. Hodges, and for the reasons stated in the body of this opinion, the said orders should be affirmed. This We do on the assumption We find justified by the evidence of record, and seemingly agreed to by appellant PCIB, that the size and value of the properties that should correspond to the estate of Mrs. Hodges far exceed the total of the attorney's fees and administration expenses in question.

With respect to the appeals from the orders approving transactions made by appellee Magno, as administratrix, covering properties registered in the name of Hodges, the details of which are related earlier above, a distinction must be made between those predicated on contracts to sell executed by Hodges before the death of his wife, on the one hand, and those premised on contracts to sell entered into by him after her death. As regards the latter, We hold that inasmuch as the payments made by appellees constitute proceeds of sales of properties belonging to the estate of Mrs. Hodges, as may be implied from the tenor of the motions of May 27 and December 14, 1957, said payments continue to pertain to said estate, pursuant to her intent obviously reflected in the relevant provisions of her will, on the assumption that the size and value of the properties to correspond to the estate of Mrs. Hodges would exceed the total value of all the properties covered by the impugned deeds of sale, for which reason, said properties may be deemed as pertaining to the estate of Mrs. Hodges. And there being no showing that thus viewing the situation, there would be prejudice to anyone, including the government, the Court also holds that, disregarding procedural technicalities in favor of a pragmatic and practical approach as discussed above, the assailed orders should be affirmed. Being a stranger to the estate of Mrs. Hodges, PCIB has no personality to raise the procedural and jurisdictional issues raised by it. And inasmuch as it does not appear that any of the other heirs of Mrs. Hodges or the government has objected to any of the orders under appeal, even as to these parties, there exists no reason for said orders to be set aside.

DISPOSITIVE PART

IN VIEW OF ALL THE FOREGOING PREMISES, judgment is hereby rendered DISMISSING the petition in G. R. Nos. L-27860 and L-27896, and AFFIRMING, in G. R. Nos. L-27936-37 and the other thirty-one numbers hereunder ordered to be added after payment of the corresponding docket fees, all the orders of the trial court under appeal enumerated in detail on pages 35 to 37 and 80 to 82 of this decision; the existence of the Testate Estate of Linnie Jane Hodges, with respondent-appellee Avelina A. Magno, as administratrix thereof is recognized, and it is declared that, until final judgment is ultimately rendered regarding (1) the manner of applying Article 16 of the Civil Code of the Philippines to the situation obtaining in these cases and (2) the factual and legal issue of whether or not Charles Newton Hodges had effectively and legally renounced his inheritance under the will of Linnie Jane Hodges, the said estate consists of one-fourth of the community properties of the said spouses, as of the time of the death of the wife on May 23, 1957, minus whatever the husband had already gratuitously disposed of in favor of third persons from said date until his death, provided, first, that with respect to remunerative dispositions, the proceeds thereof shall continue to be part of the wife's estate, unless subsequently disposed of gratuitously to third parties by the husband, and second, that should the purported renunciation be declared legally effective, no deductions

whatsoever are to be made from said estate; in consequence, the preliminary injunction of August 8, 1967, as amended on October 4 and December 6, 1967, is lifted, and the resolution of September 8, 1972, directing that petitioner-appellant PCIB, as Administrator of the Testate Estate of Charles Newton Hodges, in Special Proceedings 1672, and respondent-appellee Avelina A. Magno, as Administratrix of the Testate Estate of Linnie Jane Hodges, in Special Proceedings 1307, should act thenceforth always conjointly, never independently from each other, as such administrators, is reiterated, and the same is made part of this judgment and shall continue in force, pending the liquidation of the conjugal partnership of the deceased spouses and the determination and segregation from each other of their respective estates, provided, that upon the finality of this judgment, the trial court should immediately proceed to the partition of the presently combined estates of the spouses, to the end that the one-half share thereof of Mrs. Hodges may be properly and clearly identified; thereafter, the trial court should forthwith segregate the remainder of the one-fourth herein adjudged to be her estate and cause the same to be turned over or delivered to respondent for her exclusive administration in Special Proceedings 1307, while the other one-fourth shall remain under the joint administration of said respondent and petitioner under a joint proceedings in Special Proceedings 1307 and 1672, whereas the half unquestionably pertaining to Hodges shall be administered by petitioner exclusively in Special Proceedings 1672, without prejudice to the resolution by the trial court of the pending motions for its removal as administrator 12;

and this arrangement shall be maintained until the final resolution of the two issues of renvoi and renunciation hereby reserved for further hearing and determination, and the corresponding complete segregation and partition of the two estates in the proportions that may result from the said resolution.

Generally and in all other respects, the parties and the court a quo are directed to adhere henceforth, in all their actuations in Special Proceedings 1307 and 1672, to the views passed and ruled upon by the Court in the foregoing opinion.

Appellant PCIB is ordered to pay, within five (5) days from notice hereof, thirty-one additional appeal docket fees, but this decision shall nevertheless become final as to each of the parties herein after fifteen (15) days from the respective notices to them hereof in accordance with the rules.

Costs against petitioner-appellant PCIB.

Zaldivar, Castro, Esguerra and Fernandez, JJ., concur.

Makasiar, Antonio, Muñoz Palma and Aquino, JJ., concur in the result.

Separate Opinions

FERNANDO, J., concurring:

I concur on the basis of the procedural pronouncements in the opinion.

TEEHANKEE, J., concurring:

I concur in the result of dismissal of the petition for certiorari and prohibition in Cases L-27860 and L-27896 and with the affirmance of the appealed orders of the probate court in Cases L-27936-37.

I also concur with the portion of the dispositive part of the judgment penned by Mr. Justice Barredo decreeing thelifting of the Court's writ of preliminary injunction of August 8, 1967 as amended on October 4, and December 6, 1967 1 and ordering in lieu thereof that the Court's resolution of September 8, 1972 2 which directed that petitioner-appellantPCIB as administrator of C. N. (Charles Newton) Hodges' estate (Sp. Proc. No. 1672 and respondent-appellee Avelina A. Magno as administratrix of Linnie Jane Hodges' estate (Sp. Proc. No. 1307) should act always conjointly never independently from each other, as such administrators, is reiterated and shall continue in force and made part of the judgment.

It is manifest from the record that petitioner-appellant PCIB's primal contention in the cases at bar belatedly filedby it with this Court on August 1, 1967 (over ten (10) years after Linnie Jane Hodges' death on May 23, 1957 and (over five (5) years after her husband C.N. Hodges' death on December 25, 1962 — during which time both estates have been pending settlement and distribution to the decedents' respective rightful heirs all this time up to now) — that the probate court per its order of December 14, 1957 (supplementing an earlier order of May 25, 1957) 3 in granting C. N. Hodges' motion as Executor of his wife Linnie's estate to continue their "business of buying and selling personal and real properties" and approving "all sales, conveyances, leases and mortgages" made and to be made by him as such executor under his obligation to submit his yearly accounts in effect declared him as sole heir of his wife's estate and nothing remains to be done except to formally close her estate (Sp. Proc. No. 1307) as her estate was thereby merged with his own so that nothing remains of it that may be adjudicated to her brothers and sisters as her designated heirs after him, 4 — is wholly untenable and deserves scant consideration.

Aside from having been put forth as an obvious afterthought much too late in the day, this contention of PCIB that there no longer exists any separate estate of Linnie Jane Hodges after the probate court's order of December 14, 1957 goes against the very acts and judicial admissions of C.N. Hodges as her executor whereby he consistently recognized the separate existence and identity of his wife's estate apart from his own separate estate and from his own share of their conjugal partnership and estate and "never considered the whole estate as a single one belonging exclusively to himself" during the entire period that he survived her for over five (5) years up to the time of his own death on December 25, 1962 5 and against the identical acts and judicial admissions of PCIB as administrator of C.N. Hodges' estate until PCIB sought in 1966 to take over both estates as pertaining to its sole administration.

PCIB is now barred and estopped from contradicting or taking a belated position contradictory to or inconsistent with its previous admissions 6 (as well as those of C.N. Hodges himself in his lifetime and of whose estate PCIB is merely an administrator) recognizing the existence and identity of Linnie Jane Hodges' separate estate and the legal rights and interests therein of her brothers and sisters as her designated heirs in her will.

PCIB's petition for certiorari and prohibition to declare all acts of the probate court in Linnie Jane Hodges' estate subsequent to its order of December 14, 1957 as "null and void for having been issued without jurisdiction" must therefore be dismissed with the rejection of its belated and untenable contention that there is no longer any estate of Mrs. Hodges of which respondent Avelina Magno is the duly appointed and acting administratrix.

PCIB's appeal 7 from the probate court's various orders recognizing respondent Magno as administratrix of Linnie's estate (Sp. Proc No. 1307) and sanctioning her acts of administration of said estate and approving the sales contracts executed by her with the various individual appellees, which involve basically the same primal issue raised in the petition as to whether there still exists a separate estate of Linnie of which respondent-appellee Magno may continue to be the administratrix, must necessarily fail

— a result of the Court's main opinion at bar that there does exist such an estate and that the two estates (husband's and wife's) must be administered cojointly by their respective administrators (PCIB and Magno).

The dispositive portion of the main opinion

The main opinion disposes that:

IN VIEW OF ALL THE FOREGOING PREMISES, judgment is hereby rendered DISMISSING the petition in G. R. Nos. L-27860 and L-27896, and AFFIRMING, in G. R. Nos. L-27936-37 and the other thirty-one numbers hereunder ordered to be added after payment of the corresponding docket fees, all the orders of the trial court under appeal enumerated in detail on pages 35 to 37 and 80 to 82 of this decision:

The existence of the Testate Estate of Linnie Jane Hodges, with respondent-appellee Avelina A. Magno, as administratrix thereof is recognized, and

It is declared that, until final judgment is ultimately rendered regarding (1) the manner of applying Article 16 of the Civil Code of the Philippines to the situation obtaining in these cases and (2) the factual and legal issues of whether or not Charles Newton Hodges has effectively and legally renounced his inheritance under the will of Linnie Jane Hodges, the said estate consists of one-fourthof the community properties of the said spouses, as of the time of the death of the wife on May 23, 1957, minus whatever the husband had already gratuitously disposed of in favor of third persons from said date until his death, provided, first, that with respect to remunerative dispositions, the proceeds thereof shall continue to be part of the wife's estate, unless subsequently disposed of gratuitously to third parties by the husband, and second, that should the purported renunciation be declared legally effective, no deduction whatsoever are to be made from said estate;

In consequence, the preliminary injunction of August 8, 1967, as amended on October 4 and December 6, 1967, is lifted and the resolution of September 8, 1972, directing that petitioner-appellant PCIB, as Administrator of the Testate Estate of Charles Newton Hodges in Special Proceedings 1672, and respondent-appellee Avelina A. Magno, as Administratrix of the Testate Estate of Linnie Jane Hodges in Special Proceedings 1307, should act thenceforth always conjointly, never independently from each other, as such administrators, is reiterated, and the same is made part of this judgment and shall continue in force, pending the liquidation of the conjugal partnership of the deceased spouses and the determination and segregation from each other of their respective estates; provided, that upon the finality of this judgment, the trial court should immediately proceed to the partition of the presently combined estates of the spouses, to the end that the one-half share thereof of Mrs. Hodges may be properly and clearly identified;

Thereafter, the trial court should forthwith segregate the remainder of the one-fourth herein adjudged to be her estate and cause the same to be turned over or delivered to respondent for her exclusive administration in Special Proceedings 1307, while the other one-fourth shall remain under the joint administrative of said respondent and petitioner under a joint proceedings in Special Proceedings 1307 and 1672, whereas the half unquestionably pertaining to Hodges shall be administered bypetitioner exclusively in Special Proceedings 1672, without

prejudice to the resolution by the trial court of the pending motions for its removal as administrator;

And this arrangement shall be maintained until the final resolution of the two issues of renvoi andrenunciation hereby reserved for further hearing and determination, and the corresponding completesegregation and partition of the two estates in the proportions that may result from the said resolution.

Generally and in all other respects, the parties and the court a quo are directed to adhere henceforth, in all their actuations in Special Proceedings 1307 and 1672, to the views passed and ruled upon by the Court in the foregoing opinion. 8

Minimum estimate of Mrs. Hodges' estate: One-fourth of conjugal properties.

The main opinion in declaring the existence of a separate estate of Linnie Jane Hodges which shall pass to her brothers and sisters with right of representation (by their heirs) as her duly designated heirs declares that her estate consists as a minimum (i.e. assuming (1) that under Article 16 of the Philippine Civil Code C. N. Hodges as surviving husband was entitled to one-half of her estate as legitime and (2) that he had not effectively and legallyrenounced his inheritance under her will) of "one-fourth of the community properties of the said spouses, as of the time of the death of the wife on May 23, 1957, minus whatever the husband had already gratuitously disposed of in favor of third persons from said date until his death," with the proviso that proceeds of remunerative dispositions or sales for valuable consideration made by C. N. Hodges after his wife Linnie's death shall continue to be part of her estate unless subsequently disposed of by him gratuitously to third parties subject to the condition, however, that if he is held to have validly and effectively renounced his inheritance under his wife's will, no deductions of any dispositions made by Hodges even if gratuitously are to be made from his wife Linnie's estate which shall passintact to her brothers and sisters as her designated heirs called in her will to succeed to her estate upon the death of her husband C. N. Hodges.

Differences with the main opinion

I do not share the main opinion's view that Linnie Jane Hodges instituted her husband as her heir under her will "to have dominion over all her estate during his lifetime ... as absolute owner of the properties ..." 9 and that she bequeathed "the whole of her estate to be owned and enjoyed by him as universal and sole heir with absolute dominion over them only during his lifetime, which means that while he could completely and absolutely dispose of any portion thereof inter vivos to anyone other than himself, he was not free to do so mortis causa, and all his rights to what might remain upon his death would cease entirely upon the occurrence of that contingency, inasmuch as the right of his brothers and sisters-in-law to the inheritance, although vested already upon the death of Mrs. Hodges, would automatically become operative upon the occurrence of the death of Hodges in the event of actual existence of any remainder of her estate then." 10

As will be amplified hereinafter, I do not subscribe to such a view that Linnie Jane Hodges willed "full and absolute ownership" and "absolute dominion" over her estate to her husband, but rather that she named her husband C. N. Hodges and her brothers and sisters as instituted heirs with a term under Article 885 of our Civil Code, to wit, Hodges as instituted heir with a resolutory term whereunder his right to the succession ceased in diem upon arrival of the resolutory term of his death on December 25, 1962 and her brothers and sisters as instituted heirs with asuspensive term whereunder their right to the succession commenced ex die upon arrival of the suspensive term of the death of C. N. Hodges on December 25, 1962.

Hence, while agreeing with the main opinion that the proceeds of all remunerative dispositions made by C. N. Hodges after his wife's death remain an integral part of his wife's estate which she willed to her brothers and sisters, I submit that C. N. Hodges could not validly make gratuitous dispositions of any part or all of his wife's estate — "completely and absolutely dispose of any portion thereof inter vivos to anyone other than himself" in the language of the main opinion, supra — and thereby render ineffectual and nugatory her institution of her brothers and sisters as her designated heirs to succeed to her whole estate "at the death of (her) husband." If according to the main opinion, Hodges could not make such gratuitous "complete and absolute dispositions" of his wife Linnie's estate "mortis causa," it would seem that by the same token and rationale he was likewise proscribed by the will from making such dispositions of Linnie's estate inter vivos.

I believe that the two questions of renvoi and renunciation should be resolved preferentially and expeditiously by the probate court ahead of the partition and segregation of the minimum one-fourth of the conjugal or community properties constituting Linnie Jane Hodges' separate estate, which task considering that it is now seventeen (17) years since Linnie Jane Hodges' death and her conjugal estate with C. N. Hodges has remained unliquidated up to now might take a similar number of years to unravel with the numerous items, transactions and details of the sizable estates involved.

Such partition of the minimum one-fourth would not be final, since if the two prejudicial questions of renvoi andrenunciation were resolved favorably to Linnie's estate meaning to say that if it should be held that C. N. Hodges is not entitled to any legitime of her estate and at any rate he had totally renounced his inheritance under the will), then Linnie's estate would consist not only of the minimum one-fourth but one-half of the conjugal or community properties of the Hodges spouses, which would require again the partition and segregation of still another one-fourth of said. properties to complete Linnie's separate estate.

My differences with the main opinion involve further the legal concepts, effects and consequences of the testamentary dispositions of Linnie Jane Hodges in her will and the question of the best to reach a solution of the pressing question of expediting the closing of the estates which after all do not appear to involve any outstanding debts nor any dispute between the heirs and should therefore be promptly settled now after all these years without any further undue complications and delays and distributed to the heirs for their full enjoyment and benefit. As no consensus appears to have been reached thereon by a majority of the Court, I propose to state views as concisely as possible with the sole end in view that they may be of some assistance to the probate court and the parties in reaching an expeditious closing and settlement of the estates of the Hodges spouses.

Two Assumptions

As indicated above, the declaration of the minimum of Mrs. Hodges' estate as one-fourth of the conjugal properties is based on two assumptions most favorable to C. N. Hodges' estate and his heirs, namely (1) that the probate court must accept the renvoi or "reference back" 11 allegedly provided by the laws of the State of Texas (of which state the Hodges spouses were citizens) whereby the civil laws of the Philippines as the domicile of the Hodges spouses would govern their succession notwithstanding the provisions of Article 16 of our Civil Code (which provides that the national law of the decedents, in this case, of Texas, shall govern their succession) with the result that her estate would consist of no morethan one-fourth of the conjugal properties since the legitime of her husband (the other one-fourth of said conjugal properties or one-half of her estate, under Article 900 of our Civil Code) could not then be disposed of nor burdened with any condition by her and (2) that C.N. Hodges had not effectively and legally renounced his inheritance under his wife's will.

These two assumptions are of course flatly disputed by respondent-appellee Magno as Mrs. Hodges' administratrix, who avers that the law of the State of Texas governs her succession and

does not provide for and legitime, hence, her brothers and sisters are entitled to succeed to the whole of her share of the conjugal properties which is one-half thereof and that in any event, Hodges had totally renounced all his rights under the will.

The main opinion concedes that "(I)n the interest of settling the estates herein involved soonest, it would be best, indeed, if these conflicting claims of the parties were determined in these proceedings." It observes however that this cannot be done due to the inadequacy of the evidence submitted by the parties in the probate court and of the parties' discussion, viz, "there is no clear and reliable proof of what the possibly applicable laws of Texas are. Then also, the genuineness of the documents relied upon by respondent Magno [re Hodges' renunciation] is disputed." 12

Hence, the main opinion expressly reserves resolution and determination on these two conflicting claims and issues which it deems "are not properly before the Court now," 13 and specifically holds that "(A)ccordingly, the only question that remains to be settled in the further proceedings hereby ordered to be held in the court below is how much more than as fixed above is the estate of Mrs. Hodges, and this would depend on (1) whether or not the applicable laws of Texas do provide in effect for more, such as, when there is nolegitime provided therein, and (2) whether or not Hodges has validly waived his whole inheritance from Mrs. Hodges." 14

Suggested guidelines

Considering that the only unresolved issue has thus been narrowed down and in consonance with the ruling spirit of our probate law calling for the prompt settlement of the estates of deceased persons for the benefit of creditors and those entitled to the residue by way of inheritance — considering that the estates have been long pending settlement since 1957 and 1962, respectively — it was felt that the Court should lay down specific guidelines for the guidance of the probate court towards the end that it may expedite the closing of the protracted estates proceedings below to the mutual satisfaction of the heirs and without need of a dissatisfied party elevating its resolution of this only remaining issue once more to this Court and dragging out indefinitely the proceedings.

After all, the only question that remains depends for its determination on the resolution of the two questions ofrenvoi and renunciation, i.e. as to whether C. N. Hodges can claim a legitime and whether he had renounced the inheritance. But as already indicated above, the Court without reaching a consensus which would finally resolve the conflicting claims here and now in this case opted that "these and other relevant matters should first be threshed out fully in the trial court in the proceedings hereinafter to be held for the purpose of ascertaining and/or distributing the estate of Mrs. Hodges to her heirs in accordance with her duly probated will." 15

The writer thus feels that laying down the premises and principles governing the nature, effects and consequences of Linnie Jane Hodges' testamentary dispositions in relation to her conjugal partnership and co-ownership of properties with her husband C. N. Hodges and "thinking out" the end results, depending on whether the evidence directed to be formally received by the probate court would bear out that under renvoi C. N. Hodges was or was not entitled to claim a legitime of one-half of his wife Linnie's estate and/or that he had or had not effectively and validly renounced his inheritance should help clear the decks, as it were, and assist the probate court in resolving the only remaining question of how much more than the minimum one-fourth of the community properties of the Hodges spouses herein finally determined should be awarded as the separate estate of Linnie, particularly since the views expressed in the main opinion have not gained a consensus of the Court. Hence, the following suggested guidelines, which needless to state, represent the personal opinion and views of the writer:

1. To begin with, as pointed out in the main opinion, "according to Hodges' own inventory submitted by him as executor of the estate of his wife, practically all their properties were conjugal which means that the spouses haveequal shares therein." 16

2. Upon the death of Mrs. Hodges on May 23, 1957, and the dissolution thereby of the marriage, the law imposed upon Hodges as surviving husband the duty of inventorying, administering and liquidating the conjugal or community property. 17 Hodges failed to discharge this duty of liquidating the conjugal partnership and estate. On the contrary, he sought and obtained authorization from the probate court to continue the conjugal partnership's business of buying and selling real and personal properties.

In his annual accounts submitted to the probate court as executor of Mrs. Hodges' estate, Hodges thusconsistently reported the considerable combined income (in six figures) of the conjugal partnership or coownershipand then divided the same equally between himself and Mrs. Hodges' estate and as consistently filed separate income tax returns and paid the income taxes for each resulting half of such combined income corresponding to his own and to Mrs. Hodges' estate. 18 (Parenthetically, he could not in law do this, had he adjudicated Linnie's entire estate to himself, thus supporting the view advanced even in the main opinion that "Hodges waived not only his rights to the fruits but to the properties themselves." 19

By operation of the law of trust 20 as well as by his own acknowledgment and acts, therefore, all transactions made by Hodges after his wife's death were deemed for and on behalf of their unliquidated conjugal partnership and community estate and were so reported and treated by him.

3. With this premise established that all transactions of Hodges after his wife's death were for and on behalf of their unliquidated conjugal partnership and community estate, share and share alike, it should be clear that nogratuitous dispositions, if any, made by C. N. Hodges from his wife Linnie's estate should be deducted from herseparate estate as held in the main opinion. On the contrary, any such gratuitous dispositions should be charged to his own share of the conjugal estate since he had no authority or right to make any gratuitous dispositions of Linnie's properties to the prejudice of her brothers and sisters whom she called to her succession upon his death, not to mention that the very authority obtained by him from the probate court per its orders of May 25, and December 14, 1957 was to continue the conjugal partnership's business of buying and selling real properties for the account of their unliquidated conjugal estate and co-ownership, share and share alike and not to make anyfree dispositions of Linnie's estate.

4. All transactions as well after the death on December 25, 1962 of Hodges himself appear perforce and necessarily to have been conducted, on the same premise, for and on behalf of their unliquidated conjugal partnership and/or co-ownership, share and share alike — since the conjugal partnership remained unliquidated — which is another way of saying that such transactions, purchases and sales, mostly the latter, must be deemed in effect to have been made for the respective estates of C. N. Hodges and of his wife Linnie Jane Hodges, as both estates continued to have an equal stake and share in the conjugal partnership which was not only leftunliquidated but continued as a co-ownership or joint business with the probate court's approval by Hodges during the five-year period that he survived his wife.

This explains the probate court's action of requiring that deeds of sale executed by PCIB as Hodges' estate's administrator be "signed jointly" by respondent Magno as Mrs. Hodges' estate's administratrix, as well as its order authorizing payment by lot purchasers from the Hodges to either estate, since "there is as yet no judicial declaration of heirs nor distribution of properties to whomsoever are entitled thereto." 22

And this equally furnishes the rationale of the main opinion for continued conjoint administration by the administrators of the two estates of the deceased spouses, "pending the liquidation of the conjugal partnership,"23 since "it is but logical that both estates should be administered jointly by the

representatives of both, pending their segregation from each other. Particularly ... because the actuations so far of PCIB evince a determined, albeit groundless, intent to exclude the other heirs of Mrs. Hodges from their inheritance." 24 5. Antly by the representatives of both, pending their segregation from each other. Particularly ... because the actuations so far of PCIB evince a determined, albeit groundless, intent to exclude the other heirs of Mrs. Hodges from their inheritance." 24

5. As stressed in the main opinion, the determination of the only unresolved issue of how much more than the minimum of one-fourth of the community or conjugal properties of the Hodges spouses pertains to Mrs. Hodges' estate depends on the twin questions of renunciation and renvoi. It directed consequently that "a joint hearing of the two probate proceedings herein involved" be held by the probate court for the reception of "further evidence" in order to finally resolved these twin questions. 25

(a) On the question of renunciation, it is believed that all that the probate court has to do is to receive formally in evidence the various documents annexed to respondent Magno's answer at bar, 26 namely: Copy of the U.S. Estate Tax Return filed on August 8, 1958 by C. N. Hodges for his wife Linnie's estate wherein he purportedly declared that he wasrenouncing his inheritance under his wife's will in favor of her brothers and sisters as co-heirs designated with him and that it was his "intention (as) surviving husband of the deceased to distribute the remaining property and interests of the deceased in their community estate to the devisee and legatees named in the will when the debts, liabilities, taxes and expenses of administration are finally determined and paid;" 27 and

The affidavit of ratification of such renunciation (which places him in estoppel) allegedly executed on August 9, 1962 by C. N. Hodges in Iloilo City wherein he reaffirmed that "... on August 8, 1958, I renounced and disclaimed any and all right to receive the rents, emoluments and income from said estate" and further declared that "(T)he purpose of this affidavit is to ratify and confirm, and I do hereby ratify and confirm, the declaration made in schedule M of said return and hereby formally disclaim and renounce any right on my part to receive any of the said rents, emoluments and income from the estate of my deceased wife, Linnie Jane Hodges. This affidavit is made to absolve me or my estate from any liability for the payment of income taxes on income which has accrued to the estate of Linnie Jane Hodges since the death of the said Linnie Jane Hodges on May 23, 1957." 28

(b) On the question of renvoi, all that remains for the probate court to do is to formally receive in evidence duly authenticated copies of the laws of the State of Texas governing the succession of Linnie Jane Hodges and her husband C. N. Hodges as citizens of said State at the time of their respective deaths on May 23, 1957 andDecember 25, 1962. 29

6. The text and tenor of the declarations by C. N. Hodges of renunciation of his inheritance from his wife in favor of her other named heirs in her will (her brothers and sisters and their respective heirs) as ratified and reiteratedexpressly in his affidavit of renunciation executed four years later for the avowed purpose of not being held liable for payment of income taxes on income which has accrued to his wife's estate since her death indicate a valid and effective renunciation.

Once the evidence has been formally admitted and its genuineness and legal effectivity established by the probate court, the renunciation by C. N. Hodges must be given due effect with the result that C. N. Hodges therefore acquired no part of his wife's one-half share of the community properties since he removed himself as an heir by virtue of his renunciation. By simple substitution then under Articles 857 and 859 of our Civil Code 30 and by virtue of the will's institution of heirs, since "the heir originally instituted C. N. Hodges) does not become an heir" 31 by force of his renunciation, Mrs. Hodges'

brothers and sisters whom she designated as her heirs upon her husband's death are called immediately to her succession.

Consequently, the said community and conjugal properties would then pertain pro indiviso share and share alike to their respective estates, with each estate, however, shouldering its own expenses of administration, estate and inheritance taxes, if any remain unpaid, attorneys' fees and other like expenses and the net remainder to be adjudicated directly to the decedents' respective brothers and sisters (and their heirs) as the heirs duly designated in their respective wills. The question of renvoi becomes immaterial since most laws and our lawspermit such renunciation of inheritance.

7. If there were no renunciation (or the same may somehow be declared to have not been valid and effective) by C. N. Hodges of his inheritance from his wife, however, what would be the consequence?

(a) If the laws on succession of the State of Texas do provide for renvoi or "reference back" to Philippine law as the domiciliary law of the Hodges' spouses governing their succession, then petitioners' view that Mrs. Hodges' estate would consist only of the minimum of "one-fourth of the community properties of the said spouses, as of the time of (her) death on May 23, 1957" would have to be sustained and C. N. Hodges' estate would consist of three-fourths of the community properties, comprising his own one-half (or two-fourths) share and the other fourth of Mrs. Hodges' estate as the legitime granted him as surviving spouse by Philippine law (Article 900 of the Civil Code) which could not be disposed of nor burdened with any condition by Mrs. Hodges as testatrix.

(b) If the laws on succession of the State of Texas do not provide for such renvoi and respondent Magno's assertion is correct that the Texas law which would then prevail, provides for no legitime for C. N. Hodges as the surviving spouse, then respondent Magno's assertion that Mrs. Hodges' estate would consist of one-half of the community properties (with the other half pertaining to C. N. Hodges) would have to be sustained. The community and conjugal properties would then pertain share and share alike to their respective estates, with each estate shouldering its own expenses of administration in the same manner stated in the last paragraph of paragraph 6 hereof. .

8. As to the nature of the institution of heirs made by Mrs. Hodges in her will, the main opinion holds that "(T)he brothers and sisters of Mrs. Hodges are not substitutes for Hodges; rather, they are also heirs institutedsimultaneously with Hodges," but goes further and holds that "it was not the usufruct alone of her estate ... that she bequeathed to Hodges during his lifetime, but the full ownership thereof, although the same was to last also during his lifetime only, even as there was no restriction against his disposing or conveying the whole or any portion thereof anybody other than himself" and describes Hodges "as universal and sole heir with absolute dominion over Mrs. Hodges' estate (except over their Lubbock, Texas property ), 32 adding that "Hodges was not obliged to

preserve anything for them" (referring to Mrs. Hodges' brothers and sisters as instituted co-heirs). 33

Contrary to this view of the main opinion, the writer submits that the provisions of Mrs. Hodges' will did not grant to C.N. Hodges "full ownership" nor "absolute dominion" over her estate, such that he could as "universal and sole heir" by the mere expedient of gratuitously disposing to third persons her whole estate during his lifetime nullify her institution of her brothers and sisters as his co-heirs to succeed to her whole estate "at the death of (her) husband," deprive them of any inheritance and make his own brothers and sisters in effect sole heirs not only of his own estate but of his wife's estate as well.

Thus, while Linnie Jane Hodges did not expressly name her brothers and sisters as substitutes for Hodges because she willed that they would enter into the succession upon his death, still it cannot be gainsaid, as the main opinion concedes, "that they are also heirs instituted simultaneously with

Hodges, subject however to certain conditions, partially resolutory insofar as Hodges was concerned and correspondingly suspensive with reference to his brothers and sisters-in-law." 34

Hence, if Hodges is found to have validly renounced his inheritance, there would be a substitution of heirs in fact and in law since Linnie's brothers and sisters as the heirs "simultaneously instituted" with a suspensive term would be called immediately to her succession instead of waiting for the arrival of suspensive term of Hodges' death, since as the heir originally instituted he does not become an heir by force of his renunciation and therefore they would "enter into the inheritance in default of the heir originally instituted" (Hodges) under the provisions of Article 857 and 859 of our Civil Code, supra, 35 thus accelerating their succession to her estate as a consequence of Hodges' renunciation.

Consequently, Linnie Jane Hodges willed that her husband C.N. Hodges would "during his natural lifetime ...manage, control, use and enjoy said estate" and that only "all rents, emoluments and income" alone shall belong to him. She further willed that while he could sell and purchase properties of her estate, and "use any part of the principal estate," such principal notwithstanding "any changes in the physical properties of said estate"(i.e. new properties acquired or exchanged) would still pertain to her estate, which at the time of his death would pass in full dominion to her brothers and sisters as the ultimate sole and universal heirs of her estate. 36

The testatrix Linnie Jane Hodges in her will thus principally provided that "I give, devise and bequeath all of the rest, residue and remainder of my estate, both personal and real ... to my beloved husband, Charles Newton Hodges, to have and to hold with him ... during his natural lifetime;" 37 that "(he) shall have the right to manage, control, use and enjoy said estate during his lifetime, ... to make any changes in the physical properties of said estate, bysale ... and the purchase of any other or additional property as he may think best ... . All rents, emoluments and incomefrom said estate shall belong to him and he is further authorized to use any part of the principal of said estate as he may need or desire, ... he shall not sell or otherwise dispose of any of the improved property now owned by us, located at ... City of Lubbock, Texas ... . He shall have the right to subdivide any farm land and sell lots therein, and may sell unimproved townlots;" 38 that "(A)t the death of my said husband, Charles Newton, I give, devise and bequeath all of the rest, residue and remainder of my estate, both personal and real, ... to be equally divided among my brothers and sisters, share and share alike, namely: Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie Rascoe, Era Roman and Nimroy Higdon;"39 and that "(I)n case of the death of any of my brothers and/or sisters ... prior to the death of my husband ... the heirs of such deceased brother or sister shall take jointly the share which would have gone to such brother or sister had she or he survived." 40

Such provisions are wholly consistent with the view already fully expounded above that all transactions and sales made by Hodges after his wife Linnie's death were by operation of the law of trust as well as by his ownacknowledgment and acts deemed for and on behalf of their unliquidated conjugal partnership and community estate, share and share alike, with the express authorization of the probate court per its orders of May 25, and December 14, 1957 granting Hodges' motion to continue the conjugal partnership business of buying and selling real estate even after her death. By the same token, Hodges could not conceivably be deemed to have had any authority or right to dispose gratuitously of any portion of her estate to whose succession she had called her brothers and sisters upon his death.

9. Such institutions of heirs with a term are expressly recognized and permitted under Book III, Chapter 2, section 4 of our Civil Code dealing with "conditional testamentary dispositions and testamentary dispositions with a term." 41

Thus, Article 885 of our Civil Code expressly provides that:

ART 885. The designation of the day or time when the effects of the institution of an heir shallcommence or cease shall be valid.

In both cases, the legal heir shall be considered as called to the succession until the arrival of the period or its expiration. But in the first case he shall not enter into possession of the property until after having given sufficient security, with the intervention of the instituted heir.

Accordingly, under the terms of Mrs. Hodges' will, her husband's right to the succession as the instituted heir ceased in diem, i.e. upon the arrival of the resolutory term of his death on December 25, 1962, while her brothers' and sisters' right to the succession also as instituted heirs commenced ex die, i.e. upon the expiration of the suspensive term (as far as they were concerned) of the death of C. N. Hodges on December 25, 1962 . 42

As stated in Padilla's treatise on the Civil Code, "A term is a period whose arrival is certain although the exact date thereof may be uncertain. A term may have either a suspensive or a resolutory effect. The designation of the day when the legacy "shall commence" is ex die, or a term with a suspensive effect, from a certain day. The designation of the day when the legacy "shall cease" is in diem or a term with a resolutory effect, until a certain day." He adds that "A legacy based upon a certain age or upon the death of a person is not a condition but aterm. If the arrival of the term would commence the right of the heir, it is suspensive. If the arrival of the term would terminate his right, it is resolutory" and that "upon the arrival of the period, in case of a suspensive term, theinstituted heir is entitled to the succession, and in case of a resolutory term, his right terminates." 43

10. The sizable estates herein involved have now been pending settlement for a considerably protracted period (of seventeen years counted from Linnie's death in 1957), and all that is left to be done is to resolve the onlyremaining issue (involving the two questions of renunciation and renvoi) hereinabove discussed in order to close up the estates and finally effect distribution to the deceased spouses' respective brothers and sisters and their heirs as the heirs duly instituted in their wills long admitted to probate. Hence, it is advisable for said instituted heirs and their heirs in turn 44 to come to

terms for the adjudication and distribution to them pro-indiviso of the up to now unliquidated community properties of the estates of the Hodges spouses (derived from their unliquidated conjugal partnership) rather than to get bogged down with the formidable task of physically segregating and partitioning the two estates with the numerous transactions, items and details and physical changes of properties involved. The estates proceedings would thus be closed and they could then name their respective attorneys-in-fact to work out the details of segregating, dividing or partitioning the unliquidated community properties or liquidating them — which can be done then on their own without further need of intervention on the part of the probate court as well as allow them meanwhile to enjoy and make use of the income and cash and liquid assets of the estates in such manner as may be agreed upon between them.

Such a settlement or modus vivendi between the heirs of the unliquidated two estates for the mutual benefit of all of them should not prove difficult, considering that it appears as stated in the main opinion that 22.968149% of the share or undivided estate of C. N. Hodges have already been acquired by the heirs of Linnie Jane Hodges from certain heirs of her husband, while certain other heirs representing 17.34375% of Hodges' estate were joining cause with Linnie's heirs in their pending and unresolved motion for the removal of petitioner PCIB as administrator of Hodges' estate, 45 apparently impatient with the situation which has apparently degenerated into a running battle between the administrators of the two estates to the common prejudice of all the heirs.

11. As earlier stated, the writer has taken the pain of suggesting these guidelines which may serve to guide the probate court as well as the parties towards expediting the winding up and closing of the estates and the distribution of the net estates to the instituted heirs and their successors duly entitled thereto. The probate court should exert all effort towards this desired objective pursuant to the

mandate of our probate law, bearing in mind the Court's admonition in previous cases that "courts of first instance should exert themselves to close up estate within twelve months from the time they are presented, and they may refuse to allow any compensation to executors and administrators who do not actively labor to that end, and they may even adopt harsher measures."46

Timeliness of appeals and imposition of thirty-one (31) additional docket fees

Two appeals were docketed with this Court, as per the two records on appeal submitted (one with a green cover and the other with a yellow cover). As stated at the outset, these appeals involve basically the same primal issue raised in the petition for certiorari as to whether there still exists a separate estate of Linnie Jane Hodges which has to continue to be administered by respondent Magno. Considering the main opinion's ruling in the affirmative and that her estate and that of her husband (since they jointly comprise unliquidated community properties) must be administered conjointly by their respective administrators (PCIB and Magno), the said appeals (involving thirty-three different orders of the probate court approving sales contracts and other acts of administration executed and performed by respondent Magno on behalf of Linnie's estate) have been necessarily overruled by the Court's decision at bar.

(a) The "priority question" raised by respondent Magno as to the patent failure of the two records on appeal to show on their face and state the material data that the appeals were timely taken within the 30-day reglamentary period as required by Rule 41, section 6 of the Rules of Court, has been brushed aside by the main opinion with the statement that it is "not necessary to pass upon the timeliness of any of said appeals" since they "revolve around practically the same main issues and ... it is admitted that some of them have been timely taken." 47 The main opinion thus proceeded with the

determination of the thirty-three appealed orders despite the grave defect of the appellant PCIB's records on appeal and their failure to state the required material data showing the timeliness of the appeals.

Such disposition of the question of timeliness deemed as "mandatory and jurisdictional" in a number of cases merits the writer's concurrence in that the question raised has been subordinated to the paramount considerations of substantial justice and a "liberal interpretation of the rules" applied so as not to derogate and detract from the primary intent and purpose of the rules, viz "the proper and just determination of a litigation" 48 — which calls for "adherence to a liberal construction of the

procedural rules in order to attain their objective of substantial justice and of avoiding denials of substantial justice due to procedural technicalities." 49

Thus, the main opinion in consonance with the same paramount considerations of substantial justice has likewise overruled respondents' objection to petitioner's taking the recourse of "the present remedy of certiorari and prohibition" — "despite the conceded availability of appeal" — on the ground that "there is a common thread among the basic issues involved in all these thirty-three appeals — (which) deal with practically the same basic issues that can be more expeditiously resolved or determined in a single special civil action . . . " 50

(b) Since the basic issues have been in effect resolved in the special civil action at bar (as above stated) with the dismissal of the petition by virtue of the Court's judgment as to the continued existence of a separate estate of Linnie Jane Hodges and the affirmance as a necessary consequence of the appealed orders approving and sanctioning respondent Magno's sales contracts and acts of administration, some doubt would arise as to the propriety of the main opinion requiring the payment by PCIB of thirty-one (31) additional appeal docket fees. This doubt is further enhanced by the question of whether it would make the cost of appeal unduly expensive or prohibitive by requiring the payment of a separate appeal docket fee for each incidental order questioned when the resolution of all such incidental questioned orders involve basically one and the same main issue (in

this case, the existence of a separate estate of Linnie Jane Hodges) and can be more expeditiously resolved or determined in a single special civil action" (for which a single docket fee is required) as stated in the main opinion. 51Considering the importance of the basic issues and the magnitude of the estates involved, however, the writer has pro hac vice given his concurrence to the assessment of the said thirty-one (31) additional appeal docket fees.

MAKALINTAL, C.J., concurring:

I concur in the separate opinion of Justice Teehankee, which in turn agrees with the dispositive portion of the main opinion of Justice Barredo insofar as it dismisses the petition for certiorari and prohibition in Cases L-27860 and L-27896 and affirms the appealed orders of the probate court in cases L-27936-37.

However, I wish to make one brief observation for the sake of accuracy. Regardless of whether or not C. N. Hodges was entitled to a legitime in his deceased wife's estate — which question, still to be decided by the said probate court, may depend upon what is the law of Texas and upon its applicability in the present case — the said estate consists of one-half, not one-fourth, of the conjugal properties. There is neither a minimum of one-fourth nor a maximum beyond that. It is important to bear this in mind because the estate of Linnie Hodges consists of her share in the conjugal properties, is still under administration and until now has not been distributed by order of the court.

The reference in both the main and separate opinions to a one-fourth portion of the conjugal properties as Linnie Hodges' minimum share is a misnomer and is evidently meant only to indicate that if her husband should eventually be declared entitled to a legitime, then the disposition made by Linnie Hodges in favor of her collateral relatives would be valid only as to one-half of her share, or one-fourth of the conjugal properties, since the remainder, which constitutes such legitime, would necessarily go to her husband in absolute ownership, unburdened by any substitution, term or condition, resolutory or otherwise. And until the estate is finally settled and adjudicated to the heirs who may be found entitled to it, the administration must continue to cover Linnie's entire conjugal share.

G.R. No. L-14530 April 25, 1962

4 SCRA 1030

LEONA AGLIBOT, ET AL., plaintiffs-appellees, vs.

ANDREA ACAY MAÑALAC, ET AL., defendants-appellants.

Nemesio Balonso for plaintiff-appellees. Ruperto G. Martin and Associates for dependants-appellants.

DIZON, J.:

Leona and Evarista Aglibot commenced the present action (Civil Case No. 1482) in the Court of First Instance of Zambales on July 31, 1952 to recover from Andrea Acay Mañalac and her children — Ramona, Gregorio, Felix, Angela, Juanita and Purisima, all surnamed Mañalac — the ownership and possession of a parcel of land situated in barrio Namanaan, Municipality of San Antonio, Zambales, more particularly described in paragraph 2 of their complaint, and damages.

Briefly stated, the allegations of the complaint are that the Aglibots inherited the property subject matter thereof from their deceased niece Juliana Mañalac; that upon the death of Anacleto Mañalac, father of Juliana, the defendants took possession of said property, claimed it as their own and had since then appropriated for themselves all the palay annually harvested therefrom amounting to 30 cavanes; that nothwithstanding demands made upon said defendants by the Aglibots, they had refused to surrender the property to the latter.1äw phï1.ñët

In their answer, after denying some material averments of the complaint, appellants alleged substantially the following as affirmative defense: that the land in question was purchased from Esteban Garcia by the spouses Anacleto Mañalac and Maria Aglibot for P1,000.00; that when Maria Aglibot died, only P300.00 of this amount had been paid; that the remaining P700.00 was paid to the vendor during the marriage of Anacleto Mañalac and appellant Andrea Acay; that Juliana Mañalac, the only daughter of Anacleto and his first wife, died in 1920, while Anacleto died in 1942; that upon his death, his widow, Andrea Acay, and their children acquired the property in question as his sole legal heirs. Their answer likewise claimed the sum of P1,000.00 as attorney's fees by way of counterclaim. After due trial, upon the issue thus joined, the lower court rendered judgement as follows: .

IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court hereby renders judgment declaring the plaintiffs owners pro-indiviso of one half (1/2) of the land covered by Original Certificate No. 10 described in paragraph 2 of the amended complaint, ordering the defendants to deliver to the plaintiffs the possession of the said one-half (1/2) of the property covered by said title; ordering the defendants jointly and severally to deliver to the plaintiffs 15 cavanes of palay yearly as the share of the plaintiffs from the produce of the land or its equivalent value at P10.00 a cavan from the date of the filing of the complaint until the said one-half (1/2) portion of the property described in Original Certificate No. 10 is delivered to the plaintiffs and ordering the defendants to pay the costs.

From the above judgment Andrea Acay and her children took the present appeal.

The evidence shows that, originally, the land in question belonged to the conjugal partnership of the spouses Anacleto Mañalac and Maria Aglibot, and was covered by Original Certificate of Title No. 10 of the Register of Deeds of Zambales in the name of Anacleto Mañalac, married to Maria Aglibot;

that said spouses had an only child named Juliana Mañalac; that Maria Aglibot died on October 2, 1906; that on April 25, 1910, Anacleto Mañalac married appellant Andrea Acay with whom he had six children (the other appellants herein); that Juliana Mañalac died intestate on October 22, 1920, leaving no other relatives except her father, Anacleto Mañalac, and her half brothers and sisters already mentioned; that upon the death of Anacleto on June 2, 1942, his widow, Andrea Acay, and her six children took possession of the parcel of land in controversy and since then have refused to surrender the ownership and possession thereof to the appellees; that the land produces thirty cavanes of palay yearly.

On May 18, 1951, appellees Leona and Evarista Aglibot filed a verified petition in the Court of First Instance of Zambales for the summary partition or distribution of the properties left by the deceased Juliana Mañalac among her rightful heirs (Special Proceeding No. 594). The court, after proper proceedings, issued an order dated October 30, 1951, the dispositive part of which reads as follows: .

Wherefore, the Court declares that the applicant Leona Aglibot and Evarista Aglibot are the only heirs within the third degree of Juliana Mañalac, and belonging to the same line from which these properties originally belonged, that is, from Maria Aglibot, being the sisters of the latter; that the value of these properties does not exceed six thousand pesos (P6,000); and that each of the applicants is entitled to receive and enter into possession of one-half of the first five parcels and one-fourth of the last two, after paying such debts of the estate if there be any — and the proportionate expenses of this special proceedings, subject to the provisions of Rule 74 of the Rules of Court. (Page 10, Rec. on App.).

After securing the decision abovequoted appellees made the unsuccessful demands upon appellants for the surrender of the property in question to them, and subsequently filed the present action.

The main question to be resolved now is: Who is entitled to the land which Anacleto Mañalac inherited from his daughter, Juliana, as between appellees(sisters of Maria Aglibot, first wife of Anacleto Mañalac), on the one hand, and appellants (Anacleto's second wife and their children), on the other?.

It is clear from the facts of the case that the land in question is reservable property in accordance with the provisions of Article 811 of the Spanish Civil Code (Art. 891 of the New Civil Code). Both parties now admit that the entire parcel covered by Original Certificate of Title No. 10 belonged to the conjugal partnership of the spouses Anacleto Mañalac and Maria Aglibot; that upon the death of the latter on October 2, 1906, their only daughter, Juliana Mañalac, inherited one-half of the property, the other pertaining to her father as his share in the conjugal partnership; that upon the death of Juliana Mañalac on October 2, 1920 without leaving any descendant, her father inherited her one-half portion of said property. In accordance with law, therefore, Anacleto Mañalac was obliged to reserve the portion he had thus inherited from his daughter, for the benefit of appellees, Leona and Evarista Aglibot, aunts of Juliana on the maternal side and who are, therefore, her relative within the third degree belonging to the line from which said property came.

Appellants' contention that the major portion of the purchase price of the land in question was paid to the original owner, Esteban Garcia, after the death of Maria Aglibot is rendered clearly untenable not only by the lack of sufficient evidence to this effect but also by the very significant circumstance that the property was titled in the name of Anacleto Mañalac "married to Maria Aglibot" — circumstance that strongly indicates that said spouses had acquired full ownership thereof during the lifetime of Maria Aglibot.

A Secondary question raised by appellants is to the effect that the lower court erred in ordering them, jointly and severally, to deliver to appellees fifteen cavanes of palay yearly or pay their equivalent value of P10.00 a cavan, from the date of the filing of the complaint. Considering the belief of appellants that the property in controversy formed part of the estate of Anacleto Mañalac and that upon the latter's death ownership thereof was transmitted to all his heirs, subject to the usufructuary rights of the surviving spouse, Maria Acay, their contention — not sufficiently rebutted — that only the latter enjoyed possession of the property since her husband's death and received the annual share pertaining to the landlord seems to be reasonable and logical. She should be the only one, therefore, sentenced to pay the fifteen cavanes of palay yearly from the date of the filing of the complaint.

The remaining contention of appellants that the lower court should have ordered appellees to refund to them 50% of the annual realty tax paid on the property cannot be sustained, this matter having been raised by them for the first time on appeal.

WHEREFORE, modified as above indicated, the decision appealed from is affirmed, with costs.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera and Paredes, JJ., concur.

G.R. No. L-22036 April 30, 1979

89 SCRA 493

TESTATE ESTATE OF THE LATE REVEREND FATHER PASCUAL RIGOR. THE PARISH PRIEST OF THE ROMAN CATHOLIC CHURCH OF VICTORIA, TARLAC, petitioner-appellant,

vs. BELINA RIGOR, NESTORA RIGOR, FRANCISCA ESCOBAR DE RIGOR and JOVITA ESCOBAR

DE FAUSTO,respondents-appellees.

D. Tañedo, Jr. for appellants.

J. Palanca, Sr. for appellee.

AQUINO, J.:

This case is about the efficaciousness or enforceability of a devise of ricelands located at Guimba, Nueva Ecija, with a total area of around forty- four hectares That devise was made in the will of the late Father Pascual Rigor, a native of Victoria Tarlac, in favor of his nearest male relative who would study for the priesthood.

The parish priest of Victoria, who claimed to be a trustee of the said lands, appealed to this Court from the decision of the Court of Appeals affirming the order of the probate court declaring that the said devise was inoperative (Rigor vs. Parish Priest of the Roman Catholic Church of Victoria, Tarlac, CA-G.R. No. 24319-R, August 1, 1963).

The record discloses that Father Rigor, the parish priest of Pulilan, Bulacan, died on August 9, 1935, leaving a will executed on October 29, 1933 which was probated by the Court of First Instance of Tarlac in its order of December 5, 1935. Named as devisees in the will were the testators nearest relatives, namely, his three sisters: Florencia Rigor-Escobar, Belina Rigor-Manaloto and Nestora Rigor-Quiambao. The testator gave a devise to his cousin, Fortunato Gamalinda.

In addition, the will contained the following controversial bequest (paragraphing supplied to facilitate comprehension of the testamentary provisions):

Doy y dejo como legado CUATRO (4) PARCELAS de terreno palayeros situados en el municipiooo de Guimba de la provinciaaa de NUEVA ECIJA, cuyo num. de CERTIFICADO DE TRANSFERENCIA DE TITULO SON; — Titulo Num. 6530, mide 16,249 m. cuadrados de superficie Titulo Num. 6548, mide 242,998 m. cuadrados de superficie y annual 6525, mide 62,665 m. cuadrados de superficie; y Titulo Num. 6521, mide 119,251 m. cuadrados de superficie; a cualquier pariente mio varon mas cercano que estudie la carrera eclesiatica hasta ordenarse de Presbiterado o sea Sacerdote; las condiciones de estate legado son;

(1.a) Prohibe en absoluto la venta de estos terrenos arriba situados objectos de este legado;

(2.a) Que el legatario pariente mio mas cercano tendra derecho de empezar a gozar y administrar de este legado al principiar a curzar la Sagrada Teologio, y ordenado

de Sacerdote, hasta su muerte; pero que pierde el legatario este derecho de administrar y gozar de este legado al dejar de continuar sus estudios para ordenarse de Presbiterado (Sacerdote).

Que el legatario una vez Sacerdote ya estara obligado a celebrar cada año VEINTE (20) Misas rezadas en sufragio de mi alma y de mis padres difuntos, y si el actual legatario, quedase excomulgado, IPSO FACTO se le despoja este legado, y la administracion de esto pasara a cargo del actual Parroco y sus sucesores de la Iglecia Catolica de Victoria, Tarlac.

Y en intervalo de tiempo que no haya legatario acondicionado segun lo arriba queda expresado, pasara la administracion de este legado a cargo del actual Parroco Catolico y sus sucesores, de Victoria, Tarlac.

El Parroco administrador de estate legado, acumulara, anualmente todos los productos que puede tener estate legado, ganando o sacando de los productos anuales el CINCO (5) por ciento para su administracion, y los derechos correspondientes de las VEINTE (20) Misas rezadas que debiera el Parroco celebrar cada año, depositando todo lo restante de los productos de estate legado, en un banco, a nombre de estate legado.

To implement the foregoing bequest, the administratix in 1940 submitted a project containing the following item:

5. LEGACY OF THE CHURCH

That it be adjudicated in favor of the legacy purported to be given to the nearest male relative who shall take the priesthood, and in the interim to be administered by the actual Catholic Priest of the Roman Catholic Church of Victoria, Tarlac, Philippines, or his successors, the real properties hereinbelow indicated, to wit:

Title No.

Lot No.

Area in Has.

Tax Dec.

Ass. Value

T-6530

3663 1.6249 18740 P 340.00

T-6548

3445-C

24.2998 18730 7,290.00

T-6525

3670 6.2665 18736 1,880.00

T-6521

3666 11.9251 18733 3,580.00

Total amount and 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

Fernando, C.J.(Actg. ), Barredo (Actg. Chairman), Antonio, Concepcion, Jr., and Santos, JJ., concur.

Abad Santos, J., took no part.

ROSALES vs ROSALES 148 SCRA 69

G.R. No. L-37903 March 30, 1977

76 SCRA 136

GERTRUDES L. DEL ROSARIO, petitioner, vs.

DOROTEA O. CONANAN and MARILOU DEL ROSARIO, respondents.

Dante P. Mercado for petitioner

Laig, Ruiz & Associates for respondents.

MAKASIAR, J.:

Review of the order of the Court of First Instance of Rizal dated June 21, 1973, dismissing petitioner's petition for settlement and partition of estate.

On November 13, 1972, petitioner filed with the court below the above-said petition, subject of which is the estate left by her late son, Felix L. del Rosario, who died in a plane crash on September 12, 1969 at Antipolo, Rizal (Partial Joint Stipulation of Facts, p. 2, petition, p. 6, rec.).

On March 17, 1973, respondents filed their opposition.

On April 26, 1973, the court a quo, pursuant to a verbal agreement forged between the parties, issued an order requiring them to come up with a joint stipulation of facts (p. 9, rec.).

On May 19, 1973, the parties submitted the following stipulation of facts:

OPPOSITOR admits that petitioner is the legitimate mother of the late FELIX L. DEL ROSARIO.

PETITIONER admits that oppositor DOROTEA OTERA DEL ROSARIO is the. legitimate surviving wife of the deceased FELIX L. DEL ROSARIO.

PETITIONER admits that MARILOU DEL ROSARIO, is the legally adopted child of the late FELIX L. DEL ROSARIO and DOROTEA DEL ROSARIO CONANAN

THAT THE PARTIES admit that the late FELIX L. DEL ROSARIO died last September 12, 1969 at Antipolo, Rizal in a plane crash and within the jurisdiction of the Honorable Court.

That the only surviving nearest relatives of deceased FELIX L. DEL ROSARIO are the petitioner and oppositors DOROTEO O. CONANAN and MARILOU DEL ROSARIO.

Parties admit to pay their respective counsel in the amount to be determined by the court.

WHEREFORE, it is respectfully prayed of this Honorable Court that on the basis of the facts stipulated, the Court declare the heirs of the deceased (pp. 9-10, rec.).

On June 21, 1973, the lower court issued the challenged order, pertinent portions of which read:

A perusal of the petition shows that the instant case was filed under the provisions of Section 2, Rule 74 of the Revised Rules of Court, which reads as follows:

Whenever the gross value of the estate; of a deceased person, whether he died testate or intestate, does not exceed ten thousand pesos, and that fact is made to appear to the Court of First Instance having jurisdiction of the estate by the petition of an interested person and upon hearing, which shall be held not less than one (1) month nor more than three (3) months from the date of the last publication of a notice which shall be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province, and after such other notice to interested persons as the court may direct, the court may proceed summarily, without the appointment of an executor or administrator, and without delay, to grant, if proper, allowance of the will, if any there is, to determine who are the persons legally entitled to participate in the estate, and to apportion and divide it among them after the payment of such debts of the estate as the court shall then find to be due; and such persons, in their own right, if they are of lawful age and legal capacity, or by their guardians or trustees legally appointed and qualified, if otherwise, shall thereupon be entitled to receive and enter into the possession of the portions of the estate so awarded to them respectively. The court shall make such order as may be just respecting the costs of the proceedings, and all orders and judgment made or rendered in the course thereof shall be recorded in the office of the clerk, and the order of partition or award, if it involves real estate, shall be recorded in the proper registrar's office.

While it may be true that a petition for summary settlement is allowed under the aforequoted provision of the rules, the same rule specifically limits the action to estates the gross value of which does not exceed P10,000.00, The instant petition, however, clearly alleges that the value of the real properties alone left by the deceased Felix del Rosario amounts to P33,000.00 which is obviously over and above-the value of the estate allowed under the rules. The action taken by the petitioner (cannot be) construed as one filed under an intestate proceeding as the requirements provided by law for the same has not been complied with. Based on the foregoing observation alone, the petition must perforce be dismissed.

But granting arguendo that this Court may consider the petition as an exercise (of) the powers of a probate Court in determining and declaring the heirs of the deceased as prayed for in the, aforequoted partial joint stipulation of facts, the law on intestate succession is clear that an adopted child concurring with the surviving spouse of the adopter excludes the legitimate ascendants from succession, ...

The contention of the petitioner that Article 343 is applicable in the instant case finds no basis for 'the said article is applicable in cases where there are no other concurring intestate heirs of the adopted child. ...

Based on the foregoing, therefore, the petitioner not being included as intestate heir of the deceased cannot be considered as a co-owner of or have any right over the properties sought to be partitioned and under the provisions of Section 1, Rule e 69 in re action to Section 2, Rule 3 of the Revised Rules of Court, such action must be commenced or instituted by the party in interest.

WHEREFORE, in view of the foregoing findings, the Court hereby DISMISSES THE PETITION WITHOUT PRONOUNCEMENT AS TO COSTS (pp, 10-12, rec.).

On July 10, 1973, petitioner filed a notice of appeal, record on appeal and appeal bond (see respondents comments, p. 18, rec.).

I

WE rule that on purely jurisdictional consideration, the instant petition should be dismissed.

Indeed, in a litany of precedents dating as far back as the 1938 case of Utulo vs. Pasiono Vda. de Garcia (66 Phil. 802) and reaffirmed in Asuncion and Castro vs, De la Cruz (No. L-7855, November 23, 1955, 97 Phil. 910) andGutierrez vs. Cruz (G.R. No. L-21027, July 20, 1968, 24 SCRA 69), WE uniformly held that for the court to acquire jurisdiction in a petition for summary settlement of estate under the rules, the requirement that the amount of the estate involved should not exceed P10,000,00 (P6,000.00 under the old rules) is jurisdictional.

In the instant case, both parties jointly affirmed that the value of the realty left by the deceased Felix del Rosario is in the aggregate amount of P33,000.00 which, as the court a quo correctly found, is obviously "over and above the value allowed under the rules."

II

However, by virtue of the transcendental implications of the holding of the court a quo in the sense that once wholly sustained, said holding would preclude petitioner from re-filing the proper action — a consequence which, on the ground of equity and fair play, We cannot allow to befall on petitioner — We deemed it essential, for the guidance of the parties especially herein, petitioner, to point out the demerits of the appealed verdict.

1. Which of the following articles of the New Civil Code will apply, Article 343 on the one hand, or Articles 341, 978 and 979 on the other; and

2. Whether the material data rule enuciated by Rule 41, Section 6 the New Rules of Court should be followed, ex cathedra, in the present case:

A

The lower court found the following the new provisions of the New Civil Code gername to the instant case:

Art. 341. The adoption shall:

(1) Give to the adopted person the same rights and duties as if he were a legitimate child of the adopted;

(2) Dissolve the authority vested in the parents by nature;

(3) Make the adopted person a legal heir of the adopted;

(4) Entitle the adopted person to use the adopter's surname."

Art. 978. Succession pertains, in the first place, to the decending direct line.

Art. 979. Legitimate children and their decendants suceed the parents and the other ascendants, without distinction as to sex or age, and even if they should come from different marriages.

WE opine that the governing provision is the hereinafter quoted article 343 of the New Civil Code, in relation to Articles 893 and 1000 of said law, which directs that:

Art. 343. If the adopter is survived by legitimate parents or ascendants and by an adopted person. the latter shall not have more successional rights than an acknowledged natural child.

Article 343 of the New Civil Code is qualification to Article 341 which gives an adopted child the same rights and duties as though he were a legitimate child. The reason for this is that:

(I)t is unjuest to exclude the adopter's parents from the inheritance in facor of an adopted person (Report of the Code Commission, p. 92).

It is most unfair to accord more successional rights to the adopted, who is only related artificially by fiction of law to the deceased, than those who are naturally related to him by blood in the direct ascending line.

The applicability of Article 343 does not exclude the surviving parent of the deceased adopter, not only because a contrary view would defeat the intent of the framers of the law, but also because in intestate succession, where legitimate parents or ascendants concur with the surviving spouse of the deceased, the latter does not necessarily exclude the former from the inheritance. This is affirmed by Article 893 of the New Civil Code which states:

If the testator leaves no legitimate descendants, but leaves legitimate ascendants, the surviving spouse shall have a right to onefourth (only) of the hereditary estate.

This fourth shall be taken from the free portion.

Article 343 does not require that the concurring heirs should be the aodpted child and the legitimate parents or ascendants only. The language of the law is clear, and a contrary view cannot be presumed.

It is, thus, OUR view that Article 343 should be made to apply, consonant with the cardinal rule in statutory construction that all the provisions of the New Civil Code must be reconciled and given effect.

Under Article 343, an adopted child surviving with legitimate parents of the deceased adopter, has the same successional rights as an acknowledged natural child, which is comprehended in the term

"illegitimate children". Consequently , the respective shares of the surviving spouse, ascendant and adopted child should be determined by Article 1000 of the New Civil Code, which reads:

Art. 1000. If legitimate ascendants, the surviving spouse and illegitimate children are left, the ascendants shall be entitled to onehalf of the inheritance, and the other half shall be divided between the surviving spouse and the illegitimate children so that such widow or widower shall have one-fourth of the estate, the illegitimate children the other fourth.

B

Anent the other issue, respondents, in their comment of June 29, 1973, emphasize that the petitioner's record on appeal violates the material data rule in that

It does not state when the notice of appeal and appeal bond were filed with the lower court in disregard of the requirment of Section 6, Rule 41 of the Rules of Court that the record on appeal must contain such data as will show that the appeal was perfected on time.

Recent jurisprudence has construed liberally the material data rule, whenever circumstances and substantial justice warrant.

The cases of Berkenkotter vs. Court of Appeal, No. L-336629, September 28, 1973 (53 SCRA 228) and Villanueva vs. Court of Appeal (No. L-29719, Novemner 28, 1975, 68 SCRA 216, 220) are particularly in point.

In Villanueva, WE held:

The deviation from the rigid rule aopted in the case of Government of the Philippines vs. Antonio, etal., G.R. No. L-23736, October 19, 1965, is due to our realization that after all what is of vital importance in the requirement fo Section 6, Rule 41 of the Rules of court is that the Record on Appeal shall show that the appeal was really perfected within the reglementary period. If it could ascertained from the record of the case that the appeal was perfected within the reglementary period, although such fact did not evidently appear on the face of the record on appeal, the defect or deficiency is not fatal.

If the appellate court is convinced that the appeal was perfected on time, it should not throw out but assume jurisdiction over it. After all, that procedural requirement is only intended to enable the appellate court to determine if the appeal is still within its jurisdiction and nothing more (Villanueva vs. Court of Appeals, 68 SCRA 220, emphasis supplied).

From the docket and process slip of this case, it is shown that the date of notice of the Court of First Instance decision is July 3, 1973 and that the expiry date to file petition for certiorari with the Supreme Court is December 14, 1973. Petitioner filed her notice of appeal, appeal bond and record on appeal on July 10, 1973 — or still very much within the reglementary period to perfect an appeal. And although this is not mentioned in the record on appeal. And although this is not mentioned in the record on appeal, it is, nevertheless, a fact of record, the veracity of which this COURT does not doubt.

Perforce, there being substantial compliance with the requirement of the Rules of Court, WE resolve this issue in favor of petitioner.

The liberal interpretation of the material data rule aimed at serving the ends of substantial justice has found amplification in the recent cases of Pimental, et al. vs. Court of Appeals, et al., L-39423 and L-39684, June 27, 1975, 64 SCRA 475; Republic of the Philippines vs. Court of Appeals, Tomas Carag, et al., L-40495, October 21, 1975, 67 SCRA 322, 328-332; and Manuel R. Luna vs. Court of Appeals, Capati, et al., L-37123, October 30 1975, 67 SCRA 503, 506.

WHEREFORE, THE INSTANT PETITION IS HEREBY DISMISSED, WITHOUT PREJUDICE TO PETITIONER'S FILING THE APPROPRIATE ACTION IS A COMPETENT COURT. NO COSTS.

SO ORDERED.

Teehankee (Chairman), Muñoz-Palma, Concepcion Jr. and Martin, JJ., concur.

G.R. No. L-40789 February 27, 1987

148 SCRA 69

INTESTATE ESTATE OF PETRA V. ROSALES, IRENEA C. ROSALES, petitioner, vs.

FORTUNATO ROSALES, MAGNA ROSALES ACEBES, MACIKEQUEROX ROSALES and ANTONIO ROSALES,respondents.

Jose B. Echaves for petitioner.

Jose A. Binghay and Paul G. Gorres for respondents.

GANCAYCO, J.:

In this Petition for Review of two (2) Orders of the Court of First Instance of Cebu the question raised is whether the widow whose husband predeceased his mother can inherit from the latter, her mother-in-law.

It appears from the record of the case that on February 26, 1971, Mrs. Petra V. Rosales, a resident of Cebu City, died intestate. She was survived by her husband Fortunate T. Rosales and their two (2) children Magna Rosales Acebes and Antonio Rosales. Another child, Carterio Rosales, predeceased her, leaving behind a child, Macikequerox Rosales, and his widow Irenea C. Rosales, the herein petitioner. The estate of the dismissed has an estimated gross value of about Thirty Thousand Pesos (P30,000.00).

On July 10, 1971, Magna Rosales Acebes instituted the proceedings for the settlement of the estate of the deceased in the Court of First Instance of Cebu. The case was docketed as Special Proceedings No. 3204-R. Thereafter, the trial court appointed Magna Rosales Acebes administratrix of the said estate.

In the course of the intestate proceedings, the trial court issued an Order dated June 16, 1972 declaring the following in individuals the legal heirs of the deceased and prescribing their respective share of the estate —

Fortunata T. Rosales (husband), 1/4; Magna R. Acebes (daughter), 1/4; Macikequerox Rosales, 1/4; and Antonio Rosales son, 1/4.

This declaration was reiterated by the trial court in its Order I dated February 4, 1975.

These Orders notwithstanding, Irenea Rosales insisted in getting a share of the estate in her capacity as the surviving spouse of the late Carterio Rosales, son of the deceased, claiming that she is a compulsory heir of her mother-in-law together with her son, Macikequerox Rosales.

Thus, Irenea Rosales sought the reconsideration of the aforementioned Orders. The trial court denied her plea. Hence this petition.

In sum, the petitioner poses two (2) questions for Our resolution petition. First — is a widow (surviving spouse) an intestate heir of her mother-in-law? Second — are the Orders of the trial court

which excluded the widow from getting a share of the estate in question final as against the said widow?

Our answer to the first question is in the negative.

Intestate or legal heirs are classified into two (2) groups, namely, those who inherit by their own right, and those who inherit by the right of representation. 1 Restated, an intestate heir can only inherit either by his own right, as in the order of intestate succession provided for in the Civil Code, 2 or by the right of representation provided for in Article 981 of the same law. The relevant provisions of the Civil Code are:

Art. 980. The children of the deceased shall always inherit from him in their own right, dividing the inheritance in equal shares.

Art. 981. Should children of the deceased and descendants of other children who are dead, survive, the former shall inherit in their own right, and the latter by right of representation.

Art. 982. The grandchildren and other descendants shag inherit by right of representation, and if any one of them should have died, leaving several heirs, the portion pertaining to him shall be divided among the latter in equal portions.

Art. 999. When the widow or widower survives with legitimate children or their descendants and illegitimate children or their descendants, whether legitimate or illegitimate, such widow or widower shall be entitled to the same share as that of a legitimate child.

There is no provision in the Civil Code which states that a widow (surviving spouse) is an intestate heir of her mother-in-law. The entire Code is devoid of any provision which entitles her to inherit from her mother-in- law either by her own right or by the right of representation. The provisions of the Code which relate to the order of intestate succession (Articles 978 to 1014) enumerate with meticulous exactitude the intestate heirs of a decedent, with the State as the final intestate heir. The conspicuous absence of a provision which makes a daughter-in-law an intestate heir of the deceased all the more confirms Our observation. If the legislature intended to make the surviving spouse an intestate heir of the parent-in-law, it would have so provided in the Code.

Petitioner argues that she is a compulsory heir in accordance with the provisions of Article 887 of the Civil Code which provides that:

Art. 887. The following are compulsory heirs:

(1) Legitimate children and descendants, with respect to their legitimate parents and ascendants;

(2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants;

(3) The widow or widower;

(4) Acknowledged natural children, and natural children by legal fiction;

(5) Other illegitimate children referred to in article 287;

Compulsory heirs mentioned in Nos. 3, 4 and 5 are not excluded by those in Nos. 1 and 2; neither do they exclude one another.

In all cases of illegitimate children, their filiation must be duly proved.

The father or mother of illegitimate children of the three classes mentioned, shall inherit from them in the manner and to the extent established by this Code.

The aforesaid provision of law 3 refers to the estate of the deceased spouse in which case the surviving

spouse (widow or widower) is a compulsory heir. It does not apply to the estate of a parent-in-law.

Indeed, the surviving spouse is considered a third person as regards the estate of the parent-in-law. We had occasion to make this observation in Lachenal v. Salas, 4 to Wit:

We hold that the title to the fishing boat should be determined in Civil Case No. 3597 (not in the intestate proceeding) because it affects the lessee thereof, Lope L. Leoncio, the decedent's son-in-law, who, although married to his daughter or compulsory heir, is nevertheless a third person with respect to his estate. ... (Emphasis supplied).

By the same token, the provision of Article 999 of the Civil Code aforecited does not support petitioner's claim. A careful examination of the said Article confirms that the estate contemplated therein is the estate of the deceased spouse. The estate which is the subject matter of the intestate estate proceedings in this case is that of the deceased Petra V. Rosales, the mother-in-law of the petitioner. It is from the estate of Petra V. Rosales that Macikequerox Rosales draws a share of the inheritance by the right of representation as provided by Article 981 of the Code.

The essence and nature of the right of representation is explained by Articles 970 and 971 of the Civil Code, viz —

Art. 970. Representation is a right created by fiction of law, by virtue of which the representative is raised to the place and the degree of the person represented, and acquires the rights which the latter would have if he were living or if he could have inherited.

Art. 971. The representative is called to the succession by the law and not by the person represented. The representative does not succeed the person represented but the one whom the person represented would have succeeded. (Emphasis supplied.)

Article 971 explicitly declares that Macikequerox Rosales is called to succession by law because of his blood relationship. He does not succeed his father, Carterio Rosales (the person represented) who predeceased his grandmother, Petra Rosales, but the latter whom his father would have succeeded. Petitioner cannot assert the same right of representation as she has no filiation by blood with her mother-in-law.

Petitioner however contends that at the time of the death of her husband Carterio Rosales he had an inchoate or contingent right to the properties of Petra Rosales as compulsory heir. Be that as it may, said right of her husband was extinguished by his death that is why it is their son Macikequerox

Rosales who succeeded from Petra Rosales by right of representation. He did not succeed from his deceased father, Carterio Rosales.

On the basis of the foregoing observations and conclusions, We find it unnecessary to pass upon the second question posed by the petitioner.

Accordingly, it is Our considered opinion, and We so hold, that a surviving spouse is not an intestate heir of his or her parent-in-law.

WHEREFORE, in view of the foregoing, the Petition is hereby DENIED for lack of merit, with costs against the petitioner. Let this case be remanded to the trial-court for further proceedings.

SO ORDERED.

Yap (Chairman), Narvasa, Melencio-Herrera, Cruz, Feliciano and Sarmiento, JJ., concur.

G.R. No. L-37365 November 29, 1977

80 SCRA 421

GAUDENCIO BICOMONG, et al., plaintiffs-appellees, vs.

GERONIMO ALMANZA, et al., defendant. FLORENTINO CARTENA, defendant-appellant.

Antonio E. Lacsam & Cesar A. Azucena, Jr. for appellant.

Ricardo A. Fabros, Jr. for appellees.

GUERRERO, J.:

This is an appeal certified to this Court by the Court of Appeals 1 in accordance with the provisions of

Sec. 17, paragraph (4) of the Judiciary Act of 1948, as amended, since the only issue raised is the correct application of the law and jurisprudence on the matter which is purely a legal question.

The following findings of fact by the Court of First Instance of Laguna and San Pablo City in Civil Case No. SP-265, and adopted by the Court of Appeals, show that:

Simeon Bagsic was married to Sisenanda Barcenas on June 8, 1859 (Exh. "D") Of this marriage there were born three children namely: Perpetua Bagsic (Exhibit G), Igmedia Bagsic (Exhibit F), and Ignacio Bagsic (Exhibit H). Sisenanda Barcenas died ahead of her husband Simeon Bagsic.

On June 3, 1885, Simeon Bagsic remarried Silvestra Glorioso (Exhibit "E"). Of this second marriage were born two children, Felipa Bagsic (Exhibit J) and Maura Bagsic (Exhibit I). Simeon Bagsic died sometime in 1901. Silvestra Glorioso also died.

Ignacio Bagsic died on April 18, 1939 (Exhibit C) leaving the plaintiff Francisca Bagsic as his only heir. Igmedia Bagsic also died on August 19, 1944 (Exhibit B) survived by the plaintiffs Dionisio Tolentino, Maria Tolentino and Petra Tolentino.

Perpetua Bagsic died on July 1, 1945 (Exhibit A). Surviving her are her heirs, the plaintiffs Gaudencio Bicomong, Felicidad Bicomong, Salome Bicomong, and Gervacio Bicomong.

Of the children of the second marriage, Maura Bagsic died also on April 14, 1952 leaving no heir as her husband died ahead of her. Felipa Bagsic, the other daughter of the second Geronimo Almanza and her daughter Cristeta Almanza. But five (5) months before the present suit was filed or on July 23, 1959, Cristeta Almanza died leaving behind her husband, the defendant herein Engracio Manese (Exhibit 1-Manese) and her father Geronimo Almanza.

(Rollo, pp. 2-3)

The subject matter of the complaint in Civil Case No. SP-265 concerns the one-half undivided share of Maura Bagsic in the following described five (5) parcels of land which she inherited from her deceased mother, Silvestra Glorioso, to wit:

A. A parcel of land in Bo. San Ignacio, City of San Pablo, planted with 38 fruit bearing coconut trees, with an area of 1,077, sq. m. Bounded on the N. by German Garingan; on the E. by Juan Aliagas; on the S. by Bernardino Alina; and on the W. by Feliciana Glorioso Covered by Tax No. 12713 for the year 1948 in the name of Silvestra Glorioso, now Tax No. 31232, assessed at P170.00 in the name of defendant Geronimo Almanza;

B. A parcel of land, also situated in Bo. San Ignacio, City of San Pablo, planted with fruit bearing coconut trees, with an area of 9,455 sq. m. Bounded on the N. by Paulino Gajuco; on the E. by Felisa Gavino and German Garigan; on the S. by Esteban Calayag; and on the W. by Laureano Ambion, Covered by Tax No. 12714 for the year 1948 in the name of defendant Geronimo Almanza;

C. A parcel of land situated in same Bo. San Ignacio, City of San Pablo, planted with 376 fruit bearing coconut trees and having an area of 11,739 sq. m. Bounded on the N. by Jacinto Alvero, Anacleto Glorioso and Bernardino Alma; on the E. by Bernardino Alma; on the S. by Rosendo Banaad, Jacinto Alvero and Casayan River; and on the W. by Anacleto Glorioso Covered by Tax No. 12715 for the year 1948 in the name of Silvestra Glorioso, now Tax No. 31234, assessed at P2,720.00 in the name of defendant Geronimo Almanza;

D. A residential lot, situated at P. Alcantara Street, Int., City of San Pablo, with an area of 153, sq. m. Bounded on the N. by heirs of Pedro Calampiano; on the E. by Petronilo Cartago; on the S. by Ignacio Yerro; and on the W. by Melecio Cabrera. Covered by Tax No. 17653 for the year 1948 in the name of Silvestra Glorioso, now Tax No. 21452, assessed at P610.00 in the name of Cristeta Almanza; and

E. A parcel of coconut land, situated at Bo. Buenavista, Candelaria, Quezon, planted with 300 coconut trees fruit bearing. Area - 24,990 sq. m. Bounded on the N. (Ilaya) by heirs of Pedro de Gala on the E. by Julian Garcia; on the S. (Ibaba) by Julian Garcia, and on the W. by Taguan River. Covered by Tax No. 21452, assessed at P910.00.

(Record on Appeal, pp. 4-6)

Three sets of plaintiffs filed the complaint on December 1, 1959, namely: (a) the Bicomongs, children of Perpetua Bagsic; (b) the Tolentinos, children of Igmedia Bagsic; and (c) Francisco Bagsic, daughter of Ignacio Bagsic, in the Court of First Instance of Laguna and San Pablo City against the defendants Geronimo Almanza and Engracio Menese for the recovery of their lawful shares in the properties left by Maura Bagsic.

After the death of Maura Bagsic, the above-described properties passed on to Cristela Almanza who took charge of the administration of the same. Thereupon, the plaintiffs approached her and requested for the partition of their aunt's properties. However, they were prevailed upon by Cristeta

Almanza not to divide the properties yet as the expenses for the last illness and burial of Maura Bagsic had not yet been paid. Having agreed to defer the partition of the same, the plaintiffs brought out the subject again sometime in 1959 only. This time Cristeta Almanza acceded to the request as the debts, accordingly, had already been paid. Unfortunately, she died without the division of the properties having been effected, thereby leaving the possession and administration of the same to the defendants.

After trial, the court rendered judgment, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered in favor of the plaintiffs who are hereby declared to be entitled to ten twenty-fourth (10/24) share on the five parcels of land in dispute. The defendant Engracio Manese and the heirs of the deceased Geronimo Almanza, who are represented in the instant case by the administrator Florentino Cartena, are hereby required to pay the plaintiffs from July 23, 1959 the sum of P625.00 per annum until the ten-twenty fourth (10/24) share on the five parcels of land are delivered to the plaintiffs, with legal interest from the time this decision shall have become final.

With costs against the defendants.

SO ORDERED.

City of San Pablo, September 21, 1962.

(SGD) JOSE G. BAUTISTA

Judge

Record on Appeal, p. 47

From the aforesaid decision of the trial court, Florentino Cartena, the substitute defendant for Geronimo Almanza, appealed to the Court of Appeals. The other defendant, Engracio Manese, did not appeal and execution was issued with respect to the parcels of land in his possession, that is, those described under Letters D and E in the complaint. Hence, the subject matter of the case on appeal was limited to the one-half undivided portion of only three of the five parcels of land described under letters A, B and C in the complaint which defendant Cartena admitted to be only in his possession. 2

On appeal, defendant-appellant Cartena contends that the provisions of Arts. 995, 1006 and 1008 of the New Civil Code, applied by the trial court in allowing plaintiffs-appellees to succeed to the properties left by Maura Bagsic were not the applicable provisions. He asserts that in the course of the trial of the case in the lower court, plaintiffs requested defendants to admit that Felipa Bagsic, the sole sister of full blood of Maura Bagsic, died on May 9. 1955. Since Maura Bagsic died on April 14, 1952, Felipa succeeded to Maura's estate. In support thereof, he cites Art. 1004 of the New Civil Code which provides that "should the only survivors be brothers and sisters of the full blood, they shall inherit in equal shares," and he concludes with the rule that the relatives nearest in degree excludes the more distant ones. (Art. 962, New Civil Code)

On the other hand, plaintiffs-appellees claim that the date of death of Felipa Bagsic was not raised as an issue in the trial court. It was even the subject of stipulation of the parties as clearly shown in the transcript of the stenographic notes that Felipa Bagsic died on May 9. 1945. 3

The Court of Appeals ruled that the facts of the case have been duly established in the trial court and that the only issue left for determination is a purely legal question involving the correct application of the law and jurisprudence on the matter, hence the appellate court certified this case to Us.

We hold that the provisions of Art. 975, 1006 and 1008 of the New Civil Code are applicable to the admitted facts of the case at bar. These Articles provide:

Art. 975. When children of one or more brothers or sisters of tile deceased survive, they shall inherit from the latter by representation, if they survive with their uncles or aunts. But if they alone survive, they shall inherit in equal portions."

Art. 1006. Should brothers and sisters of the full blood survive together with brothers and sisters of the half blood, the former shall be entitled to a share double that of the latter.

Art. 1008. Children of brothers and sisters of the half blood shall succeed per capita or per stirpes, in accordance with the rules laid down for brothers and sisters of the full blood.

In the absence of defendants, ascendants, illegitimate children, or a surviving spouse, Article 1003 of the New Civil Code provides that collateral relatives shall succeed to the entire estate of the deceased. It appearing that Maura Bagsic died intestate without an issue, and her husband and all her ascendants had died ahead of her, she is succeeded by the surviving collateral relatives, namely the daughter of her sister of full blood and the ten (10) children of her brother and two (2) sisters of half blood in accordance with the provision of Art. 975 of the New Civil Code.

By virtue of said provision, the aforementioned nephews and nieces are entitled to inherit in their own right. InAbellana-Bacayo vs. Ferraris-Borromeo, L-19382, August 31, I965, 14 SCRA 986, this Court held that "nephews and nieces alone do not inherit by right of representation (that is per stirpes) unless concurring with brothers or sisters of the deceased."

Under the same provision, Art. 975, which makes no qualification as to whether the nephews or nieces are on the maternal or paternal line and without preference as to whether their relationship to the deceased is by whole or half blood, the sole niece of whole blood of the deceased does not exclude the ten nephews and n of half blood. The only difference in their right of succession is provided in Art. 1008, NCC in relation to Article 1006 of the New Civil Code (supra), which provisions, in effect, entitle the sole niece of full blood to a share double that of the nephews and nieces of half blood. Such distinction between whole and half blood relationships with the deceased has been recognized in Dionisia Padura, et al. vs. Melanie Baldovino, et al., No. L-11960, December 27, 1958, 104 Phil. 1065 (unreported) and in Alviar vs. Alviar, No. L-22402, June 30, 1969, 28 SCRA 610).

The contention of the appellant that Maura Bagsic should be succeeded by Felipa Bagsic, her sister of full blood, to the exclusion of the nephews and nieces of half blood citing Art. 1004, NCC is unmeritorious and erroneous for it is based on an erroneous factual assumption, that is, that Felipa Bagsic died in 1955, which as indicated here before, is not true as she died on May 9, 1945, thus she predeceased her sister Maura Bagsic.

We find the judgment of the trial court to be in consonance with law and jurisprudence.

ACCORDINGLY, the judgment of the trial court is hereby affirmed. No costs.

Teehankee (Chairman), Makasiar, Muñoz Palma, Martin and Fernandez, JJ., concur.

G.R. No. 183053 October 10, 2012

EMILIO A.M. SUNTAY III, Petitioner, vs. ISABEL COJUANGCO-SUNTAY, Respondent.

R E S O L U T I O N

PEREZ, J.:

The now overly prolonged, all-too familiar and too-much-stretched imbroglio over the estate of Cristina Aguinaldo-Suntay has continued. We issued a Decision in the dispute as in Inter Caetera.1 We now find a need to replace the decision.

Before us is a Motion for Reconsideration filed by respondent Isabel Cojuangco-Suntay (respondent Isabel) of our Decision2 in G.R. No. 183053 dated 16 June 2010, directing the issuance of joint letters of administration to both petitioner Emilio A.M. Suntay III (Emilio III) and respondent. The dispositive portion thereof reads:

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No. 74949 is REVERSED and SET ASIDE. Letters of Administration over the estate of decedent Cristina Aguinaldo-Suntay shall issue to both petitioner Emilio A.M. Suntay III and respondent Isabel Cojuangco-Suntay upon payment by each of a bond to be set by the Regional Trial Court, Branch 78, Malolos, Bulacan, in Special Proceeding Case No. 117-M-95. The Regional Trial Court, Branch 78, Malolos, Bulacan is likewise directed to make a determination and to declare the heirs of decedent Cristina Aguinaldo-Suntay according to the actual factual milieu as proven by the parties, and all other persons with legal interest in the subject estate. It is further directed to settle the estate of decedent Cristina Aguinaldo-Suntay with dispatch. No costs.3

We are moved to trace to its roots the controversy between the parties.

The decedent Cristina Aguinaldo-Suntay (Cristina) died intestate on 4 June 1990. Cristina was survived by her spouse, Dr. Federico Suntay (Federico) and five grandchildren: three legitimate grandchildren, including herein respondent, Isabel; and two illegitimate grandchildren, including petitioner Emilio III, all by Federico’s and Cristina’s only child, Emilio A. Suntay (Emilio I), who predeceased his parents.

The illegitimate grandchildren, Emilio III and Nenita, were both reared from infancy by the spouses Federico and Cristina. Their legitimate grandchildren, Isabel and her siblings, Margarita and Emilio II, lived with their mother Isabel Cojuangco, following the separation of Isabel’s parents, Emilio I and Isabel Cojuangco. Isabel’s parents, along with her paternal grandparents, were involved in domestic relations cases, including a case for parricide filed by Isabel Cojuangco against Emilio I. Emilio I was eventually acquitted.

In retaliation, Emilio I filed a complaint for legal separation against his wife, charging her among others with infidelity. The trial court declared as null and void and of no effect the marriage of Emilio I and Isabel Cojuangco on the finding that:

From February 1965 thru December 1965 plaintiff was confined in the Veterans memorial Hospital. Although at the time of the trial of parricide case (September 8, 1967) the patient was already out of the hospital, he continued to be under observation and treatment.

It is the opinion of Dr. Aramil that the symptoms of the plaintiffs mental aberration classified as schizophernia (sic) had made themselves manifest even as early as 1955; that the disease worsened with time, until 1965 when he was actually placed under expert neuro-psychiatrist (sic) treatment; that even if the subject has shown marked progress, the remains bereft of adequate understanding of right and wrong.

There is no controversy that the marriage between the parties was effected on July 9, 1958, years after plaintiffs mental illness had set in. This fact would justify a declaration of nullity of the marriage under Article 85 of the Civil Code which provides:

Art. 95. (sic) A marriage may be annulled for any of the following causes after (sic) existing at the time of the marriage:

x x x x

(3) That either party was of unsound mind, unless such party, after coming to reason, freely cohabited with the other as husband or wife.

There is a dearth of proof at the time of the marriage defendant knew about the mental condition of plaintiff; and there is proof that plaintiff continues to be without sound reason. The charges in this very complaint add emphasis to the findings of the neuro-psychiatrist handling the patient, that plaintiff really lives more in fancy than in reality, a strong indication of schizophernia (sic).4

Intent on maintaining a relationship with their grandchildren, Federico and Isabel filed a complaint for visitation rights to spend time with Margarita, Emilio II, and Isabel in the same special lower court. The Juvenile Domestic Relations Court in Quezon City (JDRC-QC) granted their prayer for one hour a month of visitation rights which was subsequently reduced to thirty minutes, and ultimately stopped, because of respondent Isabel’s testimony in court that her grandparents’ visits caused her and her siblings stress and anxiety.5

On 27 September 1993, more than three years after Cristina’s death, Federico adopted his illegitimate grandchildren, Emilio III and Nenita.

On 26 October 1995, respondent Isabel, filed before the Regional Trial Court (RTC), Malolos, Bulacan, a petition for the issuance of letters of administration over Cristina’s estate docketed as Special Proceeding Case No. 117-M-95. Federico, opposed the petition, pointing out that: (1) as the surviving spouse of the decedent, he should be appointed administrator of the decedent’s estate; (2) as part owner of the mass of conjugal properties left by the decedent, he must be accorded preference in the administration thereof; (3) Isabel and her siblings had been alienated from their grandparents for more than thirty (30) years; (4) the enumeration of heirs in the petition was incomplete as it did not mention the other children of his son, Emilio III and Nenita; (5) even before the death of his wife, Federico had administered their conjugal properties, and thus, is better situated to protect the integrity of the decedent’s estate; (6) the probable value of the estate as stated in the petition was grossly overstated; and (7) Isabel’s allegation that some of the properties are in the hands of usurpers is untrue.

Federico filed a Motion to Dismiss Isabel’s petition for letters of administration on the ground that Isabel had no right of representation to the estate of Cristina, she being an illegitimate grandchild of the latter as a result of Isabel’s parents’ marriage being declared null and void. However, in Suntay v. Cojuangco-Suntay, we categorically declared that Isabel and her siblings, having been born of a voidable marriage as opposed to a void marriage based on paragraph 3, Article 85 of the Civil Code,

were legitimate children of Emilio I, who can all represent him in the estate of their legitimate grandmother, the decedent, Cristina.

Undaunted by the set back, Federico nominated Emilio III to administer the decedent’s estate on his behalf in the event letters of administration issues to Federico. Consequently, Emilio III filed an Opposition-In-Intervention, echoing the allegations in his grandfather’s opposition, alleging that Federico, or in his stead, Emilio III, was better equipped than respondent to administer and manage the estate of the decedent, Cristina.

On 13 November 2000, Federico died.

Almost a year thereafter or on 9 November 2001, the trial court rendered a decision appointing Emilio III as administrator of decedent Cristina’s intestate estate:

WHEREFORE, the petition of Isabel Cojuangco-Suntay is DENIED and the Opposition-in-Intervention is GRANTED.

Accordingly, the Intervenor, Emilio A.M. Suntay, III (sic) is hereby appointed administrator of the estate of the decedent Cristina Aguinaldo Suntay, who shall enter upon the execution of his trust upon the filing of a bond in the amount of P 200,000.00, conditioned as follows:

(1) To make and return within three (3) months, a true and complete inventory;

(2) To administer the estate and to pay and discharge all debts, legatees, and charge on the same, or dividends thereon;

(3) To render a true and just account within one (1) year, and at any other time when required by the court, and

(4) To perform all orders of the Court.

Once the said bond is approved by the court, let Letters of Administration be issued in his favor.6

On appeal, the Court of Appeals reversed and set aside the decision of the RTC, revoked the Letters of Administration issued to Emilio III, and appointed respondent as administratrix of the subject estate:

WHEREFORE, in view of all the foregoing, the assailed decision dated November 9, 2001 of Branch 78, Regional Trial Court of Malolos, Bulacan in SPC No. 117-M-95 is REVERSED and SET ASIDE and the letters of administration issued by the said court to Emilio A.M. Suntay III, if any, are consequently revoked. Petitioner Isabel Cojuangco-Suntay is hereby appointed administratrix of the intestate estate of Cristina Aguinaldo Suntay. Let letters of administration be issued in her favor upon her filing of a bond in the amount of Two Hundred Thousand (P 200,000.00) Pesos.7

As previously adverted to, on appeal by certiorari, we reversed and set aside the ruling of the appellate court. We decided to include Emilio III as co-administrator of Cristina’s estate, giving weight to his interest in Federico’s estate. In ruling for co-administration between Emilio III and

Isabel, we considered that:

1. Emilio III was reared from infancy by the decedent, Cristina, and her husband, Federico, who both acknowledged him as their grandchild;

2. Federico claimed half of the properties included in the estate of the decedent, Cristina, as forming part of their conjugal partnership of gains during the subsistence of their marriage;

3. Cristina’s properties, forming part of her estate, are still commingled with those of her husband, Federico, because her share in the conjugal partnership remains undetermined and unliquidated; and

4. Emilio III is a legally adopted child of Federico, entitled to share in the distribution of the latter’s estate as a direct heir, one degree from Federico, and not simply in representation of his deceased illegitimate father, Emilio I.

In this motion, Isabel pleads for total affirmance of the Court of Appeals’ Decision in favor of her sole administratorship based on her status as a legitimate grandchild of Cristina, whose estate she seeks to administer.

Isabel contends that the explicit provisions of Section 6, Rule 78 of the Rules of Court on the order of preference for the issuance of letters of administration cannot be ignored and that Article 992 of the Civil Code must be followed. Isabel further asserts that Emilio III had demonstrated adverse interests and disloyalty to the estate, thus, he does not deserve to become a co-administrator thereof.

Specifically, Isabel bewails that: (1) Emilio III is an illegitimate grandchild and therefore, not an heir of the decedent; (2) corollary thereto, Emilio III, not being a "next of kin" of the decedent, has no interest in the estate to justify his appointment as administrator thereof; (3) Emilio III’s actuations since his appointment as administrator by the RTC on 9 November 2001 emphatically demonstrate the validity and wisdom of the order of preference in Section 6, Rule 78 of the Rules of Court; and (4) there is no basis for joint administration as there are no "opposing parties or factions to be represented."

To begin with, the case at bar reached us on the issue of who, as between Emilio III and Isabel, is better qualified to act as administrator of the decedent’s estate. We did not choose. Considering merely his demonstrable interest in the subject estate, we ruled that Emilio III should likewise administer the estate of his illegitimate grandmother, Cristina, as a co-administrator. In the context of this case, we have to make a choice and therefore, reconsider our decision of 16 June 2010.

The general rule in the appointment of administrator of the estate of a decedent is laid down in Section 6, Rule 78 of the Rules of Court:

SEC. 6. When and to whom letters of administration granted. – If no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate, administration shall be granted:

(a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve;

(b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for thirty (30) days after the death of the person to apply for administration or to request that administration be

granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve;

(c) If there is not such creditor competent and willing to serve, it may be granted to such other person as the court may select.

Textually, the rule lists a sequence to be observed, an order of preference, in the appointment of an administrator. This order of preference, which categorically seeks out the surviving spouse, the next of kin and the creditors in the appointment of an administrator, has been reinforced in jurisprudence.8

The paramount consideration in the appointment of an administrator over the estate of a decedent is the prospective administrator’s interest in the estate.9 This is the same consideration which Section 6, Rule 78 takes into account in establishing the order of preference in the appointment of administrator for the estate. The rationale behind the rule is that those who will reap the benefit of a wise, speedy and economical administration of the estate, or, in the alternative, suffer the consequences of waste, improvidence or mismanagement, have the highest interest and most influential motive to administer the estate correctly.10 In all, given that the rule speaks of an order of preference, the person to be appointed administrator of a decedent’s estate must demonstrate not only an interest in the estate, but an interest therein greater than any other candidate.

To illustrate, the preference bestowed by law to the surviving spouse in the administration of a decedent’s estate presupposes the surviving spouse’s interest in the conjugal partnership or community property forming part of the decedent’s estate.11 Likewise, a surviving spouse is a compulsory heir of a decedent12 which evinces as much, if not more, interest in administering the entire estate of a decedent, aside from her share in the conjugal partnership or absolute community property.

It is to this requirement of observation of the order of preference in the appointment of administrator of a decedent’s estate, that the appointment of co-administrators has been allowed, but as an exception. We again refer to Section 6(a) of Rule 78 of the Rules of Court which specifically states that letters of administration may be issued to both the surviving spouse and the next of kin. In addition and impliedly, we can refer to Section 2 of Rule 82 of the Rules of Court which say that "x x x when an executor or administrator dies, resigns, or is removed, the remaining executor or administrator may administer the trust alone, x x x."

In a number of cases, we have sanctioned the appointment of more than one administrator for the benefit of the estate and those interested therein.13 We recognized that the appointment of administrator of the estate of a decedent or the determination of a person’s suitability for the office of judicial administrator rests, to a great extent, in the sound judgment of the court exercising the power of appointment.14

Under certain circumstances and for various reasons well-settled in Philippine and American jurisprudence, we have upheld the appointment of co-administrators: (1) to have the benefits of their judgment and perhaps at all times to have different interests represented;15 (2) where justice and equity demand that opposing parties or factions be represented in the management of the estate of the deceased; (3) where the estate is large or, from any cause, an intricate and perplexing one to settle;16 (4) to have all interested persons satisfied and the representatives to work in harmony for the best interests of the estate;17 and when a person entitled to the administration of an estate desires to have another competent person associated with him in the office.18

In the frequently cited Matias v. Gonzales, we dwelt on the appointment of special co-administrators during the pendency of the appeal for the probate of the decedent’s will. Pending the probate

thereof, we recognized Matias’ special interest in the decedent’s estate as universal heir and executrix designated in the instrument who should not be excluded in the administration thereof. Thus, we held that justice and equity demands that the two (2) factions among the non-compulsory heirs of the decedent, consisting of an instituted heir (Matias) and intestate heirs (respondents thereat), should be represented in the management of the decedent’s estate.19

Another oft-cited case is Vda. de Dayrit v. Ramolete, where we held that "inasmuch as petitioner-wife owns one-half of the conjugal properties and that she, too, is a compulsory heir of her husband, to deprive her of any hand in the administration of the estate prior to the probate of the will would be unfair to her proprietary interests."20

Hewing closely to the aforementioned cases is our ruling in Ventura v. Ventura21 where we allowed the appointment of the surviving spouse and legitimate children of the decedent as co-administrators. However, we drew a distinction between the heirs categorized as next of kin, the nearest of kin in the category being preferred, thus:

In the case at bar, the surviving spouse of the deceased Gregorio Ventura is Juana Cardona while the next of kin are: Mercedes and Gregoria Ventura and Maria and Miguel Ventura. The "next of kin" has been defined as those persons who are entitled under the statute of distribution to the decedent’s property (citations omitted). It is generally said that "the nearest of kin, whose interest in the estate is more preponderant, is preferred in the choice of administrator. ‘Among members of a class the strongest ground for preference is the amount or preponderance of interest. As between next of kin, the nearest of kin is to be preferred.’" (citations omitted)

As decided by the lower court and sustained by the Supreme Court, Mercedes and Gregoria Ventura are the legitimate children of Gregorio Ventura and his wife, the late Paulina Simpliciano. Therefore, as the nearest of kin of Gregorio Ventura, they are entitled to preference over the illegitimate children of Gregorio Ventura, namely: Maria and Miguel Ventura. Hence, under the aforestated preference provided in Section 6 of Rule 78, the person or persons to be appointed administrator are Juana Cardona, as the surviving spouse, or Mercedes and Gregoria Ventura as nearest of kin, or Juana Cardona and Mercedes and Gregoria Ventura in the discretion of the Court, in order to represent both interests.22 (Emphasis supplied)

In Silverio, Sr. v. Court of Appeals,23 we maintained that the order of preference in the appointment of an administrator depends on the attendant facts and circumstances. In that case, we affirmed the legitimate child’s appointment as special administrator, and eventually as regular administrator, of the decedent’s estate as against the surviving spouse who the lower court found unsuitable. Reiterating Sioca v. Garcia24 as good law, we pointed out that unsuitableness for appointment as administrator may consist in adverse interest of some kind or hostility to those immediately interested in the estate.

In Valarao v. Pascual,25 we see another story with a running theme of heirs squabbling over the estate of a decedent. We found no reason to set aside the probate court’s refusal to appoint as special co-administrator Diaz, even if he had a demonstrable interest in the estate of the decedent and represented one of the factions of heirs, because the evidence weighed by the probate court pointed to Diaz’s being remiss in his previous duty as co-administrator of the estatein the early part of his administration. Surveying the previously discussed cases of Matias, Corona, and Vda. de Dayrit, we clarified, thus:

Respondents cannot take comfort in the cases of Matias v. Gonzales, Corona v. Court of Appeals, and Vda. de Dayrit v. Ramolete, cited in the assailed Decision. Contrary to their claim, these cases do not establish an absolute right demandable from the probate court to appoint special co-

administrators who would represent the respective interests of squabbling heirs. Rather, the cases constitute precedents for the authority of the probate court to designate not just one but also two or more special co-administrators for a single estate. Now whether the probate court exercises such prerogative when the heirs are fighting among themselves is a matter left entirely to its sound discretion.

Furthermore, the cases of Matias, Corona and Vda. de Dayrit hinge upon factual circumstances other than the incompatible interests of the heirs which are glaringly absent from the instant case. In Matias this Court ordered the appointment of a special co-administrator because of the applicant's status as the universal heir and executrix designated in the will, which we considered to be a "special interest" deserving protection during the pendency of the appeal. Quite significantly, since the lower court in Matias had already deemed it best to appoint more than one special administrator, we found grave abuse of discretion in the act of the lower court in ignoring the applicant's distinctive status in the selection of another special administrator.

In Corona we gave "highest consideration" to the "executrix's choice of Special Administrator, considering her own inability to serve and the wide latitude of discretion given her by the testatrix in her will," for this Court to compel her appointment as special co-administrator. It is also manifest from the decision in Corona that the presence of conflicting interests among the heirs therein was not per se the key factor in the designation of a second special administrator as this fact was taken into account only to disregard or, in the words of Corona, to "overshadow" the objections to the appointment on grounds of "impracticality and lack of kinship."

Finally in Vda. de Dayrit we justified the designation of the wife of the decedent as special co-administrator because it was "our considered opinion that inasmuch as petitioner-wife owns one-half of the conjugal properties and that she, too, is a compulsory heir of her husband, to deprive her of any hand in the administration of the estate prior to the probate of the will would be unfair to her proprietary interests." The special status of a surviving spouse in the special administration of an estate was also emphasized in Fule v. Court of Appeals where we held that the widow would have more interest than any other next of kin in the proper administration of the entire estate since she possesses not only the right of succession over a portion of the exclusive property of the decedent but also a share in the conjugal partnership for which the good or bad administration of the estate may affect not just the fruits but more critically the naked ownership thereof. And in Gabriel v. Court of Appeals we recognized the distinctive status of a surviving spouse applying as regular administrator of the deceased spouse's estate when we counseled the probate court that "there must be a very strong case to justify the exclusion of the widow from the administration."

Clearly, the selection of a special co-administrator in Matias, Corona and Vda. de Dayrit was based upon the independent proprietary interests and moral circumstances of the appointee that were not necessarily related to the demand for representation being repeatedly urged by respondents.26(Emphasis supplied)

In Gabriel v. Court of Appeals, we unequivocally declared the mandatory character of the rule on the order of preference for the issuance of letters of administration:

Evidently, the foregoing provision of the Rules prescribes the order of preference in the issuance of letters of administration, it categorically seeks out the surviving spouse, the next of kin and the creditors, and requires that sequence to be observed in appointing an administrator. It would be a grave abuse of discretion for the probate court to imperiously set aside and insouciantly ignore that directive without any valid and sufficient reason therefor.27

Subsequently, in Angeles v. Angeles-Maglaya,28 we expounded on the legal contemplation of a "next of kin," thus:

Finally, it should be noted that on the matter of appointment of administrator of the estate of the deceased, the surviving spouse is preferred over the next of kin of the decedent. When the law speaks of "next of kin," the reference is to those who are entitled, under the statute of distribution, to the decedent's property; one whose relationship is such that he is entitled to share in the estate as distributed, or, in short, an heir. In resolving, therefore, the issue of whether an applicant for letters of administration is a next of kin or an heir of the decedent, the probate court perforce has to determine and pass upon the issue of filiation. A separate action will only result in a multiplicity of suits. Upon this consideration, the trial court acted within bounds when it looked into and passed upon the claimed relationship of respondent to the late Francisco Angeles.29

Finally, in Uy v. Court of Appeals,30 we took into consideration the size of, and benefits to, the estate should respondent therein be appointed as co-administrator. We emphasized that where the estate is large or, from any cause, an intricate and perplexing one to settle, the appointment of co-administrators may be sanctioned by law.

In our Decision under consideration, we zeroed in on Emilio III’s demonstrable interest in the estate and glossed over the order of preference set forth in the Rules. We gave weight to Emilio III’s demonstrable interest in Cristina’s estate and without a closer scrutiny of the attendant facts and circumstances, directed co-administration thereof. We are led to a review of such position by the foregoing survey of cases.

The collected teaching is that mere demonstration of interest in the estate to be settled does not ipso facto entitle an interested person to co-administration thereof. Neither does squabbling among the heirs nor adverse interests necessitate the discounting of the order of preference set forth in Section 6, Rule 78. Indeed, in the appointment of administrator of the estate of a deceased person, the principal consideration reckoned with is the interest in said estate of the one to be appointed as administrator.31 Given Isabel’s unassailable interest in the estate as one of the decedent’s legitimate grandchildren and undoubted nearest "next of kin," the appointment of Emilio III as co-administrator of the same estate, cannot be a demandable right. It is a matter left entirely to the sound discretion of the Court32 and depends on the facts and the attendant circumstances of the case.33

Thus, we proceed to scrutinize the attendant facts and circumstances of this case even as we reiterate Isabel’s and her sibling’s apparent greater interest in the estate of Cristina.

These considerations do not warrant the setting aside of the order of preference mapped out in Section 6, Rule 78 of the Rules of Court. They compel that a choice be made of one over the other.

1. The bitter estrangement and long-standing animosity between Isabel, on the one hand, and Emilio III, on the other, traced back from the time their paternal grandparents were alive, which can be characterized as adverse interest of some kind by, or hostility of, Emilio III to Isabel who is immediately interested in the estate;

2. Corollary thereto, the seeming impossibility of Isabel and Emilio III working harmoniously as co-administrators may result in prejudice to the decedent’s estate, ultimately delaying settlement thereof; and

3. Emilio III, for all his claims of knowledge in the management of Cristina’s estate, has not looked after the estate’s welfare and has acted to the damage and prejudice thereof.

Contrary to the assumption made in the Decision that Emilio III’s demonstrable interest in the estate makes him a suitable co-administrator thereof, the evidence reveals that Emilio III has turned out to be an unsuitable administrator of the estate. Respondent Isabel points out that after Emilio III’s appointment as administrator of the subject estate in 2001, he has not looked after the welfare of the subject estate and has actually acted to the damage and prejudice thereof as evidenced by the following:

1. Emilio III, despite several orders from the probate court for a complete inventory, omitted in the partial inventories34 he filed therewith properties of the estate35 including several parcels of land, cash, bank deposits, jewelry, shares of stock, motor vehicles, and other personal properties, contrary to Section 1,36paragraph a, Rule 81 of the Rules of Court.

2. Emilio III did not take action on both occasions against Federico’s settlement of the decedent’s estate which adjudicated to himself a number of properties properly belonging to said estate (whether wholly or partially), and which contained a declaration that the decedent did not leave any descendants or heirs, except for Federico, entitled to succeed to her estate.37

In compliance to our Resolution dated 18 April 2012 requiring Emilio III to respond to the following imputations of Isabel that:

1. Emilio III did not file an inventory of the assets until November 14, 2002;

2. The inventory Emilio III submitted did not include several properties of the decedent;

3. That properties belonging to the decedent have found their way to different individuals or persons; several properties to Federico Suntay himself; and

4. While some properties have found their way to Emilio III, by reason of falsified documents;38

Emilio III refutes Isabel’s imputations that he was lackadaisical in assuming and performing the functions of administrator of Cristina’s estate:

1. From the time of the RTC’s Order appointing Emilio III as administrator, Isabel, in her pleadings before the RTC, had vigorously opposed Emilio III’s assumption of that office, arguing that "the decision of the RTC dated 9 November 2001 is not among the judgments authorized by the Rules of Court which may be immediately implemented or executed;"

2. The delay in Emilio III’s filing of an inventory was due to Isabel’s vociferous objections to Emilio III’s attempts to act as administrator while the RTC decision was under appeal to the Court of Appeals;

3. The complained partial inventory is only initiatory, inherent in the nature thereof, and one of the first steps in the lengthy process of settlement of a decedent’s estate, such that it cannot constitute a complete and total listing of the decedent’s properties; and

4. The criminal cases adverted to are trumped-up charges where Isabel, as private complainant, has been unwilling to appear and testify, leading the Judge of the Regional Trial Court, Branch 44 of Mamburao, Occidental Mindoro, to warn the prosecutor of a possible motu propio dismissal of the cases.

While we can subscribe to Emilio III’s counsel’s explanation for the blamed delay in the filing of an inventory and his exposition on the nature thereof, partial as opposed to complete, in the course of the settlement of a decedent’s estate, we do not find any clarification on Isabel’s accusation that Emilio III had deliberately omitted properties in the inventory, which properties of Cristina he knew existed and which he claims to be knowledgeable about.

The general denial made by Emilio III does not erase his unsuitability as administrator rooted in his failure to "make and return x x x a true and complete inventory" which became proven fact when he actually filed partial inventories before the probate court and by his inaction on two occasions of Federico’s exclusion of Cristina’s other compulsory heirs, herein Isabel and her siblings, from the list of heirs.

As administrator, Emilio III enters into the office, posts a bond and executes an oath to faithfully discharge the duties of settling the decedent’s estate with the end in view of distribution to the heirs, if any. This he failed to do. The foregoing circumstances of Emilio III’s omission and inaction become even more significant and speak volume of his unsuitability as administrator as it demonstrates his interest adverse to those immediately interested in the estate of the decedent, Cristina.

In this case, palpable from the evidence on record, the pleadings, and the protracted litigation, is the inescapable fact that Emilio III and respondent Isabel have a deep aversion for each other.1awp++i1 To our mind, it becomes highly impractical, nay, improbable, for the two to work as co-administrators of their grandmother’s estate. The allegations of Emilio III, the testimony of Federico and the other witnesses for Federico and Emilio III that Isabel and her siblings were estranged from their grandparents further drive home the point that Emilio III bears hostility towards Isabel. More importantly, it appears detrimental to the decedent’s estate to appoint a co-administrator (Emilio III) who has shown an adverse interest of some kind or hostility to those, such as herein respondent Isabel, immediately interested in the said estate.

Bearing in mind that the issuance of letters of administration is simply a preliminary order to facilitate the settlement of a decedent’s estate, we here point out that Emilio III is not without remedies to protect his interests in the estate of the decedent. In Hilado v. Court of Appeals,39 we mapped out as among the allowable participation of "any interested persons" or "any persons interested in the estate" in either testate or intestate proceedings:

x x x x

4. Section 640 of Rule 87, which allows an individual interested in the estate of the deceased "to complain to the court of the concealment, embezzlement, or conveyance of any asset of the decedent, or of evidence of the decedent’s title or interest therein;"

5. Section 1041 of Rule 85, which requires notice of the time and place of the examination and allowance of the Administrator’s account "to persons interested;"

6. Section 7(b)42 of Rule 89, which requires the court to give notice "to the persons interested" before it may hear and grant a petition seeking the disposition or encumbrance of the properties of the estate; and

7. Section 1,43 Rule 90, which allows "any person interested in the estate" to petition for an order for the distribution of the residue of the estate of the decedent, after all obligations are either satisfied or provided for.44

In addition to the foregoing, Emilio III may likewise avail of the remedy found in Section 2, Rule 82 of the Rules of Court, to wit:

Sec. 2. Court may remove or accept resignation of executor or administrator. Proceedings upon death, resignation, or removal. – If an executor or administrator neglects to render his account and settle the estate according to law, or to perform an order or judgment of the court, or a duty expressly provided by these rules, or absconds, or becomes insane, or otherwise incapable or unsuitable to discharge the trust, the court may remove him, or, in its discretion, may permit him to resign. When an executor or administrator dies, resigns, or is removed, the remaining executor or administrator may administer the trust alone, unless the court grants letters to someone to act with him. If there is no remaining executor or administrator, administration may be granted to any suitable person.

Once again, as we have done in the Decision, we exercise judicial restraint: we uphold that the question of who are the heirs of the decedent Cristina is not yet upon us. Article 992 of the Civil Code or the curtain bar rule is inapplicable in resolving the issue of who is better qualified to administer the estate of the decedent.

Thus, our disquisition in the assailed Decision:

Nonetheless, it must be pointed out that judicial restraint impels us to refrain from making a final declaration of heirship and distributing the presumptive shares of the parties in the estates of Cristina and Federico, considering that the question on who will administer the properties of the long deceased couple has yet to be settled.

Our holding in Capistrano v. Nadurata on the same issue remains good law:

The declaration of heirs made by the lower court is premature, although the evidence sufficiently shows who are entitled to succeed the deceased. The estate had hardly been judicially opened, and the proceeding has not as yet reached the stage of distribution of the estate which must come after the inheritance is liquidated.

Section 1, Rule 90 of the Rules of Court does not depart from the foregoing admonition:

Sec. 1. When order for distribution of residue is made. - x x x. If there is a controversy before the court as to who are the lawful heirs of the deceased person or as to the distributive shares to which each person is entitled under the law, the controversy shall be heard and decided as in ordinary cases.

No distribution shall be allowed until the payment of the obligations above mentioned has been made or provided for, unless the distributees, or any of them, give a bond, in a sum to be fixed by the court, conditioned for the payment of said obligations within such time as the court directs.45

Lastly, we dispose of a peripheral issue raised in the Supplemental Comment46 of Emilio III questioning the Special Second Division which issued the 18 April 2012 Resolution. Emilio III asseverates that "the operation of the Special Second Division in Baguio is unconstitutional and void" as the Second Division in Manila had already promulgated its Decision on 16 June 2010 on the petition filed by him:

7. The question is: who created the Special Second Division in Baguio, acting separately from the Second Division of the Supreme Court in Manila? There will then be two Second Divisions of the

Supreme Court: one acting with the Supreme Court in Manila, and another Special Second Division acting independently of the Second Division of the Supreme Court in Manila.47

For Emilio III’s counsels’ edification, the Special Second Division in Baguio is not a different division created by the Supreme Court.

The Second Division which promulgated its Decision on this case on 16 June 2010, penned by Justice Antonio Eduardo B. Nachura, now has a different composition, with the advent of Justice Nachura’s retirement on 13 June 2011. Section 7, Rule 2 of the Internal Rules of the Supreme Court provides:

Sec. 7. Resolutions of motions for reconsideration or clarification of decisions or signed resolutions and all other motions and incidents subsequently filed; creation of a Special Division. – Motions for reconsideration or clarification of a decision or of a signed resolution and all other motions and incidents subsequently filed in the case shall be acted upon by the ponente and the other Members of the Division who participated in the rendition of the decision or signed resolution.

If the ponente has retired, is no longer a Member of the Court, is disqualified, or has inhibited himself or herself from acting on the motion for reconsideration or clarification, he or she shall be replaced through raffle by a new ponente who shall be chosen among the new Members of the Division who participated in the rendition of the decision or signed resolution and who concurred therein. If only one Member of the Court who participated and concurred in the rendition of the decision or signed resolution remains, he or she shall be designated as the new ponente.

If a Member (not the ponente) of the Division which rendered the decision or signed resolution has retired, is no longer a Member of the Court, is disqualified, or has inhibited himself or herself from acting on the motion for reconsideration or clarification, he or she shall be replaced through raffle by a replacement Member who shall be chosen from the other Divisions until a new Justice is appointed as replacement for the retired Justice. Upon the appointment of a new Justice, he or she shall replace the designated Justice as replacement Member of the Special Division.

Any vacancy or vacancies in the Special Division shall be filled by raffle from among the other Members of the Court to constitute a Special Division of five (5) Members.

If the ponente and all the Members of the Division that rendered the Decision or signed Resolution are no longer Members of the Court, the case shall be raffled to any Member of the Court and the motion shall be acted upon by him or her with the participation of the other Members of the Division to which he or she belongs.

If there are pleadings, motions or incidents subsequent to the denial of the motion for reconsideration or clarification, the case shall be acted upon by the ponente on record with the participation of the other Members of the Division to which he or she belongs at the time said pleading, motion or incident is to be taken up by the Court. (Emphasis supplied)

As regards the operation thereof in Baguio City, such is simply a change in venue for the Supreme Court's summer session held last April.48

WHEREFORE, the Motion for Reconsideration is PARTIALLY GRANTED. Our Decision in G.R. No. 183053 dated 16 June 2010 is MODIFIED. Letters of Administration over the estate of decedent Cristina Aguinaldo-Suntay shall solely issue to respondent Isabel Cojuangco-Suntay upon payment of a bond to be set by the Regional Trial Court, Branch 78, Malolos, Bulacan, in Special Proceeding

Case No. 117-M-95. The Regional Trial Court, Branch 78, Malolos, Bulacan is likewise directed to settle the estate of decedent Cristina Aguinaldo-Suntay with dispatch. No costs.

SO ORDERED.

G.R. No. L-66574 June 17, 1987

ANSELMA DIAZ, guardian of VICTOR, RODRIGO, ANSELMINA and MIGUEL, all surnamed SANTERO, petitioners, and FELIXBERTA PACURSA guardian of FEDERICO SANTERO, et al., vs. INTERMEDIATE APPELLATE COURT and FELISA PAMUTI JARDIN, respondents.

Ambrosia Padilla, Mempin & Reyes Law Offices for petitioners.

Pedro S. Sarino for respondent F.P. Jardin.

PARAS, J.:

Private respondent filed a Petition dated January 23, 1976 with the Court of First Instance of Cavite in Sp. Proc. Case No. B-21, "In The Matter of the Intestate Estate of the late Simona Pamuti Vda. de Santero," praying among other things, that the corresponding letters of Administration be issued in her favor and that she be appointed as special Administratrix of the properties of the deceased Simona Pamuti Vda. de Santero.

It is undisputed: 1) that Felisa Pamuti Jardin is a niece of Simona Pamuti Vda. de Santero who together with Felisa's mother Juliana were the only legitimate children of the spouses Felipe Pamuti and Petronila Asuncion; 2) that Juliana married Simon Jardin and out of their union were born Felisa Pamuti and another child who died during infancy; 3) that Simona Pamuti Vda. de Santero is the widow of Pascual Santero and the mother of Pablo Santero; 4) that Pablo Santero was the only legitimate son of his parents Pascual Santero and Simona Pamuti Vda. de Santero; 5) that Pascual Santero died in 1970; Pablo Santero in 1973 and Simona Santero in 1976; 6) that Pablo Santero, at the time of his death was survived by his mother Simona Santero and his six minor natural children to wit: four minor children with Anselma Diaz and two minor children with Felixberta Pacursa.

Judge Jose Raval in his Orders dated December 1, 1976 1 and December 9, 1976 2 declared Felisa Pamuti

Jardin as the sole legitimate heir of Simona Pamuti Vda. de Santero.

Before the trial court, there were 4 interrelated cases filed to wit:

a) Sp. Proc. No. B-4 — is the Petition for the Letters of Administration of the intestate Estate of Pablo Santero;

b) Sp. Proc. No. B-5 — is the Petition for the Letters of Administration of the Intestate Estate of Pascual Santero;

c) Sp. Proc. No. B-7 — is the Petition for Guardianship over the properties of an Incompetent Person, Simona Pamuti Vda. de Santero;

d) Sp. Proc. No. B-21 — is the Petition for Settlement of the Intestate Estate of Simona Pamuti Vda. de Santero.

Felisa Jardin upon her Motion to Intervene in Sp. Proceedings Nos. B-4 and B-5, was allowed to intervene in the intestate estates of Pablo Santero and Pascual Santero by Order of the Court dated August 24, 1977.

Petitioner Anselma Diaz, as guardian of her minor children, filed her "Opposition and Motion to Exclude Felisa Pamuti Jardin dated March 13, 1980, from further taking part or intervening in the settlement of the intestate estate of Simona Pamuti Vda. de Santero, as well as in the intestate estate of Pascual Santero and Pablo Santero.

Felixberta Pacursa guardian for her minor children, filed thru counsel, her Manifestation of March 14, 1980 adopting the Opposition and Motion to Exclude Felisa Pamuti, filed by Anselma Diaz.

On May 20, 1980, Judge Ildefonso M. Bleza issued an order excluding Felisa Jardin "from further taking part or intervening in the settlement of the intestate estate of Simona Pamuti Vda. de Santero, as well as in the intestate estates of Pascual Santero and Pablo Santero and declared her to be, not an heir of the deceased Simona Pamuti Vda. de Santero." 3

After her Motion for Reconsideration was denied by the trial court in its order dated November 1, 1980, Felisa P. Jardin filed her appeal to the Intermediate Appellate Court in CA-G.R. No. 69814-R. A decision 4 was rendered by the Intermediate Appellate Court on December 14, 1983 (reversing the

decision of the trial court) the dispositive portion of which reads —

WHEREFORE, finding the Order appealed from not consistent with the facts and law applicable, the same is hereby set aside and another one entered sustaining the Orders of December 1 and 9, 1976 declaring the petitioner as the sole heir of Simona Pamuti Vda. de Santero and ordering oppositors-appellees not to interfere in the proceeding for the declaration of heirship in the estate of Simona Pamuti Vda. de Santero.

Costs against the oppositors-appellees.

The Motion for Reconsideration filed by oppositors-appellees (petitioners herein) was denied by the same respondent court in its order dated February 17, 1984 hence, the present petition for Review with the following:

ASSIGNMENT OF ERRORS

I. The Decision erred in ignoring the right to intestate succession of petitioners grandchildren Santero as direct descending line (Art. 978) and/or natural/"illegitimate children" (Art. 988) and prefering a niece, who is a collateral relative (Art. 1003);

II. The Decision erred in denying the right of representation of the natural grandchildren Santero to represent their father Pablo Santero in the succession to the intestate estate of their grandmotherSimona Pamuti Vda. de Santero (Art. 982);

III. The Decision erred in mistaking the intestate estate of the grandmother Simona Pamuti Vda. de Santero as the estate of "legitimate child or relative" of Pablo Santero, her son and father of the petitioners' grandchildren Santero;

IV. The Decision erred in ruling that petitioner-appellant Felisa P. Jardin who is a niece and therefore a collateral relative of Simona Pamuti Vda. de Santero excludes the natural children of her son Pablo Santero, who are her direct descendants and/or grand children;

V. The Decision erred in applying Art. 992, when Arts. 988, 989 and 990 are the applicable provisions of law on intestate succession; and

VI. The Decision erred in considering the orders of December 1 and December 9, 1976 which are provisional and interlocutory as final and executory.

The real issue in this case may be briefly stated as follows — who are the legal heirs of Simona Pamuti Vda. de Santero — her niece Felisa Pamuti Jardin or her grandchildren (the natural children of Pablo Santero)?

The dispute at bar refers only to the intestate estate of Simona Pamuti Vda. de Santero and the issue here is whether oppositors-appellees (petitioners herein) as illegitimate children of Pablo Santero could inherit from Simona Pamuti Vda. de Santero, by right of representation of their father Pablo Santero who is a legitimate child of Simona Pamuti Vda, de Santero.

Now then what is the appropriate law on the matter? Petitioners contend in their pleadings that Art. 990 of the New Civil Code is the applicable law on the case. They contend that said provision of the New Civil Code modifies the rule in Article 941 (Old Civil Code) and recognizes the right of representation (Art. 970) to descendants, whether legitimate or illegitimate and that Art. 941, Spanish Civil Code denied illegitimate children the right to represent their deceased parents and inherit from their deceased grandparents, but that Rule was expressly changed and/or amended by Art. 990 New Civil Code which expressly grants the illegitimate children the right to represent their deceased father (Pablo Santero) in the estate of their grandmother Simona Pamuti)." 5

Petitioners' contention holds no water. Since the heridatary conflict refers solely to the intestate estate of Simona Pamuti Vda. de Santero, who is the legitimate mother of Pablo Santero, the applicable law is the provision of Art. 992 of the Civil Code which reads as follows:

ART. 992. An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child. (943a)

Pablo Santero is a legitimate child, he is not an illegitimate child. On the other hand, the oppositors (petitioners herein) are the illegitimate children of Pablo Santero.

Article 992 of the New Civil Code provides a barrier or iron curtain in that it prohibits absolutely a succession ab intestato between the illegitimate child and the legitimate children and relatives of the father or mother of said legitimate child. They may have a natural tie of blood, but this is not recognized by law for the purposes of Art. 992, Between the legitimate family and the illegitimate family there is presumed to be an intervening antagonism and incompatibility. The illegitimate child is disgracefully looked down upon by the legitimate family; the family is in turn, hated by the illegitimate child; the latter considers the privileged condition of the former, and the resources of which it is thereby deprived; the former, in turn, sees in the illegitimate child nothing but the product of sin, palpable evidence of a blemish broken in life; the law does no more than recognize this truth, by avoiding further grounds of resentment. 6

Thus, petitioners herein cannot represent their father Pablo Santero in the succession of the letter to the intestate estate of his legitimate mother Simona Pamuti Vda. de Santero, because of the barrier provided for under Art. 992 of the New Civil Code.

In answer to the erroneous contention of petitioners that Article 941 of the Spanish Civil Code is changed by Article 990 of the New Civil Code, We are reproducing herewith the Reflections of the Illustrious Hon. Justice Jose B.L. Reyes which also finds full support from other civilists, to wit:

In the Spanish Civil Code of 1889 the right of representation was admitted only within the legitimate family; so much so that Article 943 of that Code prescribed that an illegitimate child can riot inherit ab intestato from the legitimate children and relatives of his father and mother. The Civil Code of the Philippines apparently adhered to this principle since it reproduced Article 943 of the Spanish Code in its own Art. 992, but with fine inconsistency, in subsequent articles (990, 995 and 998) our Code allows the hereditary portion of the illegitimate child to pass to his own descendants, whether legitimate or illegitimate. So that while Art. 992 prevents the illegitimate issue of a legitimate child from representing him in the intestate succession of the grandparent, the illegitimates of an illegitimate child can now do so. This difference being indefensible and unwarranted, in the future revision of the Civil Code we shall have to make a choice and decide either that the illegitimate issue enjoys in all cases the right of representation, in which case Art. 992 must be suppressed; or contrariwise maintain said article and modify Articles 995 and 998. The first solution would be more in accord with an enlightened attitude vis-a-vis illegitimate children. (Reflections on the Reform of Hereditary Succession, JOURNAL of the Integrated Bar of the Philippines, First Quater, 1976, Volume 4, Number 1, pp. 40-41).

It is therefore clear from Article 992 of the New Civil Code that the phrase "legitimate children and relatives of his father or mother" includes Simona Pamuti Vda. de Santero as the word "relative" includes all the kindred of the person spoken of. 7 The record shows that from the commencement of

this case the only parties who claimed to be the legitimate heirs of the late Simona Pamuti Vda. de Santero are Felisa Pamuti Jardin and the six minor natural or illegitimate children of Pablo Santero. Since petitioners herein are barred by the provisions of Article 992, the respondent Intermediate Appellate Court did not commit any error in holding Felisa Pamuti-Jardin to be the sole legitimate heir to the intestate estate of the late Simona Pamuti Vda. de Santero.

Lastly, petitioners claim that the respondent Intermediate Appellate Court erred in ruling that the Orders of the Court a quo dated December 1, 1976 and December 9, 1976 are final and executory. Such contention is without merit. The Hon. Judge Jose Raval in his order dated December 1, 1976 held that the oppositors (petitioners herein) are not entitled to intervene and hence not allowed to intervene in the proceedings for the declaration of the heirship in the intestate estate of Simona Pamuti Vda. de Santero. Subsequently, Judge Jose Raval issued an order, dated December 9, 1976, which declared Felisa Pamuti-Jardin to be the sole legitimate heir of Simona Pamuti. The said Orders were never made the subjects of either a motion for reconsideration or a perfected appeal. Hence, said orders which long became final and executory are already removed from the power of jurisdiction of the lower court to decide anew. The only power retained by the lower court, after a judgment has become final and executory is to order its execution. The respondent Court did not err therefore in ruling that the Order of the Court a quo dated May 30, 1980 excluding Felisa Pamuti Jardin as intestate heir of the deceased Simona Pamuti Vda. de Santero "is clearly a total reversal of an Order which has become final and executory, hence null and void. "

WHEREFORE, this petition is hereby DISMISSED, and the assailed decision is hereby AFFIRMED.

SO ORDERED.

Fernan (Chairman), Gutierrez, Jr., and Cortes, JJ., concur. Padilla and Bidin, JJ., took no part.